Thow v Civil Aviation Authority

[2025] NZHC 2402

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2024-412-51

[2025] NZHC 2402

UNDER

the Civil Aviation Act 1990

IN THE MATTER

of an appeal against conviction

BETWEEN

BRENDAN SHANE THOW

Appellant

AND

CIVIL AVIATION AUTHORITY

Respondent

Hearing:

On the papers

Appearances:

Appellant in Person

A L McConachy and K E Bucher for Respondent

Judgment:

22 August 2025

JUDGMENT OF OSBORNE J

[1]On 1 August 2025 I dismissed the appellant’s appeal for want of prosecution.1

[2]The appellant had not appeared at the scheduled hearing.

[3]I reserved the costs and disbursements of the proceeding.

The application

[4]                 The respondent applies for the whole of its costs to be paid by Mr Thow. Its legal fees and disbursements, as verified by invoices produced, total $8,025.11.

1      Thow v Civil Aviation Authority [2025] NZHC 2130.

THOW v CIVIL AVIATION AUTHORITY [2025] NZHC 2402 [22 August 2025]

[5] The respondent invokes the court’s power under s 8(5) Costs in Criminal Cases Act 1967 to order such costs where the court is of the opinion the appeal included any frivolous or vexatious matter.

Discussion

[6] Mr Thow’s appeal contained much that falls within the qualifying characteristics under s 8(5).

[7]The protracted history of Mr Thow’s appeal is set out in the Judgment at [13]–

[24] and is not repeated here in detail. Throughout the appeal proceedings Mr Thow’s conduct strongly pointed to the appeal being conducted vexatiously. Timetabling directions were not complied with; documents were not served on the respondent; and ultimately Mr Thow failed to appear to prosecute his appeal.

[8]        Arguments put forward by Mr Thow were entirely unmeritorious and carried no hope of success, as indicated in the following passage from the Judgment:

[80]      There is nothing in the material provided by Mr Thow in support of this appeal to cast doubt on the safety of his convictions. Of the two particular matters identified in Mr Thow’s strike out application, he did not in his memoranda present argument on the first, relating to a lack of personal service. That was plainly a hopeless argument for the reasons identified by the Judge.

[81]      What was identified in Mr Thow’s appeal documents as apparently the central issue was the second particular identified in his strike out application … claiming an entitlement to operate in New Zealand the helicopter VH-LEH as a commercial pilot, by reason of Australian registration and licensing.

[82]      Mr Thow’s documents filed on the appeal do not identify any error in the Judge’s reasoning. The Judge had the benefit of hearing the evidence of the various witnesses including, most relevantly on this point, the evidence of Ms Roberts-Smith from CASA. Ms McConachy has helpfully in her submissions on this appeal summarised why that central argument of Mr Thow was hopeless.

[9]        The lack of merit evident in the way in which Mr Thow conducted his appeal and ultimately failed to appear is reinforced by his parallel conduct in failing to appear for the trial, the outcome of which was the very subject of this appeal.

[10] Pursuant to s 8(2) of the Act, costs are not to be granted by reason only of the fact Mr Thow’s appeal was unsuccessful. Costs will not be granted on that basis here. But this case falls squarely within the ambit of s 8(5). I find it is fit to order the payment of costs as sought by the respondent.

Result

[11]      The appellant is to pay to the respondent costs and disbursements fixed in the sum of $8,025.11.

Osborne J

Solicitors:

Gordon Pilditch, Rotorua Copy to: B S Thow