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Lavemai v Kingdom of Tonga (Director of Civil Aviation) [2022] TOSC 67; CV 67 of 2021 (9 August 2022)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION

NUKU’ALOFA REGISTRY


CV 67 of 2021


BETWEEN:

NORMA LAVEMAI Plaintiff

-and-

KINGDOM OF TONGA (Director of Civil Aviation) Defendant


JUDGMENT


BEFORE: LORD CHIEF JUSTICE WHITTEN QC
Appearances: Mrs D. Stephenson KC for the Plaintiff
Attorney General for the Defendant
Trial: 1, 5, 6 July 2022

Submissions: Plaintiff 6 July 2022; Defendant 18 July 2022; Plaintiff reply 25 July 2022

Judgment: 9 August 2022


The issue

  1. At all material times, the Plaintiff was employed by Tonga Airports Limited (“TAL”) as its Chief Safety and Quality Assurance officer. To occupy that senior position within TAL, and for TAL to be issued and maintain certain certificates or approvals (“aviation documents”) permitting it to operate the airports, the Plaintiff was required by s. 55 of the Civil Aviation Act (“the Act”) to be a ‘fit and proper person’. Prior to the events which precipitated this proceeding, the Plaintiff was recognised by the Civil Aviation Division (“CAD”) as a fit and proper person.
  2. The Plaintiff was also named in a number of TAL’s certificates[1] as a nominated senior person, who had control over the exercise of the privileges in those certificates on behalf of TAL.
  3. In determining whether a person is fit and proper, for any purpose under the Act, including having control over the exercise of the privileges specified in approvals, the Director of Civil Aviation (“the Director”) is required to have regard to the criteria provided in s. 56. If the Director proposes to take into account any information that is or may be prejudicial to a person, ss 56(5) requires the Director to disclose that information[2] to that person and, in accordance with s. 57, give that person a reasonable opportunity to refute or comment on it.
  4. Section 57, which is at the heart of this proceeding, provides:

57 Rights of persons affected by proposed adverse decisions

(1) In this section, unless the context otherwise requires —

“adverse decision” means a decision of the Director to the effect that a person is not a fit and proper person for any purpose under this Act;

“affected document holder”, in relation to a person directly affected by an adverse decision, means the holder of or the applicant for the aviation document;

“person directly affected”, in relation to any adverse decision, means the person who would be entitled under section 230 to appeal against that adverse decision; and

“person on the basis of whose character the adverse decision arises”, in relation to any adverse decision made or proposed to be made on the grounds referred to in section 56, means the person whom the Director assesses as not being a fit and proper person.

(2) Where the Director proposes to make an adverse decision under this Act in respect of any person, the Director, by notice in writing, shall —

(a) notify the person directly affected by the proposed decision;

(b) subject to subsection (4), inform that person of the grounds for the proposed decision;

(c) specify a date by which submissions may be made to the Director in respect of the proposed decision, which date shall not be less than 21 days after the date on which the notice is given;

(d) where appropriate, specify the date on which the proposed decision will, unless the Director otherwise determines, take effect, being a date not less than 28 days after the date on which the notice is given;

(e) notify the person of the person's right of appeal under section 230, in the event of the Director proceeding with the proposed decision; and

(f) specify such other matters as in any particular case may be required by any provision of this or any other Act.

(3) Where the Director gives a notice under subsection (2), the Director —

(a) shall also supply a copy of the notice to —

(i) any person on the basis of whose character the adverse decision arises, where that person is not the person directly affected by the proposed decision; and

(ii) any affected document holder, where the Director considers that the proposed decision is likely to have a significant impact on the operations of the document holder; and

(b) may supply a copy of the notice to any other affected document holder.

(4) No notice or copy of a notice given under this section shall include or be accompanied by any information referred to in section 56(1), except to the extent that —

(a) the notice or copy is supplied to the person to whom the information relates; or

(b) that person consents to the supply of that information to any other person.

(5) Where any notice or copy of a notice is given to any person under this section, the following provisions shall apply —

(a) it shall be the responsibility of that person to ensure that all information that that person wishes to have considered by the Director in relation to the proposed decision is received by the Director within the period specified in the notice under subsection (2)(c), or within such further period as the Director may allow;

(b) the Director may consider any information supplied by that person after the expiry of the period referred to in paragraph (a), other than information requested by the Director and supplied by that person within such reasonable time as the Director may specify;

(c) the Director shall consider any submissions made in accordance with paragraph (a), other than information requested by the Director and supplied pursuant to a request referred to in paragraph (b).

(6) After considering the matters referred to in subsection (5), the Director shall —

(a) finally determine whether or not to make the proposed adverse decision; and

(b) as soon as practicable thereafter, notify in writing the person directly affected, and any other person of a kind referred to in subsection (3)(a), of —

(i) the Director's decision and the grounds for the decision;

(ii) the date on which the decision will take effect; and

(iii) in the case of an adverse decision, the consequences of that decision and any applicable right of appeal (being a right of appeal specified in sections 55(4), 18(8) or 19(5)).


  1. On 13 August 2021, after what he considered to be an unsatisfactory safety audit of TAL’s operations, the then Director of the CAD, Mr John Havea, revoked a number of TAL’s certificates[3] as an airport operator and then re-issued conditional approvals to permit TAL to continue to operate the airports for the next 90 days, during which time, TAL was required to apply for recertification and its nominated senior personnel (which included the Plaintiff) were to be reassessed in respect of their status as fit and proper persons. The re-issued certificates continued to name the Plaintiff as a nominated senior person.
  2. On or before 1 September 2021, the Director determined that the Plaintiff was no longer a fit and proper person (“the decision”).
  3. On 24 November 2021, the Plaintiff applied for leave to apply for judicial review of the decision. On 2 December 2021, leave was granted.
  4. The Plaintiff seeks a declaration that the decision was wrong at law, manifestly unfair, and that the Director failed to observe the procedural requirements of the Act prior to making the decision and an order quashing it.
  5. During the trial, counsel for the Defendant conceded that, before making the decision, the Director did not comply with the requirements of ss 56(5) or 57. However, the Defendant contends, in summary, that the Director was not required to comply with those provisions and they did not apply to the Plaintiff because, in short, at the relevant time, and as a consequence of the revocation of TAL’s approvals, both TAL and the Plaintiff were “out of the civil aviation system”.

Background

  1. The Plaintiff gave evidence. The Defendant called evidence from Mr Havea, David Tohi (an aviation consultant), Sione Fifita (a member of TAL’s board of directors between August 2019 and February 2022), ‘Aisiena Taumpoepeau (TAL’s Acting Chief Executive Officer) and Mele Havea (a CAD Safety Officer).
  2. Most of the documents tendered at trial,[4] particularly by the Defendant, went to the merits of the decision, the process of TAL’s application for re-certification and other extraneous issues, rather than the process by which the Director arrived at it, and the application or otherwise of ss 56(5) and 57 of the Act, with which the Plaintiff’s claim is concerned.
  3. Given the narrow ambit of the real issue for determination – whether ss 56 and 57 applied – and the fortunate absence of any material disputes on the facts, the relevant chronology may be (relatively) briefly stated.
  4. On Saturday, 26 June 2021, the Director advised TAL by email that a safety audit inspection would be carried out on 29 June 2021. The audit was to proceed in accordance with a program provided by David Tohi, who had been engaged by the CAD as an auditor/inspector. Mr Tohi gave evidence that he held a delegation[5] of certain of the Director’s powers under the Act.
  5. At that time, the Plaintiff was on leave. She gave evidence that she was never directed to return from leave to attend the audit and that there were other TAL personnel who were able to assist with the audit. That evidence was uncontradicted.
  6. On 29 June 2021, the audit did not proceed because relevant TAL personnel were not available.
  7. On 30 June 2021, David Tohi emailed TAL’s then CEO, Viliami Ma’ake, and advised him that the audit would ‘pause and reconvene’ on Friday, 2 July 2021. He also noted that there was no quality management system in place, a number of documents were required, and he hoped that someone from QA (quality assurance) would be available on the Friday.
  8. On 1 July 2021, TAL’s then Deputy CEO, Tino Fuka, advised David Tohi that he would do his best to make the requested documents available.
  9. On 2 July 2021, the Plaintiff, whilst still on leave, emailed Tino Fuka with her comments on David Tohi’s email. As TAL’s QA staff were still unavailable, the audit was deferred to 9 July 2021.
  10. However, on 7 July 2021, David Tohi emailed Tino Fuka (copied to the Plaintiff) and stated that due to TAL’s lack of co-operation, the remainder of the audit would be ‘called off’ and that he would be recommending to the Director that TAL’s approvals be suspended.
  11. On the evening of 8 July 2021, the Director emailed a letter to Viliami Ma’ake requiring TAL to show cause, within 10 days, why he should not invoke section 18 of the Act and suspend TAL’s approvals. The reasons cited included the audit being called off due to the ongoing unavailability of the Plaintiff as Chief Safety and Quality Assurance Officer despite the audit been delayed to accommodate her leave, none of the other QA staff being available during the same audit period, an email request pursuant to ss 16(3) of the Act for documentation being ‘ignored’ in a manner which might leave him no option but to invoke ss 172 and 173 of the Act (offences of obstruction of persons duly authorised by the Director and failure or refusal to produce or surrender documents), and other areas of concern including lack of evidence of an effective Quality Management System in place, major non-compliances with Part 12 (incident reporting requirements) and expired test equipment. Attached to the letter was a summary of the audit findings containing 50 'issues' categorised either as non-compliance with a Civil Aviation Rule or a documented procedure not being followed.
  12. On 9 July 2021, Viliami Ma’ake responded in terms that the CAD’s email about the audit was received on a Saturday, at that time the plaintiff had been approved to go on leave, and that he would write a formal letter to clarify the issue.
  13. TAL did not respond to the show cause notice.
  14. On 4 August 2021, the Director sought legal advice from the Attorney General’s Office on whether he had power to revoke TAL’s approvals ‘and/or re-issue short-term approvals’, compelling TAL to undergo a full re-certification exercise based on the audit findings.
  15. On 12 August 2021, the Attorney General provided that advice. The document was discovered in the proceeding and included in the court book as part of the evidence for trial thereby expressly waiving legal professional privilege. Relevantly, and in summary, the Director was advised as follows:
  16. On 13 August 2021, the Director revoked TAL’s approvals purportedly pursuant to s. 19. The grounds for the revocation included a lack of facilitation of the audit; failure to provide records, manuals and documents; the high number of audit findings ("some quite major") reflecting a poor certification process; an unacceptable lack of compliance with Part 12 requirements; overdue calibration of testing equipment; and a lack of response to the show cause letter. The Director required TAL to return its certificates to the CAD forthwith. However, he then wrote:
"In order that air services to, from and throughout the Kingdom of Tonga are not unfairly impacted,[6] I have concurrently reissued the same approvals for a reduced period of 90 days and during this period TAL must re-apply for re-certification under each of the Approvals held including 19 F Supply.
It is recommended that:
1. TAL management seek a time to meet with the CAD should there be a need for further clarification.
2. TAL to provide a CAP Corrective Action Plan (with milestones) to show how it will step through the recertification process within the next 90 days.
3. As part of this recertification application, the Part 139 Aerodrome Operating Certificate for Lupepau’u International Airport be submitted as a separate organisation; and required to nominate/provide a separate senior person team including, CEO and QAM.
4. Any/all senior nominated persons be reassessed to confirm their suitability as FPP (fit and proper persons)
...”
  1. The Director then explained the ‘ICAO 5 phase certification process’ that would be applied, which comprised pre-application, formal application, document evaluation, demonstration and inspection, and final certification. He concluded by reminding TAL of its right of appeal under ss 57 and 230, ‘if it chose to do so’.
  2. The re-issued certificates were of the same form and content as those that were revoked save that the re-issued certificates had an expiry date of 13 November 2021. Otherwise, and where applicable, they certified various aspects of TAL’s operations such as its internal quality management system and security programme as ‘accepted’ and continued to name the Plaintiff (as Chief Safety & Quality Assurance) among TAL’s nominated senior persons.
  3. During their evidence, Messrs Havea and Tohi repeatedly referred to their understanding of the effect of the revocation on the rights of TAL and the Plaintiff. A typical expression of their understanding, which reflects the Defendant’s core defence in the proceeding, is found in the following passages from Mr Tohi’s brief of evidence:
“4(m) ... TAL certificates have been revoked and TAL is outside the system. TAL must now reapply for a full new certification. Because of the revocation, all senior persons are deemed no longer Fit & Proper (not competent)...

9. When the certificates were revoked on August 13, 2021, TAL was exited from the aviation system. This means that TAL can no longer exercise any privileges as it is no longer a certificate holder, and TAL is no longer in the system. This includes any Senior Person associated with the revised certificate.
...
22. As the Senior Persons associated with the revoked certificates, any privileges they had were revoked and became null and void when the TAL certificates were revoked...”
  1. During his cross-examination, Mr Havea said that his understanding that the revocation meant that senior persons such as the Plaintiff were no longer fit and proper was not based on legal advice nor did he seek any advice on the effects of the revocation on the rights and obligations prescribed by provisions such as s. 57 vis-à-vis TAL and the Plaintiff. When asked about the bases for that belief and his belief that s. 57 did not apply to TAL and the Plaintiff while they were ‘outside the system’, Mr Havea could not point to any provision of the Act but said that it was based on ‘normal practice’. He added that these were unprecedented times, with the Covid-19 pandemic, and it was the first time he had revoked certificates and then re-issued them the same day. In hindsight, he said, he should have obtained legal advice.
  2. Also on 13 August 2021, the Plaintiff and other TAL personnel prepared a Corrective Action Plan which responded to each of the audit summary findings.
  3. On 16 August 2021, the Director emailed Tino Fuka (copied to numerous others including the Plaintiff) calling for a meeting the next day to discuss the revocation of the certificates and the next steps the CAD expected to see take place. He then stated:
“I would also like to advise you that Norma Lavemai (QA TAL) is also emailing me this morning that TAL is not undergoing a re-certification process. Let me make it very clear here that if TAL does not intend to undergo re-certification then CAD will have no choice but to advise the AG's office to proceed with prosecution action."
  1. In fact, in her email to the Director on 16 August 2021, the Plaintiff stated:
"The forms I was given by the [CAD] staff at Mele’s direction is for re-certification, and we have no intention of re-certification until the status of the certificates TAL holds are confirmed subsequent to the last re-certification audit conducted by PASO in September 2019 whilst our certificates were all still valid in preparation for the USOAP ICVM."
  1. On 17 August 2021, a meeting took place between representatives of the CAD and TAL, including the Plaintiff. She recorded the discussions. A transcript of that record was produced which evidenced a number of disagreements, particularly between the Plaintiff and the Director.
  2. On 18 August 2021, the Director wrote to Tino Fuka in the following terms:
"The meeting Tuesday (17th August 2021) confirmed beyond any reasonable doubt that the TAL senior persons are not fully aware of the civil aviation legislation that they are required to comply with and operate under to remain within the Tonga civil aviation system. This is quite alarming to say the least and vindicates the decision made to revoke the approvals held by TAL.
It also raises questions about the veracity of the initial certification of TAL conducted by PASO (and flagged by ICAO inspectors), as well as the ongoing surveillance activity that was carried out subsequently.
Coincidentally, the following TAL approvals have expired:
No renewal application was received from TAL, as required; at least 60 days prior to expiry. This again, in addition to the lack of response to my show cause letter (8th of July 2021), shows a blatant disregard and an ongoing culture of non-compliance sponsored by TAL CEO senior managers.
This culture needs to change immediately, otherwise prosecution under the Safety Offences in Part XIII of the Act will be invoked...."
  1. The Director then set out a number of "next steps" which included "Review nominated senior persons (meet FPP as well as qualifications, experience, skills required)”. Below that, his recommendations included "3. Any/all senior nominated persons be reassessed to confirm their suitability as if FPP (Fit and Proper Persons) considering that the TAL Approvals were revoked.”
  2. Below the Director’s signature was what he described as a "CAD schematic on the 'life-cycle' approach to the Civil Aviation System in Tonga”. The diagram had been adopted from the New Zealand civil aviation system.[7] It illustrated an applicant proceeding through "entry control" then on to a number of “intervention points”[8] such as monitoring performance, audits and inspections, assessment of behaviour, ensuring compliance, through to "exit control" if a participant’s performance is determined to be insufficient to retain privileges, thereby becoming an "ex document holder".
  3. On 23 August 2021, Tino Fuka provided the Director with TAL's action plan to obtain re-certification. He also advised that TAL would provide daily updates on progress and that it had its managers "on board on this exercise".
  4. On 25 August 2021, a pre-application meeting was held. Again, arguments erupted between those present, particularly the Plaintiff versus the Director and David Tohi. The transcript of that meeting, as confirmed by the Plaintiff during her evidence, showed that the Director questioned the Plaintiff’s abilities, technical qualifications and understanding. He said he did not want her there, so she asked to leave.
  5. Later that day, the Director emailed Posesi Bloomfield, one of TAL’s directors, complaining about the Plaintiff’s attitude toward him and “CAD delegated Inspector/Auditor Tohi” as being unacceptable. He referred to her reluctance to accept the legal advice of the Attorney General, Solicitor General and Mr Bloomfield “re PASO” at the meeting as being beyond his comprehension. He thought the TAL Board “would have resolved this issue by now”. In relation to what occurred at the meeting, the Director continued:
"... she continued down on the same track and advised that she has a different interpretation of legislation in relation to reporting of incidents etc. and Tino advised that Norma is going to do training about legislation requirements for incident reporting and I advised to hold such training and get someone else to do such training and/or we will look at someone else to do such training.
We cannot allow someone who does not agree with CAD, TAL Board Director (legal counsel) and the Government’s AG and SG on the interpretation of the Civil Aviation Act 2014 to go and teach operational staff on the legislation requirements if they don't firstly understand the law themselves and agree with us on the same issue and interpretation of the law.
I recommend again, that TAL Board help themselves first, by getting the right people to work with us to do this certification, otherwise we will spend most of the time arguing about the law and not doing certification where time is running out quickly...."
  1. On 26 August 2021, David Tohi emailed Mr Bloomfield to re-emphasise and reiterate that the revocation of TAL's approvals was “not a minor matter” and “not something that should be taken lightly”. He added, relevantly:
"Any revocation means that the Senior Persons are deemed no longer 'fit & proper' as per section 56 of the Civil Aviation Act....
CAD in the meantime, is awaiting a decision/directive from the Board in respect to the request made by the Director of Civil Aviation to provide for a new QA and Acting CEO to allow us to proceed with the recertification exercise.
Should no decision be forthcoming from the TAL Board, CAD in its assessment of the submission on Monday will review Senior Persons nominated by TAL, and the senior persons directly involved in the resultant revocation will not be accepted as FPP, meaning that TAL will have to nominate new persons incurring a further delay...
From CAD's view, this recertification work (including training) will not proceed as expeditiously as possible due to the current incumbents not being deemed fit and proper, and yet tasked by TAL to carry out this recertification work....”
  1. Mr Tohi then inserted an image of a template checklist for a fit and proper person assessment. The checklist referred to the information therein being required pursuant to s. 9 of (the New Zealand) Civil Aviation Act 1990.
  2. Mr Bloomfield responded by apologizing on behalf of the Board and assuring the Regulator that TAL fully intended to meet the CAD's requirements within the 90 day timeframe. He copied in the TAL Board as well as Tino and the Plaintiff "for fairness".
  3. On 30 August 2021, a meeting was conducted to discuss the re-certification process and applications for senior persons.
  4. That same day, TAL submitted its applications for recertification in respect of each of the approvals which had been earlier revoked by the Director and conditionally reissued. In fact, the form provided was entitled "Application for issue, renewal or amendment of Aviation Security Service Certificate”. At section 6 of the application, the list of nominated senior persons and areas of responsibility continued to include the Plaintiff as Chief Safety and QA. The supporting documents included fit and proper person declarations for the nominated senior persons and annexed their respective resumes.
  5. Mr Tohi gave evidence that TAL’s application for re-certification “would be treated as an initial application, including for all senior person nominations”.[9]
  6. Later, during his cross-examination, Mr Tohi testified that on 31 August 2021, he completed a “Senior Person Assessment Summary” in respect of the Plaintiff which task had been delegated to him by the Director.
  7. Mr Tohi's assessment summary was not discovered prior to trial. It was eventually produced after the trial. In affidavits filed on 8 July 2022, Mr Tohi explained that his assessment was conducted during July and August 2021, that he completed the assessment on 31 August by inserting handwritten notes in the form which he then typed up on 20 September 2021. The electronic file of the document was last modified on 27 September 2021. Meleane Lafitani, a CAD Assistant Ground Safety Officer, deposed that she received the assessment document in or about December 2021. The document was not then signed by Mr Tohi. Mele Havea deposed to carrying out a search on 6 and 7 July 2022 and finding the document in the CAD's "Aerodromes folder".
  8. Within the summary, Part 2: Assessment, appeared the words "Under section 56 of the Civil Aviation Act 2014 - Criteria for fit and proper person test". The balance of the document set out in separate sections various of the considerations within s. 56. While in some, Mr Tohi referred to the audit and the Plaintiff’s ‘combative and obstructive attitude’, in others, he raised issues with the Plaintiff’s qualifications when she was first appointed to her role. In his assessment outcome, Mr Tohi wrote:
"Applicant has failed to understand the severity of losing the approvals granted to TAL (171, 172, 139, 140) and continues to downplay it significance. Also has failed to ensure that a Part 19F Approval is in place prior to providing fuel in Vava'u. Due to the demonstrable high level of non-compliances identified and the lack of ownership, and especially concerning is the lack of understanding of the Civil Aviation Act 2014, as well as a failure to understand the civil aviation regulatory system in Tonga - the applicant is assessed as not meeting the requirements of being deemed 'fit & proper' for this critical role. Therefore, she must stand down for a period of two years prior to being renominated and considered for a senior person role."
  1. Mr Tohi verbally conveyed that recommendation to the Director. In evidence, he explained that the recommendation for the Plaintiff to be stood down for two years was ‘part of industry practice’.
  2. In their briefs of evidence, Mr Havea confirmed that s. 56 “was applied to” the Plaintiff and that she had failed the FPP test in respect of a number of requirements.[10] Mr Tohi also stated that the Plaintiff had been “objectively assessed against s. 56 and did not meet the criteria for the fit and proper test”.[11]
  3. When Mr Havea was asked why s. 56 was applied if, as he had earlier explained, the Plaintiff was ‘out of the system’, he said he could not provide a logical explanation. However, Mr Havea maintained that his re-issuing of the conditional certificates to enable TAL and the Plaintiff to continue to operate the airports ‘did not bring them back into the system’.
  4. Mr Tohi gave similar evidence. He, too, was unable to explain how TAL and the Plaintiff were out of the system when, at the same time, they were continuing to operate the airports for at least the next 90 days, and during which, the Plaintiff’s status as a fit and proper person was being reassessed. Mr Tohi sought to buttress his response by adding that TAL continued to operate the airports ‘under the supervision of the CAD’. That qualification, if it was the case, was not referred to in any on the documents referred to in evidence.
  5. Later on 31 August 2021, the Director emailed Sione Fifita and Inoke Vala of TAL’s Board, and called for a meeting to advise them of the CAD's assessment of “TAL Certification Senior Person" and to discuss other issues.
  6. On 1 September 2021, after their meeting, the Director wrote to Messrs Fifita and Vala in relation to “Phase 2 - Formal Application - assessment of submission”. After reciting the circumstances that led to the revocation action on 13 August 2021, the Director stated:
“Because of the revocation, all senior persons are deemed no longer Fit & Proper (not competent). In this recertification the following senior persons - responsible for the revocation have been assessed and do not meet the criteria for FPP and need to stand down for a period of two years:
COO – Tino Fuka
CSQA – Norma Lavemai ...”
  1. In relation to TAL’s organisational structure, the Director stated that the re-certification would require:
“... a complete new restructure of the organisation - as the current structure has been shown to be dysfunctional and efficient. Most organisations now have a flat structure that is more agile and effective.”
  1. In its Statement of Defence, the Defendant denied that the above was an adverse decision within the meaning of that term in ss 57(1). During his cross-examination, Mr Havea conceded that it was.
  2. It was not until 26 September 2021 that Sione Fifita forwarded the Director’s letter to Tino and the Plaintiff.
  3. On 28 September 2021, the Plaintiff responded to Mr Fifita with her comments in response to a number of issues raised by the Director. In relation to her having been deemed not fit and proper, she wrote:
"... It would be appreciated if the DCA can state the basis for this adverse decision.

...

I believe the DCA can at least afford me this courtesy under section 57 of the Civil Aviation Act 2014. I cannot accept the recommendation ... as I believe I have done what is required of me as CSQA responsible for Safety and Quality Assurance to the best of my ability. If being the best QA means not speaking up when things seem wrong or have the guts to question decision-making when it does not comply with the legal requirements, then that is the only shortfall on my part.”
  1. During his cross-examination, Mr Fifita said that he did not pass on the Plaintiff’s responses to the Director but that he did raise them during a TAL Board meeting.
  2. The Plaintiff gave evidence that at no time was she ever notified by the CAD that she was being assessed nor was she asked for any information or given an opportunity to be heard in relation to any assessment of her being a fit and proper person for the purposes of the Act and TAL’s application for re-certification. That evidence was not challenged. Moreover, Mr Havea agreed with it.
  3. On 12 November 2021, on the stated bases of the revocation of TAL’s certificates and the Director’s adverse decision that the Plaintiff was no longer a fit and proper person, TAL terminated the Plaintiff’s role as Chief Safety and Quality Assurance Officer and ‘redesignated’ her in an advisory role.
  4. On 16 November 2021, TAL placed the Plaintiff on three months paid leave.
  5. On 19 November 2021, TAL was re-certified.
  6. On 21 November 2021, Tino Fuka passed away.
  7. In May 2022, Mr Havea’s employment as Director of Civil Aviation came to an end. When asked about the circumstances, he said, with the same translucent circumspection which marked much of his evidence at trial, that he “did not resign”.
  8. As at the date she gave evidence, the Plaintiff remained on paid leave.

Submissions

Defendant

  1. As the Defendant called evidence at trial, and its case on the real issue in the proceeding appeared to be based heavily on (if not actuated by) the beliefs of Messrs Havea and Tohi as to the effects of the revocation of TAL’s certificates (putting TAL and the Plaintiff ‘out of the civil aviation system’ and rendering the Plaintiff no longer a fit and proper person, and to whom ss 56(5) and 57 therefore no longer applied), it is convenient to first summarise the Defendant’s case from the Statement of Defence as developed in closing submissions as follows:

Plaintiff

  1. From the Amended Statement of Claim and her closing submissions at trial, Mrs Stephenson KC put the Plaintiff’s case, in summary, as follows:

Consideration

  1. Judicial review allows the Court to exercise a supervisory role over, inter alia, public bodies and tribunals, to ensure that public powers are exercised lawfully: Touliki Trading Ltd v Fakafanua [1995] Tonga LR 8. As both parties here have observed, the Court is not concerned with the merits of the decision and will not seek to usurp the statutory role of the decision maker with its own view of the issue/s for determination under the statute: Ve'ehala v Kingdom of Tonga [2014] TOCA 23. The Court is only concerned with whether the decision-making process was lawful: Jones Business Services Ltd v Kingdom of Tonga [2020] TOSC 101.
  2. The grounds upon which administrative action is subject to judicial review have been conveniently classified as ‘illegality’, ‘irrationality’ and ‘procedural impropriety’: Pekipaki v Fifita [2018] TOCA 19 at [29].[17] The decision-maker, in making its evaluation and drawing its conclusions, must proceed upon a correct interpretation of relevant law and must have taken account of relevant considerations and ignored irrelevant considerations. A decision maker must understand correctly the law that regulates his decision-making power and must give effect to it: Pekipaki v Fifita, supra. To proceed otherwise is for the repository to proceed in contravention of a limitation on the decision-making authority impliedly imposed by the legislature, i.e., to commit a jurisdictional error: 'Atenisi Institute Inc v Tonga National Qualifications and Accreditation Board [2019] TOSC 45 at [257].[18] To fail in any of these respects is an error of law: Rotomould (Pacific) Ltd v Ministry of Meteorology, Energy, Information, Disaster Management, Environment, Climate Change and Communications [2020] TOSC 114.
  3. After considering the pleadings, the evidence and submissions at trial, and for the reasons which follow, the Defendant’s case must be rejected.
  4. The Defendant’s contention that the Plaintiff was not subject to, and the Director was not required to apply, ss 56 or 57, was founded on two propositions, namely, that the revocation of TAL’s certificates on 13 August 2021 had the effect of:
  5. Those propositions were unsupported by a proper interpretation of the Act (and the Civil Aviation Rules), involved ‘bootstrap’ reasoning,[19] and were misconceived.
  6. A convenient starting point on the reach and application of the Act is s. 4 which provides, relevantly, that the Act and all Regulations and Rules made under it apply to ‘every person’ in the Kingdom. That immediately militates against any purported distinction between persons ‘inside’ or ‘outside’ the civil aviation system.
  7. Insofar as the Defendant sought to distinguish between TAL’s position and that of the Plaintiff on the basis that it was TAL that was the certificate holder, and not the Plaintiff (being TAL’s employee), s. 2 defines a “holder”, in relation to any aviation document, as including any person lawfully entitled to exercise privileges in respect of that document. On both the original and re-issued certificates in which she was named as a nominated senior person, the Plaintiff was lawfully entitled to exercise privileges in respect of those documents.
  8. Subsection 55(1) provides that a Director shall grant an application if he is satisfied that, among other things, the applicant and any person who is to have or is likely to have control over the exercise of the privileges under the document either holds the relevant prescribed qualifications and experience or holds acceptable foreign qualifications; is a fit and proper person to have such control or hold the document; and meets all other relevant prescribed requirements. It may be accepted therefore that before issuing TAL’s original certificates the subject of this proceeding, the then Director (or his predecessor), was satisfied that TAL and the senior persons it nominated (including the Plaintiff) complied with those requirements.
  9. Although the circumstances leading to the Director’s revocation of TAL’s certificates on 13 August 2021 is not directly relevant to the issue for determination, it may nonetheless be observed, as a reflection of the approach taken by the Director to his rights and obligations under the Act, that his decision to revoke the certification was not in compliance with s. 19. Subsection (3) provides that if the Director proposes to revoke an approval granted, he shall give notice in accordance with s. 57, which applies as if the proposed action were a proposed adverse decision under the Act. The Director’s show cause letter of 8 July 2021 was not a notice pursuant to ss 19(3). In fact, it did not contain any reference to that provision. The letter required TAL to show cause as to why the Director should not invoke s. 18 and suspend TAL’s approvals. TAL’s approvals were never suspended.
  10. Even if the revocation had been effected in accordance with the Act, there is nothing in the legislation (and the Defendant did not seek to identify any provision) to support, either expressly or impliedly, the Defendant’s contention that the revocation of TAL’s certificate or approvals necessarily and automatically deemed the Plaintiff no longer a fit and proper person for the purposes of the Act. As noted, s. 55 required the Director to be satisfied that a person in the position of the Plaintiff was a fit and proper person before granting an original application or an application for renewal of aviation documents by an airport operator such as TAL. Subsection (3) also imposes a condition of every current aviation document that the holder and any person who has or is likely to have control over the exercise of the privileges under the document continue to satisfy the fit and proper person test specified in subsection (1)(b)(ii).
  11. It may also be observed that the Defendant’s attempt to effectively bifurcate the ambit of this Part of the Act is squarely contradicted by s. 55 itself which includes first time applicants (who, on the Defendant’s hypothesis must be regarded as outside the system until their application is approved) as well as those operators within the system who apply for renewals of their existing approvals. In other words, there is no distinction to be found within the text, context and/or purpose of the relevant provisions between those who are applying to enter the system and those already within it.
  12. Further, there is nothing in s. 55 or any other provision of the Act for that matter which supports the Defendant’s contention that the revocation of TAL's certificates automatically resulted in the Plaintiff losing her status as a fit and proper person. There may be any number of reasons why an airport operator such as TAL might have its certificates revoked for reasons which may be entirely unrelated to, and independent of, the experience, qualifications or performance of one or more of its senior personnel, such as the Plaintiff. A fit and proper person status will also be a valuable attribute for a senior person whose employer may cease to operate or where the person may wish to seek employment with another operator.
  13. That the Director here (no doubt upon the advice of Mr Tohi) considered that the Plaintiff was responsible for many of the issues arising from the incomplete audit, as alluded to in his 8 July 2021 show cause notice, and as discussed during the heated meetings which followed, and that as a result, she was no longer a fit and proper person, only served to demonstrate that the Director predetermined the issue well before Mr Tohi’s recommendations on 31 August 2021 and without any regard for the requirements of ss 56 and 57.
  14. The decision by the Director to re-issue the same certificates, albeit for a 90-day period on conditions, did not ‘align with section 21’ of the Act. Subsection (1) provides that the Director may, if requested in writing by the holder of any aviation document, amend that document in the manner requested or revoke that document. TAL did not make any such request. Subsection (2) empowers the Director to amend any aviation document to reflect the fact that any privilege or duty for which the document has been granted is no longer being carried out, or is no longer able to be carried out, by the holder; revoke any aviation document if none of the privileges or duties for which the document has been granted are being carried out, or are able to be carried out, by the holder; or amend any aviation document to correct any clerical error or obvious mistake on the face of the document. Subsection (2) did not apply to what the Director did here. Subsection (4) extends the definition of ‘amending’ an aviation document to include revoking the document and issuing a new document in its place, and the power to impose reasonable conditions. However, before he decided to ‘amend’ TAL’s certificates by revoking them and re-issuing conditional certificates, ss (3) required the Director to notify TAL of the proposed action and give it a reasonable opportunity to comment or make submissions on the proposed action. The Director did not give such notice.
  15. The re-issued certificates did not contain any conditions. In his covering letter, the Director stated:
"In order that air services to, from and throughout the Kingdom of Tonga are not unfairly impacted, I have concurrently re-issued the same approvals for a reduced period of 90 days and during this period TAL must re-apply for re-certification and each of the approvals held including 19F Supply."
  1. The balance of his letter contained ‘recommendations’ such as all senior persons being reassessed to confirm their suitability as FPP and ‘reminders’ including that the ICAO 5 phase certification process would be applied. The reissued certificates expressly stated that TAL was authorised under the Act and relevant Rules to perform the operational functions specified in each of the certificates. The text of the certificates also included that TAL's exposition policies, procedures (including, it's nominated senior persons, internal quality management system and security program) and other details were accepted by the Director.
  2. It is at this point that the logical fallacy of the Defendant’s second foundational proposition is fully exposed. It was something neither Messrs Havea nor Tohi could satisfactorily explain in evidence, and despite her valiant effort, counsel for the Defendant was unable to clarify the miasma in submissions.
  3. Had the Director simply revoked TAL's certificates on 13 August 2021, and done nothing more, then one could see how TAL and all its personnel, including the Plaintiff, could be regarded as then being out of the civil aviation system. However, the re-issuing of TAL’s certificates clearly had the effect of TAL continuing 'in the system'. There was no cessation of operations at the airports between revocation and reissue. TAL continued its operations and the airports continued to function throughout the 90-day period. Mr Tohi’s assertion that TAL did so under the supervision of CAD was not supported by any reference in the documentary evidence. The reason for the re-issuing of the certificates, whilst understandable, is not to the point.
  4. As a matter of simple logic, an operator such as TAL cannot be outside and inside the civil aviation system at the same time. By the re-issue of its certificates, which included express acceptance of TAL's procedures and nominated senior personnel, TAL and the Plaintiff necessarily remained ‘in the system’.
  5. The absurdity, with respect, of the Defendant’s position can be further illustrated. For example, if TAL and the Plaintiff were ‘out of the system’ upon the revocation of TAL's certificates, then:
  6. It is, I trust, unnecessary to continue with further examples. Suffice to say that none of the above implications of the Defendant’s case withstand scrutiny and they are certainly not supported by any sensible interpretation of the legislation.
  7. Upon the rejection of the Defendant’s foundational propositions, the applicability of provisions such as ss 56 and 57 to the Plaintiff may be easily demonstrated.
  8. Within Part VI of the Act, ss 52 to 54 are concerned primarily with aspiring airport operators (such as TAL) and the requirements for their applications to become participants within the Tonga civil aviation system. Contrary to the Defendant’s submission, the term 'participant' is defined in ss 52(1) as every person who does anything for which an aviation document is required.
  9. It will be recalled that the former Director and Mr Tohi considered that TAL’s application for recertification was to be treated as a new application. In that regard, counsel for the Defendant referred in submissions to the Civil Aviation Authority of New Zealand Fit and Proper Person Assessment Handbook. No authority was cited for the adoption or incorporation by reference of that handbook within the Tongan civil aviation system and the Rules do not contain any reference to it.
  10. It is at section 55 that the Part then brings into the application approval process persons who are to have or are likely to have control over the exercise of the privileges under the aviation document for which application by an operator is made. There, the focus shifts to the qualifications, etc., of the individual senior personnel who will enable the applicant to operate the airport. To that point, the provisions distinguish between the term 'applicant' being the proposed airport operator such as TAL, and other 'persons'.
  11. As has been noted, s. 56 is entitled “Criteria for fit and proper person test”. Subsection (1) commences with:

For the purpose of determining whether or not a person is a fit and proper person for any purpose under this Act, the Director shall, having regard to the degree and nature of the person's proposed involvement in the Tonga civil aviation system, have regard to, and give such weight as the Director considers appropriate to, the following matters:...

[emphasis added]


  1. Subsection (2) provides that the Director is not confined to the matters in ss (1) and may take into account such other matters and evidence as may be relevant. Under ss (3), the Director may seek, obtain and consider information from any other source. Subsection (4) extends the term 'person' to a body corporate and its officers. As mentioned at the outset, ss (5) then provides:

If the Director proposes to take into account any information that is or may be prejudicial to a person, the Director shall, subject to subsection (6), disclose that information to that person and, in accordance with section 57, give that person a reasonable opportunity to refute or comment on it.

  1. A further curious feature of the approach taken by the Director, again on the basis of his belief that TAL and its employees were outside the system, was to apply the ICAO 5 phase certification process to TAL's application for re-certification. And yet, once again, there was no attempt by the Defendant to identify any legal basis for the application of that process whether by reference to any provision of the Act, the Rules, or otherwise.
  2. More importantly, however, there was no attempt to substantiate the extraordinary submission that the adoption of the 5 phase certification process provided the Director with ‘greater flexibility’ in the criteria to be used in assessing new applications and that therefore the Director could ‘opt to use the section 56 criteria’ in determining whether the Plaintiff was a fit and proper person, or not. On the material before the Court, as referred to by the witnesses and counsel, there was nothing to elucidate what, if anything, the 5 phase process contained in terms of criteria for assessing whether a person is, relevantly, fit and proper. But, in any event, as counsel for the Plaintiff correctly emphasised, s. 56 is mandatory in its terms and was therefore required to be applied to the Plaintiff.
  3. As it turned out, of course, Mr Tohi said that he did apply the s. 56 criteria. Not only did that admission contradict the Defendant's reliance on the 5 phase certification process as some permitted alternative to the s. 56 criteria, it was fatally incongruous with the Defendant’s contention that s. 56 did not apply to the Plaintiff because she was ‘outside the system’.
  4. With the demise of the Defendant’s case that s. 56 did not apply, so too must go any resistance to the allied and inescapable conclusion that s. 57 also applied.
  5. That the decision was an ‘adverse decision’ within the meaning of that term – a decision of the Director to the effect that a person is not a fit and proper person for any purpose under this Act - in ss 57(1) was beyond controversy and should never have been denied by the Defendant in its pleading (or unfortunately repeated in closing submissions).
  6. The only other substantive basis upon which the Defendant sought to refute the application of the natural justice procedures prescribed by s. 57 was by submitting that the Plaintiff was not a "person directly affected" as defined in ss 57(1).
  7. As set out above, and to recap, ss (2) provides, inter alia, that where the Director proposes to make an adverse decision in respect of any person, the Director, by notice in writing, shall ... (a) notify the person directly affected by the proposed decision. A ‘person directly affected’ is defined in ss (1) as a person who would be entitled under s. 230 to appeal against the adverse decision. Section 230 provides, relevantly, that a person may appeal to the Supreme Court against a decision made under the Act by the Director if another section of the Act gives that person a right of appeal under s. 230.
  8. The Defendant submitted that the Plaintiff was not a person entitled to appeal under s. 230 because the relevant sections which invoke an appeal pursuant to s. 230 are ss 55(4), 18(8) and 19(5), none of which applied to the Plaintiff. Those provisions are referred to in ss 57(b)(iii) as being among the matters the Director is required to notify to a person directly affected after he has finally determined whether or not to make the proposed adverse decision. True it is that the rights of appeal specified in ss 55(4), 18(8) and 19(5) do not apply to the Plaintiff. They apply to an operator in the position of TAL. However, the Defendant’s submission overlooked ss 57(2)(e) which required the Director, when proposing to make an adverse decision, to notify the person directly affected by the proposed decision ‘of the person's right of appeal under section 230, in the event of the Director proceeding with the proposed decision’.
  9. Accordingly, the Plaintiff was a person directly affected by the Director’s proposed adverse decision and this final limb of the defence therefore also fails.

Result

  1. For the reasons stated, the Plaintiff’s claim is successful.
  2. It is declared that, in determining on or before 1 September 2021, that the Plaintiff was not a fit and proper person for the purposes of the Civil Aviation Act:
  3. Further, the decision is quashed and any further or remaining issue as to whether the Plaintiff is a fit and proper person for any purpose under the Act is remitted to the current Director of Civil Aviation for reconsideration according to law.

Costs

  1. The Plaintiff is entitled to her costs.
  2. However, in closing submissions, counsel for the Plaintiff sought an order for indemnity costs on the following grounds, in summary:
  3. On the basis of the findings above as to the lack of merit in the defence, the other allegedly unsatisfactory aspects of the Defendant’s conduct of the proceeding, and the principles for special costs orders discussed in Jurangpathy v Tonga Communications Corporation [2020] TOSC 2 at [67] to [69], my tentative view is that there is force in the Plaintiff’s application for costs on an indemnity basis.
  4. However, as the Defendant has not yet been heard on the issue, I direct that if the application is opposed, the Defendant is to file any affidavit/s and submissions in opposition within 14 days of the issuing of this judgment. In that event, further directions will then be made.
  5. If the application is not opposed (whether by express notice to that effect or the Defendant does not respond to the above direction), the Defendant shall pay the Plaintiff’s costs of the proceeding on an indemnity basis, to be taxed in default of agreement.



NUKU’ALOFA
M. H. Whitten QC
9 August 2022
LORD CHIEF JUSTICE

[1] Pursuant to Parts 140, 171 and 172 of the Civil Aviation Rules (“the Rules”).
[2] Subject to ss (6) which excludes any information the disclosure of which would be likely to endanger the safety of any person.
[3] Under Parts 139, 140, 171 and 172 of the Civil Aviation Rules.
[4] A court book of over 700 pages and over 200 pages of submissions with authorities.
[5] As provided for by ss 10, 25 and 26.
[6] Which, in his evidence, Mr Havea explained was to ensure that international flights carrying Covid-19 vaccines could still enter Tonga.
[7] See s. 40 of the Act.
[8] Tohi, brief of evidence at [8].
[9] Brief of evidence at [17].
[10] [42(b)]
[11] [19]
[12] International Heliparts NZ Ltd v Director Civil Aviation [1977] 1 NSLR 230 (HC)
[13] Yu v Civil Aviation Safety Authority [2005] AATA274
[14] Chernikeeff v Civil Aviation Safety Authority [2020] AATA 25
[15] Which, pursuant to s 2 of the Interpretation Act, includes a body of persons corporate or unincorporated.
[16] Merriam Webster dictionary
[17] Referring to Lord Diplock in Council of Civil Service Unions v The Minister for the Civil Service [1985] AC 374, 410.
[18] Citing Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4 at [75] ff.
[19] E.g. Advantage Group Ltd v Advantage Computers Ltd [2002] NZCA 282; [2002] 3 NZLR 741 at [45].
[20] Kacific Broadband Satellites International Ltd v Registrar of Companies [2021] TOSC 93 at [112], citing Hausia v Fatongiatau [2002] TOCA 11 at [13].
[21] Nelipa v Robertson and Commonwealth of Australia [2009] ATSC 16 at [97].

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