McCarthy v Civil Aviation Authority of New Zealand
[2025] NZHC 1393
•30 May 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2024-485-634
[2025] NZHC 1393
UNDER the Civil Aviation Act 1990, s 69 IN THE MATTER OF
an appeal against a District Court decision
BETWEEN
ROBIN MAX McCARTHY
Appellant
AND
CIVIL AVIATION AUTHORITY OF NEW ZEALAND
Respondent
Hearing: 27 May 2025 Counsel:
Appellant in person
G H Allan for Respondent
Judgment:
30 May 2025
JUDGMENT OF GRAU J
Introduction
[1] Mr McCarthy is a pilot. In January 2018, Mr McCarthy applied to renew his medical certificate, which he required in order to keep his pilot’s licence. The Director of the Civil Aviation Authority (CAA) declined the application in June 2019. Mr McCarthy then sought a Convener’s review. The Convener agreed with the Director’s earlier decision. After receiving the Convener’s report, in December 2019 the Director advised Mr McCarthy that he did not propose to alter the Convener’s decision.
McCARTHY v CIVIL AVIATION AUTHORITY OF NEW ZEALAND [2025] NZHC 1393 [30 May 2025]
[2] In January 2020, Mr McCarthy appealed to the District Court against the Director’s December 2019 decision. After unsuccessful efforts were made to resolve the appeal, eventually a hearing was set down in the District Court in June 2024 to identify the issues raised by the appeal and the evidence that could be adduced. Judge Harrop’s ruling in July 2024 determined that the scope of the appeal was narrow, and there was no basis for either fresh or “re-heard” evidence to be adduced at the appeal hearing (although Mr McCarthy could make a focussed application to adduce further evidence if he wished to).1
[3] Mr McCarthy has appealed to this Court against Judge Harrop’s ruling. Mr McCarthy disagrees with the District Court’s limiting of the scope of his appeal. His position is that a wide-ranging enquiry is appropriate. He also considers the District Court Judge should have allowed the admission of further “historic and fresh” evidence.
[4]The respondent supports the District Court’s decision.
The legal framework for medical certification
[5] The relevant provisions of the Civil Aviation Act 1990 (the Act) are the necessary context to understand the background to the appeal and Judge Harrop’s interlocutory decision.2
[6]Part 2A of the Act (ss 27A to 27R) governs medical certification.
[7] Section 27B empowers the Director to issue a medical certificate. Before the Director can do so, the applicant must have a medical examination by a medical examiner who must forward their report to the Director.3 After receiving the report, the Director must issue the medical certificate if satisfied the applicant meets the medical standards prescribed in the rules, unless the Director has reasonable grounds
1 McCarthy v Director of Civil Aviation [2024] NZDC 15152 [decision on appeal].
2 The Act has since been replaced by the Civil Aviation Act 2023, but the 1990 Act applies to Mr McCarthy’s proceeding.
3 The Act, s 27D.
to believe the applicant has any characteristic “that may interfere with the safe exercise of the privileges to which the medical certificate relates”. 4
[8] Even if the applicant does have such a characteristic, the Director may nevertheless issue a medical certificate by relying on “flexibility”.5 Flexibility means “the use of medical judgement to issue a medical certificate” if a number of conditions are fulfilled. Those conditions are:6
(a)an accredited medical conclusion indicates that in special circumstances the applicant’s failure to meet any medical standard prescribed in the rules is such that the exercise of the privileges to which a medical certificate relates is not likely to jeopardise aviation safety; and
(b)the relevant ability, skill, and experiences of the applicant and operational conditions have been given due consideration; and
(c)the medical certificate is endorsed with any conditions, restrictions, or endorsements when the safe performance of the applicant’s duties is dependent on compliance with those conditions, restrictions, or endorsements.
[9] The “accredited medical conclusion” required above in the condition of the exercise of flexibility is “a conclusion reached by one or more medical experts acceptable to the director for the purposes of the case concerned, in consultation with flight operations or any other experts that may be necessary”.7
[10] An applicant may seek a Convener’s review of decisions regarding medical certificates or applications.8 The Convener is a suitably qualified and experienced medical practitioner experienced or knowledgeable in civil aviation appointed by the Minister.9
[11] A Convener review is initiated by an applicant asking the Convener in writing to review the decision of the Director about the medical certificate or application.10
4 Section 27B(1).
5 Section 27B(2).
6 Section 27B(3).
7 Section 27A(1).
8 Section 27L.
9 Section 27J.
10 Section 27L(1).
The Convener must “as soon as practicable” review the relevant decision.11 The review requires the Convener to:12
(a)[…] draw on the advice and expertise of at least 1 person who the convener is satisfied is suitably qualified and experienced to assist the convener in his or her assessment of the decision that is under review; and
(b)[…] have regard to the purpose and scheme of the Act and the Director’s duties under the Act when carrying out his or her review of the decision; and
(c)[…] require the person who asked for the review, at that person’s expense, to undertake any other tests, examinations, or re- examinations conducted by any suitably qualified and experienced person, or to provide any medical information, as the convener considers reasonably necessary to carry out his or her review of the decision; and
(d)[…] receive and consider the relevant evidence provided under subsection (6).
[12] The evidence above that the Convener must receive and consider is evidence about any medical matter at issue with respect to the decision under review that the applicant or director may provide.13
[13] The Convener must “as soon as practicable” report the results of the review to the Director in writing.14 The Director must then, within 10 working days:15
… implement the results of the decision contained within the convener’s report or, if the Director does not implement the convener’s report, notify the licence holder or applicant, in writing, of the Director’s reasons for not doing so.
[14]The alternative to a Convener review is an appeal to the District Court.16
11 Section 27L(2).
12 Section 27L(3).
13 Section 27L(6).
14 Section 27L(4).
15 Section 27L(5).
16 Section 66.
Background
[15] The full relevant background is set out in Judge Harrop’s decision.17 A summary follows.
[16] In 1976, the CAA issued Mr McCarthy with a Commercial Pilot’s Licence. Under the relevant rules and regulations, once he turned 40, Mr McCarthy needed to supply six monthly medical certification of his continued ability to exercise the privileges of that licence. On 16 January 2018, after not having held medical certification for around five years, Mr McCarthy applied to renew his medical certificate.
[17] On 30 March 2018, a medical examiner (Dr Lee) found that Mr McCarthy did not meet the medical standards prescribed in “Rule Part 67 of the Civil Aviation Rules” (the Rules) because of various medical conditions. Despite not meeting the medical standards, the medical examiner nevertheless decided to consider the application by relying on “flexibility” in accordance with s 27B(2). He asked the Director to identify experts for the purpose of reaching an accredited medical conclusion (AMC). The Director identified two experts (Dr Preitner and Dr Bonert) who were senior medical officers.
[18] On 2 August 2018, the senior medical officers rendered an AMC that was reviewed by Dr Watson, the Principal Medical Officer. The AMC found there were no special circumstances that meant a failure to meet medical standards in the rules was unlikely to jeopardise aviation safety.
[19] On 13 August 2018, a senior medical officer, Dr Ghosh, advised Mr McCarthy that his application for a medical certificate was declined, because the AMC had not identified special circumstances. On 30 August 2019, in response to matters Mr McCarthy had raised, the CAA advised him that he could make a new application at any time.
17 At [1]–[2] and [19].
[20] On 5 June 2019, Mr McCarthy reapplied. Once again he did not meet the medical standards prescribed in Rule Part 67 of the Rules. This result was said to be on account of aviation medical issues and a number of medical conditions, which included exophoria.18 Mr McCarthy’s application was also considered in reliance on flexibility under s 27B(2) of the Act. On 27 June 2019, the AMC came to the same conclusion as the earlier AMC.
[21] On 27 June 2019, pursuant to delegated authority, Dr van der Hulst advised Mr McCarthy that he was required to decline to issue a medical certificate under s 27B(2) of the Act. Dr van der Hulst also informed Mr McCarthy that he had the right to review, or appeal against, his assessment.
[22] On 15 July 2019, Mr McCarthy applied for a Convener review. On 24 July 2019, Dr Preitner, who had reviewed the AMC, provided the Convener with a Director’s submission stating that “based on my review of the available documents it is apparent that the decision under review resulted from the entirety of the applicant medical history as outlined in the AMC document, more particularly the history of exotropia”.19 Dr Preitner further submitted that “when considered individually not all the conditions listed may necessarily preclude issue of a medical certificate, with the exception of the exotropia”.
[23] On 12 December 2019, the Convener, Dr Martin Peterson, issued his Convener review report. The report noted that the review only considered Mr McCarthy’s exophoria because “it became apparent during [the] review that Mr McCarthy’s exophoria and the associated risk of double vision alone prevented him from obtaining a CAA medical certificate …”. The report concluded that, following a review of all available documents, medical literature, research, previous Convener reviews with double vision issues, and after a discussion with optometry Professor Jacobs, the exophoria and associated risk of double vision prevented Mr McCarthy from obtaining a CAA medical certificate. Dr Peterson agreed with the outcome of the AMC and the
18 Exophoria is defined as condition where a person’s eyes tend to drift outwards. It can create a risk of double vision.
19 Exotropia is another name for a condition where the eyes drift outward.
Director’s decision to decline Mr McCarthy’s application for class 1 and 2 medical certificates.
[24] The same day, the Principal Medical Officer, Dr Watson, informed Mr McCarthy of the Director’s decision under s 27L(5) of the Act by writing to Mr McCarthy enclosing a copy of the Convener’s report. He advised Mr McCarthy, pursuant to delegated authority, that the Convener report endorsed the decision under review. Accordingly, he did not propose to alter that decision.
[25] On 14 January 2020, Mr McCarthy appealed to the District Court against the Director’s decision made under s 27L(5). Despite efforts to point out to Mr McCarthy the limited benefit he would gain from the appeal, as even if he succeeded he would still need to apply for a new certificate, Mr McCarthy decided to continue to pursue the appeal.
[26] As the matter progressed towards a hearing, it became clear there were “strongly divergent views” between the parties as to the proper scope of the appeal and what possible further evidence could be adduced on appeal. The matter was therefore set down for a hearing to identify the issues raised and to make directions about evidence that may be adduced on the issues. That hearing took place on 10 June 2024, and Judge Harrop’s decision followed on 4 July 2024.
Decision on appeal
[27] Judge Harrop observed that determination of the scope of the appeal depended on an analysis of the nature of the decision under appeal and the statutory process which led to that decision. His Honour drew heavily on the decision of Wild J in Paterson v Director of Civil Aviation which had discussed the relevant provisions in the Act.20
[28] In Paterson, Wild J found that the Director had wrongly dismissed the findings of a Convener, which had supported the grant of a medical certificate to Mr Paterson. Justice Wild determined that the wording of s 27L(5) indicated a presumption in
20 Paterson v Director of Civil Aviation HC Wellington, CIV-2005-485-606, 23 June 2005.
favour of implementing a Convener’s report. The Convener’s review was an independent scrutiny of the application by a qualified expert, rather than a mere “check” provided by ordinary powers of review.21 The Director was therefore required to give the Convener’s report weight and status equal to, if not greater than, the AMC.22
[29] In light of the approach set out in Paterson, Judge Harrop considered that the decision of the Director in this case, made under s 27L(5) of the Act, was simply that all of the previous information and the expert Convener’s conclusion which considered all that information, alongside everything Mr McCarthy wished to put before him, disclosed no good reason for him not to implement the Convener’s report, as he was presumptively required to do in absence of such good reasons. His Honour therefore found the focus of the appeal was narrow, being on the Director’s decision under s 27L(5), and not the Convener’s decision. The Judge stated the scope of the appeal was limited to submissions from Mr McCarthy explaining what the good reasons were for the Director not to implement the results of the Convener’s decision, and submissions from the Director as to why there were no such good reasons.
[30] His Honour then turned to what further evidence may be relevant and properly adduced in support of the appeal. The Judge was satisfied that, in the particular circumstances of this case—notably the narrow focus on appeal—there were no special reasons why the Court should grant leave to Mr McCarthy or the Director to put forward any further evidence or to receive further information that was not before the Director on 12 December 2019. He considered it would be “quite wrong” on appeal to invite the receipt of evidence predating the decision which Mr McCarthy could have put before the Convener or Director, or to invite consideration of information which has come into existence subsequently. His Honour stated that unless it is evidence suggesting the Director was influenced by extrinsic information, such as information beyond the Convener’s review report, he did not see how subsequent information could have any relevance to whether the Director had any good reason for not implementing the Convener’s report on 12 December 2019.
21 At [40]–[44].
22 At [46].
[31] Judge Harrop also discussed r 18.20 of the District Court Rules 2014, which allows for a rehearing of the evidence on appeal. His Honour interpreted the rule as providing that, if the Court decided to rehear any part of the evidence taken before the decision maker, it had wide powers, including to hear and receive further evidence on factual questions, if the circumstances warranted it. The Judge determined, however, there was currently no basis on which the Court could properly exercise its wide discretion to rehear all, or any part of the evidence provided to the Director when making his decision on 12 December 2019. That was because the appeal was against the Director’s decision to implement the Convener’s report, rather than in relation to the correctness and quality of the Convener’s report itself. This meant evidence about what the Convener could, or should, have done is not admissible on appeal unless it directly indicated a failing on the part of the Director when considering the Convener’s report.
[32] Turning to the evidence Mr McCarthy wanted to adduce, namely about the history of his eye condition and various aspects of the process followed in his examination by Dr Lee on 16 January 2018 and the Convener review, Judge Harrop concluded that this evidence, on its face, would not be sufficiently probative of the critical question on appeal.
[33] However, his Honour granted leave for Mr McCarthy to make a “succinct and focussed” application seeking to adduce further evidence within 28 days of the date of the judgment. My understanding is no such application was made, rather Mr McCarthy pursued his appeal to this Court.
Approach on appeal
[34] Section 69(1) of the Act provides that every party to an appeal to the District Court under s 66 of the Act may appeal to the High Court on a question of law. Section 69(2) makes it clear that the High Court Rules 2016 and ss 126 and 130 of the District Court Act 2016 apply with all necessary modifications. Appeals are to be by
way of a rehearing,23 and the Court may make any decision it thinks should have been made, or remit the matter back to the District Court.24
Submissions
[35] Mr McCarthy raises a number of arguments, some of which do not appear to outline an error in Judge Harrop’s decision:
(a)Mr McCarthy submits that by not filing a response to Mr McCarthy’s notice of appeal, the respondent has avoided assessing all relative risk in respect to “comparison and consistency with other pilots whom they have issued class 1 and 2 medical certificates for eye conditions…”.
(b)Mr McCarthy also submits that by “jumping to the precedent as set in Paterson”, the District Court again excluded the likelihood of the medical Convener being exposed in cross-examination as to his deficiencies and truthfulness in respect to alleged qualifications, experience and knowledge. He argues the findings in Paterson that the Convener review was a de novo review process, and thus the recommendation was a definitive recommendation, did not take into account the fact the review was on the papers without the appellant’s witnesses. Nor did it consider that the medical Convener might have erred, acted negligently, or with malice knowing that he would not be called to give evidence and be cross-examined.
(c)He further says that there is an anomaly where the Director decides on an applicant’s medical fitness, but is not medically qualified, and that there is a conflict of interest where the Director’s own in-house team of doctors make the AMC decision. Mr McCarthy also notes that the Director did not consult with or speak to Mr McCarthy when making his decision.
23 District Court Act 2016, s 127.
24 Section 128(1)(a) and (b).
(d)Lastly, Mr McCarthy refers to the finding in Paterson that fresh evidence would be available to the District Court Judge on remission back for further consideration. He says that if this matter is remitted back to the District Court, the fresh evidence he seeks to adduce would also likely follow that precedent.
[36] Counsel for the Director, Mr Allan, submits Judge Harrop was required to, and did, apply Paterson, which he says was correctly decided. He argues the Judge correctly identified that the appeal should focus on whether there were reasons for the Director not to implement the Convener’s report. Therefore the decision-making record is limited to the Convener’s report and any extrinsic material the Director might have relied upon in deciding to implement the Convener’s report. He submits that the District Court might receive further evidence if it concerns reasons available to the Director at the time of the decision to implement the Convener’s decision. He submits that Mr McCarthy has not identified any error of law, and none is otherwise apparent. Therefore, the appeal should be dismissed.
Analysis
[37] It appears that the primary ground of appeal raised by Mr McCarthy is that the Judge erred in relying on Paterson to find the scope of the District Court Appeal was limited to the Director’s decision to implement the Convener’s report.
[38] It remains unclear to me what Mr McCarthy means in respect of the Director failing to file a response to the notice of appeal. As Mr Allan pointed out, this is an appeal by Mr McCarthy, the Director is not required to file a notice of opposition addressing each of the 21 points in the notice of appeal, but the Director has the right to oppose the appeal and has exercised that right. In my view, this is not a valid ground of appeal, given it does not concern the District Court Judge’s decision.
[39] I do not consider that the Judge erred in relying on Paterson. As a High Court decision concerning the application of the same provision as in this case, it was binding on the District Court Judge. Nor do I find he erred in applying Paterson to the facts of this case.
[40] I have set out the relevant provisions above. For ease of reference, s 27L(1) of the Act provides the right to seek a Convener’s review, and the Convener must then, as soon as practicable, review the decision,25 and report the results to the Director.26 The key provision is s 27L(5) which instructs the Director (within 10 working days of receiving the Convener’s report) either “to implement” the results of the decision contained within the Convener’s report, or otherwise to notify the licence holder or applicant of their reasons for not implementing the Convener’s decision. The decision under appeal in the District Court is made under s 27L(5), being the Director’s decision to implement the Convener’s report.
[41] I agree with the approach in Paterson where Wild J interpreted the wording of s 27L(5) to mean the Director is required to implement the Convener’s decision unless the Director thinks the Convener’s decision is wrong, in which case the Director must provide reasons to the applicant for the decision not to implement the Convener’s decision. If Parliament had not intended a presumption in favour of implementation, the provision would have adopted more neutral wording, such as that the Director must decide either to implement the Convener’s decision, or to decline to implement it, and provide reasons for either decision.
[42] I also find that Judge Harrop correctly applied this finding in Paterson to determine the scope of the appeal in the District Court. His Honour acknowledged the different facts in Paterson, where the Convener’s report was contrary to the AMC and the Director’s findings in deciding that Mr Paterson should in fact be issued a medical certificate. In the present case, two AMCs, the Director and a Convener have all determined that Mr McCarthy’s application for a medical certificate should be declined. Those facts do not change the approach. In the present case, given all the previous decisions had come to the same conclusion, if anything those facts provide greater support to the presumption that the Director will implement the Convener’s decision.
[43] His Honour therefore correctly identified that the scope of the appeal was narrow, with Mr McCarthy bearing the onus of satisfying the Court that the Director
25 Civil Aviation Act 1990, s 27L(2).
26 Section 27L(4).
was wrong to apply the conclusions of the Convener’s review report, which he was presumptively required to apply unless there were good reasons for not doing so.
[44] It is true that, as Mr McCarthy points out, the Convener reports are made on the papers without evidence called from witnesses. However, as s 25L(6) sets out, the licence holder or applicant may, either directly or through their medical experts, participate in the review process by providing relevant evidence to a Convener about any medical matter at issue with respect to the decision under review. It is clear from the Convener’s report that Mr McCarthy was able to exercise this right and he provided a significant quantity of material to the Convener. I therefore do not consider that the fact the Convener’s review is done “on the papers” means the finding in Paterson was wrong. I also note here that Wild J in Paterson did not find that a Convener review was a “de novo review process” and that therefore the report was a “definitive recommendation”, as Mr McCarthy claims. Rather, his Honour described the Convener review as a “fresh, robust, independent look at the pilot’s medical fitness”.27 In fact, Wild J noted that the phrase “de novo review” contains a contradiction, as “review” and “de novo” are alternatives.28
[45] I also accept it is possible that the Convener could have erred, acted negligently, or with malice. But the fact that the scope of this appeal does not extend to allow the Convener to be called as a witness and be cross-examined does not mean the Convener’s decision is unable to be challenged. As Judge Harrop notes in the decision on appeal, Mr McCarthy could have chosen to judicially review the Convener’s review and the report that resulted, but instead he elected to appeal the Director’s decision to implement the findings of that report. Mr McCarthy’s choice to appeal (although the consequence of it may not have been intended) means he is limited to demonstrating reasons why the Director should not have implemented the Convener’s decision, rather than showing how the Convener’s review and/or report were wrong.
[46] In terms of the further evidence that can be adduced in support of the appeal, I agree with Mr Allan that it is unclear what Mr McCarthy means in saying fresh
27 Paterson, above n 20, at [44].
28 At [87].
evidence would be available if the matter is remitted back to the District Court. This is not an appeal of the District Court’s substantive decision about the Director’s declining of the application, as was the case in Paterson, given the substantive hearing has not occurred yet. The findings in Paterson that relate to remitting a matter and what evidence can be adduced in such a reconsideration are therefore not relevant here.
[47] Regardless, I am satisfied that Judge Harrop correctly declined to grant leave to hear any further evidence that was not before the Director on 12 December 2019 when he made his decision to implement the Convener’s report. His Honour correctly identified that it would be inappropriate to allow the Court to have regard to information that was not before the Director when he made his decision, when the issue on appeal is whether, on the information before the Director, there were any reasons not to implement the Convener’s report. The Judge also appropriately noted that, while the appeal is by way of a rehearing, this does not mean rehearing the case de novo, calling and examining witnesses again. Rather, the Court will be considering the information the Director had before him and determining whether he came to the right decision based on that information. Although such a rehearing can occur under r 18.20 of the District Court Rules, I agree with Judge Harrop’s finding that this is not a case in which the Court should exercise its discretion to do so, given the narrow scope of the appeal.
[48] I agree too that the evidence Mr McCarthy seeks to adduce about the history of his eye condition and the processes followed by the AMCs and the Convener is unlikely to be relevant to the issue on appeal. I also note that Judge Harrop did not decline to admit any such evidence at all. Mr McCarthy remains able to make an application to adduce further evidence.
[49] What Mr McCarthy is seeking in the District Court is a wholesale review of the entire CAA process that led up to the ultimate decision by the Director, which would involve calling evidence from most or all of the people who were involved. He candidly accepted that the purpose of his appeal is to “get out what happened in the past” because he says he does not wish anyone else to go through his experience, and if his appeal assisted in changing the CAA’s practices, it would be a great benefit to society.
[50] Mr McCarthy’s submissions were clear, thorough and courteous. I acknowledge that he has a deep sense of grievance when he does not believe he has any issues that should preclude him from obtaining a medical certificate. However, his appeal must proceed in accordance with the applicable statutory framework, relevant cases that have discussed that framework, and the rules of Court. Those matters preclude the type of general enquiry that Mr McCarthy seeks. In addition, if it is his aim to achieve change in the processes of the CAA, that is likely to be a matter for Parliament, given those processes are set out by statute.
Conclusion
[51] Mr McCarthy has failed to demonstrate any error in Judge Harrop’s careful and comprehensive decision, nor have I been able to find any error.
[52]The appeal is dismissed.
Costs
[53] The respondent seeks costs. Mr McCarthy does not believe he should have to pay costs, when he hopes his case will benefit the public, and given that he has been “up against” the state with all of the resources available to it.
[54] As the successful party, however, the respondent is entitled to costs. I ask the parties to endeavour to agree to the appropriate level of costs that I should impose. If that proves impossible, the respondent may file a memorandum setting out the costs claimed, and Mr McCarthy may file a memorandum in response, no later than five working days following receipt of the respondent’s memorandum. I will then determine costs on the papers.
Grau J
cc:R M McCarthy G H Allan
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