THE DIRECTOR OF MARITIME NEW ZEALAND v PRENTICE [2018] NZHC 1397

THE DIRECTOR OF MARITIME NEW ZEALAND v PRENTICE [2018] NZHC 1397 [15 June 2018]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KOTI MATUA O AOTEAROAWHANGAREI TERENGA PARAOA ROHECIV-2017-488-111[2018] NZHC 1397IN THE MATTER Of an appeal under section 427 of theMaritime Transport Act 1994BETWEEN THE DIRECTOR OF MARITIME NEWZEALANDAppellantAND RICHARD JOHN PRENTICERespondentHearing: 23 April 2017Appearances: K Murray and S Winson for the AppellantF Pilditch for the RespondentJudgment: 15 June 2018JUDGMENT OF POWELL JThis judgment was delivered by me on15.06.18 at 3.30 pm, pursuant toRule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] The Director of Maritime New Zealand ("the Director") has appealed adecision of Judge G M Harrison in the District Court at Whangarei.1[2] In his decision dated 7 September 2017 Judge Harrison allowed an appealpursuant to s 424 of the Maritime Transport Act 1994 ("the Act") against a decision ofthe Director. On 3 May 2016, the Director revoked two of the respondent,Richard Prentice's, maritime documents; Mr Prentice's New Zealand Coastal MasterCertificate and his Commercial Launchmaster Certificate.[3] Although described as a re-hearing, as Mr Prentice's appeal to the DistrictCourt was the first opportunity for him to challenge the Director's decision, iteffectively proceeded as a de novo hearing before Judge Harrison.2 In particularwitnesses, including the Director and Mr Prentice, gave evidence and were cross-examined by counsel.[4] In contrast, the present appeal, pursuant to s 427 of the Act, is restricted to aquestion of law.[5] The issue before the Court is therefore whether the Director is able to establishon any basis that Judge Harrison erred in law in reaching his decision.The Director's Decision-Making Process[6] On 7 July 2015 the Director, Keith Manch, wrote to Mr Prentice in thefollowing terms:Notice of Proposed Adverse DecisionI am now writing to you because I propose to take action to revoke your threemaritime documents (Commercial Launchmaster, New Zealand CoastalMaster and Second Class Diesel Trawler Engineer) on the grounds that Iconsider that you are no longer a fit and proper person to hold thosedocuments.1 Prentice v Director of Maritime New Zealand [2017] NZDC 18737 [District Court Judgment].2 Maritime Transport Act 1994, s 425.[7] The Director explained that Maritime New Zealand had been reviewingMr Prentice's fit and proper person status with regard to his seafarer's certificates andwent on to explain:Fit and Proper Person AssessmentAny person who is issued a "maritime document" (as defined in section 2 ofthe Maritime Transport Act 1994) must be a "fit and proper person" (pursuantto section 41(1)(b)(ii) of the Maritime Transport Act 1994) to hold thedocument. It is an on-going condition that the holder of a maritime documentmust continue to satisfy the fit and proper person test.As you know, an internal review panel has been inquiring into whether youcontinue to satisfy the condition of your maritime documents that you remaina fit and proper person to hold those documents. They have now reported tome.A copy of their report, together with comments and an endorsement fromSharyn Forsyth, General Manager Maritime Standards, is enclosed, as anattachment to this email. The review panel's report is comprehensive and detailed. I note the reviewpanel's comment that (at paragraph 43):"We consider that all of these events, and the behavioural patternswhich they form, can be summarised or consolidated into oneoverarching theme: Mr Richard Prentice displays a disregard for bothmaritime safety and the potential or actual consequences of hisactions on others."The panel considers that your disregard for both maritime safety and thepotential or actual consequences of your actions is so significant that it resultsin you putting yourself and others at an unnecessary and unacceptablemaritime safety risk. The review panel recommended that I take complianceaction with regard to all three of your maritime documents.Before the report was provided to me, it was escalated to Sharyn Forsyth,General Manager Maritime Standards. While Ms Forsyth generally agreedwith the views of the review panel, she did have a slightly different view withregard to the compliance action that should be taken. Ms Forsyth consideredthat with regard to your [Second Class Diesel Trawler Engineer Certificate]there would be sufficient oversight by a skipper and the designated fit andproper person of that operation, for you to continue to hold that certificate.I do not agree. Rather I agree with the review panel that matters referred to inthe report affect the manner in which you would exercise the privileges of allthree of your certificates.In particular I place more weight on behavioural patterns two and four, whichreflect poor [judgement] and an inability to learn from your previousexperiences and to take responsibility. I also note that even the more stringentcompliance tool of prosecution does not have any noticeable deterrent effecton your future behaviour.I also note that you are the sole shareholder and director of Seafort HoldingsLimited. This puts you in a very influential position with regard to theoperations it conducts.Considering your compliance history, and your apparent attitude to bothindividual incidents and their place within a wider maritime safety context, Iagree with the views of the review panel, as set out in the report.Grounds of DecisionI have come to the view that you constitute an unacceptable latent risk withinthe maritime safety system.Having regard to the matters raised in the review panel's report, and the criteriafor assessment of whether a person is fit and proper person to hold a maritimedocument, I consider that you are not a fit and proper person to hold themaritime documents issued to you.In terms of the Maritime Transport Act 1994, I consider that the grounds arethat:• you have failed to comply with conditions of your maritimedocuments (ie you no longer satisfy the statutory condition ofbeing a fit and proper person to hold. your three maritimedocuments);• the privileges of those documents have been exercised by youin a careless and incompetent manner; and• the action I am proposing is necessary in the interests ofmaritime safety.The particulars of those grounds are contained within the review panel'sreport.[8] The Director concluded his letter to Mr Prentice by giving Mr Prentice theopportunity to make submissions on the proposed adverse decision.[9] The Review Panel report referred to in the Director's letter and provided toMr Prentice was dated 30 June 2015 ("the First Review Panel Report"). Thisdocument was prepared by three Maritime New Zealand staff; Lou Christensen(Manager, Personal Certification), Martin Harper (Specialist Investigator, Intelligenceand Planning), and Ceilhe Halpin (Technical Advisor, Domestic Operations). In thereport the Panel confirmed that its assessment: has been completed by way of a desktop review of relevant informationthat Maritime NZ holds about Mr Prentice. Mr Prentice has not been asked toprovide any further information, nor has any further information been soughtfrom any other sources outside of Maritime NZ.[10] The Review Panel went on to describe its methodology in assessing thatmaterial in the following terms:The Review Panel has considered which historical incidents and other mattersare relevant to this reassessment.A timeline of all relevant events is set out in the attached Appendix 3. Ourdetailed consideration of each event is contained in the attached Appendix 4.When considering the significance of all those matters, the Review Panel hasconsidered that the relevant events can be collated into a number of"behavioural patterns". These are:• His observance of general good seamanship including navigationalrequirements, and the observation of the collision regulations;• The more specific issue of his behaviour as a skipper of a High SpeedVessel;• How he has maintained the state of his vessel, in his capacity asskipper; and• His offence history, including maritime transport and fisheriesoffences.[11] The Panel went on to summarise the importance of these four patterns ofbehaviour:In summary of the four patterns of behaviour:• With regard to Behaviour Pattern One (general observance of goodseamanship, including navigation and "col regs"), there is a pattern ofnon-compliance that has caused serious risk to the safety of those inthe vicinity of the vessel Mr Prentice was operating. As aconsequence of a number of these seamanship-related issues,Maritime NZ required Mr Prentice to undertake a "safety oralexamination". Yet his subsequent behaviour resulted in anotherincident related to good seamanship. That further incident wasanother serious navigational "close quarters" incident, which putdivers in the vicinity at risk.• With regard to Behaviour Pattern Two (his behaviour as a skipper ofa High Speed Vessel), there is a pattern of Mr Prentice not learningfrom previous incidents sufficiently to manage the safety of hispassengers. This shows poor [judgement] as the skipper of a HighSpeed Vessel. Some of the issues relate much more to the overalloperation of the vessel, and its operational procedures and safetymanagement system. However, in his capacity as skipper, Mr Prenticeshould be contributing to those improvements and learning from anyprevious incidents, to improve the way in which the vessel is operated,in order to manage the safety of his passengers. Additionally, heshould be personally improving the way in which he operates thevessel, regardless of formal changes to the operation's operationalprocedures. This responsibility is in tandem with his role as the soledirector of the company, which effectively allows him to act as the"guiding hand" of the company.• With regard to Behaviour Pattern Three (maintaining the state of hisvessel), there are four incidents. All four involve the vessel "admittingwater" through the steering rod seals. This is an issue of concern, as,if unchecked, it could eventually result in the vessel taking onsubstantial water and eventually sinking. However, Mr Prentice doesnot sufficiently address the issue, and his response is to operate thevessel at "planing speed" (ie hydroplaning) to raise the vessel up outof the water. This would be a valid solution if effective during anemergency, but it should not be accepted as standard operatingprocedure.• With regard to Behaviour Pattern Four (offence history), there is apattern of six incidents covering a period of 12 years. Some of theoffending relates to Mr Prentice in his personal capacity and some toSeafort Holdings Ltd. With regard to the company convictions, it isrelevant that Mr Prentice is the sole director of the company.Additionally, Mr Prentice was personally skippering the vessel whenthe offending occurred. There is a range of offending coveringfisheries legislation, the Maritime Transport Act and the Health andSafety in Employment Act. The Review Panel considers that all ofthe offending is relevant to this extent: it establishes that - whether theprosecution is against him personally or his company - the fact of aprosecution has little or no deterrent effect on Mr Prentice's futurebehaviour. This is the case despite serious physical injury caused toothers in three situations (ie, loss of an eye and two serious backinjuries).We must consider "what does his past behaviour tell us about how he maylikely behave in the future?". This is why patterns of behaviour are soimportant. If there is a pattern, it is more likely that he will continue to act inthe same way in the future. In the maritime context, this means how will MrPrentice likely exercise the privileges of his maritime documents in the future.That is, how will Mr Prentice conduct himself as a skipper of a vessel and asa marine engineer.[12] As a result the Review Panel concluded that Mr Prentice was not fit and properto hold his maritime documents and made recommendations to this effect to theDirector.[13] After receiving the Notice of Proposed Adverse Decision, Mr Prenticeprovided a comprehensive submission in response. This was in turn referred back tothe Review Panel by the Director, which considered the information received fromMr Prentice against the behavioural patterns identified in the First Review PanelReport. Although in its second report of 29 April 20163 ("the Second Review PanelReport") the Panel accepted "that some of Mr Prentice's points in respect of individualevents have merit", it nonetheless concluded:Mr Prentice has demonstrated a lack of responsibility as a skipper and hasexercised poor judgement. He has failed to accept fault or responsibility forpoor operational decisions he has made and their outcomes.[14] The panel reiterated its recommendation that Mr Prentice was not a fit andproper person with regard to his Commercial Launchmaster and NZ Coastal MasterCertificates, but did conclude Mr Prentice remained a fit and proper person to hold hisSecond Class Diesel Trawler Engineer Certificate if conditions were imposed, andmade recommendations to that effect to the Director.[15] The Director accepted the revised recommendations made by the Review Paneland issued his formal decision on 3 May 2016. He confirmed the revocation of theCommercial Launchmaster and NZ Coastal Master documents and placed conditionson Mr Prentice's Second Class Diesel Trawler Engineer Certificate. Explaining thebasis for the decision the Director stated:The grounds of my proposed decision are set out in my letter to you of 7July 2015. I do not propose to elaborate on those, but wish to make someremarks relevant to the submissions you have made.In making my decision, I have had regard to the review panel's report, yoursubmission in relation to my proposed decision, and the subsequent advice Ihave received. Having been through that process, I remain of the view thatyou constitute an unacceptable latent risk with the maritime safety system.(emphasis added)[16] Mr Prentice subsequently appealed the decision to the District Court.The District Court Decision[17] Judge Harrison commenced his decision by setting out the background to theDirector's decision. In particular Judge Harrison summarised the appointment of theReview Panel, the First Review Panel Report, the notice of the proposed adversedecision, Mr Prentice's submissions, the referral back to the Review Panel and the3 Dated 12 February 2016 but apparently received on 29 April 2016.Director's decision of 3 May 2016. Judge Harrison then described his approach to theissues on appeal in the following terms:[44] The review panel's recommendation was based upon the four patternsof behaviour I have already referred to. The only member of the panel to giveevidence was Mr Halpin who was cross-examined at some length byMr Pilditch.[45] In his closing submission Mr Murray for the Director submitted:The appellant's sustained attack on the first review panel report iscompletely misconceived. It was only the start of the natural justiceprocess. If there were any errors or omissions in it then the appellanthad a full opportunity to repair them. He had a statutory obligation toensure that he provided all information that he wanted the director totake account of.[46] I do not agree that the "sustained attack" on the review panel reportwas misconceived.[47] When cross-examined, the Director, Mr Keith Manch, accepted thatas the Director and decision maker it was important for him to be independentin his judgment of the matters that affected Mr Prentice's maritime documents.He accepted that he had to be objective, maintain an open mind, to makedecisions fairly, and to be consistent with the principles of natural justice. Hewas then asked:Q But judging from your answer a moment ago the weight ofyour decision rested primarily on the description of events andconclusions made in the panel report, that's where you placethe weight in your decision?A That's what I spent most of my time referring to, yes.Q Rather than the source material contained in, for example,Appendix 5?A Yes.[48] Quite clearly then, the Director relied, in making his decision, uponthe panel's report, and not the source material, and so, if it could bedemonstrated that recommendations of the panel were flawed, particularly bytaking into account irrelevant or incorrect material, or by failing to take intoaccount relevant material, the Director's decision must necessarily also beflawed.(footnotes omitted)[18] Having set out his approach Judge Harrison undertook a detailed and carefulanalysis of the four patterns of behaviour identified by the Panel in its reports, reliedupon by the Director and referred to by the Director in his correspondence to MrPrentice. In each case Judge Harrison considered the incidents identified in the FirstReview Panel Report as supporting the same patterns of behaviour identified by theReview Panel against the other evidence before the Court, including that provided byMr Prentice.[19] While Judge Harrison accepted that Mr Prentice had a number of convictionsand had experienced a number of incidents, to the extent that there was any form ofpattern he found it reflected issues with his ability to operate and maintain a high speedpassenger vessel, the Mack Attack, rather than providing evidence that he was not a fitand proper person to hold maritime documents generally. In particular, with regard tothe four patterns of behaviour identified by the Review Panel and relied upon by theDirector:(a) Behaviour Pattern One – General Observance of GoodSeamanship including navigation and collision regulations – JudgeHarrison noted that there was no evidence to support a number of theincidents and that the remainder all involved the operation of the MackAttack rather than any other types of vessel.4(b) Behaviour Pattern Two – Behaviour as a skipper of a high speedvessel – Judge Harrison accepted a submission made on behalf ofMr Prentice that the incidents did not identify a "'pattern' from whichpoor [judgement], ignorance and irresponsibility can be inferred",noting also that there were issues with this type of vessel generally.5(c) Behaviour Pattern Three – Maintenance – Judge Harrison concludedthat the third pattern was of "no particular significance in decidingwhether Mr Prentice [was] a fit and proper person".6 In addition tonoting that the issue was not mentioned in the Director's submissions,he noted the incidents all related to the Mack Attack. His Honour againaccepted the submission made on behalf of Mr Prentice that:74 District Court Judgment, above n 1, at [62].5 At [76].6 At [77].7 At [83] and [84].Maintenance issues arose but it is the insinuation that[Mr Prentice] was cavalier and indifferent to thesemaintenance issues that is rejected, because it is unsupportedby the evidence.(d) Behaviour Pattern Four - Offence History – Judge Harrisonacknowledged Mr Prentice's convictions but noted that a number hadalready been referred to in the analysis of other patterns. As theReview Panel had noted the incidents were not "double counted", HisHonour could not understand why they were then included separatelyas a fourth behaviour pattern. Of the remainder Judge Harrisonconcluded that only one of the convictions could be found to havegiven rise to a safety issue, and this was 15 years prior to the PanelReport.8 Instead Judge Harrison noted the results of an audit carriedout by Maritime New Zealand on Mr Prentice in 2014, after all theconvictions referred to, which did not record any safety issues.[20] Having completed this analysis Judge Harrison assessed the Director'sdecision in the light of his approach set out at [17] above. He referred to the cross-examination of one of the Review Panel members, Mr Halpin, which confirmed thatin both the First Review Panel Report and the Second Review Panel Report, "it failedto reference information available to it that was positive about Mr Prentice". MrHalpin also accepted that the Panel made claims about Mr Prentice which did notappear to be supported on the information before the District Court.9 As a result JudgeHarrison reached the following conclusion:[99] Based on the foregoing the panel report on which the Director'sdecision was based cannot stand. It was prepared with a negative attitudetowards Mr Prentice despite evidence from Steve Mabbett Limited and MrJim Lyle, the Harbour Master, and the audit report of January 2015, to thecontrary. The report omitted material favourable to Mr Prentice and wasaccordingly unfair and lacked objectivity.[100] Furthermore all of Maritime NZ concerns related to the operation ofMack Attack. The report and the Director's decision endeavoured to extendperceived shortcomings in the operation of Mack Attack to Mr Prentice's entireseamanship when the evidence to support that was sparse if not non-existent.8 At [88].9 At [98].[101] My decision has been arrived at according to the principles stated inthe Austin, Nichols decision. As the Chief Justice said at [16]:Those exercising general rights of appeal are entitled to judgmentin accordance with the opinion of the appellate court even wherethat opinion is an assessment of fact and degree and entails a valuejudgment. If the appellate court's opinion is different from theconclusion of the tribunal appealed from, then the decision underappeal is wrong in the only sense that matters, even if it was aconclusion on which minds might reasonably differ.[102] The Director's decision was that Mr Prentice was no longer consideredto be a fit and proper person to hold the cancelled certificates. He concludedthat his action was necessary "in the interests of marine safety."[103] I do not accept that conclusion.[104] There were clearly incidents of concern with regard to the operationof Mack Attack and, in particular, the injury to Mrs Cooke in October 2014which appears to have been the critical incident leading to the restrictionsimposed on the operation of Mack Attack which ultimately caused the failureof the business and the losses suffered by Mr Prentice.[105] Section 50 of the Act specifies criteria for the assessment of a fit andproper person. The first criterion is the person's compliance history withtransport safety regulatory requirements. There have been some minorbreaches by Mr Prentice in that regard and I do not refer here to the injuriessuffered by passengers on the Mack Attack. That was a phenomenonassociated with other high speed passenger vessels as well and whileobviously serious do not fall within transport safety regulatory requirements.[106] The next criterion is the person's related experience within thetransport industry. Mr Prentice has worked within the industry for of the orderof 40 years in various roles. His current pursuit is the oyster farming activityand he is obviously properly experienced to continue with that.[107] The next criterion is his knowledge of the [applicable] maritimeregulatory requirements. Certainly, the comments of the Harbour Master andthe audit report confirm his necessary awareness of those requirements.[108] I have already referred to Mr Prentice's convictions for any transportsafety offences which in my view are minor and in the case of the Bay Belleand Okiato incidents may have been provoked by commercial competitors.[109] The phrase "fit and proper person" was explained by Lord Binghamin [R v Crown Court at Warrington, ex parte RBNB (an unlimited company)]as follows:10This is a portmanteau expression, widely used in many contexts.It does not lend itself to semantic exegesis or paraphrase and10 R v Crown Court at Warrington, ex parte RBNB (an unlimited company) [2002] UKHL 24, [2002]1 WLR 1954 (HL) at [9].takes its colour from the context in which it is used. It is anexpression directed to ensuring that an applicant for permissionto do something has the personal qualities and professionalqualifications reasonably required of a person doing whatever itis that the applicant seeks permission to do.[110] I am satisfied that Mr Prentice has those qualities and qualificationsreasonably required of him to exercise the privileges that flow from hiscertificates.[111] The decision of the Director of 3 May 2016 is quashed. Mr Prentice'scommercial launch master certificate is reinstated. His New Zealand coastalmaster certificate is also reinstated, but is subject to a condition that it doesnot authorise him to operate a high speed passenger vessel without receivinga separate approval to do so.[21] Judge Harrison also commented on Mr Prentice's Second Class Diesel TrawlerEngineer Certificate in the following terms:[112] The conditions imposed on Mr Prentice's second class diesel trawlerengineer certificate were not a subject of this appeal. I can discern no reasonfor the imposition of those conditions, but make no order in that regard. Leaveis reserved for memoranda to be filed in respect of the condition I haveimposed on the New Zealand coastal master certificate should that prove to benecessary, or generally on the reinstatement of the two certificates.[22] As a result the appeal was allowed.The Basis of the Appeal[23] The original notice of appeal filed on behalf of the Director listed sevengrounds that, rather than disclosing any error of law in Judge Harrison's decision, wereclearly focused on His Honour's analysis of the facts. As Toogood J noted in a casemanagement conference minute of 27 November 2017:Mr Murray has provided particular grounds of appeal which, however, readvery much as a general attack on the Judge's findings of fact and thesufficiency of the evidence. Mr Pilditch for the respondent protests that theappellant seeks in reality to embark on a general appeal challenging theevidential basis for the Judge's findings.[24] As a result Toogood J directed Mr Murray, as counsel for the Director, to recastthe appeal. An amended notice of appeal was therefore filed on 1 February 2018 withthe two grounds advanced as follows:1. No person acting judicially and properly instructed as to the relevantlaw could have found that the respondent satisfied the fit and properperson test in section 50 of the Maritime Transport Act 1994 giventhe respondent's extensive history of convictions for safetyoffences including crew and passenger injuries;2. No person acting judicially and properly instructed as to the relevantlaw could have found that the appellant's conduct was unfair to therespondent without consideration of section 51 of the MaritimeTransport Act 1994 and the common law principles of natural justice.(emphasis added)[25] After Mr Pilditch, counsel for Mr Prentice, also raised objections to the first ofthe grounds in the amended notice of appeal. Mr Murray offered to amend the firstground by deleting the reference to Mr Prentice's alleged "extensive history ofconvictions". While that amendment effectively broadened out the appeal again andwas apparently not formally agreed by the parties nor minuted by the Court, it was onthe basis of the amended notice of appeal as subsequently proposed to be modifiedthat the appeal proceeded to hearing. The final grounds relied upon by the Directorwere therefore that:1. No person acting judicially and properly instructed as to the relevantlaw could have found that the respondent satisfied the fit and properperson test in section 50 of the Maritime Transport Act 1994.2. No person acting judicially and properly instructed as to the relevantlaw could have found that the appellant's conduct was unfair to therespondent without consideration of section 51 of the MaritimeTransport Act 1994 and the common law principles of natural justice.[26] With regard to the first ground Mr Murray relied upon the well-knownauthorities of Edwards (Inspector of Taxes) v Bairstow11 and Bryson v Three Foot SixLtd12 in submitting: the Judge failed to take heed of the authorities and correctly apply the fitand proper person principles. In particular, it seems apparent that contrary tothe whole purpose of the statutory test, the private interests of Mr Prenticewere given priority over the public interest which the Judge made no mentionof. Thus this is apparently one of those rare cases "in which there is noevidence to support the determination" or "one in which the evidence isinconsistent with and contradictory of the determination" or "one in whichthe true and only reasonable conclusion contradicts the determination".11 Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 (HL).12 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721.It is respectfully submitted that the correct approach for the Judge, standing inthe shoes of the Director, was to:(a) address the fit and proper person principles illustrated by the case law;(b) acknowledge the concessions made by Mr Halpin under cross-examination in relation to the First Review Panel Report;(c) apply the fit and proper person principles by assessing to what extentif any the concessions detracted from the expert advice in both ReviewPanel Reports;(d) recognise that the subject matter involved the opinion of technicalexperts such as Mr Halpin;(e) evaluate the Director's decision and the reconsideration and decidewhether to confirm it, refer it back for reconsideration or allow theappeal (depending on the results of the evaluation).[27] Notwithstanding this position, the argument changed significantly in the courseof the hearing when it was pointed out to Mr Murray that Judge Harrison had clearlyconsidered the application of s 50 of the Act at [105] – [108] of his judgment, and therewas no dispute that Judge Harrison had set out a correct formulation of the fit andproper person test at [109] of his judgment.13 As a result, Mr Murray submitted, theerror of law in Judge Harrison's approach was to have focused on the First ReviewPanel Report when he needed to have focussed in on the Review Panel's second report,the analysis of Mr Prentice's submissions and evidence. When it was pointed out inturn that Judge Harrison had been clear with the procedure he had followed and hadnoted explicitly, in the course of his judgment, that Mr Prentice's submissions hadbeen considered by the Review Panel and rejected,14 Mr Murray turned to focus onthe lack of reasoning provided by Judge Harrison for rejecting the Review Panel'sanalysis of Mr Prentice's submission in their second report, accepting as he did so,that on the evidence before Judge Harrison even if Judge Harrison had provided morereasons "he may have taken a different view" than that reached by the Review Panel.[28] With regard to the second ground of the appeal it was Mr Murray's submissionthat the Director had "observed all the procedural requirements in s 51 by giving thenotice prescribed and enclosing the First Review Panel Report including all of the13 See [20] above.14 District Court Judgment, above n 1, at [42] and [94].documents relied on by the Review Panel", and that after that "the onus shifted toMr Prentice because of section 51(5)".[29] Mr Murray went on to submit:The Judge has apparently conflated the proposed decision and the finaldecision into the one decision based only on the First Review Panel Report.There is no reference to section 51 or the obligation Mr Prentice had to correctany defects he thought existed in the First Review Panel Report. Mostsignificantly, there is no analysis of the Second Review Panel Report on whichthe Director's final decision was actually based or the Director's decisionitself.It is therefore submitted there was no breach of natural justice and the SecondReview Panel Report and the Director's careful consideration of it remains asound basis for the revocation decision that was made.Discussion and Analysis[30] It is immediately apparent that, notwithstanding the attempts made to identifyan error of law, the primary concern of the Director has been and remains the factualanalysis undertaken by Judge Harrison and the conclusions that he then reached. Thereason for this appears to be a perception on the part of the Director, stated a numberof times in the course of the hearing before me, that Judge Harrison's findings weresomehow "extraordinary".[31] As a result even the final iteration of the first ground of appeal was in essencefocused on factual issues. Not only it is clear that Judge Harrison did apply s 50 andthe fit and proper person test, Mr Murray was unable to identify any error in the wayJudge Harrison applied either s 50 or the fit and proper person test. Despite the clarityof Judge Harrison's approach and his conclusion that the flaws in the First ReviewPanel Report remained unaddressed notwithstanding the Review Panel considerationof Mr Prentice's submissions and evidence, Mr Murray's substantive criticism wasthat Judge Harrison's reasoning was insufficient. As a result, rather than submittingJudge Harrison could not have come to the conclusion that he did, Mr Murrayultimately accepted that had there been more reasoning Judge Harrison may havereached a different conclusion.[32] With respect, in an appeal on a question of law, that argument is insufficient.It contrasts sharply with the way in which the issue had been put in the AmendedNotice of Appeal, which reflected the approaches taken in Edwards (Inspector ofTaxes) v Bairstow and Bryson v Three Foot Six Ltd by alleging that no person (in thiscase Judge Harrison) properly directed could have concluded that the Director waswrong and allowed the appeal in the District Court. The foundation for this type ofargument was summarised in Edwards (Inspector of Taxes) v Bairstow in the followingterms:15I think that the true position of the court in all these cases can be shortly stated.If a party to a hearing before commissioners expresses dissatisfaction withtheir determination as being erroneous in point of law, it is for them to state acase and in the body of it to set out the facts that they have found as well astheir determination. I do not think that inferences drawn from other facts areincapable of being themselves findings of fact, although there is value in thedistinction between primary facts and inferences drawn from them. When thecase comes before the court it is its duty to examine the determination havingregard to its knowledge of the relevant law. If the case contains anything exfacie which is bad law and which bears upon the determination, it is,obviously, erroneous in point of law. But, without any such misconceptionappearing ex facie, it may be that the facts found are such that no person actingjudicially and properly instructed as to the relevant law could have come tothe determination under appeal. In those circumstances, too, the court mustintervene. It has no option but to assume that there has been somemisconception of the law and that, this has been responsible for thedetermination. So there, too, there has been error in point of law. I do notthink that it much matters whether this state of affairs is described as one inwhich there is no evidence to support the determination or as one in which theevidence is inconsistent with and contradictory of the determination, or as onein which the true and only reasonable conclusion contradicts thedetermination. Rightly understood, each phrase propounds the same test. Formy part, I prefer the last of the three, since I think that it is rather misleadingto speak of there being no evidence to support a conclusion when in cases suchas these many of the facts are likely to be neutral in themselves, and only totake their colour from the combination of circumstances in which they arefound to occur.[33] Similarly in Bryson v Three Foot Six Ltd Blanchard J stated:16An appeal cannot, however, be said to be on a question of law where the fact-finding Court has merely applied law which it has correctly understood to thefacts of an individual case. It is for the Court to weigh the relevant facts inthe light of the applicable law. Provided that the Court has not overlooked anyrelevant matter or taken account of some matter which is irrelevant to theproper application of the law, the conclusion is a matter for the fact-findingCourt, unless it is clearly insupportable.15 Edwards (Inspector of Taxes) v Bairstow, above n 11, at 35-36.16 Bryson v Three Foot Six Ltd, above n 12, at [25]-[27] (footnotes omitted).An ultimate conclusion of a fact-finding body can sometimes be soinsupportable - so clearly untenable - as to amount to an error of law: properapplication of the law requires a different answer. That will be the positiononly in the rare case in which there has been, in the well-known words of LordRadcliffe in Edwards v Bairstow, a state of affairs "in which there is noevidence to support the determination" or "one in which the evidence isinconsistent with and contradictory of the determination" or "one in which thetrue and only reasonable conclusion contradicts the determination". LordRadcliffe preferred the last of these three phrases but he said that eachpropounded the same test. In Lee Ting Sang itself the Privy Council concludedthat reliance upon dicta of Denning LJ in two cases "of a wholly dissimilarcharacter" may have misled the Courts in Hong Kong in the assessment of thefacts and amounted in the circumstances to an error of law justifying settingaside concurrent findings of fact. Their Lordships were of the opinion that thefacts pointed so clearly to the existence of a contract of service that the findingthat the applicant was working as an independent contractor was, quoting thewords of Viscount Simonds in Edwards v Bairstow, "a view of the facts whichcould not reasonably be entertained", which was to be regarded as an error oflaw. In Lee Ting Sang the facts demonstrated so clearly that the applicant wasan employee that it was the true and only reasonable conclusion.It must be emphasised that an intending appellant seeking to assert that therewas no evidence to support a finding of the Employment Court or that, to useLord Radcliffe's preferred phrase, "the true and only reasonable conclusioncontradicts the determination", faces a very high hurdle. It is important thatappellate Judges keep this firmly in mind. Lord Donaldson MR has pointedout in Piggott Brothers & Co Ltd v Jackson the danger that an appellate Courtcan very easily persuade itself that, as it would certainly not have reached thesame conclusion, the tribunal which did so was certainly wrong:"It does not matter whether, with whatever degree of certainty, theappellate court considers that it would have reached a differentconclusion. What matters is whether the decision under appeal was apermissible option. To answer that question in the negative in thecontext of employment law, the appeal tribunal will almost alwayshave to be able to identify a finding of fact which was unsupported byany evidence or a clear self-misdirection in law by the IndustrialTribunal. If it cannot do this, it should re-examine with the greatestcare its preliminary conclusion that the decision under appeal was nota permissible option ... "[34] It follows from these authorities that as soon as Mr Murray conceded it wouldhave been possible for Judge Harrison to have reached the conclusions that he did onthe evidence before him, the rule in Edwards (Inspector of Taxes) v Bairstow, assubsequently explained in Bryson v Three Foot Six Ltd, could not apply.[35] It is quite clear that when Judge Harrison identified the flaws in the fourpatterns of behaviour set out in the First Review Panel Report, he was in fact assessingthe information available to the Panel against the other information available,including that provided by Mr Prentice to the Director and considered by the Panelprior to the Director making his decision. Having formed his own assessment of thestrength of all of the evidence, it is implicit in Judge Harrison's decision he consideredthe reasoning in the First Review Panel Report remained an integral part of theDirector's final decision. This conclusion was clearly open on the facts before him,as Mr Manch explicitly relied upon the First Review Panel Report in making his finaldecision.17[36] As a result, applying Edwards (Inspector of Taxes) v Bairstow and Bryson vThree Foot Six Ltd I am satisfied that the first ground of the appeal cannot stand,regardless of how it is articulated.[37] The second ground of appeal is also misconceived. As noted at [25] above thesecond ground of appeal alleges unfairness with reference to s 51 of the Act, althoughthe oral argument ended up covering much of the same ground as the first ground ofappeal.[38] With specific reference to s 51, it is clear that Judge Harrison did not determinethe appeal because of any procedural unfairness to Mr Prentice. The issue beforeHis Honour was, when looking at the evidence in its entirety, whether Mr Prentice wasa fit and proper person in terms of s 50 of the Act. As noted, Judge Harrison undertookhis own analysis of the patterns of behaviour underpinning the Director's decision,and concluded there was insufficient evidence to support that finding and as a resultthe Director's decision could not stand. It is clear that Judge Harrison did not set asidethe Director's decision because the process was unfair. Rather, Judge Harrisondiscussed the deficiencies in the First Review Panel Report's conclusions and inparticular why the four patterns of behaviour attributed to Mr Prentice were unsound,and noted they provided an unbalanced and one-sided picture for a variety of reasons,including that at the time they were written Mr Prentice had not been involved inproviding information to the Director.[39] It is nonetheless clear, and was acknowledged by Judge Harrison, that afternotice of the proposed adverse decision was provided to Mr Prentice on 7 July 201517 See [15] above.he was then given an opportunity, pursuant to s 51 of the Act, to provide submissionsto the Director. In this regard s 51 relevantly provides:51 Notice to persons affected by proposed adverse decisions(2) Where the Director proposes to make an adverse decision under thisAct in respect of any person, the Director, by notice in writing, shall—(a) Notify the person directly affected by the proposed decisionof the proposed decision; and(b) Subject to subsection (4) of this section, inform that person ofthe grounds for the proposed decision; and(c) Specify a date by which submissions may be made to theDirector in respect of the proposed decision, which date shallnot be less than 21 days after the date on which the notice isgiven; and(d) Where appropriate, specify the date on which the proposeddecision will, unless the Director otherwise determines, takeeffect, being a date not less than 28 days after the date onwhich the notice is given; and(e) Notify the person of the person's right of appeal under section424 of this Act, in the event of the Director proceeding withthe proposed decision; and(f) Specify such other matters as in any particular case may berequired by any provision of this or any other Act.(5) Where any notice or copy of a notice is given to any person under thissection, the following provisions shall apply:(a) It shall be the responsibility of that person to ensure that allinformation that that person wishes to have considered by theDirector in relation to the proposed decision is received by theDirector within the period specified in the notice undersubsection (2)(c) of this section, or within such further periodas the Director may allow:(b) The Director may consider any information supplied by thatperson after the expiry of the period referred to in paragraph(a) of this subsection, other than information requested by theDirector and supplied by that person within such reasonabletime as the Director may specify:(c) The Director shall consider any submissions made inaccordance with paragraph (a) of this subsection, other thaninformation requested by the Director and supplied pursuantto a request referred to in paragraph (b) of this subsection.(6) After considering the matters referred to in subsection (5) of thissection, the Director shall—(a) Finally determine whether or not to make the proposedadverse decision; and(b) As soon as practicable thereafter, notify in writing the persondirectly affected, and any other person of a kind referred to insubsection (3)(a) of this section, of—(i) The Director's decision and the grounds for thedecision; and(ii) The date on which the decision will take effect; and(iii) In the case of an adverse decision, the consequencesof that decision and any applicable right of appeal(being a right of appeal specified in section 41(6) orsection 43(7) or section 44(4) of this Act).[40] There is no dispute that the Director fulfilled his obligations under s 51, andthat Mr Prentice also availed himself of the opportunity to make a submission to theDirector, which he did on 15 September 2015.[41] It is, as Mr Pilditch noted, difficult to see how the procedural requirements ofs 51 which were complied with by both parties could possibly translate into some sortof error made by Judge Harrison for the purposes of the appeal. Judge Harrison wasnot mistaken as to the process. He concluded on the basis of the information availablethat the Director had an insufficient basis to conclude Mr Prentice was not a fit andproper person for the purposes of s 50 to continue to hold his maritime certificates. Asa result the second ground of appeal must also fail.[42] Although this is sufficient to dispose of the appeal, two further commentsshould be made:(a) Notwithstanding the strenuous attempts by the Director and Mr Murrayto identify an error of law, it is clear that throughout what they havebeen objecting to are the factual conclusions drawn by Judge Harrisonon the material relied upon by the Director in making his decision.Those conclusions, with regard to the four patterns of behaviour wereindeed available to His Honour on the evidence before him, and farfrom ignoring the more serious accidents identified in the Review Panelreports relating to the Mack Attack, recognised the issue was not one ofwhether Mr Prentice was a fit and proper person, but rather that therewere issues around his ability to maintain and operate a fast passengervessel. Finding that there were issues in this regard Judge Harrisonadded the conditions preventing Mr Prentice from operating suchvessels without first obtaining approval from the Director. Given thefactual conclusions reached by Judge Harrison such an outcome wasclearly appropriate, and in no way some type of "extraordinary" findingas suggested by Mr Murray.(b) As Judge Harrison noted the issue of the conditions imposed by theDirector on Mr Prentice's Second Class Diesel Trawler EngineerCertificate were not before the Court. Like Judge Harrison, I find itdifficult to see on what basis such conditions were imposed by theDirector but agree that in the circumstances Judge Harrison was correctin not making any orders in relation to that certificate.Decision[43] The appeal is dismissed. Mr Prentice is entitled to costs on a 2B basis. In theevent there is any disagreement on calculation of the costs I will determine the issuefollowing the filing of memoranda of not more than three pages._______________________________Powell J