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Joyce v Civil Aviation Authority of Fiji [2022] FJCA 20; ABU130.2018 (4 March 2022)

IN THE COURT OF APPEAL, FIJI
ON APPEAL FROM THE HIGH COURT


CIVIL APPEAL NO. ABU 130 OF 2018
[High Court Civil Action No. HBJ 5 of 2018]


BETWEEN:


TIMOTHY JOHN JOYCE
Appellant


AND:


1. CIVIL AVIATION AUTHORITY OF FIJI

2. AJAI KUMAR
Respondents


Coram : Basnayake, JA
Lecamwasam, JA
Jameel, JA


Counsel : Mr. A. Narayan and Ms. S. Lata for the Appellant

Mr. R. P. Singh for the Respondent


Date of Hearing: 10 February 2022


Date of Judgment: 04 March 2022


JUDGMENT


Basnayake, JA


[1] I agree with the reasoning and conclusions arrived at by Lecamwasam JA.


Lecamwasam, JA


[2] This is an appeal preferred by the Appellant against the judgment dated 26 October 2018 of the High Court at Lautoka. The factual background of this case is aptly narrated by the Learned High Court Judge in his Ruling dated 5 July 2018, drawing from the applicant’s affidavit in support. Accordingly, the applicant (Appellant before this court) is the Chief Executive Officer, Director, and shareholder of Joyce Aviation (Fiji) Limited and has held the positions of Chief Pilot and accountable person of Sunflower Aviation Limited and Tandem Skydive (Fiji) Limited, both limited liability companies. Joyce Aviation (Fiji) Limited and Tall Pines Limited, also limited liability companies trade as Heli Tours Fiji and Pacific Flying School respectively. All these companies are involved in the aviation industry providing services such as flight services, scenic tours, skydiving activities, repair maintenance and storage of third party aircraft in hangars, and providing flights training. The Appellant has been involved in the operations of these companies including carrying out flight standards check on pilots until he received the decision of the respondents dated 27 December 2017, described in paragraph 4 below.


[3] On 26 February 2016, the Civil Aviation Authority of Fiji (CAAF), the 1st respondent has charged the Appellant with 29 counts of failure to comply with safe aircraft operation requirements in violation of section 70 (1) of the Air Navigation Regulation (ANR) 1981 at the Magistrates’ Court of Nadi. According to the Appellant’s narration of events, the offences had been committed in flying an airplane without a valid license on 29 occasions between 11 April 2015 and 20 July 2015 as the Appellant had overlooked the fact that the CAAF had omitted to stamp/renew his Commercial Pilot License (Aeroplane) and his Commercial Pilot License (Helicopter) when both those were submitted for renewal simultaneously. All the flights operated by the Appellant without a valid license are alleged to be private flights. The Appellant had initially pleaded not guilty to the charges but had subsequently pleaded guilty on 04 November 2016 when the CAAF had amended the charges on 21 July 2016. The basis for the change of stance of the Appellant had been that the offences resulted from an unintentional oversight and misunderstanding. On 08 December 2017 following mitigation, the Appellant was sentenced to a fine of $1,000.00 for each count.


[4] On 27 December 2017, the Mr. Ajai Kumar, Manager Corporate Services of CAAF (2nd respondent) had advised the Appellant that the CAAF had reviewed his conduct which violated section 70(1) of the Air Navigation Regulation (ANR) 1981 and had deemed the Appellant, no longer fit and proper person to hold or be issued an aviation document under regulation 53 of the ANR for a period of 10 years, to commence from the date of the conviction by the Nadi Magistrates Court as per section 6(1)(a) of the Rehabilitation Act. As a result of the said decision, the CAAF had revoked the Appellant’s Fiji Commercial Pilots Licenses for aeroplanes and helicopters and stripped him of his position as a nominated post holder under the provisions of CAAF Standards Document. The position of the CAAF had been conveyed to the Appellant by way of letter marked TJJ 5. The CAAF had also informed the Appellant that he had a right of appeal under section 12F of the Civil Aviation Authority of Fiji Act 1979. Consequently, the Appellant had instructed his solicitors to file an appeal with the Chief Executive of CAAF, which they did on 17 January 2018.


[5] The Appellant had filed an appeal in the High Court on 04 January 2018 against the sentence of the Magistrate’s Court. At the same time, the Appellant also filed an application for judicial review of the orders of the 1st respondent made on 27 December 2017 and writs of certiorari and prohibition. He alleged that the said orders constituted additional punishment for the offences which the Magistrate’s Court had already dealt with. The Appellant also claimed that the long periods of suspension imposed by the first respondent during its investigations were professionally injurious to the applicant resulting in significant losses, delays, and damaged credibility to his companies.


[6] With the above background the Learned High Court Judge had heard the case and made the following orders:-


“The outcome

  1. Writ of certio#160;(quashing order)rder) issued quashing the respondents’ decision of 27 December 2017.
  2. The respondents are directed toed to go through the decision making process again and to reconsider and reach a decision on the issue of the first named applicant’s conviction in accordance with the findings and guidelines suggested in this judgment.
  3. Applicants’ claim for damages is dismissed.
  4. The respondents shall pay summarily assessed costs of $4,000.00 to the Applicant”.

[7] Being aggrieved by the above Order, the Appellant urged this Court to grant the following reliefs:-


(a) The directions to the Respondents to go through the decision making process again and to reconsider and reach a decision on the issue of the first named Appellant’s conviction in accordance with the findings and guidelines suggested in the judgment be wholly set aside;
(b) The Respondent’s be ordered to pay damages to the Appellant to be assessed;
(c) The Respondents be ordered to pay indemnity costs to the Appellant in the High Court to be assessed;
(d) An order of prohibition / permanent stay preventing the Respondents from going through the decision making process again and / or to reconsider and reach a decision on the issue of the first named Appellant’s conviction in accordance with the findings and guidelines suggested in the judgment of the High Court or at all.

[8] The Appellant’s grounds of appeal filed before this court are as follows:-


GROUNDS OF APPEAL


  1. The Learned Judge erred in law and in fact in rejecting the application of Section 14(1) of the Constitution and the rule of double jeopardy generally to the Respondent dealing with the infringement of Regulation 70(1) of the Air Navigation Regulations 1981 and/or penalizing the First named Appellant again in the circumstances where:
    1. The Respondents had already prosecuted the First named Appellant for contravention if Regulation 70(1) for the act or omission of flying an aircraft with an expired Commercial Pilots Licence;
    2. The Respondents were dealing with the First named Appellant for breach of the same Regulations and the same acts or omissions to impose a further penalty internally;
    3. The Respondents had already determined the First named Appellant’s fit and proper status after the infringement having initially refused to permit any further renewal of the Appellant’s Commercial Pilots Licence and subsequently reviewing the same during the course of the prosecution in the Magistrate’s Court and after a plea of guilty thus rendering the issue under Regulations 53 a non-issue ; and
    4. The Respondents had abdicated their right to deal further with the First named Appellant internally having opted to follow the process of prosecuting him in the Magistrate Court.
  2. The Learned Judge erred in law and exceeded his jurisdiction in having allowed the Judicial Review and thereafter proceeding to give directions/recommendations as to how the Respondents should deal with the First named Appellant thereby usurping the role of the Respondents and causing prejudice to the First named Appellant.
  3. The Learned Judge failed to consider the further grounds, other than those which he allowed, relied on by the Appellant for the Judicial Review and in particular that section 12F of the Civil Aviation Authority Act 1979 was unconstitutional being in breach of Section 16(1) of the Constitution which was a relevant matter and ground in the circumstances where the Learned Judge had given directions/recommendations for the Respondents to deal with the First named Appellant thereby potentially depriving him of a remedy for challenge arising from any further decision.
  4. The Learned Judge erroneously held that no affidavit in reply was filed on behalf of the Appellant which resulted in:
  5. The Learned Judge erred in finding that the Appellant were not entitled to damages.
  6. The Learned Judge erred in law and in fact in not awarding indemnity costs or costs on another basis to the Appellant rather than on a summary assessment in view of all the circumstances.

[9] In addition to the above grounds, the Appellant filed a further supplementary Notice of Appeal and urged the following additional grounds of appeal:-


SUPPLEMENTARY GROUNDS OF APPEAL


  1. The Learned Judge erred in law when directing the Respondents to go through the decision making process again and further directing the Respondents (page 28) to consider only the penalty prescribed by Regulation 15(1) in view of the First Named Appellant’s conviction of the 29 contraventions of the ANR and in doing so further erred in that:
  2. The Learned Judge erred in law in finding that the First Named Appellant’s conviction entered in the Nadi Magistrate’s Court was a relevant factor (paragraphs 73,74,and 75) in determining a person’s fit and proper status to hold an aviation document under Regulation 53(2) of the Air Navigation Regulations and in giving direction 2 [paragraph 99(2)] by overlooking or failing to direct that:
  3. The Learned Judge erred in law by holding that the First Name Appellant’s conviction entered in the Nadi Magistrate’s Court was relevant [paragraph 74] when the Respondents considered the issuance was not a matter under Regulation 151(1) and he thereby elevated the conviction to a status not accorded by Regulation 53(2) and accordingly his directions to the Respondents were erroneous.
  4. The Learned Judge erred in law in failing to consider when remitting the matter to the Respondents that in view of the suspensions and refusals to renew the First Named Appellant’s license and fit and proper status during investigation’s, subsequently, pending the Nadi Magistrate’s Court hearing and thereafter that it would be unreasonable to impose any further penalties tantamount to being double punishment that such imposition would provide a ground for judicial review.
  5. The Learned Judge erred in law in issuing Direction 6 [page 29] and his findings that the 29 breaches summarized in the charges were “So serious as to undermine public confidence in the aviation industry” and that “a signal needed to be sent” to the First Appellant, “the profession, and the public, that the behavior in question is unacceptable: and to make a decision to mark the seriousness of the matter, and to send an appropriate signal to the aviation industry and the public” were made in the absence of any evidence that the public confidence had been undermined or that the breaches involved safety of the operation in question all being matters calling for the decision by the Respondents.

[10] Before responding to the entirety of the grounds of appeal, I advert my attention to the submissions made by the Appellant dated 23 October 2019 wherein paragraph 2.12 the Appellant states:


“...the appeal to this Court is not from the whole of the judgment of the High Court but restricted to remitting the matter back to the Respondents to consider the first named Appellant’s conviction and go through the decision making process again in terms of the findings and guidelines given by the High Court.”


[11] The Appellant consistently referred to this position even at the stage of oral submissions, which position was not challenged by the Respondents. Therefore, all efforts of the Appellant are centred on securing a remittance of the case back to the High Court. The main grievance of the Appellant relates to the instructions and guidelines contained in the judgment of the High Court which, it is argued, are inimical to an unbiased decision by the 1st respondent.


[12] The position of the Respondents is reflected in their submissions dated 20 March 2019. They emphasize the importance of holding an inquiry by the 1st respondent right throughout the written submissions and repeatedly asserted that it is their right to do so. However, they have not raised any firm objection against remitting the case back to the High Court.


[13] In view of the above, it becomes redundant to consider any ground other than the appropriateness of the directions and guidelines given by the Learned High Court Judge as to the conducting of the inquiry. Therefore I will confine myself to the matters arising in paragraph 99 of the Learned High Court Judge’s judgment.


[14] The Appellant moved the High Court for a writ of Certiorari to quash the decision of the 1st Respondent dated 27 December 2017, by which the CAAF disqualified him from holding any aviation document for a period of 10 years. In arriving at this decision, the CAAF had considered the applicant’s conviction by the Magistrate’s Court of 29 counts of failure to comply with safety of aircraft operation requirements contrary to the ANR.


[15] The Appellant also sought a writ of Prohibition prohibiting the Respondents from implementing or continuing to implement or otherwise giving effect to the decision dated 27th December 2017.


[16] The learned High Court Judge, being satisfied that the Appellant was entitled to the relief sought, allowed the application for judicial review and directed a fresh hearing as per Order 2 of the Orders made as follows:


“2. The respondents are directed to go through the decision-making process again and to reconsider and reach a decision on the issue of the first named applicant’s conviction in accordance with the findings and guidelines suggested in this judgment.”


[17] The specific complaint of the Appellant is in respect of paragraph 99 (1) and 99 (6) of the judgment, and Order 2 referred to above. The relevant paragraphs are reproduced below:

[99] I am inclined to remit the matter to the respondent for it to make a fresh decision. In doing so, I direct the respondent to go through the decision making process again. In addition, I also direct the respondent to consider the following matters.


1. Under Reg. 151 (1) of the ANR, CAAF possesses the discretion to revoke, suspend, endorse, cancel or vary the aviation document relating to such contravention if a person is convicted of a contravention under the ANR. CAAF must consider only the pe presdribed by Reg. 1eg. 151 (1) in view of Mr Timothy&#821onviction of the 29 contraventions of the ANR. Imposing any other penalty which is not pres prescribed under Reg. 151 (1) would tanta to&#ltra vires o160;or actr acting wt juri jurisdiction. In assessing the penalty CAAF has a duty to act judicially.
...

6. The 29 breaches as summarised in the charges, in my view, are so serious as to undermine public confidence in aviation industry and therefore a signal needs to be sent to Mr Timothy, the profession and the public, that behaviour in question is unacceptable. CAAF is entitled to exercise its discretion within the purview of the ANR and make a decision to mark the seriousness of the matter, and to send an appropriate signal to the aviation industry and the public.”


[18] The fundamental issue before this court at this juncture is whether the learned High Court Judge exceeded his jurisdiction in making comments, and giving instructions and directions on conducting the inquiry when he was not exercising appellate jurisdiction but was sitting in judicial review.


[19] The Appellant argues that the contents of paragraph 99 of the judgment demonstrates that the Learned High Court Judge erred in law by exceeding his jurisdiction in having allowed the application for Judicial Review and thereafter proceeding to give directions/ recommendations as to how the Respondents should deal with the Appellant. The Appellant claims that the learned High Court Judge thereby usurped the role of the 1st Respondent and caused prejudice to the Appellant because it will inhibit the role of the inquirer in the inquiry that is to be held against the Appellant.


[20] Further, the Appellant argues that the learned High Court Judge fell into error when he made such comments because the decision of whether the Appellant is a fit and proper person is a matter for the CAAF based on its Regulations and applicable criteria. Therefore, the Appellant seeks an order from this court to set aside in part or reverse or vary the judgment and order of the learned High Court Judge delivered on 26 October 2018.


[21] The Appellant drew the attention of court to the CAAF’s letter dated 27 November 2018 (copy record 495) which shows that the 1st Respondent indeed considers it bound by the comments and directions given by the High Court Judge.


[22] Considering the history and background of the matter as narrated by the 1st Appellant in his affidavit, it is obvious that the violations on the part of the Appellant had occurred through a failure to stamp the Appellant’s Commercial Pilots License for airplanes. It is implied that the Commercial Pilots License (Helicopter) submitted together with the Commercial Pilots License for airplanes has been stamped. Hence, it is safe to assume that there was no question of physical or mental unfitness to fly on the part of the Appellant, but the failure to satisfy an administrative requirement.


[23] The Respondents in their Affidavit dated 20 November 2019, a lengthy submission running into 62 paragraphs, were cautious enough to avoid commenting on the Appellant’s Helicopter license, conveniently side-stepping this issue. The failure to respond on the part of the Respondents gives rise to a reasonable presumption that the 1st Appellant had renewed his license for the helicopter, dispelling any notion of a lack of physical or mental fitness to fly. However, physical and mental fitness alone cannot be the only criteria to ascertain whether a person is a fit and proper person to fly an aircraft.


[24] Issuance of licenses is an important process in air navigation regulation designed to minimize risks to passengers and cargo by ensuring only trained professionals are eligible to fly aircrafts. An inquiry into the failure to renew a license held by the 1st Respondent, the regulatory body for air navigation in Fiji would necessarily involve many other elements relevant to air navigation beyond the physical and metal fitness of a person, which a court of law may not be qualified to determine due to a lack of expertise. Therefore, the 1st Respondent should be at liberty to make a determination in the inquiry, un-fettered by any guidelines issued by a court of law.


[25] Having filed written submissions, the respondents concluded thus:-


“1. It is submitted that the appeal be dismissed and the respondents are the regulators of the aviation industry and are required to investigate of the breach of air navigation regulations as directed by the High Court.”


[26] It is not in dispute, nor can the Appellant question the statutory appointment, that the 1st Respondent, as a regulator of the aviation industry in Fiji, and has the right to inquire into any breach of air navigation regulations. However the Appellant in his reply to the respondent’s submissions at 3.4 states:-


“3.4. In response to paragraphs 14 to 17 of the Respondents submission, the Appellant submit that the 1st Respondent’s powers and requirements to assess a person’s fit and proper status under Regulation 53(2) (b) is not denied. However, this Honourable Court would note that the ANR does not define ‘fit and proper’. This invites the question: How is the authority to assess fit and proper status? The Respondents have not relied on any of their own guidelines to assist in this task. What they suggest is the issue of conviction from Regulation 151 automatically becomes a relevant factor for the purpose of regulation 53(2) (b). This is untenable and misconceived as both provisions serve totally different purposes as highlighted in paragraphs 6.3 to 6.9 of the Appellant’s earlier submissions. There are many factors which are involved in this assessment including those prescribed in regulation 53(2) (b). Notably, there is an absence of any reference to a conviction”.


[27] As discussed previously, the Appellant’s main grievance is the Six conditions attached to the order of the learned High Court Judge at paragraph 99. The Learned High Court Judge had restricted the scope of inquiry by requiring compliance with the said conditions contained in paragraph 99 of his Order. If these conditions are allowed to subsist, it may prejudice the mind of the inquirer. Further, the adverse views which can be inimical to a proper and independent inquiry is likely to adversely influence the decision of the 1st respondent in relation to the Appellant. The content of paragraph 99 precludes the 1st respondent from lending its independent mind to factors such as the period of suspension in deciding whether the Appellant’s suspension should come to an end.


[28] Therefore, while I am in full agreement with the remainder of the learned High Court Judge’s decision, I am of the view that this case has to be remitted to the 1st Respondent for a fresh inquiry without any conditions or guidelines attached. Given the statutory power and the requisite expertise it possesses, the 1st respondent is best placed to conduct a free, fair, and unbiased inquiry.


[29] Subject to the above variation, the judgment of the Learned High Court Judge is affirmed and the case is remitted back to the High Court for a fresh inquiry.


[30] As mentioned, suffice is to say that I am in full agreement with the remainder of the conclusions at which the learned Judge has arrived up to paragraph 99 regarding the other connected matters. Therefore, I will not indulge in an elaborate discussion on the said matters.


[31] The issue of double jeopardy, which has been raised in appeal was abandoned at the stage of argument before us and therefore, does not require any consideration by this court.


[32] In view of the above unambiguous position regarding the remitting of the case to the High Court, it becomes redundant to delve into the remaining grounds of appeal.


Jameel, JA


[33] I have read the draft judgment of Lecamwasam JA and am in agreement with his
reasons, conclusions and proposed orders.


The Orders of the Court:


  1. Affirmed the judgment of the High Court Judge dated 26th October, 2018 subject to the variation discussed above as stated in paragraph 28 above.
  2. Parties to bear their own costs.

Hon. Justice E. Basnayake

Justice of Appeal


Hon. Justice S. Lecamwasam

Justice of Appeal


Hon. Justice F. Jameel

Justice of Appeal

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