Civil Aviation Safety Authority v Ovens

Procedural fairness 15 However, what is called a final version of the Protocol of CASA was issued on 22 April 2010 ("the Published Protocol"). It was accepted before the primary Judge that the Published Protocol was not brought to Mr Ovens' attention or to the Tribunal's attention until near the end of the evidence of the last witness at the hearing on 28 April 2010. The Published Protocol was tendered in evidence during re-examination of CASA's last witness, immediately prior to closing submissions by counsel for Mr Ovens to the Tribunal. 16 As we have indicated, the Published Protocol was preceded by the Draft Protocol. Mr Ovens formed the view, which is not challenged, that he could not bring himself within the Draft Protocol because it could not apply to a person who uses an insulin pump as Mr Ovens does. However, and importantly, this is not the case with the Published Protocol which contains a stipulation that flight should not commence within 90 minutes of the administration of insulin (either short or long acting types), unless an insulin pump is used. 17 In our view a reading of the Tribunal's decision makes it clear that the Published Protocol, which the Tribunal identified as "the Authority's Protocol", was central to its decision. For example, at [8] of the Tribunal's reasons the third issue identified was as follows: Whether any condition(s) should be imposed in accordance with the Authority's protocol issued on 22 April 2010, or the US FAA protocol, or a like protocol devised by the Tribunal? 18 At [81], the Tribunal said: At present, Mr Ovens's condition is that he can only fly with a safety pilot. He is seeking an alternative condition, namely, that he be permitted to fly without a safety pilot but in compliance with the safety conditions in either the FAA Protocol or the Authority's Protocol or a protocol as modified by the Tribunal. 19 At [91]-[93] of its reasons, the Tribunal noted the contents of the Published Protocol and asked itself whether Mr Ovens met certain criteria in it or under it. The following significant statement was made at [94]: The Tribunal had no evidence to assist in resolving this issue since the Tribunal was only made aware that the Authority had issued its Protocol during the last day of hearing and it did not have the opportunity to see the Protocol before the end of the hearing. 20 Further, at [95] the following was said: The Tribunal notes that counsel for Mr Ovens argued strongly at the hearing that the Tribunal should apply the FAA Protocol, rather than the Authority's Protocol to Mr Ovens' application. This was in part because counsel, like the Tribunal, was unaware that the Authority's Protocol was about to be published. 21 Another use made of the Published Protocol by the Tribunal was at [96] where the Tribunal said: … the Tribunal accepts that the Authority's Protocol should be accepted as applying in Australia and, therefore, to Mr Ovens's application. The Tribunal also finds that since the Authority has issued its Protocol, it would be inappropriate for the Tribunal, as happened in Re Serong, to devise a specific protocol for Mr Ovens, given that the Authority's Protocol has been published followed [sic] extensive consultation with experts, an advantage not available to the Tribunal. 22 Again at [98] the Tribunal said: The Tribunal is not in a position to assess whether Mr Ovens would meet other requirements in the Protocol. These include, for example, having acceptable blood sugar readings within the 90 days prior to the application, having reasonable scores in a report of the results of a 'maximal graded exercise stress test', and that he has an acceptable level of blood sugar control as demonstrated by the results of the blood sugar analysis over a three month period immediately prior to the application referred to in the Medical factors considered in CASA's decision making. 23 Lastly, at [99] the Tribunal said: The Tribunal is aware that the conjunction of the issue of the Authority's Protocol with the Tribunal proceedings meant the hearing, in many respects, was premature. That is because the Tribunal did not have the benefit of evidence in Mr Ovens's case in relation to all the criteria in the Protocol. 24 The appeal before us appears to have been conducted in part on the incorrect assumption that because the Protocol had been published, its contents applied as a law of the Parliament would apply. This becomes most relevant in relation to the appellant's submission, as we understood it, that any departure from procedural fairness was immaterial because there was only one possible outcome once the Protocol had been published. We return to that issue below. 25 The appellant submits that, when considered as a whole the relevant parts of the transcript following the tender of the Published Protocol show that the Tribunal did give the respondent an opportunity to deal with it. We do not agree, in substance for the reasons given by the primary judge. 26 Her Honour said at [46]: It is possible that, had an adjournment been sought, it would have been granted. However, bearing in mind the way in which the evidence was adduced by the Authority, it is understandable that Mr Ovens did not appreciate the effect of the tender of the Published Protocol. It is fair to say that neither the Authority nor the Tribunal made explicit the effect of the acceptance of the Published Protocol into evidence. Although counsel for Mr Ovens said 'I've got that' in relation to the Published Protocol, he did not address the Published Protocol. In the circumstances, the Tribunal was not relieved of its obligations (Sullivan). The Tribunal did not explain its view that Mr Ovens had not adduced or directed his evidence to the criteria in the Published Protocol. This does not represent an obligation on the Tribunal to signal to Mr Ovens its contemplated decision. It is an evidentiary matter. It is apparent from Mr Ovens' submissions to the Tribunal that he did not direct his case to the Published Protocol. The Published Protocol was a document the existence of which was apparently unknown (even) to counsel for the Authority (cf Donnelly v Repatriation Commission (1987) 73 ALR 350 at 358 per Burchett J). It was unknown to Mr Ovens. The possible significance of that document to the Tribunal decision was not evident to Mr Ovens. Mr Ovens did not have the opportunity within the time frame of the hearing fully to appreciate or to consider the criteria in the Published Protocol and the way in which the evidence could be directed to those criteria. 27 We were taken to various passages in the transcript where, after the close of the evidence there were references to the Published Policy. It is true to say, as her Honour said at [52], that Mr Ovens was made aware of the Published Protocol and the fact that the Tribunal considered the Published Protocol to be relevant to its decision. However in our view the references to the Published Policy, coming as they did, necessarily in light of the late knowledge of it, after the close of Mr Ovens' evidence, were too late and too slight and in the main did not go further than the issue of the status and thus the relevance of the Published Policy. The possible impact of the Published Policy on the hearing before the Tribunal was a matter of some complexity and this made it necessary that Mr Ovens be given a fuller opportunity to deal with it. We therefore agree with the conclusion of the primary judge on this issue. 28 The appellant's submission appears to invite this Court to find that the principle in Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 answers the issue of procedural fairness. However in the common case where the policy is not binding, whether or not a policy, such as the Published Protocol, is relevant is conceptually distinct from how that policy may be used in a particular case. 29 It is to be recalled that in the Full Court in Drake Bowen CJ and Deane J said at 420: In some cases, the Tribunal may be expressly required by the Act conferring the right of appeal to regard itself as bound by the principles formulated by the Minister in administering some aspect of the Act: see, for example, Dairy Industry Stabilization Act 1977 (Cth), ss. 11A and 24A. But that is not the case here. There was not, in the present matter, any express statutory provision either requiring or authorizing the Tribunal to determine the matter in accordance with relevant government or ministerial policy. In a matter such as the present where it was permissible for the decision maker to take relevant government policy into account in making his decision, but where the Tribunal is not under a statutory duty to regard itself as being bound by that policy, the Tribunal is entitled to treat such government policy as a relevant factor in the determination of an application for review of that decision. It would be contrary to common sense to preclude the Tribunal, in its review of a decision, from paying any regard to what was a relevant and proper factor in the making of the decision itself. If the original decision maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the Tribunal to take into account in reviewing the decision. On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be. Smithers J said at 430: It is not easy to identify the concept according to which the Tribunal approached its task in this case. But the reasons for decision read as a whole do induce an impression that what the Tribunal was really engaged in doing was acting in a supervisory role. In this role it was necessary for the Tribunal to form judgments as to the validity of views which the Minister had taken with respect to various matters considered by him. The Tribunal did this. And it is a question whether having done so the Tribunal applied its own views to decide whether the Minister's decision was arrived at by a reasonable or justifiable application by him of ministerial policy and if so should be affirmed, or applied its own views to decide objectively for itself whether according to the standard of good government the Minister's decision was the right one. If the former then the Tribunal was acting in a supervisory role according to which it would tend to affirm the ministerial decision not because the Tribunal considered it to be the right one but because it considered that it was a decision which might reasonably and rationally be made in the application of ministerial policy. There are persuasive indications in the reasons that the supervisory role was the role adopted by the Tribunal in this case. In the first place it is apparent that the Tribunal accepted, essentially without question, that the answer to the problem before it was to be found in the Minister's statement of policy. 30 Because the Published Protocol was a policy it was also necessary to consider the merits of the particular case of Mr Ovens: see Drake; R v Port of London Authority; Ex parte Kynoch Ltd [1919] 1 KB 176 at 184 and British Oxygen v Minister of Technology [1971] AC 610 at 624E-625F. 31 Therefore, there needed to be an opportunity afforded to Mr Ovens to consider the following matters in the context of the Tribunal's task which was to arrive at the correct or preferable decision: (a) whether the Published Policy should be applied at all and, if so, in what respects; (b) whether the Published Policy should be applied to his particular circumstances according to its terms and, if not, to what extent it should be so applied; (c) whether it was appropriate to devise a specific protocol for him; (d) whether evidence would be relevant to issues (i), (ii) and (iii); (e) whether submissions would be relevant to (i), (ii) and (iii) and, if evidence was adduced, to (iv). 32 The respondent relied on Fitness Australia Ltd v Phonographic Performance Co of Australia Ltd (2010) 89 IPR 442 but that is no more than an illustration of how fact heavy the application of the principles of procedural fairness may be. The appellant relied on Sullivan v Department of Transport (1978) 20 ALR 323 but that decision, in our view, bears out the same principle. Sullivan involved the absence from the Tribunal of a witness who was important to the applicant's case, neither the applicant nor the respondent having taken steps to arrange for the witness to be present. It did not involve a policy nor the introduction of a policy by the respondent at, in effect, the close of the applicant's evidence. Further, because it did not involve a policy in documentary form, the decision in Sullivan did not involve that part of s 39(1) of the Administrative Appeals Tribunal Act 1975 (Cth) which is presently relevant. 33 Where, as here, the question is what the principles of procedural fairness require then the answer lies in an evaluation of the procedure which was adopted in the particular circumstances of the case. 34 In our view the hearing before the Tribunal should have been adjourned to enable proper consideration of the Published Protocol. We say this having regard to procedural fairness generally but also to s 39(1) of the Administrative Appeals Tribunal Act 1975 (Cth). The provision states: (1) Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents. 35 Thus the real argument available to the present appellant is the proposition that there was only one answer. However given the place of the Published Protocol in CASA's and thus the Tribunal's discretionary decision making, this is not a sustainable proposition. The test is that the lack of procedural fairness could not have affected the outcome: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145-147; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 88, 116-117, 122, 130-131 and 154; and Dagli v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 541 at 557-559. 36 Once it is accepted, as it must be consistently with Drake, that the Published Policy was legally no more than a starting point in the exercise of the Tribunal's discretion it follows that there must be more than one possible outcome. Thus it is not to the point that Mr Ovens had not done any of the trialling to which the Published Protocol refers. This is because, procedurally, he had to be given the opportunity to address the matters we have set out in these reasons at [31] above. 37 For these reasons the issue of substance in the appeal must be answered unfavourably to the appellant. We reject Grounds 1 and 3 - 7 of the Notice of Appeal. As indicated above, Ground 2 was abandoned by the appellant.

Amended Notice of Contention 38 The respondent sought leave to rely on an amended notice of contention filed in Court on the day of the hearing of the appeal and notified to the appellant only on that day. The respondent addressed oral argument to his amended notice of contention and we granted to the appellant leave to file short written submissions dealing with it, reserving our decision on whether the respondent should have the leave he sought. 39 Ironically, ground 2(c) of the amended notice of contention, which we consider in detail below, was very closely related to the matter of which the appellant complained in its Ground 2 which it abandoned. Both concerned [77] of the Tribunal's reasons. Likewise the other proposed grounds of the amended notice of contention involved no new facts and were closely related to the matters agitated in the appeal in any event. 40 Despite the very late notice but because, in the circumstances we have outlined, there was no prejudice to the appellant, we grant the respondent leave to rely on the amended notice of contention. 41 As we have indicated, the main issue remaining to be dealt with is [77] of the Tribunal's reasons, which reads as follows: Despite not meeting the standard, the Authority can issue a special certificate to exercise the privileges of a person's licence subject to any condition considered necessary by the Authority (regulation 67.195). In exercising that discretion the Authority must be satisfied either that the person's medical condition is not 'likely to reduce' the person's ability to pilot an aircraft or that allowing him to fly is not 'likely to endanger the safety of air navigation'. 42 The expressions which the Tribunal has reproduced in italics are not those which are found in reg 67.195 itself. The first expression 'likely to reduce' seems to come from the definition of "safety-relevant" in reg 67.015. "Safety-relevant" condition fits into the table in reg 67.115 which is the criteria for medical standard 2. In turn the medical standard issue fits into reg 67.180(2)(e)(i). The second expression in italics, the phrase 'likely to endanger the safety of air navigation', is found in reg 67.180(2)(e)(ii). 43 Thus, in terms, those words are not used in reg 67.195 which appears to be what the Tribunal has incorrectly stated in [77]. 44 It is to be noted, however, that under reg 67.180, subject to that regulation, on receiving an application under reg 67.175 CASA must issue a medical certificate to the applicant only if, relevantly, the applicant meets the requirements of sub-regulation (2) and one of those requirements is, as we have indicated, either that the applicant meets the relevant medical standard or, if the applicant does not meet that medical standard, the extent to which he or she does not meet the standard is not likely to endanger the safety of air navigation: see regs 67.180(2)(e)(i) and (ii). 45 It is, of course, true that under reg 67.195 CASA may issue a medical certificate subject to a condition "that is necessary in the interest of the safety of air navigation, having regard to the medical condition of that person". However, as expressed, what the Tribunal has said at [77] may be inaccurate. 46 The issue becomes whether that apparent inaccuracy had a material effect on the Tribunal's decision. 47 Mr Ovens does not argue that it was an error to take reg 67.180 into account but that it was an error to graft reg 67.180 conditions or preconditions on to reg 67.195. He then points to [82]-[94] of the Tribunal's reasons. 48 We note that [81] of the Tribunal's reasons is not challenged. There the Tribunal said, in effect, that if the discretion under reg 67.180 is exercised favourably, reg 67.195 provides for the issue of a medical certificate subject to a particular condition that is necessary in the interest of the safety of air navigation, having regard to the medical condition of the person. Thus the Tribunal reasons that reg 67.180 is the question of whether or not the medical certificate is to issue and reg 67.195 comes into operation if the answer to the reg 67.180 question is 'yes'. Then reg 67.195 operates expressly to state the scope of the power to impose a condition or conditions. 49 So read we do not regard the paragraphs identified by Mr Ovens as applying in a material way the apparent inaccuracy which we have identified in the Tribunal's reasons at [77]. 50 Thus if the paragraphs to which Mr Ovens draws attention, [82]-[94] are concerned only with reg 67.180 and the respondent accepts that it was not an error to take that regulation into account, in our view, the result is that there is no separate error made out beyond the procedural fairness point which we have dealt with above.

Possible futility 51 On the hearing of the appeal the Court drew the parties' attention to the apparent fact that the appellant's decision under review was for the issue of a medical certificate for 12 months from July or August 2009. If so, then by the time the matter first came to this Court, or shortly thereafter, the decision of the Tribunal had ceased to have effect. This was not a matter raised before the primary Judge by either party. 52 We note that the original application for a Class 2 Aviation Medical Certificate dated 22 May 2009 was not limited as to time but was said to be for a Certificate "in accordance with CASR Part 67". If no subsequent licence had been granted, perhaps under reg 67.205(3)(b)(ii), there may have been power to extend the time for which the medical certificate remained in force. However that provision is subject to reg 67.215 and in particular to reg 67.215(2) which provides that an extension of the period during which the certificate remains in force must not be for longer than 1 year after the day when the certificate would expire if the period had not been extended. 53 We were told, however, by counsel that Mr Ovens had been granted an identical certificate but bearing a later date, presumably for the period since July or August 2010. We were also told that there had been no application to the Tribunal for review of the decision to grant that certificate on the 'with safety pilot' condition. 54 Although both parties contended that the appeal was not futile even if the appeal were dismissed and the orders of the Court made on 17 December 2010 remitting the matter to the Tribunal stood, the question remains how remitting a matter by virtue of a procedural error in relation to a licence which appears to have expired and been replaced by a later licence could have utility. The point is that each licence is for a finite period and the grant of each is a separate decision under the Regulations. 55 The issue having been raised by the Court, the appellant said that if the matter were remitted it would be minded to adopt the respondent's suggestion which was that the Tribunal would be in a position to address the issues on the current certificate. 56 As we see it, so far as concerns the procedural issues the Tribunal would be in a position to deal with those issues on the current certificate in any event if an application were made to it and time were extended for that purpose. 57 Nevertheless, because the parties have joined in advocating remitter we would remit but vary the present order so as to leave it to the Tribunal to decide whether anything remains for it to decide in relation to the application before it and whether, therefore, there is any utility in respect of the application it has before it, in particular, in the language of present Order 3 "to enable the applicant to produce further evidence in relation to the application of the respondent's "Protocol for Type 1 Diabetic Pilot Applicants" (the CASA Protocol) and to make further submissions in relation to the application of the CASA Protocol, the FAA Protocol or some other protocol".

Order 58 We therefore allow the appeal in part so as to vary Order 3 made by the primary Judge on 17 December 2010 by deleting the words following the words "The matter be remitted to the Tribunal", those words being those we have quoted in [57] above. Otherwise the appeal is dismissed with costs. As to costs we consider that the Amended Notice of Contention, being so closely related to the abandoned Ground 2 of the appellant's appeal, does not warrant any different order. I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Jacobson, McKerracher and Robertson JJ.