However, the tribunal accepted the opportunity to find the informant’s identity might now be lost.
The pilot, who at the time flew back and forth across the Tasman for Virgin Australia (NZ), says he suffered immense stress during the investigation by the New Zealand and Australian civil aviation authorities. Photo / 123rf
The CAA said in a statement to NZME it acknowledged and accepted the tribunal’s decision that it breached two principles of the Privacy Act relating to the accuracy and completeness of information disclosed.
It also found that the CAA was entitled to disclose the safety concern to the relevant Australian aviation regulator because of the aviation safety obligations that applied at the time.
Milestone in years-long fight
The decision marks a milestone in the years-long fight by the pilot at the centre of what he described earlier as “malicious” complaints that he was “getting drunk” before a flight, and later, that he was seen at Brisbane Airport emerging from a toilet with a woman.
The alleged incident at Brisbane Airport was communicated anonymously to Virgin Australia, which it believed was vexatious.
NZME reported in 2022 that the pilot was fighting to have the person who made the claim about him drinking identified so he could bring a defamation lawsuit against them, but the CAA would not name them, claiming it would be a breach of privacy.
The tribunal, made up of specialist human rights lawyer Martha Coleman as deputy chairwoman, plus members Patsi Davies and Sandra Kai Fong, said the pilot’s privacy had been breached through the CAA disclosing an allegation it received about him to another party, without taking reasonable steps to ensure the information was accurate, complete and not misleading.
The tribunal also found the CAA had failed to provide him with all the personal information he was entitled to.
It must now provide him with unredacted versions of personal information from October 2017, plus an automated email sent to the informant immediately after the notice of concern was sent in August 2017.
False complaints caused ‘immense stress’
The pilot, who at the time flew back and forth across the Tasman for Virgin Australia (NZ), said the complaints, which were quickly found to be false, caused him immense stress during the investigation by the CAA and its Australian counterpart, the Australian Civil Aviation Safety Authority (CASA).
He put himself on sick leave because he did not consider it safe for him to fly.
The investigation followed the CAA receiving an “aviation-related concern” via an online portal in August 2017.
The portal allowed members of the public or those employed within the industry to report aviation-related safety concerns to the CAA.
The informant alleged he and his wife had seen a Virgin Australia pilot drinking alcohol in a Wellington hotel and, a short time later, when they arrived at the terminal, they saw the same pilot operating a flight from Wellington to Brisbane.
The tribunal said the informant claimed the pilot was carrying a bag with his name on it.
The Australian aviation authority was notified and the next day the pilot was told information had been received from a member of the public that indicated he “may not meet the medical standards required for a pilot’s licence because he was suffering from problematic use of alcohol”.
He was then directed to undertake a medical examination.
The pilot claimed disclosure of the concern to the Australian authority breached his privacy rights, in that the CAA “failed to take reasonable steps to ensure that the information passed to CASA was complete, accurate and not misleading”.
Pilot in dark about nature of allegation
The pilot told NZME in 2022 he wasn’t given any information about when the incidents were supposed to have occurred and had to do his own research, even going so far as to source CCTV footage of the bar from the hotel.
The CAA says aviation safety concerns must be taken seriously and, where appropriate, shared with the regulator responsible for looking into them. Photo / 123rf
That footage confirmed he had been at the bar to collect milk for his breakfast, and a geo-tracking app on his phone confirmed he was in a taxi on the way to the airport when, according to the complainant, he was “getting drunk at the bar”.
The pilot said even though the investigation was kept confidential, even from his employer, “Chinese whispers got around very quickly”.
“Rumours grew up around these allegations, many of my colleagues believed the allegations,” he said.
Gaps in disclosure
The tribunal found gaps in the CAA’s initial disclosure to its Australian counterpart, including inconsistencies in information gathered by the CAA’s principal medical officer about the informant’s name and email address, which didn’t match.
An email sent to the informant revealed the medical officer had sought to confirm their identity, and noted such allegations had “potentially major implications for someone’s career”.
The informant replied a few hours later, confirming a time, date and location of the alleged incident, plus the flight number and that they were not a passenger on it.
A copy of the poorly written email provided in evidence to the tribunal included typographical errors, as they appeared in the original exchange.
The CAA asked the informant what prompted them to report the alleged matter almost a month after it had occurred, and was told they had been too busy at the time to report it immediately.
Evidence showed informant’s identity not real
The tribunal said a discontinued email address was not the only evidence the informant had not used their real identity.
There was also an incorrect phone number, the surname was spelt differently in the notice lodged than in their email address, and there was a lack of any online profile.
The tribunal said the use of a false name did not mean the informant was motivated by malice, but in this case, the level of false detail provided supported a finding that the allegation was, at the very least, vexatious and possibly part of a wider pattern of vexatious allegations.
The tribunal was in no doubt the allegations against the pilot and the investigation that followed caused him significant anxiety and distress, and the ongoing rumours that arose from the claims caused him significant humiliation and loss of dignity.
It also said that if the pilot had been provided with the informant’s contact details in a timely way, there was a chance the device would still be in use and, therefore, the informant could have been identified through the IP address.
“Had that been the case, it is highly likely that [the pilot] would have been able to use that information to stop further vexatious complaints being made including, if necessary, through litigation.
“He also lost the opportunity to find out if that person was also behind the other malicious allegation made against him,” the tribunal said.
The damages order consisted of $7000 for the loss of a benefit that he might reasonably have expected to have received but for the interference with his privacy and $12,000 for injury to feelings.
Aviation concerns ‘must be taken seriously’
The CAA said aviation safety concerns must be taken seriously and, where appropriate, shared with the regulator responsible for looking into them.
At the same time, it recognised the importance of meeting its privacy obligations when handling personal information.
The CAA said its systems, processes and legislative framework had evolved significantly since the event.
Tracy Neal is a Nelson-based Open Justice reporter at NZME. She was previously RNZ’s regional reporter in Nelson-Marlborough and has covered general news, including court and local government for the Nelson Mail.