Director of Maritime New Zealand v Prentice
[2018] NZHC 1397
•15 June 2018
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KOTI MATUA O AOTEAROA WHANGAREI TERENGA PARAOA ROHE
CIV-2017-488-111
[2018] NZHC 1397
IN THE MATTER Of an appeal under section 427 of the Maritime Transport Act 1994 BETWEEN
THE DIRECTOR OF MARITIME NEW ZEALAND
Appellant
AND
RICHARD JOHN PRENTICE
Respondent
Hearing: 23 April 2017 Appearances:
K Murray and S Winson for the Appellant F Pilditch for the Respondent
Judgment:
15 June 2018
JUDGMENT OF POWELL J
This judgment was delivered by me on
15.06.18 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
THE DIRECTOR OF MARITIME NEW ZEALAND v PRENTICE [2018] NZHC 1397 [15 June 2018]
[1] The Director of Maritime New Zealand (“the Director”) has appealed a decision of Judge G M Harrison in the District Court at Whangarei.1
[2] In his decision dated 7 September 2017 Judge Harrison allowed an appeal pursuant to s 424 of the Maritime Transport Act 1994 (“the Act”) against a decision of the Director. On 3 May 2016, the Director revoked two of the respondent, Richard Prentice’s, maritime documents; Mr Prentice’s New Zealand Coastal Master Certificate and his Commercial Launchmaster Certificate.
[3] Although described as a re-hearing, as Mr Prentice’s appeal to the District Court was the first opportunity for him to challenge the Director’s decision, it effectively proceeded as a de novo hearing before Judge Harrison.2 In particular witnesses, 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 a question of law.
[5] The issue before the Court is therefore whether the Director is able to establish on 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 the following terms:
Notice of Proposed Adverse Decision
I am now writing to you because I propose to take action to revoke your three maritime documents (Commercial Launchmaster, New Zealand Coastal Master and Second Class Diesel Trawler Engineer) on the grounds that I consider that you are no longer a fit and proper person to hold those documents.
…
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 reviewing Mr Prentice’s fit and proper person status with regard to his seafarer’s certificates and went on to explain:
Fit and Proper Person Assessment
Any person who is issued a "maritime document" (as defined in section 2 of the Maritime Transport Act 1994) must be a "fit and proper person" (pursuant to section 41(1)(b)(ii) of the Maritime Transport Act 1994) to hold the document. It is an on-going condition that the holder of a maritime document must continue to satisfy the fit and proper person test.
As you know, an internal review panel has been inquiring into whether you continue to satisfy the condition of your maritime documents that you remain a fit and proper person to hold those documents. They have now reported to me.
A copy of their report, together with comments and an endorsement from Sharyn Forsyth, General Manager Maritime Standards, is enclosed, as an attachment to this email. …
The review panel's report is comprehensive and detailed. I note the review panel's comment that (at paragraph 43):
“We consider that all of these events, and the behavioural patterns which they form, can be summarised or consolidated into one overarching theme: Mr Richard Prentice displays a disregard for both maritime safety and the potential or actual consequences of his actions on others.”
The panel considers that your disregard for both maritime safety and the potential or actual consequences of your actions is so significant that it results in you putting yourself and others at an unnecessary and unacceptable maritime safety risk. The review panel recommended that I take compliance action 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 agreed with the views of the review panel, she did have a slightly different view with regard to the compliance action that should be taken. Ms Forsyth considered that with regard to your [Second Class Diesel Trawler Engineer Certificate] there would be sufficient oversight by a skipper and the designated fit and proper 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 in the report affect the manner in which you would exercise the privileges of all three of your certificates.
In particular I place more weight on behavioural patterns two and four, which reflect poor [judgement] and an inability to learn from your previous experiences and to take responsibility. I also note that even the more stringent compliance tool of prosecution does not have any noticeable deterrent effect on your future behaviour.
I also note that you are the sole shareholder and director of Seafort Holdings Limited. This puts you in a very influential position with regard to the operations it conducts.
Considering your compliance history, and your apparent attitude to both individual incidents and their place within a wider maritime safety context, I agree with the views of the review panel, as set out in the report.
Grounds of Decision
I have come to the view that you constitute an unacceptable latent risk within the maritime safety system.
Having regard to the matters raised in the review panel's report, and the criteria for assessment of whether a person is fit and proper person to hold a maritime document, I consider that you are not a fit and proper person to hold the maritime documents issued to you.
In terms of the Maritime Transport Act 1994, I consider that the grounds are that:
•you have failed to comply with conditions of your maritime documents (ie you no longer satisfy the statutory condition of being a fit and proper person to hold. your three maritime documents);
•the privileges of those documents have been exercised by you in a careless and incompetent manner; and
•the action I am proposing is necessary in the interests of maritime safety.
The particulars of those grounds are contained within the review panel's report.
[8] The Director concluded his letter to Mr Prentice by giving Mr Prentice the opportunity to make submissions on the proposed adverse decision.
[9] The Review Panel report referred to in the Director’s letter and provided to Mr Prentice was dated 30 June 2015 (“the First Review Panel Report”). This document was prepared by three Maritime New Zealand staff; Lou Christensen (Manager, Personal Certification), Martin Harper (Specialist Investigator, Intelligence and Planning), and Ceilhe Halpin (Technical Advisor, Domestic Operations). In the report the Panel confirmed that its assessment:
… has been completed by way of a desktop review of relevant information that Maritime NZ holds about Mr Prentice. Mr Prentice has not been asked to provide any further information, nor has any further information been sought from any other sources outside of Maritime NZ.
[10] The Review Panel went on to describe its methodology in assessing that material in the following terms:
The Review Panel has considered which historical incidents and other matters are relevant to this reassessment.
A timeline of all relevant events is set out in the attached Appendix 3. Our detailed consideration of each event is contained in the attached Appendix 4. When considering the significance of all those matters, the Review Panel has considered that the relevant events can be collated into a number of “behavioural patterns”. These are:
·His observance of general good seamanship including navigational requirements, and the observation of the collision regulations;
·The more specific issue of his behaviour as a skipper of a High Speed Vessel;
·How he has maintained the state of his vessel, in his capacity as skipper; and
·His offence history, including maritime transport and fisheries offences.
[11] The Panel went on to summarise the importance of these four patterns of behaviour:
In summary of the four patterns of behaviour:
·With regard to Behaviour Pattern One (general observance of good seamanship, including navigation and "col regs"), there is a pattern of non-compliance that has caused serious risk to the safety of those in the vicinity of the vessel Mr Prentice was operating. As a consequence of a number of these seamanship-related issues, Maritime NZ required Mr Prentice to undertake a "safety oral examination". Yet his subsequent behaviour resulted in another incident related to good seamanship. That further incident was another serious navigational "close quarters" incident, which put divers in the vicinity at risk.
·With regard to Behaviour Pattern Two (his behaviour as a skipper of a High Speed Vessel), there is a pattern of Mr Prentice not learning from previous incidents sufficiently to manage the safety of his passengers. This shows poor [judgement] as the skipper of a High Speed Vessel. Some of the issues relate much more to the overall operation of the vessel, and its operational procedures and safety management system. However, in his capacity as skipper, Mr Prentice should be contributing to those improvements and learning from any previous incidents, to improve the way in which the vessel is operated, in order to manage the safety of his passengers. Additionally, he should be personally improving the way in which he operates the vessel, regardless of formal changes to the operation's operational
procedures. This responsibility is in tandem with his role as the sole director 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 his vessel), there are four incidents. All four involve the vessel "admitting water" through the steering rod seals. This is an issue of concern, as, if unchecked, it could eventually result in the vessel taking on substantial water and eventually sinking. However, Mr Prentice does not sufficiently address the issue, and his response is to operate the vessel at "planing speed" (ie hydroplaning) to raise the vessel up out of the water. This would be a valid solution if effective during an emergency, but it should not be accepted as standard operating procedure.
·With regard to Behaviour Pattern Four (offence history), there is a pattern of six incidents covering a period of 12 years. Some of the offending relates to Mr Prentice in his personal capacity and some to Seafort Holdings Ltd. With regard to the company convictions, it is relevant that Mr Prentice is the sole director of the company. Additionally, Mr Prentice was personally skippering the vessel when the offending occurred. There is a range of offending covering fisheries legislation, the Maritime Transport Act and the Health and Safety in Employment Act. The Review Panel considers that all of the offending is relevant to this extent: it establishes that - whether the prosecution is against him personally or his company - the fact of a prosecution has little or no deterrent effect on Mr Prentice's future behaviour. This is the case despite serious physical injury caused to others in three situations (ie, loss of an eye and two serious back injuries).
We must consider “what does his past behaviour tell us about how he may likely behave in the future?”. This is why patterns of behaviour are so important. If there is a pattern, it is more likely that he will continue to act in the same way in the future. In the maritime context, this means how will Mr Prentice 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 as a marine engineer.
[12] As a result the Review Panel concluded that Mr Prentice was not fit and proper to hold his maritime documents and made recommendations to this effect to the Director.
[13] After receiving the Notice of Proposed Adverse Decision, Mr Prentice provided a comprehensive submission in response. This was in turn referred back to the Review Panel by the Director, which considered the information received from Mr Prentice against the behavioural patterns identified in the First Review Panel
Report. Although in its second report of 29 April 20163 (“the Second Review Panel Report”) the Panel accepted “that some of Mr Prentice’s points in respect of individual events have merit”, it nonetheless concluded:
Mr Prentice has demonstrated a lack of responsibility as a skipper and has exercised poor judgement. He has failed to accept fault or responsibility for poor operational decisions he has made and their outcomes.
[14] The panel reiterated its recommendation that Mr Prentice was not a fit and proper person with regard to his Commercial Launchmaster and NZ Coastal Master Certificates, but did conclude Mr Prentice remained a fit and proper person to hold his Second Class Diesel Trawler Engineer Certificate if conditions were imposed, and made recommendations to that effect to the Director.
[15] The Director accepted the revised recommendations made by the Review Panel and issued his formal decision on 3 May 2016. He confirmed the revocation of the Commercial Launchmaster and NZ Coastal Master documents and placed conditions on Mr Prentice’s Second Class Diesel Trawler Engineer Certificate. Explaining the basis for the decision the Director stated:
The grounds of my proposed decision are set out in my letter to you of 7 July 2015. I do not propose to elaborate on those, but wish to make some remarks relevant to the submissions you have made.
In making my decision, I have had regard to the review panel’s report, your submission in relation to my proposed decision, and the subsequent advice I have received. Having been through that process, I remain of the view that you 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 the Director’s decision. In particular Judge Harrison summarised the appointment of the Review Panel, the First Review Panel Report, the notice of the proposed adverse decision, Mr Prentice’s submissions, the referral back to the Review Panel and the
3 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 the issues on appeal in the following terms:
[44] The review panel's recommendation was based upon the four patterns of behaviour I have already referred to. The only member of the panel to give evidence was Mr Halpin who was cross-examined at some length by Mr Pilditch.
[45]In his closing submission Mr Murray for the Director submitted:
The appellant's sustained attack on the first review panel report is completely misconceived. It was only the start of the natural justice process. If there were any errors or omissions in it then the appellant had a full opportunity to repair them. He had a statutory obligation to ensure that he provided all information that he wanted the director to take account of.
[46] I do not agree that the "sustained attack" on the review panel report was misconceived.
[47] When cross-examined, the Director, Mr Keith Manch, accepted that as the Director and decision maker it was important for him to be independent in 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 make decisions fairly, and to be consistent with the principles of natural justice. He was then asked:
QBut judging from your answer a moment ago the weight of your decision rested primarily on the description of events and conclusions made in the panel report, that’s where you place the weight in your decision?
A That’s what I spent most of my time referring to, yes.
QRather than the source material contained in, for example, Appendix 5?
A Yes.
[48] Quite clearly then, the Director relied, in making his decision, upon the panel's report, and not the source material, and so, if it could be demonstrated that recommendations of the panel were flawed, particularly by taking into account irrelevant or incorrect material, or by failing to take into account relevant material, the Director's decision must necessarily also be flawed.
(footnotes omitted)
[18] Having set out his approach Judge Harrison undertook a detailed and careful analysis of the four patterns of behaviour identified by the Panel in its reports, relied upon by the Director and referred to by the Director in his correspondence to Mr Prentice. In each case Judge Harrison considered the incidents identified in the First
Review Panel Report as supporting the same patterns of behaviour identified by the Review Panel against the other evidence before the Court, including that provided by Mr Prentice.
[19] While Judge Harrison accepted that Mr Prentice had a number of convictions and had experienced a number of incidents, to the extent that there was any form of pattern he found it reflected issues with his ability to operate and maintain a high speed passenger vessel, the Mack Attack, rather than providing evidence that he was not a fit and proper person to hold maritime documents generally. In particular, with regard to the four patterns of behaviour identified by the Review Panel and relied upon by the Director:
(a)Behaviour Pattern One – General Observance of Good Seamanship including navigation and collision regulations – Judge Harrison noted that there was no evidence to support a number of the incidents and that the remainder all involved the operation of the Mack Attack rather than any other types of vessel.4
(b)Behaviour Pattern Two – Behaviour as a skipper of a high speed vessel – Judge Harrison accepted a submission made on behalf of Mr Prentice that the incidents did not identify a “‘pattern’ from which poor [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 concluded that the third pattern was of “no particular significance in deciding whether Mr Prentice [was] a fit and proper person”.6 In addition to noting that the issue was not mentioned in the Director’s submissions, he noted the incidents all related to the Mack Attack. His Honour again accepted the submission made on behalf of Mr Prentice that:7
4 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 these maintenance issues that is rejected, because it is unsupported by the evidence.
(d) Behaviour Pattern Four - Offence History – Judge Harrison acknowledged Mr Prentice’s convictions but noted that a number had already been referred to in the analysis of other patterns. As the Review Panel had noted the incidents were not “double counted”, His Honour could not understand why they were then included separately as a fourth behaviour pattern. Of the remainder Judge Harrison concluded that only one of the convictions could be found to have given rise to a safety issue, and this was 15 years prior to the Panel Report.8 Instead Judge Harrison noted the results of an audit carried out by Maritime New Zealand on Mr Prentice in 2014, after all the convictions referred to, which did not record any safety issues.
[20] Having completed this analysis Judge Harrison assessed the Director’s decision 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 that in both the First Review Panel Report and the Second Review Panel Report, “it failed to reference information available to it that was positive about Mr Prentice”. Mr Halpin also accepted that the Panel made claims about Mr Prentice which did not appear to be supported on the information before the District Court.9 As a result Judge Harrison reached the following conclusion:
[99] Based on the foregoing the panel report on which the Director's decision was based cannot stand. It was prepared with a negative attitude towards Mr Prentice despite evidence from Steve Mabbett Limited and Mr Jim Lyle, the Harbour Master, and the audit report of January 2015, to the contrary. The report omitted material favourable to Mr Prentice and was accordingly unfair and lacked objectivity.
[100] Furthermore all of Maritime NZ concerns related to the operation of Mack Attack. The report and the Director's decision endeavoured to extend perceived shortcomings in the operation of Mack Attack to Mr Prentice's entire seamanship 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 in the Austin, Nichols decision. As the Chief Justice said at [16]:
Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ.
[102] The Director's decision was that Mr Prentice was no longer considered to be a fit and proper person to hold the cancelled certificates. He concluded that 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 operation of Mack Attack and, in particular, the injury to Mrs Cooke in October 2014 which appears to have been the critical incident leading to the restrictions imposed on the operation of Mack Attack which ultimately caused the failure of the business and the losses suffered by Mr Prentice.
[105] Section 50 of the Act specifies criteria for the assessment of a fit and proper person. The first criterion is the person's compliance history with transport safety regulatory requirements. There have been some minor breaches by Mr Prentice in that regard and I do not refer here to the injuries suffered by passengers on the Mack Attack. That was a phenomenon associated with other high speed passenger vessels as well and while obviously serious do not fall within transport safety regulatory requirements.
[106] The next criterion is the person's related experience within the transport industry. Mr Prentice has worked within the industry for of the order of 40 years in various roles. His current pursuit is the oyster farming activity and he is obviously properly experienced to continue with that.
[107] The next criterion is his knowledge of the [applicable] maritime regulatory requirements. Certainly, the comments of the Harbour Master and the audit report confirm his necessary awareness of those requirements.
[108] I have already referred to Mr Prentice's convictions for any transport safety offences which in my view are minor and in the case of the Bay Belle and Okiato incidents may have been provoked by commercial competitors.
[109] The phrase "fit and proper person" was explained by Lord Bingham in [R v Crown Court at Warrington, ex parte RBNB (an unlimited company)] as follows:10
This is a portmanteau expression, widely used in many contexts. It does not lend itself to semantic exegesis or paraphrase and
10 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 an expression directed to ensuring that an applicant for permission to do something has the personal qualities and professional qualifications reasonably required of a person doing whatever it is that the applicant seeks permission to do.
[110] I am satisfied that Mr Prentice has those qualities and qualifications reasonably required of him to exercise the privileges that flow from his certificates.
[111] The decision of the Director of 3 May 2016 is quashed. Mr Prentice's commercial launch master certificate is reinstated. His New Zealand coastal master certificate is also reinstated, but is subject to a condition that it does not authorise him to operate a high speed passenger vessel without receiving a separate approval to do so.
[21] Judge Harrison also commented on Mr Prentice’s Second Class Diesel Trawler Engineer Certificate in the following terms:
[112] The conditions imposed on Mr Prentice's second class diesel trawler engineer certificate were not a subject of this appeal. I can discern no reason for the imposition of those conditions, but make no order in that regard. Leave is reserved for memoranda to be filed in respect of the condition I have imposed on the New Zealand coastal master certificate should that prove to be necessary, 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 seven grounds that, rather than disclosing any error of law in Judge Harrison’s decision, were clearly focused on His Honour’s analysis of the facts. As Toogood J noted in a case management conference minute of 27 November 2017:
Mr Murray has provided particular grounds of appeal which, however, read very much as a general attack on the Judge’s findings of fact and the sufficiency of the evidence. Mr Pilditch for the respondent protests that the appellant seeks in reality to embark on a general appeal challenging the evidential basis for the Judge’s findings.
[24] As a result Toogood J directed Mr Murray, as counsel for the Director, to recast the appeal. An amended notice of appeal was therefore filed on 1 February 2018 with the two grounds advanced as follows:
1.No person acting judicially and properly instructed as to the relevant law could have found that the respondent satisfied the fit and proper person test in section 50 of the Maritime Transport Act 1994 given the respondent’s extensive history of convictions for safety offences including crew and passenger injuries;
2.No person acting judicially and properly instructed as to the relevant law could have found that the appellant’s conduct was unfair to the respondent without consideration of section 51 of the Maritime Transport 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 of the grounds in the amended notice of appeal. Mr Murray offered to amend the first ground by deleting the reference to Mr Prentice’s alleged “extensive history of convictions”. While that amendment effectively broadened out the appeal again and was apparently not formally agreed by the parties nor minuted by the Court, it was on the basis of the amended notice of appeal as subsequently proposed to be modified that the appeal proceeded to hearing. The final grounds relied upon by the Director were therefore that:
1.No person acting judicially and properly instructed as to the relevant law could have found that the respondent satisfied the fit and proper person test in section 50 of the Maritime Transport Act 1994.
2.No person acting judicially and properly instructed as to the relevant law could have found that the appellant’s conduct was unfair to the respondent without consideration of section 51 of the Maritime Transport Act 1994 and the common law principles of natural justice.
[26] With regard to the first ground Mr Murray relied upon the well-known authorities of Edwards (Inspector of Taxes) v Bairstow11 and Bryson v Three Foot Six Ltd12 in submitting:
… the Judge failed to take heed of the authorities and correctly apply the fit and proper person principles. In particular, it seems apparent that contrary to the whole purpose of the statutory test, the private interests of Mr Prentice were given priority over the public interest which the Judge made no mention of. Thus this is apparently one of those rare cases “in which there is no evidence to support the determination” or “one in which the evidence is inconsistent with and contradictory of the determination” or “one in which the 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 in the 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 extent if any the concessions detracted from the expert advice in both Review Panel Reports;
(d)recognise that the subject matter involved the opinion of technical experts such as Mr Halpin;
(e)evaluate the Director’s decision and the reconsideration and decide whether to confirm it, refer it back for reconsideration or allow the appeal (depending on the results of the evaluation).
[27] Notwithstanding this position, the argument changed significantly in the course of the hearing when it was pointed out to Mr Murray that Judge Harrison had clearly considered the application of s 50 of the Act at [105] – [108] of his judgment, and there was no dispute that Judge Harrison had set out a correct formulation of the fit and proper person test at [109] of his judgment.13 As a result, Mr Murray submitted, the error of law in Judge Harrison’s approach was to have focused on the First Review Panel 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 in turn that Judge Harrison had been clear with the procedure he had followed and had noted explicitly, in the course of his judgment, that Mr Prentice’s submissions had been considered by the Review Panel and rejected,14 Mr Murray turned to focus on the lack of reasoning provided by Judge Harrison for rejecting the Review Panel’s analysis 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 more reasons “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 submission that the Director had “observed all the procedural requirements in s 51 by giving the notice prescribed and enclosing the First Review Panel Report including all of the
13 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 to Mr Prentice because of section 51(5)”.
[29]Mr Murray went on to submit:
The Judge has apparently conflated the proposed decision and the final decision 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 correct any defects he thought existed in the First Review Panel Report. Most significantly, there is no analysis of the Second Review Panel Report on which the Director’s final decision was actually based or the Director’s decision itself.
It is therefore submitted there was no breach of natural justice and the Second Review Panel Report and the Director’s careful consideration of it remains a sound basis for the revocation decision that was made.
Discussion and Analysis
[30] It is immediately apparent that, notwithstanding the attempts made to identify an error of law, the primary concern of the Director has been and remains the factual analysis undertaken by Judge Harrison and the conclusions that he then reached. The reason for this appears to be a perception on the part of the Director, stated a number of times in the course of the hearing before me, that Judge Harrison’s findings were somehow “extraordinary”.
[31] As a result even the final iteration of the first ground of appeal was in essence focused on factual issues. Not only it is clear that Judge Harrison did apply s 50 and the fit and proper person test, Mr Murray was unable to identify any error in the way Judge Harrison applied either s 50 or the fit and proper person test. Despite the clarity of Judge Harrison’s approach and his conclusion that the flaws in the First Review Panel Report remained unaddressed notwithstanding the Review Panel consideration of Mr Prentice’s submissions and evidence, Mr Murray’s substantive criticism was that Judge Harrison’s reasoning was insufficient. As a result, rather than submitting Judge Harrison could not have come to the conclusion that he did, Mr Murray ultimately accepted that had there been more reasoning Judge Harrison may have reached 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 Amended Notice of Appeal, which reflected the approaches taken in Edwards (Inspector of Taxes) v Bairstow and Bryson v Three Foot Six Ltd by alleging that no person (in this case Judge Harrison) properly directed could have concluded that the Director was wrong and allowed the appeal in the District Court. The foundation for this type of argument was summarised in Edwards (Inspector of Taxes) v Bairstow in the following terms:15
I 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 with their determination as being erroneous in point of law, it is for them to state a case and in the body of it to set out the facts that they have found as well as their determination. I do not think that inferences drawn from other facts are incapable of being themselves findings of fact, although there is value in the distinction between primary facts and inferences drawn from them. When the case comes before the court it is its duty to examine the determination having regard to its knowledge of the relevant law. If the case contains anything ex facie which is bad law and which bears upon the determination, it is, obviously, erroneous in point of law. But, without any such misconception appearing ex facie, it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In those circumstances, too, the court must intervene. It has no option but to assume that there has been some misconception of the law and that, this has been responsible for the determination. So there, too, there has been error in point of law. I do not think that it much matters whether this state of affairs is described as one in which there is no evidence to support the determination or as one in which the evidence is inconsistent with and contradictory of the determination, or as one in which the true and only reasonable conclusion contradicts the determination. Rightly understood, each phrase propounds the same test. For my part, I prefer the last of the three, since I think that it is rather misleading to speak of there being no evidence to support a conclusion when in cases such as these many of the facts are likely to be neutral in themselves, and only to take their colour from the combination of circumstances in which they are found to occur.
[33]Similarly in Bryson v Three Foot Six Ltd Blanchard J stated:16
An 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 the facts of an individual case. It is for the Court to weigh the relevant facts in the light of the applicable law. Provided that the Court has not overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is a matter for the fact-finding Court, 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 so insupportable - so clearly untenable - as to amount to an error of law: proper application of the law requires a different answer. That will be the position only in the rare case in which there has been, in the well-known words of Lord Radcliffe in Edwards v Bairstow, a state of affairs "in which there is no evidence to support the determination" or "one in which the evidence is inconsistent with and contradictory of the determination" or "one in which the true and only reasonable conclusion contradicts the determination". Lord Radcliffe preferred the last of these three phrases but he said that each propounded the same test. In Lee Ting Sang itself the Privy Council concluded that reliance upon dicta of Denning LJ in two cases "of a wholly dissimilar character" may have misled the Courts in Hong Kong in the assessment of the facts and amounted in the circumstances to an error of law justifying setting aside concurrent findings of fact. Their Lordships were of the opinion that the facts pointed so clearly to the existence of a contract of service that the finding that the applicant was working as an independent contractor was, quoting the words of Viscount Simonds in Edwards v Bairstow, "a view of the facts which could not reasonably be entertained", which was to be regarded as an error of law. In Lee Ting Sang the facts demonstrated so clearly that the applicant was an employee that it was the true and only reasonable conclusion.
It must be emphasised that an intending appellant seeking to assert that there was no evidence to support a finding of the Employment Court or that, to use Lord Radcliffe's preferred phrase, "the true and only reasonable conclusion contradicts the determination", faces a very high hurdle. It is important that appellate Judges keep this firmly in mind. Lord Donaldson MR has pointed out in Piggott Brothers & Co Ltd v Jackson the danger that an appellate Court can very easily persuade itself that, as it would certainly not have reached the same conclusion, the tribunal which did so was certainly wrong:
"It does not matter whether, with whatever degree of certainty, the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal was a permissible option. To answer that question in the negative in the context of employment law, the appeal tribunal will almost always have to be able to identify a finding of fact which was unsupported by any evidence or a clear self-misdirection in law by the Industrial Tribunal. If it cannot do this, it should re-examine with the greatest care its preliminary conclusion that the decision under appeal was not a permissible option ... "
[34] It follows from these authorities that as soon as Mr Murray conceded it would have been possible for Judge Harrison to have reached the conclusions that he did on the evidence before him, the rule in Edwards (Inspector of Taxes) v Bairstow, as subsequently 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 four patterns of behaviour set out in the First Review Panel Report, he was in fact assessing the information available to the Panel against the other information available,
including that provided by Mr Prentice to the Director and considered by the Panel prior to the Director making his decision. Having formed his own assessment of the strength of all of the evidence, it is implicit in Judge Harrison’s decision he considered the reasoning in the First Review Panel Report remained an integral part of the Director’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 final decision.17
[36] As a result, applying Edwards (Inspector of Taxes) v Bairstow and Bryson v Three 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 the second ground of appeal alleges unfairness with reference to s 51 of the Act, although the oral argument ended up covering much of the same ground as the first ground of appeal.
[38] With specific reference to s 51, it is clear that Judge Harrison did not determine the appeal because of any procedural unfairness to Mr Prentice. The issue before His Honour was, when looking at the evidence in its entirety, whether Mr Prentice was a fit and proper person in terms of s 50 of the Act. As noted, Judge Harrison undertook his 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 result the Director’s decision could not stand. It is clear that Judge Harrison did not set aside the Director’s decision because the process was unfair. Rather, Judge Harrison discussed the deficiencies in the First Review Panel Report’s conclusions and in particular 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 in providing information to the Director.
[39] It is nonetheless clear, and was acknowledged by Judge Harrison, that after notice of the proposed adverse decision was provided to Mr Prentice on 7 July 2015
17 See [15] above.
he was then given an opportunity, pursuant to s 51 of the Act, to provide submissions to 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 this Act in respect of any person, the Director, by notice in writing, shall—
(a)Notify the person directly affected by the proposed decision of the proposed decision; and
(b)Subject to subsection (4) of this section, inform that person of the grounds for the proposed decision; and
(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; and
(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; and
(e)Notify the person of the person's right of appeal under section 424 of this Act, 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.
…
(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) of this section, 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) of this subsection, 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) of this subsection, other than
information requested by the Director and supplied pursuant to a request referred to in paragraph (b) of this subsection.
(6)After considering the matters referred to in subsection (5) of this section, 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 this section, of—
(i)The Director's decision and the grounds for the decision; and
(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 section 41(6) or section 43(7) or section 44(4) of this Act).
[40] There is no dispute that the Director fulfilled his obligations under s 51, and that Mr Prentice also availed himself of the opportunity to make a submission to the Director, which he did on 15 September 2015.
[41] It is, as Mr Pilditch noted, difficult to see how the procedural requirements of s 51 which were complied with by both parties could possibly translate into some sort of error made by Judge Harrison for the purposes of the appeal. Judge Harrison was not mistaken as to the process. He concluded on the basis of the information available that the Director had an insufficient basis to conclude Mr Prentice was not a fit and proper person for the purposes of s 50 to continue to hold his maritime certificates. As a result the second ground of appeal must also fail.
[42] Although this is sufficient to dispose of the appeal, two further comments should be made:
(a)Notwithstanding the strenuous attempts by the Director and Mr Murray to identify an error of law, it is clear that throughout what they have been objecting to are the factual conclusions drawn by Judge Harrison on the material relied upon by the Director in making his decision. Those conclusions, with regard to the four patterns of behaviour were
indeed available to His Honour on the evidence before him, and far from ignoring the more serious accidents identified in the Review Panel reports relating to the Mack Attack, recognised the issue was not one of whether Mr Prentice was a fit and proper person, but rather that there were issues around his ability to maintain and operate a fast passenger vessel. Finding that there were issues in this regard Judge Harrison added the conditions preventing Mr Prentice from operating such vessels without first obtaining approval from the Director. Given the factual conclusions reached by Judge Harrison such an outcome was clearly appropriate, and in no way some type of “extraordinary” finding as suggested by Mr Murray.
(b)As Judge Harrison noted the issue of the conditions imposed by the Director on Mr Prentice’s Second Class Diesel Trawler Engineer Certificate were not before the Court. Like Judge Harrison, I find it difficult to see on what basis such conditions were imposed by the Director but agree that in the circumstances Judge Harrison was correct in 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 the event there is any disagreement on calculation of the costs I will determine the issue following the filing of memoranda of not more than three pages.
Powell J
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