Costello and Department of Transport [1979] AATA 184 (30 November 1979)

Administrative Appeals Tribunal of Australia|1979-11-30

The applicant has declined to accept this offer as, in his view, he meets the requisite colour perception standard and is therefore entitled to an unrestricted Senior Commercial Pilot Licence.

Being dissatisfied with the decision of the delegate, the applicant has applied to this Tribunal for review pursuant to the provisions of Part III in the Schedule to the Administrative Appeals Tribunal Act 1975. The question before this Tribunal in terms of Regulation 57(1)(a) of the Regulations is whether the applicant has satisfied the Tribunal "that he meets the medical standards adopted in pursuance of the Convention and notified by the Director-General in Air Navigation Orders".

"57(1) Subject to this regulation, an applicant for a licence under this Part is not eligible for the grant of such a licence, unless -

(a) he submits himself to a medical examination, conducted by an approved medical practitioner, and satisfies the Director-General that he meets the medical standards adopted in pursuance of the Convention and notified by the Director-General in Air Navigation Orders; and

whether he has previously under gone a medical examination for the purpose of the grant of a licence and, if so, with what result;

the opinion of the approved medical practitioner, are necessary for determining whether he meets the medical standards referred to in the last preceding paragraph; and

Director-General of any information that has been acquired by any medical practitioner, hospital or other medical organization and may assist in the determination of whether he meets those medical standards."

A reference in the Regulations or Air Navigation Orders to the Director-General of Civil Aviation is to be read as including a reference to the Secretary to the Department of Transport (see s9(3) of the Air Navigation Act 1974)).

The applicant challenged the validity of recent amendments to Mr Navigation Order (A.N.O.) 47.3 in which the colour perception standard is notified. Essentially, the applicant's argument was that changes made in A.N.O. 47.3 on 30 May 1974 when Issue 5 of that Order was replaced by Issue 6, and again on 29 September, 1978, when Issue 6 was replaced by Issue 7, were invalid. The substance of the applicant's final submission, which was not very fully developed, was contained in the following paragraphs of the applicant's written submissions which were lodged with the Tribunal after completion of the hearing:-

"It is my submission that even Air Navigation Regulations require the approval of the Governor-General acting on the advice of the Executive Council, to become law and can only be made in accordance with the express provisions of section 26 of the Air Navigation Act inter alia to give effect to the Chicago Convention.

It is my submission that A.N.O.'s which represent the views or decisions of the Secretary (formerly Director-General) must be similarly construed for precisely the same purpose and I would submit that this view is completely re-enforced by the reference to the Chicago Convention in A.N.R. 57(1)."

It was submitted that, whilst Issues 6 and 7 did not "give effect to the Chicago Convention", Issue 5 did. We were urged, therefore, to treat Issues 6 and 7 as invalid and apply Issue 5 in these proceedings as if it were still in force.

Mr Kasper, who appeared on behalf of the Secretary, submitted, in reply, that:-

"To the extent that the ANO's have the force of law this Tribunal, with all due respect, cannot question whether any provisions of the ANO's are ultra vires, see in this regard Adams v Tax Agents Board (1977) 12 ALR 239 at p 245."

In the passage referred to, the President of this Tribunal, referring to a challenge in that case to the validity of certain provisions of the Income Tax Assessment Act 1936, said:-

"In Australia there is a reluctance on the part of administrative bodies to pass upon the constitutional validity of statutes: see 18 CTBR (NS) Case 14; 72 ATC 272, Case D47, a decision of No 2 Tax Board of Review. If it be allowed that there is, in Australian legal theory, a competence in an administrative body to consider and form an opinion upon the constitutional validity of a statute in order that that body may act in accordance with law, the competence to form the opinion and to be informed on the question of constitutional invalidity should not be treated as a jurisdiction invested in the administrative body to reach a conclusion having legal effect. It is merely a means which the administrative body may adopt in moulding its conduct to accord with the law. The formation of the opinion is not a power vested in the administrative body which the members must personally exercise. They may be guided by the competent legal advice of others and they will be held to act reasonably if they act on "the faith of a statute not yet held to be invalid" (per Dixon J in James v Commonwealth [1939] HCA 9; (1939) 62 CLR 339 at 373). As a counsel of prudence there is much to commend President Lincoln's dictum quoted in State v State Board of Equalizers, supra, at p683: "I do suggest that it will be much safer for all, both in official and private stations, to conform to and abide by all those acts which stand unrepealed than to violate any of them trusting to find impunity in having them held to be unconstitutional."

The applicant responded to the Secretary's submission as follows:-

"It is submitted that Adams v Tax Agents Board 12 ALR 239 does not apply in this matter. It is noted that that decision dealt with the question of a Statute being ultra vires the Parliament. This matter involves a consideration of the question as to whether ANO's issued by the Secretary of the Department (formerly the Director-General) are a proper exercise by that officer of the powers delegated to him pursuant to ANR 8 and in turn ANR 57."

Despite the applicant's submission as to the need for the ANOs to "conform" to the ICAO standards (which has echoes, of course, of the constitutional arguments raised with respect to the external affairs power of the Commonwealth Parliament considered in The King v Burgess; ex-parte Henry [1936] HCA 52; (1936) 55 CLR 608 and in Airlines of New South Wales PtyLtd v New South Wales (1964 - 5) [1965] HCA 3; 113 CLR 54)it is clear, we think, that the applicant was not seeking to raise any question as to the constitutional validity of the relevant provisions of the Air Navigation Orders. To that extent the decision in Adams' Case is clearly distinguishable

But there are, in our view, close parallels between the circumstances considered by the President in Adams' Case and the issues which have been raised by the applicant. In the course of his decision in the Adams' Case, the President also said (at p.243):-

"When an administrative body declines to exercise a power in consequence of its opinion as to the limits of the authority conferred upon it by statute, the administrative body thereby seeks to conform with the expressed will of the legislature. But if an administrative body declines to exercise a power in consequence of its opinion that the legislature could not confer the relevant authority upon it, the will of the legislature expressly conferring that authority would, at least for a time, be overridden. Moreover, that will would be overridden without judicial consideration. A consequence of such gravity throws doubt upon the proposition that an administrative body ought to consider the constitutional validity of a statute affecting its power."

The question whether this Tribunal, exercising as it does the functions of administrative review, should entertain arguments as to the validity of subordinate legislation such as the Air Navigation Orders raises an important issue as to the powers of the Tribunal. In his final submissions, the applicant suggested, by way of an alternative argument that a decision to issue Air Navigation Orders pursuant to regulation 8 of the Regulations was the exercise by the Secretary of a discretionary power which fell for review by this Tribunal. But we think it is quite clear that our review jurisdiction under Part III of the Schedule to the Administrative Appeals Tribunal Act 1975 does not extent to such decisions.

Courts have traditionally exercised the power to declare delegated legislation invalid where in the process of adjudicating upon private rights and duties, it becomes necessary to determine whether the maker of delegated legislation has exceeded his delegated authority (see Pearce on Delegated Legislation, p 92 paragraph 216 and cf Wynes on Legislative Executive and Judicial Powers in Australia, 5th Edn p31). But this Tribunal can give no binding and authoritative decision on such a question (cf Huddart Parker Pty Ltd v Moorhead [1909] HCA 36; (1909) 8 CLR 330 at p357 per Griffith CJ). If it be the case that the Tribunal has the competence nevertheless, to form an opinion on the validity of the Air Navigation Orders, the formation of that opinion is (to adopt the language of the President in Adams' Case - supra at p245) "merely a means which the administrative body may adopt in moulding its conduct to accord with the law". Before this Tribunal, as an administrative body, could determine to mould its conduct by treating delegated legislation as invalid, there would, in our view, need to be the most compelling grounds to justify it in so doing. Indeed, in the unlikely event of such a case arising, the Tribunal would need to consider most carefully how it should proceed (cf Zimmax Trading Co Pty Ltd and Collector of Customs - 78/10042). But this is not such a case. The submissions, as presented by the applicant, do not in our view raise any grounds of substance for calling into question the validity of the colour perception standard in Air Navigation Order 47.3. We have concluded, therefore, that there is no proper basis upon which we should consider those submissions further.

In the circumstances we propose to proceed on the basis that the amendments to Air Navigation Order 47.3 effected by Issues 6 and 7 are valid exercises of the Secretary's powers pursuant to regulation 8 of the Regulations. The further question arises, however, as to which of those Issues should be applied in these proceedings.

Although Issue 6 of Order 47.3 was in force at the time when the application for a licence was lodged and when the Secretary decided to refuse that application, Issue 6 was replaced on 29 September 1978 by Issue 7 which is still in force. Mr Kasper submitted that, in our consideration of this application for review, we should apply Issue 7 of the Order. He referred us to a decision of the Full Court of the Supreme Court of Queensland in R v Lukin; Ex parte Sunshine Pty Ltd (1957) QdR. 49. The applicant did not advert to the question whether in these proceedings we should apply ANO 47.3 Issue 6 or Issue 7. His arguments did not extend beyond the submission that both those Issues should be seen as ultra vires. As the resolution of the question is of fundamental importance to our decision, having regard to the material differences between Issues 6 and 7, we have found it necessary to undertake further research on the subject.

There is, of course, abundant authority for the proposition that an "appeal" (so called) to a Court or Administrative Tribunal against an administrative decision will normally involve a full rehearing on the merits before the Court or Tribunal: see Builders Licencing Board (NSW) v Sperway Constructions (Sydney) Pty Ltd [1976] HCA 62; (1976) 51 ALJR 260; cf. Ex parte Australian Sporting Club Limited; Re Dash (1947) 47 SR (NSW) 283; Ex parte Tziniolis; Re The Medical Practitioners Act 84 WN (NSW) (P2) 275; Traders Prudent Insurance Co Ltd v Registrar of the Workers' Compensation Commission of NSW (1971) 2 NSWLR 513 at 529; and White v Companies Auditors Board (1954) VR 743.

In Turnbull v NSW Medical Board (1976) 2 NSWLR 281 at p.298, Glass JA suggested that this has become "an established canon of construction which depends not upon the nuances of statutory language, but upon the nature of the decision under appeal." In such "appeals", the reviewing body is not limited to a consideration of the facts or materials before the primary decision maker: see Builders Licencing Board (NSW) v Sperway Constructions (Sydney) Pty Ltd (supra) at pp262 and 264. For the application of this approach to the review functions of the Tribunal see Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at p599 per Smithers J and cf Greenham and Minister for the Capital Territory (78/5011).

However, none of the cases referred to above involved a change in the relevant law between the date of the administrator's decision and the date of the decision of the review tribunal. The relevant changes were all of a factual nature.

In R v Lukin; Ex parte Sunshine Pty.Ltd. (supra) the question arose whether the delegate of the Minister for Local Government (Qld) had been actuated by an extraneous consideration when considering an appeal against a decision of the Brisbane City Council. In the exercise of a discretion conferred by an Ordinance made under The City of Brisbane (Town Plan) Act of 1959, the Council had refused to grant Sunshine Pty Ltd approval to use certain land for commercial purposes. In so deciding, the Council had regard to the proposed Town Plan of the City of Brisbane which had been prepared under the 1959 Act but which, at the time of the Council's decision, did not have the force of law.

After the Council gave its decision and the appeal had been instituted, but before the appeal was heard, the 1959 Act was repealed and the Town Plan prepared under that Act acquired the force of law by virtue of s4 of the City of Brisbane Town Planning Act of 1964. There was no dispute that the applicant's right to pursue the pending appeal before the Minister's delegate was preserved by a saving clause in the 1964 Act. But whereas the 1959 Act had allowed the Council (and, on appeal, the Minister's delegate) a discretion whether or not to approve the proposed use of the company's land for other than residential purposes, the Town Plan adopted by the 1964 Act absolutely precluded such use.

The question at issue was whether, in considering the appeal, the Minister's delegate was entitled to have regard to the fact that the Town Plan, which now prohibited the use of the land for commercial purposes, had been given the force of law by the 1964 Act, after the date of the Council's decision. The Full Court of the Supreme Court of Queensland held that the change in the law effected by the 1964 Act was one of the facts and circumstances of the case to which the Minister's delegate was empowered or required to have regard pursuant to section 13(3) of the 1959 Act. That section provided that an appeal shall be determined "having regard to the applicable Ordinance, the facts and circumstances of the case and public interest". Gibbs, J., who delivered the judgment of the Court said (at p53):-

"In my opinion, the provisions of s 13 require the Minister or his delegate to determine an appeal according to the state of things existing at the time the appeal comes to be heard and determined."

"In forming a view as to what the public interest required, it was proper for Mr Lukin to consider the desirability of allowing the Town Plan to be effectively implemented."

Although His Honour also said (at p 52) that the words "the applicable Ordinance" in s 13(3) mean "the Ordinance which applies at the date of the hearing rather than an Ordinance which once applied but is no longer applicable", we think it is clear, from a reading of the whole of His Honour's judgment, that he was not espousing the proposition that the law to be applied on the hearing of the appeal was that laid down under the 1964 Act. If the outcome of the appeal had been governed by the 1964 Act, the delegate would have had no alternative but to refuse the application, because the 1964 Act took away any discretion in the matter. However, His Honour said (at p56) that had the delegate considered the provisions of the Town Plan adopted under the 1964 Act to the exclusion of all else the delegate would have been in error. Thus, as we understand the decision, the change effected by the 1964 Act was one of the relevant facts to be taken into consideration in determining the appeal under the 1959 Act. But the 1964 Act was not applied as the law governing the resolution of the appeal under the 1959 Act.

A case which, superficially at least, appears to have some parallels with Lukin (supra) arose in the Administrative Law Division of the Supreme Court of NSW in Sofi v Wollondilly Shire Council (1975) 2 NSWLR 614. A developer made an application to the Council in accordance with the relevant Planning Scheme Ordinance for permission to subdivide land into allotments which did not satisfy the requirements as to minimum size provided in the State Planning Authority's proposed non-urban sub-division policy. Relying on non-compliance with the proposed policy the Council rejected the application. The developer appealed to the Local Government Appeals Tribunal.

Subsequently, the Minister for Local Government, by notice published in the Government Gazette, suspended the provisions of the Planning Scheme Ordinance with respect to certain land (including the subject land) and made an interim development order relating to that land and establishing the minimum size of allotments as 40 hectares. Section 342Y(4)(b) of the Local Government Act 1919 provided that:-

"The suspension shall not affect any right, liability, obligation, penalty or legal proceedings accrued, incurred or instituted by virtue of or in relation to or under the prescribed scheme the provisions of which were so suspended."

The question arose on the hearing of the appeal before the Local Government Appeals Tribunal whether the appeal was still competent, having regard to the provisions of this saving clause. This question, it will be recalled, was conceded in Lukin. The Tribunal expressed doubts whether proceedings instituted before an administrative tribunal were "legal proceedings" within the meaning of the saving clause. The Tribunal also formed the opinion that the developer did not have any "accrued right" to have his application determined in accordance with the provisions of the prescribed scheme which the Minister had since suspended. The Tribunal apparently concluded, therefore, that the appeal was not saved by section 342Y(4)(b) of the Act. It was nevertheless able to treat the appellant's application as an application for interim development consent under the newly proclaimed interim development order and it refused this application.

The appellant appealed to the Supreme Court on the question of law involved in the Tribunal's decision. It was not contended that the proceedings before the Tribunal were "legal proceedings". However, it was submitted that, having applied to the Council and having commenced the appeal to the Tribunal before the provisions of the relevant Planning Scheme Ordinance were suspended and the interim development order was made, the appellant had, within the meaning of the saving provision, an "accrued right" to have the appeal determined in accordance with the earlier Scheme.

His Honour rejected this submission, holding that upon the commencement of the appeal to the Local Government Appeals Tribunal no "right" accrued to the appellant to have the appeal determined in accordance with the law as it then existed or in accordance with the law as it existed at the time of the Council's decision. This consequence, His Honour said, flowed from two considerations:-

"Firstly, the requirement that the decision of the tribunal be based upon the facts, circumstances and law existing at the date of the hearing is inconsistent with any such right.

Secondly, the true nature of the proceedings before the tribunal is that of original rather than appellate proceedings: the tribunal is concerned to investigate whether or not the appellant's application should be granted, rather than to determine whether or not the decision of the council appealed from was correct. In such a proceeding the decision of the council is no more than a relevant fact to which varying degrees of weight may be attached. In this respect the decision of Roper J. in Summers v Hornsby Shire Council (23) where overriding weight was attached to the decision of the council, may be contrasted with the many later decisions in which no or little weight has been given to that decision. In my view, the nature of proceedings before the tribunal is such as to indicate that, in accordance with the reasoning in the judgment of the Privy Council in Director of Public Works v Ho Po .Sang (24), no right of the nature claimed accrued to the appellant when his appeal to the tribunal was commenced".

As to the first of these considerations, section 342BF (5) of the Local Government Act 1919 (which was in very similar language to the provision considered by Gibbs J in Lukin) provided that the Tribunal was to determine an appeal "having regard to the Act, the Ordinances, the circumstances of the case and the public interest". His Honour noted that a similar provision in relation to appeals to the Land and Valuation Court had been held, in Ampol Petroleum Ltd. v Warringah Shire Council (1956) 1 LGRA 276, to require consideration to be given to the circumstances as they existed at the time of consideration of the appeal.

"There appears to be no decision of the Courts whether the law to be applied (on an appeal) should be that existing at the hearing of the appeal or at some earlier point of time .... In my opinion the provision requires that the appeal be determined having regard not only to the facts, but also to the law existing at the time of the hearing."

In this respect, His Honour's conclusion is very similar to the view expressed by Gibbs J in Lukin at p 52, although in a slightly different context.

As to the second of these considerations, His Honour was concerned with the question whether the institution of an appeal to an administrative tribunal against the exercise or failure to exercise powers of an executive or administrative nature gave rise to an "accrued right" to have that appeal determined in accordance with the law as it existed at the time of institution of the appeal or in accordance with the law as it existed at the time of the Council's decision. There was, of course, clear authority for the proposition that the institution of legal proceedings claiming a statutory right to relief, gave rise to a right to have the Court decide whether it ought to exercise its jurisdiction to grant the relief. If the law is altered during the pendency of the action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute showed a clear intention to vary those rights: see Continental Liqueurs Pty Ltd v GF Heublein and Bro Inc [1960] HCA 37; (1960) 103 CLR 422.

His Honour also referred, however, to the decision of the Privy Council in Director of Public Works v Ho Po Sang (1961) AC 901 in which, in relation to an application for a review of an administrative decision, the Privy Council had observed that there was a manifest distinction between an investigation in respect of a right and an investigation in order to decide whether a right should or should not be given. Having regard to the nature of the application before the Local Government Appeals Tribunal, namely an investigation de novo whether or not the appellant's application should be granted, His Honour concluded that the developer's application to the Tribunal fell into the second category mentioned by the Privy Council and that the appellant accordingly had no "accrued right".

His Honour thus had regard, firstly, to the provisions of section 342BF(5) of the Local Government Act 1979 which directed the Tribunal as to the matters to be considered on an appeal; and, secondly, to the nature of the proceedings before the Tribunal, involving as they did an original determination of the applicant's entitlement to approval of the proposed sub-division.

This decision appears to us to provide useful guidance to the resolution of the question before us. It is clear, firstly, that in the exercise of our review function under section 43 of the Administrative Appeals Tribunal Act 1975 we stand in the shoes of the decision maker and that the exercise of our review jurisdiction is the occasion of a fresh exercise of administrative power. In the ordinary course of events, therefore, the Tribunal is entitled to have regard to the facts or matters as they stand at the date of its decision (see Drake's Case (supra), Greenham's Case (supra) and Re The Hospitals Contribution Fund of Australia and the Minister for Health - No. 78/10013)). Where the relevant law at all material times is the same, no problem arises as to the law to be applied. But where, as in the present matter, the law has been changed between the date of the administrator's decision and the decision of this Tribunal, it seems to us that the question as to the law to be applied by the Tribunal must be resolved by having regard:-

(i)

to the nature of the decision under review; and (ii) to the provisions of the legislation by which the change in the law is effected (cf. Quilter v Mapleson (1882) 9 QBD 672)).

The nature of the decision under review may require the Tribunal to consider the facts and circumstances before it in the light of the law at some anterior date in order to form an opinion as to the accrued rights or liabilities of the applicant (see, for example, section 132 of the Customs Act 1901 as to liability for Customs duty). A subsequent change in the law will not affect the matter unless it is expressed to apply retrospectively (cf Quilter v Mapleson, supra). Examples of two decisions given by the Tribunal where the relevant legislation was amended with retrospective effect between the date of the decision under review and the date of the Tribunal's decision, are Re Smith and Defence Force Retirement and Death Benefits Authority (1978) 1 ALD 374 and Re Shelton and Defence Force Retirement and Death Benefits Authority - No. 79/102 (to be reported). In both cases the law as retrospectively amended was applied.

But where the nature of the decision under review does not involve a consideration of accrued rights or liabilities but rather involves an investigation whether the applicant has a present entitlement to the grant of a right or privilege, we have concluded that, unless the amending law otherwise provides we should apply the law as amended as at the date of our decision. We would draw some support for this conclusion from the decision of the Full Court of the Supreme Court of Victoria in Robinson v City of Nunawading [1973] VicRp 81; (1973) VR 819. The question in that case was whether an applicant, who had applied to the Council for approval for a sub-division before an amending statute came into effect, had a right to have the application determined according to the law as it stood at the time when the application was lodged. Referring to the decision of the Privy Council in Director of Public Works v Ho Po Sang (supra) the Full Court commented

"Resort to the enactment by the making of an application under it which looks to an expectancy of benefit from the application is not itself productive of such a right. The applicant, by reason' of the mere launching of the application, acquires no vested right to have the application determined irrespective of the repeal of the enactment. The making of the application sets in train a procedure, but in the absence of some right otherwise existing, there is no right to have the procedure continued in the face of the repeal of the enactment under which it was instituted.

If the conclusion is justified (as it appears to be) that the mere taking of procedural steps under a statute in the expectation of achieving a benefit from an administrative authority does not create a right to the continuance of the proceedings after the repeal of the statute, then the conclusion seems equally justified that the mere taking of such procedural steps does not create a right to the continuance of the proceedings unaffected by amendment of the statute."

The Court went on (at p.826) to consider whether any special consequences flowed from the fact that the applicant had no doubt incurred expense in the preparation and lodgement of the plan of sub-division in the expectation of the plan being considered in accordance with the existing legislation:-

"But it is difficult to see upon what principle a right attracting protection from repeal or amendment could be founded on such considerations, and the very fact that they might operate with different force in different cases underlines the difficulty."

In the present case, there is nothing in the relevant legislation which attributes any special significance, for the purpose of our review, either to the date of the application for a licence or the date of the Secretary's decision to refuse to grant the licence. Neither, in our view, are there any circumstances which have occurred giving the applicant any accrued right to have his application determined according to the law as it stood at the time when the application was lodged or when the Secretary's decision to refuse the licence was given. The question before us is simply whether the applicant satisfies us that he meets the required medical standard. That is a state of present satisfaction having regard to the present facts and circumstances and the present law.

When Issue 7 of ANO 47.3 replaced Issue 6, Issue 7 was expressed to be "effective forthwith". There were no transitional provisions preserving the continuing operation of Issue 6 for any purpose whatsoever. In the circumstances, there being no authority for us to continue to apply Issue 6 and as the question before us requires us to determine the applicant's present entitlement to a licence, we have concluded that we should apply Issue 7 of ANO 47.3.

"1. The applicant shall have the ability to distinguish readily those colours used in aviation the perception of which is necessary for the safe performance of his duties. The methods of examination to be used to demonstrate this ability so as to guarantee reliable testing of colour perception are set out in paras 2-4 of this Section.

2. An applicant shall undergo such tests on pseudo- isochromatic plates used in daylight or in artificial light approximating that provided by Illuminant "C" or "D" as specified by the International Commission on Illumination or on the Farnsworth colour vision lantern, or on both, as may be required by the Secretary.

3. Where an applicant who has undergone an Ishihara or Bostrom-Kugelberg pseudo-isochromatic plate test pursuant to paragraph 2 obtains a passing score in that test, he shall, subject to para 5, be assessed as fit.

4. An applicant who obtains a passing score on a Farnsworth colour vision lantern test shall, subject to para 5, be assessed as fit.

5. Notwithstanding anything contained in this Section where:-

(a) the applicant has at anytime not obtained a passing score in a test or part of a test and the Secretary is not satisfied of his ability to perceive readily those colours the perception of which is necessary for the safe performance of his duties; or

(b) the Secretary has doubts as to the results of the tests or the manner in which they were administered, the Secretary may assess the applicant as unfit for the grant of a licence or may require the applicant to undergo further tests of colour perception."

We turn then to the merits of the matter. The facts relating to the application for the grant of a Senior Commercial Pilot Licence which is under review are deceptively simple and apparently straightforward. On 22 March 1978, the day before he lodged his application, Mr Costello consulted Dr James Goldacre, an approved medical practitioner for the purposes of the Regulations, practising in Fremantle, Western Australia. According to Mr Costello, Dr Goldacre referred the applicant to Dr J. Rogers, a Senior Consultant Ophthalmologist in Perth and also an approved medical practitioner, who tested the applicant's colour perception ability on pseudo-isochromatic plates apparently using both the Bostrom-Kugelberg plates (B-K plates) and the Ishihara plates which were the two pseudo-isochromatic plate tests referred to in Issue 6 of Air Navigation Order 47.3 as then in force. The Medical Examination Record Sheet dated 22 March, 1978 (Exhibit T21), the eye examination section of which was signed by Dr Rogers discloses that the applicant was apparently first administered the B-K plate test. In the space provided to record the number of errors appears the word "NIL" followed by the comment apparently written by Dr Rogers - "All correct with hesitancy and uncertainty". The result of the B-K plate test is shown as "Pass". There then appears a further handwritten comment "Pass Ishihara test".

Mr Costello said that he asked Dr Rogers if he would recommend him to do a Farnsworth lantern test. Dr Rogers allegedly replied that the applicant did not require the lantern test; that he (Dr Rogers) was the examining physician; that in his opinion the applicant's colour perception met the required standard and that "that was the end of the matter". Dr Goldacre also examined the applicant's colour perception ability using the B-K plates. In a letter dated 22 March 1978 signed by Dr Goldacre and addressed "To Whom It May Concern" (Exhibit T22), Dr Goldacre reported:-

"I have today examined this patient for colour perception using BK Plates. The result was a pass.

These findings have also been confirmed by our Senior Consultant Opthalmologist, Dr J. Rogers.

At the conclusion of the Medical Examination Record Sheet, Dr Goldacre accordingly certified that, "I have today personally examined this applicant and in my opinion his status as regards the medical standard for the licence required is -pass".

For reasons to which it will be necessary for us to refer at some length, the Secretary had doubts about the applicant's colour perception ability and, through his delegate, concluded that notwithstanding the "pass" result accorded by Drs Rogers and Goldacre, he was not satisfied that the applicant met the required colour perception standard specified in Air Navigation Order 47.3 (Issue 6). Accordingly, by the letter dated 5th September, 1978 to which we earlier referred (Exhibit T34) the applicant was notified that his application for a Senior Commercial Pilot Licence was refused.

The facts and circumstances constituting the ground for refusal which were notified to the applicant in that letter, pursuant to regulation 255(2) of the Regulations, were as follows:-

"(1) results of colour vision tests carried out at the University of NSW on 9 February, 1978, namely failure to pass the Ishihara test, the Hardy-Rittler-Rand test, the City University Colour Vision test, the Tokyo Medical College Colour Vision test, and a deuteranopic diagnosis on the Farnsworth 100-hue test and the Nagel Anomaloscope;

(2) results of colour vision tests carried out at the Victorian College of Optometry on 30 July, 1974, namely a deuteranopic diagnosis on the Farnsworth Dichotomous Test (Panel D-15), the Nagel Anomaloscope, the Farnsworth 100-Hue Test and the Livibond Colour Vision Analyser;

(3) results of other colour vision tests carried out since 27 September, 1957 and, specifically, failure to pass the Farnsworth Colour Vision Lantern on 16 October, 1957, 11 January, 1958 and on 26 February, 1974."

In the statement lodged with the Tribunal on behalf of the Secretary of the Department of Transport pursuant to section 37(1)(a) of the Administrative Appeals Tribunal Act 1975, the reasons for the decision were stated as follows, the "ability" referred to being the required colour perception ability:-

"The Department had doubts that the applicant had the above ability from information about the applicant that it already possessed and that was not disclosed by the applicant to either Dr Goldacre or Dr Rogers -in particular the Report of Optometrists Drs Cole and Dain of the Victorian College of Optometry dated August 1, 1974. (No. 15 of the enclosed papers) and the colour vision tests and report of Dr John A. Alexander of the University of New South Wales dated 17 February 1978 (No.26 of the enclosed papers). These reports and tests indicate that the applicant has a deuteranopic colour "vision defect giving rise to confusion of red yellow and green colours of equal luminosity and confusion of white and some blue green colours."

It will be noted that, in addition to relying on the results of the tests administered at the University of New South Wales on 9 February, 1978, and at the Victorian College of Optometry on 30 July, 1974, the section 37 statement included a further fact as supporting the Secretary's decision, namely the alleged failure by the applicant to disclose the results of the abovementioned tests to either Dr Goldacre or Dr Rogers. If, as the section 37 statement indicates, this latter allegation was one of the facts relied on by the delegate of the Secretary at the time when the decision to refuse to grant a licence was made, the applicant should have been notified to that effect pursuant to regulation 255(2).

At the time when the Secretary considered the question whether he should grant or refuse the application for a licence, Air Navigation Order 47.3 was then in the form of Issue 6 which, on the face of it, conferred more limited powers on the Secretary than does the present Order in the form of Issue 7. But whatever may have been the Secretary's powers under Issue 6, we are now applying Issue 7 of A.N.O. 47.3. Standing as we do in the shoes of the Secretary for this purpose (see section 43(1) of the Administrative Appeals Tribunal Act 1975) the Tribunal must consider the pass results obtained in the tests administered by Drs Rogers and Goldacre, firstly, in the light of any previous failure to obtain a passing score in a colour perception test or part of a test (see Air Navigation Order 47.3.5(a)). If, having regard to those previous test results, the Tribunal is not satisfied of the applicant's ability to perceive readily those colours the perception of which is necessary for the safe performance of his duties, the Tribunal may either assess the applicant as unfit for the grant of a licence or may require the applicant to undergo further tests of colour perception. Secondly, the Tribunal must consider whether it "has doubts as to the results of the tests or the manner in which they were administered". In the context, we take it that the "tests" referred to are any of the colour perception tests previously administered to the applicant. Where the Tribunal has such doubts, the same powers are available - either to assess the applicant as unfit or to require him to undergo further tests.

We had before us as Exhibit 2 a summary of the known colour vision tests which had been administered to the applicant during the 22 years since he commenced flying in 1957. The summary lists 32 such tests ranging from pseudo-isochromatic plate tests to Farnsworth lantern tests and more recently to more sophisticated testing devices such as the Nagel anomaloscope. Of these tests, the applicant failed 20, passed 11, and in relation to one test, no diagnosis was possible. In the course of the hearing it emerged that there had been other tests administered which were not listed in the summary. It was claimed by the applicant, and not disputed by the respondent, that the applicant was the only pilot ever to have been subjected to so many colour perception tests. Most pilots, we were told, had only one test for colour perception ability in their entire flying career provided, of course, that they passed the test.

The applicant sought to make some capital from the large number of tests which he had undergone as compared with the majority of pilots. He implied that he had been subjected to discriminatory treatment. But as most of those tests were carried out at the instigation of the applicant in an endeavour to satisfy the Secretary that he meets the colour perception standard, we fail to see that this implication is justified. As will become clear from the evidence to which we will refer, the applicant was allowed to embark on his flying career in 1957 notwithstanding quite convincing failures to pass either a B-K plate test or a Farnsworth lantern test. The large number of tests which he has undergone since that date merely reflect, in our view, the strength of his determination to establish that he does nevertheless meet the colour perception standard. It will be useful if we first refer to the evidence as to the origin and purpose of the colour perception tests referred to in Air Navigation Order 47.3.

Dr John Lane, who has been Director of Aviation Medicine since 1948, told us that he held degrees of Bachelor of Medicine and Bachelor of Surgery from Sydney University and Master of Public Health from Harvard University. Until recently he has held a Commercial Pilot Licence. The Secretary's powers under regulation 57(1) of the Regulations have been delegated to him.

Dr Lane said that he had been involved in recommending to the Department of Civil Aviation (as it then was) the most reliable methods of testing colour perception ability. In 1955 he had visited the United States Naval Research Laboratory at New London, Connecticut, the prime function of which was the undertaking of vision research within the United States Navy, but not just for marine purposes. In 1956 he had conducted experiments during which 7 different colour perception tests were compared in order to settle on the particular test sequence which would best suit the Department's needs. He had concluded, as a result of these experiments, that the Ishihara and Bostrom-Kugelberg (B-K) plate tests were both very suitable screening tests with the B-K test slightly preferable. Of the lantern tests, it was clear, he said, that the Farnsworth lantern was the only lantern which was at all suitable.

Dr BL Cole, a Professor of Optometry at the University of Melbourne, who was also Director of the Victorian College of Optometrics and held the degrees of Bachelor of Science, Master of Applied Science, and Doctor of Philosophy from the University of Melbourne, and a Licentiate of Optometric Science from the Victorian College of Optometry, was also called by the Secretary to give evidence before the Tribunal. He said that he was the Australian Representative to a Committee of Illumination referred to as CIE. This is a technical committee concerned with fundamentals of visual signalling. The International Civil Aviation Organisation (ICAO) he said, adopts CIE recommendations. His research interests have included the study of abnormal colour vision and he and his staff have conducted research generally into visibility and practical operations in the aviation field. Dr Cole produced a report which had been prepared in May 1971 by Mr RD Watkins of the Victorian College of Optometry on behalf of the Department of Civil Aviation entitled "Aviation Medicine Memorandum No. 29" - "The Colour Vision Requirements of Civil Aircraft Pilots" (Exhibit 4).

Dr Cole added to Dr Lane's explanation of the Farnsworth lantern test when he informed us that the test presents under closely controlled, validated conditions, a test of a person's ability to distinguish colours of the kind that he would get in the "worst case" conditions whilst flying. Farnsworth, the designer of the lantern, was a very distinguished visual scientist and the principles upon which his lantern test was based were "extremely well worked out, valid principles." Dr Cole also described the Ishihara plate test as a "very robust test" which does its job of separating people into normal and abnormal categories extremely efficiently.

However, as we understood the evidence both of Dr Lane and Dr Cole, neither the B-K or Ishihara plate tests, on the one hand, nor the Farnsworth lantern test, on the other, are diagnostic tools which enable any classification of the particular colour perception defect from which a person may suffer. They detect abnormal colour vision, but do not classify it as to type.

Whilst the applicant did not claim that his colour perception ability is without defect, he submitted that whatever defect he may have does not disqualify him from meeting the colour perception standard. He argued that a person who failed a plate test could nevertheless be assessed as meeting the required colour perception standard provided a passing score on the Farnsworth lantern test was obtained. Thus the plate tests, although a useful screening test, were not in themselves meant to be disqualifying if an applicant failed those tests.

The applicant apparently relied upon the results of the plate tests administered by Drs Rogers and Goldacre as indicating that he met the colour perception standard, although, somewhat inconsistently, he also appeared to concede that the defect which he has is such that at times he does fail pseudo-isochromatic plate tests (see p 324 of the transcript). In his opening remarks, however, he sought to cast doubt upon the validity of any fail result previously recorded against him on such plate tests. If we entertained any doubt on his ability to pass a plate test we understood that we were invited to accept as evidence satisfying the requirements of Air Navigation Order 47.3, the pass results on Farnsworth lantern tests administered on 4 November 1976, one of which was apparently administered by the RAAF in Brisbane in the presence of Dr PA O'Connor, an Ophthalmologist of Brisbane, and the other of which was carried out the same day by Mr KT Dollery, a flight test officer employed by the Department of Transport in Brisbane.

Finally the applicant relied upon his practical in-flight experience, which included periods of night flying both as pilot in command and as co-pilot, which he claimed was a convincing demonstration of his ability to distinguish readily those colours used in aviation the perception of which is necessary for the safe performance of his duties.

For the Secretary it was submitted that, on consideration of the results of all the tests which had been administered to the applicant since 1957, the Tribunal could not fail to have doubts, firstly, as to the results of the tests conducted by Drs Goldacre and Rogers and, secondly, as to the manner in which the tests were administered to or undertaken by the applicant. The Secretary pointed to the fact that the applicant had been positively diagnosed in July 1974 by the Victorian College of Optometry and again in February 1978 by the NSW School of Optometry as suffering from deuteranopia which, it was said, is a congenital defect of the eyes giving rise to the confusion of red, yellow and green colours of equal luminosity and to confusion of white and some blue/green colours. The Secretary also relied on the fact that the applicant had failed Farnsworth lantern tests administered on 16 October 1957, 4 March 1958 and more recently, on 26 February 1974 in a test personally administered by Dr Lane. It was submitted that the conclusion was inescapable, having regard to all the previous test results, that the applicant failed to meet the requisite standard. Such practical experience as the applicant may have gained of night flying could not, so it was submitted, be regarded as a critical test of the applicant's colour perception ability.

The applicant did not call any evidence as to the precise nature or extent of the defect in his colour vision. He did produce and tender as an exhibit (Exhibit C) a dissertation on colour vision defects prepared on his behalf by a third year student at the Victorian College of Optometry at the University of Melbourne who was at one time an Ansett pilot, together with a number of articles apparently taken from professional journals relating to colour vision on which the dissertation was said to be based. What was lacking in the applicant's case, however, was any expert evidence based on detailed examination of the applicant to relate his condition to the technical information contained in the dissertation and articles (assuming, without deciding, that the dissertation itself had any evidentiary value). The two witnesses (apart from himself) whom the applicant did call, namely Mr James J O'Brien and Mr RJ Whale, both gave evidence on aspects of the applicant's practical abilities in colour perception as they had observed them. The additional evidence upon which the applicant relied, in the form of statements from qualified pilots with whom he had flown (Exhibits T29 to T33 inclusive), was designed primarily to support his argument that he had demonstrated in a practical way, his ability "to distinguish readily those colours used in aviation the perception of which is necessary for the safe performance of his duties". He also tendered an affidavit by Dr PA O'Connor, in which Dr O'Connor set out the results of the colour vision tests which were administered to the applicant in November 1976, and to which we will later refer.

The applicant sought, both by questioning of witnesses called on behalf of the Secretary and by argument, to discredit or explain the apparently conflicting evidence which had emerged from the large number of colour vision tests to which he had been subjected since 1957. He concentrated his attack primarily on the validity of the Parnsworth lantern test administered by Dr Lane on 26 February 1974; on the validity of the conclusions as to his colour perception ability as recorded by Dr Cole and two Melbourne eye specialists, Dr J Colvin and Dr A Isaacs in a report dated 9 August 1974 (Exhibit T18); and on the admissibility and validity of the conclusions reached by Mr Alexander of the School of Optometry at the University of NSW in his report dated 17 February 1978 (Exhibit T27). The difficulty with this approach is that, even if we were to accept the applicant's submissions regarding those tests (important as they all may be to the Secretary's case) there remain other "fail" results both on plate tests and the Farnsworth lantern which the applicant did not attempt to explain away except in the most generalised and unsubstantiated way. What he clearly wanted us to do was to accept as determinative of his colour perception ability the evidence of the tests which he has passed and to disregard the evidence of the tests which he has failed.

The record of the tests is informative. In order to keep events in chronological sequence, we have related the various colour perception tests, where possible, to the relevant stage in the applicant's career as a pilot.

The applicant first demonstrated difficulties with colour perception when he was medically examined as a young man of 16 years of age in connection with his application for a Student Pilot Licence. In an examination conducted by Dr D Scanlan of Burwood, New South Wales, on 27 September 1957 Dr Scanlan administered the B-K plate test to which we earlier referred in which the applicant made 16 errors out of the 17 plates administered. Dr Scanlan commented "colour vision very defective" and, not surprisingly, recorded that the applicant failed to satisfy the required medical standard (Exhibit T3). Having failed the B-K plate test the applicant was given a Farnsworth lantern test on 16 October 1957, by Mr R.H. Jarvis, the Regional Examiner of Airmen in the N.S.W. Regional Office of the Department of Civil Aviation (as it then was). The record of this examination discloses that the applicant made 11 errors out of 18 and the result again was a fail (Exhibit T4). Notwithstanding the applicant's failure to meet the requisite medical standard, the applicant was nevertheless granted a Student Pilot Licence on 18 October 1957, presumably pursuant to regulation 57(2) of the Air Navigation Regulations, subject to a condition which (amongst other things) precluded the applicant from acting as pilot in command of an aircraft by night.

On 4 March 1958 the applicant underwent a further Farnsworth lantern test administered by Mr LR Howell, also of the NSW Regional Office of the Department of Civil Aviation. According to the record of that test (Exhibit T6) the applicant made 13 errors in 18 and the result again was a "fail".

On 8 April 1958 an Aldis Lamp test was administered at Bankstown Aerodrome again by Mr R. Jarvis. This test, we were told, was in the nature of a "practical" test which involved the flashing of red, green and white signals from a signal lamp across the width of the aerodrome. According to the report of the test dated 10 April 1958 (Exhibit 6) "the lights were rather unsatisfactory in intensity and direction." The report then continued "despite this and the candidate's nervousness and immaturity the following results were obtained. A trial run of 33 lights was given first and then a few minutes later a test run of 26." The results which were then tabulated in the report disclosed that the applicant missed three of the first ten signals given in the trial run but then correctly nominated the following 23. These initial errors were considered by the examiner "to be due only to nervousness". The test run of 26 lights was completed without error, totalling 49 straight successful observations. Based on the results of this test, the examiner recommended that the restriction on the applicant's Pilot Licence should be lifted, and this recommendation was carried into effect on or about 30 April 1958, when the restriction was removed.

The Aldis Lantern test administered on 8 April 1958 is not one of the tests either recommended by ICAO or adopted in Air Navigation Orders by the Department. Dr Lane told us that, both then and now, Departmental policy was that such practical tests were not supposed to be administered. He said that there may have been perhaps two of those tests administered in 20 years by the Air Traffic Control Branch of the Department and that the only person to his knowledge who had ever been given a pass on colour perception ability as a result of such a practical test was the applicant.

On 17 December 1958 as required for the purposes of his application for Private Pilot Licence, the applicant underwent a medical examination by Dr W. Deane-Butcher. According to the report of that medical examination (Exhibit T5) Dr Deane-Butcher administered the B-K plate test in which the applicant made seven errors in 17 plates resulting in a "fail". Beside the fail result appears the following note - "States he has had the test on Lantern by DCA and passed". The overall result of the medical examination was recorded as doubtful to which was added the following comment "will recommend pass if test (?) by DCA on Lantern for colour vision is pass". Based, presumably, on the recommendation made on 10 April 1958 following the Aldis Lamp test administered by Mr Jarvis, the applicant was granted an unrestricted Private Pilot Licence on 23 September 1958, which authorised the applicant to engage in night flying operations. According to his log book, which was tendered as an exhibit (Exhibit E), he completed 4 hours 20 minutes of dual instruction on take-offs and landings in single engined aircraft at night and 5 hours 45 minutes in command on take-offs and landings in such aircraft at night. 1 hour 30 minutes of dual instruction was undertaken in February and March 1963 and the balance in January and February 1967 just prior to the issue of his Commercial Pilot Licence. (3) Commercial Pilot Licence

On or about 13 February 1967 the applicant applied for his Commercial Pilot Licence. In a B-K plate test administered by Dr JW Hornbrook, the applicant apparently made eight errors out of 17 which resulted in a "fail". The report signed by Dr Hornbrook indicated: "states has already passed DCA lantern test". In answer to the question "does the applicant meet visual standard?" Dr Hornbrook recorded the answer "Yes -subject to confirmation of passed lantern test".

According to Dr Lane, when Dr Hornbrook's report was received, the applicant's history with respect to colour vision tests was reviewed and on or about 28 February 1967 a letter was written to the applicant by Dr TCL Brown, a colleague of Dr Lane, informing the applicant that the records showed he had failed on two Farnsworth lantern tests, amongst others. It informed him that the Aldis Lamp test was unacceptable but that, nevertheless, he would undoubtedly be eligible for a restricted licence. Subsequently on 24 April 1967 a Commercial Pilot Licence was issued to the applicant subject to a restriction which, amongst other things, precluded the applicant from acting as pilot in command of an aircraft by night. In a letter, the date of which is not clear but which may have been despatched on or about 15 September 1967 (Exhibit 16), Mr GV Hughes, writing on behalf of the Director-General of Civil Aviation, informed Mr Costello as follows:-

"Contrary to the impression expressed in your letter, your failures to meet the required standard when you carried out the Farnsworth Lantern tests in 1957 and 1958 were quite decisive.

Although you were given a practical test with an Aldis lantern in April 1958, the Department's policy is that such tests are not acceptable for applicants who have failed to pass the normal tests for colour perception during the general medical examination. The only acceptable practical test is that given with the Famsworth lantern".

The letter concluded "I regret that unless a satisfactory solution to colour significance is ultimately found, and the medical requirements prescribed in Air Navigation Orders, Part 47, are amended accordingly it will not be possible for the restriction against night operations to be withdrawn".

Dr Lane informed us that, at that stage, he had thought that the applicant's status in relation to the colour vision standards had been resolved. Although the applicant was subject to regular physical examinations for the purpose of renewal of his Commercial Pilot Licence it was not obligatory for him to undergo any further colour perception tests in the course of those examinations. In January, 1974, however, it came to Dr Lane's notice that the applicant had applied in Papua New Guinea for a Second Class Airline Transport Pilot Licence by application dated on or about 3rd December, 1973 and that the full medical examination which he had undergone for that purpose had raised some doubt about his colour perception ability. In fact, it appeared from a report dated 30 September, 1973, from Dr RM Powrie, an Ophthalmologist at Port Moresby General Hospital, an unsigned copy of which was before us as Exhibit T10,that Dr Powrie had reported as follows:-

"In examining the colour vision of the above (Mr Costello) inconsistencies were detected in the Ishihara tests. While only one error was made in the reading of numbers, response to the "winding line" or "illiterate plates" were hesitant and in the main, incorrect. The initial test with B-K plates produced 11 errors but on re-testing the following day he was able to perform the test hesitantly but with no errors.

He has previously been required to be tested with the Farnsworth Lamp and records of this should be held by DCA, Melbourne.

While only the results of the second B-K test are shown on his medical examination record sheet I have doubts about his colour perception and consider that:

(a) records of previous medical examination be obtained;

It also came to Dr Lane's notice at that time that the restriction with respect to night flying which had been endorsed on the applicant's Commercial Pilot Licence, when it was issued in 1967, had been cancelled. We were informed by Mr E.W. Everbach, the Acting Superintendent of Flying Operations in the Queensland Region of the Department of Transport that, having searched the Departmental files, he had been unable to find any documents that authorised the removal or cancellation of that restriction nor had he found any evidence on the file as to by whom or when or why the restriction related to the applicant's colour vision deficiency was in fact cancelled. The only record which he had found on the file relating to the cancelled endorsement was a note dated 28th October, 1974 signed by a Mr Ray Harris, stating that after discussion with Mr Hughes it had been decided that pages 7 and 8 of the Australian Commercial Licence should be removed and placed on the file. Annexed to the note were two pages apparently from the applicant's licence, on page 8 of which appeared the restrictive endorsement stamped "cancelled".

The applicant did not himself give any evidence as to the circumstances in which the restriction came to be cancelled but Dr Lane, in the course of his evidence, said that in a conversation with the applicant on 26th February, 1974 the applicant had informed him that during the routine medical examination in 1968 for renewal of the applicant's Commercial Pilot Licence, the applicant had requested a colour vision examination. Dr Lane said that, according to Mr Costello, a test was administered on Ishihara plates which had resulted in a pass. Mr Costello had said that this result had been conveyed to the Department and had led to the restriction being cancelled.

Affidavits (Exhibits 9 and 18 respectively) were tendered by Mr Kasper from Dr KD Coulthurst who conducted the medical examination on 24 February 1968 and from Dr SHD Preston who conducted the renewal examination in 1969. Both doctors said that they had no record of conducting a colour vision test and that it was not normal to do so on a renewal examination.

Wherever the truth on this question may lie, it seems clear that, notwithstanding Dr Lane's firm conclusion in 1967 that the applicant failed to meet the colour perception standard, the restriction on the applicant's licence was in fact removed. This left the applicant free to gain night Hying experience as a pilot in command.

The applicant's log book discloses that during operations in the areas shown he acquired the following night flying experience as a commercial pilot:-

According to the applicant's log book, he commenced flying as a pilot for TAA (later Air Nuigini) in Papua New Guinea in approximately October 1973. On or about 3rd December, 1973 he applied for his Second Class Airline Transport Pilot Licence. Following Dr Powrie's recommendation that a lantern test as required, arrangements were made for Mr Costello to present himself in Melbourne to undergo such a test by Dr Lane.

On the 26th February, 1974 Dr Lane administered a Farnsworth lantern test in the presence of Mr JT Wright, a Senior Examiner of Airmen (Flight Crew Standards) in the General Aviation Branch in the Department of Transport. Prior to administering the lantern test, Dr Lane gave Mr Costello a test on pseudo-isochromatic plates known as Hardy-Rittier-Rand (HRR) which disclosed, according to Dr Lane's report (Exhibit T11), that the applicant suffered from a medium grade red-green defect unclassified as to type. Dr Lane said that this test was given under a lamp with a filter which reproduced the appropriate illumination.

There was some dispute on the evidence as to the circumstances in which the Farnsworth lantern test was administered. Mr Costello claimed that the test was administered in Dr Lane's outer office, with the Farnsworth lantern set up in such a way that it was necessary for the applicant to shade his eyes because of the light coming in the window. In a bundle of correspondence tendered by the applicant at the conclusion of the hearing (Exhibit H) there was included a photocopy of a letter written by Dr Lane to Dr F.A. Rhodes in the Department of Public Health, Aviation Medicine Branch, Boroko, Papua New Guinea on 14 March 1974 in which Dr Lane had said:-

"When I saw him I gave him the Hardy Rittler Rand test which I thought he was pretty unlikely to have seen before, and a lantern test. The Hardy Rittler Rand classified him as medium grade defective unclassified to type (that means he gave an equal number of protan and deutan responses). It did not surprise me therefore that he had previously failed on the lantern. Anyway he had another lantern test on which he again failed. He was terribly slow and hesitant on both tests, altering his answers and so forth. While he was having the lantern test he shaded his eyes. He took a long while to respond and I had to prompt him several times."

It will be seen that Dr Lane mentioned the applicant shading his eyes during the lantern test, but he did not indicate the reason for Mr Costello's so doing. However, Dr Lane was adamant that there was no sunlight coming into the room as the test was administered in his medical examination room which is an internal room without windows. In this he was corroborated by the evidence of Mr Wright, who was present during the administration of the lantern test. Mr Wright said that he certainly remembered that there were no windows or at least none in the part of the room where the test was conducted. Mr Wright was asked by the applicant:-

"Was the lighting in this room such that I would be required to shade my eyes?" to which Mr Wright replied:-"I do not think so". Mr Wright said that he was standing directly behind Mr Costello looking over his shoulder at the two lights displayed during the Parnsworth test. He said there was nothing unusual about the lighting in the room. Mr Wright was asked the question by Mr Costello:-

"You did not have the light shining in your eyes where you were standing?" to which he answered:-

"That is a bone of contention. in fact dispute there was a light shining in anyone's eyes".

Dr Lane was not asked to explain the statement in his letter to Dr Rhodes nor was Mr Wright asked directly whether in fact he had observed Mr Costello shading his eyes. On the evidence as it stands, we have concluded that Mr Costello is mistaken in his re-collection as to where the lantern test was conducted and we reject the allegation that Dr Lane conducted the test unfairly.

It is significant that Dr Lane mentioned in his letter to Dr Rhodes that the applicant was terribly slow and hesitated on both tests and that, during the lantern test, he took a long while to respond and had to be prompted. On the hearing, Dr Lane explained that the test procedure for a Farnsworth lantern requires the lights to be exhibited for three seconds only. A person who is normal or nearly normal "rattles through it like a machine gun". Mr Costello however took very much longer than this and Dr Lane said that he could only conclude that in fact he was having great difficulty making up his mind which colours were being displayed. Mr Wright's comments in relation to the test are even more illuminating as he told us he had not previously witnessed the administration of the Farnsworth lantern test. He said that, standing behind the applicant while he did the test, he saw the applicant have difficulty in identifying lights which to him (Mr Wright) were absolutely clear. Asked whether he could remember how many errors Mr Costello had made, Mr Wright, said that he could not remember that detail, but he could recall that the applicant hesitated in his responses and that there were some errors.

Mr Costello also cross-examined Dr Lane at some length as to whether, prior to administering the lantern test Dr Lane had not formed the opinion in advance that Mr Costello failed to satisfy the requisite colour vision standard. The implication was that Dr Lane was predisposed to the applicant failing the test; that this predisposition would have affected the way in which the test was administered and that the results of the test should therefore be disregarded. Dr Lane did not deny-that, based on the tests conducted up to that point of time, he believed that the applicant failed to meet the colour perception standard. But he did deny that this consideration had influenced the manner in which the test was conducted or the results of the test. Having regard to the results of the only tests recognised under Air Navigation Order 47.3 up to that point of time (the plate tests and Farnsworth lantern tests) all of which pointed convincingly, in our view, to the applicant having a serious colour vision defect, we do not see how Dr Lane could be expected to have thought otherwise.

Dr Lane has had long experience in the administration of Farnsworth lantern tests. His evidence as to the difficulties the applicant experienced with the test is corroborated by the evidence of Mr Wright and giving due consideration to all the matters raised by the applicant, we have no hesitation in accepting and acting upon the result of Dr Lane's Farnsworth lantern test. It is not without significance that the result of that test was entirely consistent with the result of the only two previous Farnsworth lantern tests which the applicant had undertaken in 1957 and 1958. The validity of neither of those tests was challenged in any way by the applicant during these proceedings.

Mr Costello informed us that one of the reasons for him coming to Melbourne on 26 February 1974 was to undertake a medical examination by Dr JL Colvin, a leading Ophthalmologist of Melbourne, arranged on his behalf by the Australian Federation of Airline Pilots. Dr Colvin, in a written report dated 18 March 1974 (Exhibit T13) said that in his opinion Mr Costello "obtained a pass on both Ishihara and Bostrom-Kugelburg testing in conformity with current DCA ANO Part 47, Section 47.3. He also obtained a pass on the Guy's colour vision test to which he had no previous exposure. This is a new series of pseudo-isochromatic plates which are designed for the testing of young children". Dr Colvin did not administer a Farnsworth lantern test - no doubt because, in his view, the applicant had demonstrated his colour perception ability satisfactorily on the plate tests.

Faced with Dr Colvin's report the Department apparently found itself in a very embarrassing position. We were told that the Department received legal advice that under ANO 47.3 (Issue 5) as it then stood, if an applicant established that he had passed the Ishihara or B-K plate test then, irrespective of any other circumstances or earlier history, he satisfied the medical standard with respect to colour vision. Accordingly, notwithstanding the doubts which Dr Powrie had expressed and notwithstanding the applicant's failure of the Farnsworth lantern test administered by Dr Lane on the same day, the applicant was granted a Second Class Air Transport Pilot Licence on the 5th April, 1974 but valid only until the 31st July, 1974. As the Department apparently believed that the applicant at that stage met the relevant medical standard in terms of ANO 47.3 as it then stood, no question of imposing a restriction on the licence pursuant to regulation 57(2) of the Regulations arose.

Steps were taken immediately, however, to amend what Dr Lane described as "this defective rule". Issue 5 of ANO 47.3 was replaced with Issue 6, to which we have earlier referred, with effect from the 30th May, 1974.

Dr Lane said that, following discussions between officers of the Department of Transport and of the Australian Federation of Airline Pilots in April, 1974, it was agreed that the Department would set up a panel of experts to try to make the position concerning Mr Costello's colour vision defect perfectly clear. Arrangements were subsequently made for Mr Costello to be brought to Melbourne at the expense of the Department and for him to be examined by Dr A Isaacs, a Collins Street specialist Ophthalmologist, who is apparently an approved medical practitioner for the purposes of the Air Navigation Regulations. It was arranged with Dr Isaacs that he would refer the applicant for detailed testing to Dr B.L. Cole at the Victorian College of Optometry in the University of Melbourne where the most extensive range of colour vision tests in Australia was available. Having regard to Dr Colvin's report dated the 18th March, 1974 it was agreed at the meeting between the Department and the Federation that Dr Colvin would be invited to join the panel. Dr Lane said that appointments were originally arranged for the 20th, 29th and 30th of July, 1974 whilst the panel itself was to meet in the late afternoon of the 31st July, 1974, that being the date upon which the applicant's Second Class ATPL expired. There was some disagreement over why these appointments were not kept but, however that may be, it was not until the 30th July, 1974 that Dr Isaacs examined the applicant. In a letter dated the 8th August, 1974 Dr Isaacs reported that:-

"The only significant abnormalities found related to his colour vision. When the Ishihara pseudo-isochromatic plates were presented in the conventional way one error was made. However when the plates were shown at random and all external clues excluded, numerous errors were made."

Dr. Isaacs, apparently, did not administer a Farnsworth lantern test.

As arranged, Mr Costello then proceeded to the Victorian College of Optometry where he underwent a large battery of tests administered by a Dr BL Cole and Dr SJ Dain. Neither Dr Cole nor Dr Dain are medical practitioners. They both hold degrees of Doctor of Philosophy. Although Dr Cole conceded that he had no personal flying experience, he believed that he had some understanding of the problems of pilots in flying operations.

In a report dated the 1st August, 1975 signed by both Dr Cole and Dr Dain the results of the various tests were recorded. Two of the tests administered involved pseudo-isochromatic plates. The Ishihara test (abridged 24 plate edition) produced one error. The comment was made:-

"Test performed with considerable hesitation and anxiety". The second test was the "Americal Optical HRR" plate test in which the applicant made two errors on the R - G (sc. red-green) screening plates and three errors on the diagnostic series indicating a medium deutan colour vision defect. The other tests administered were the Farnsworth Dichotomous test (Panel D15) which is a systematic diametrical arrangement of colours; the Nagel Anomaloscope; the Farnsworth 100-HUE test which involves arranging 85 coloured chips which represent the full hue circuit from red, orange, yellow, yellow-green, green, blue-green, blue-purple, purple, red-purple, back to red again in a logical sequence of changing colour; and the Lovibond Colour Vision Analyser. Based on the results of these tests Dr Cole said that he and his colleague had no hesitation in diagnosing Mr Costello as having a deuteranopic colour vision defect. The report then concluded:-

"... This diagnosis is made with a high degree of confidence since all test results with the exception of the Ishihara were consistent with this diagnosis. We presume that Mr Costello has learned the normal answers for the Ishihara.

The colour vision defect will give rise to confusion of red, yellow and green colours of equal luminosity and the confusion of white and some blue-green colours".

Amplifying on this report in his evidence Dr Cole said that deuteranopia is a fairly common inherent and congenital form of defective colour vision which is found in about 1% - 11/2% of men. It is not colour blindness but rather a reduced form of colour vision in which only a limited range of colours can be discriminated. It is characterized by certain typical confusions between reds, yellows and greens and, as his report indicated, between whites and some blue-greens. He pointed out however that the word "green" embraces a wide domain of colours which come under that general generic description. Thus there would in fact be a range of greens which are confused with yellow and red. The colour confusions of the deuteranope are quite specific and well known. Whether a deuteranope will have difficulty in interpreting colour coded information will depend therefore on the colours that are used in that code. His evidence then continued:-

"One could well envisage the situation where say red and green and yellow are presented to the deuteranope and he may well be able to distinguish between them provided there was some happy choice of the particular reds, yellows and greens. Equally it would be quite simple to choose reds, yellows and greens which in fact would be confused".

Although in a letter to Mr Costello dated the 31st January, 1978, Dr Cole stated that a Farnsworth lantern test was one of the battery of tests administered on the 30th July, 1974, we find on the evidence before us that no such test was in fact administered by either Dr Cole or Dr Dain.

The panel of experts comprising Drs Colvin, Isaacs and Cole was duly convened on the 9th August, 1974. The terms of reference of the panel were set out in a letter dated 8th August, 1974 sent by Dr Lane to the three members of the panel. Dr Lane enclosed a summary of all known colour vision tests carried out on Mr Costello together with photocopies of the original test results. The questions on which the panel was asked to advise, together with their answers were set out in the report of the panel dated 9 August 1974 (Exhibit T18) as follows:-

"1. Has Mr Costello either (a) normal colour vision or (b) a minor defect compatible with a passing score on BK or Ishihara pseudo-isochromatic plates (in civil aviation practice, a passing score is 0 to 3 errors on both series)?

2. If neither (a) nor (b), what is the degree and quality of his colour vision defect?

DEUTERANOPIA, which is a Dichromatic form of defective colour vision characterised by confusions of red, yellow and green and of white and blue green.

3. Is there any evidence suggesting that this colour vision defect is an acquired colour vision defect? NO.

4. What is the likely explanation of his having apparently passed several pseudo-isochromatic plate tests since December, 1973?

(ii) use of extrinsic clues enhanced by oblique viewing.

5. Does Mr Costello meet the criterion of the colour vision standard (ANO 47.3, Issue 6, para 5), namely a passing score on the Farnsworth lantern? NO..

Comments

1. Mr Costello has a typical inherited and congenital form of defective colour vision of severe degree which is found among about 1% of males. This was classically shown by the Nagel anomaloscope and consistently supported by a range of standard colour vision tests.

2. Failing to pass the AO-HRR pseudo-isochromatic plate test suggests he requires prior experience and exposure to the tests, in order to simulate normal responses. The AO-HRR is not commonly used and therefore not readily available. Currently out of print."

According to Dr Cole, who was the only member of the panel called before the Tribunal, the members consulted and exchanged their views and discussed the facts as they appeared from Dr Cole's report and from the other information available. Mr Costello was not present when the members consulted, so that no further tests were carried out. Mr Costello submitted that, as none of the panel members had himself administered a Farnsworth lantern test, the panel was not competent to answer question 5 and that their report should be rejected as "completely invalid".

Dr Lane conceded, in answer to a question asked by the Tribunal that by looking at the results of the Farnsworth tests, the panel members would be unable to come to any conclusion other than that the applicant had failed to pass those tests. Dr Lane suggested in effect, however, that what the panel was asked to consider was whether, having regard to the results of the various diagnostic tests conducted by the panel members, there were any grounds for doubting the validity of the results of the three Farnsworth lantern tests which had been administered to the applicant prior to that date, details of which had been furnished to the panel members. If that was the intention, it is unfortunate that the question was not framed in that way as it is quite capable, in our view, of conveying to the mind of the uninformed reader that the panel members themselves administered a Farnsworth lantern test to the applicant.

However, the most troublesome aspect of the report by the panel is the apparent abandonment by Dr Colvin of the conclusions which he formed based on the three tests which he administered to the applicant on the 26th February, 1974. Neither party saw fit to call Dr Colvin or to tender any affidavit or other evidence from Dr Colvin to explain his change of opinion. We can only assume therefore that, faced with the evidence of the colour vision tests administered to the applicant prior to 26 February 1974 and, in particular, with the evidence of the wider range of tests administered by Drs Cole and Dain on 30 July 1974, Dr Colvin must have concluded that his earlier opinion, based as it was entirely on pseudo-isochromatic plate tests, was unreliable.

Whilst we do not regard question 5 and its answer as very satisfactory, we can see no reason why we should not have regard to the opinions which the panel otherwise expressed in its report. Accordingly, we reject the applicant's submission that we should disregard the report entirely.

Before proceeding to the next developments in the matter, it is informative to review the applicant's performance on colour vision tests up this point of time. Apart from the plate tests administered by Dr Colvin on the 26th February, 1974, (the conclusions from which Dr Colvin appears later to have repented) and the pass on the Ishihara plate test administered by Drs Cole and Dain on 30 July 1974 (the validity of which was discounted by the other tests which they conducted), the applicant had either failed completely or had produced an equivocal result on all the recognised colour vision tests administered up to the end of July 1974.

But despite the fact that the report of the panel was intended to determine conclusively both the nature of the colour vision defect from which the applicant suffered and the question whether he satisfied the colour perception standard in Part 47.3 of the Air Navigation Orders, that was not the end of the matter. There have been further colour vision tests administered to Mr Costello since 30 July, 1974, the results of which have been quite inconsistent.

(i) Victorian College of Optometry - 1 December 1975

In some tests conducted at the applicant's request at the Victorian College of Optometry on 1 December 1975 by Miss Rosemary Wilson, an employee and a recent graduate of the College, the applicant was classified as having "normal" colour vision and a letter to that effect dated 6th January, 1976 signed by Mr KJ Bowman, Senior Clinical Associate of the College was sent to Mr Costello (Exhibit T19). Dr Cole attempted to explain the results of these tests away by suggesting that someone other than Mr Costello must have presented himself for examination. He based this assumption upon the fact that the records of the three tests administered by Miss Wilson (Ishihara Plate Test, Farnsworth Dichotomous Test and Nagel Anomaloscope) were those of a person with normal colour vision. There was no similarity in the results of the tests which he and Dr Dain had conducted when compared with the records of the tests conducted by Miss Wilson. Dr Cole said that the records of Miss Wilson's examination disclosed that the person examined had not been required to identify himself by signing the record card as was usual where the examinee requested a certificate as to his colour vision.

Mr Costello categorically denied that this was so. He claimed that the reason he had called in for further tests was that, during his earlier examination on 30 July 1974, he had asked Dr Dain how he was doing. Dr Dain had allegedly asked the applicant for what purpose he was doing the tests. The applicant said that he told Dr Dain that he was involved with aviation and that the tests were to determine whether he met the required standard. Dr Dain had allegedly informed the applicant that he "should not have any problem".

Mr Costello said that some time later in December 1975 he had occasion to be in Melbourne and in view of Dr Dain's remarks he had presented himself at the College of Optometry. His evidence continued:-

"I stated that I was interested in aviation but I thought I may have a colour defect - a colour perception problem and that could they - could I obtain an examination to determine this. The young lady gave me the series of tests. She told me they were satisfactory and at the conclusion, I paid the girl the $5.55 - the receptionist the $5.55 and received this receipt. I primarily did this medical for my own edification and of course I was quite surprised that they assessed me as completely fit in view of the previous report from that clinic."

At no stage did the applicant inform the young lady who examined him of his previous colour vision history or, more particularly, of the positive diagnosis of deuteranopia in only the previous July by the Director of the College. Dr Dain was not called to give evidence and we have no way of knowing, therefore, what his version of the alleged conversation on 30 July 1974 may be. Neither was Miss Wilson called to throw any light on the circumstances surrounding the tests she conducted on 1 December 1975. The applicant produced a receipt, No. 25395 dated 1 December 1975 for the fee of $5.55 which was paid for the examination (Exhibit B). The receipt was made out in favour of "Mr Costello" and bore his signature which he said he placed on the receipt subsequently in accordance with his normal practice. The receipt, of course, establishes nothing more than that a person who described himself as "Mr Costello" paid for an examination at the College on 1 December, 1975.

As the matter stands, there is no evidence to support Dr Cole's theory that someone representing himself as Mr Costello presented for examination by Miss Wilson. On the evidence before us we think it far more likely that the reason for the inconsistent results may lie in Miss Wilson's comparative inexperience. Totally unknown to her she was faced with an applicant who during the past 18 years had undergone a large number of colour vision tests (the great majority of which he had failed) and who in July 1974 had been positively diagnosed as a deuteranope after quite extensive testing by two professors of the same College of Optometry to which he now so innocently presented himself for examination as if for the first time. We have no evidence from Miss Wilson as to the manner in which the tests were conducted, and puzzling though the results may be, we can only conclude that those results are not reliable evidence of the applicant's colour perception ability.

It appears that on 4th November, 1976, for the purposes of proceedings instituted by Mr Costello against the Controller of Civil Aviation in the National Court of Justice, Papua New Guinea a complete ocular examination of the applicant was undertaken by Dr PA O'Connor, an Ophthalmologist of Brisbane, who was not, however, an "approved medical practitioner". Dr O'Connor was not called to give evidence before this Tribunal, but according to his affidavit (Exhibits A and F) the examination included colour vision testing. The results of the tests administered were:-

"Ishihara pseudo-isochromatic plates - Fail, equivocal Bostrum Kugelberg - Fail Farnsworth Lantern - Pass"

Dr O'Connor deposed to the fact that prior to the examination he was briefed on the past history of Mr Costello and was aware that the results would be used as evidence in the courts of Papua New Guinea. He also deposed that "the Farnsworth lantern test was monitored by myself and undertaken in a correct and proper manner and no doubt exists as to the results of the test."

Mr Costello informed us that the lantern test which Dr O'Connor witnessed was conducted at the RAAF medical centre in Brisbane. He could not recall who administered the test or precisely where the medical centre was situated. Dr Lane said that he understood that there was a Farnsworth lantern held by the RAAF Recruiting Centre in Brisbane and he understood that the tests were conducted by an NCO. In the case of an "outside" test, such as Mr Costello had undergone, Dr Lane believed that no records of the test are kept. This may explain why no record of the results of the test administered at the RAAF medical centre were in evidence. We do not know therefore, whether the applicant passed on the first run or whether he passed only after being tested on the second and third runs; nor do we know in what order the sequence of signals was administered.

It appears that on the same date, and for reasons which were not explained to us, a Farnsworth lantern test was also administered to the applicant by Mr KT Dollery, a Flight Test Officer employed by the Department of Transport in Brisbane. The record of that test (Exhibit T20) discloses that the applicant made no errors on the first run. He was therefore accorded a pass without proceeding to the second and third runs. There was no random selection.

Mr Dollery was called to give evidence, but had no independent recollection of the applicant. He said that he had conducted thousands of tests over the years. He identified his signature as examiner on the report of the test and explained his procedure in having the examinee fill out his name and sign the form at the top. There was no suggestion before us that the signature at the top of the form was other than that of the applicant. Thus on two separate occasions on the one day with different examiners, one of whom (Mr Dollery) we know to have been very experienced in administering the lantern test, the applicant passed both tests. On the evidence, there is no apparent explanation for the inconsistency between these results and the results of the earlier Farnsworth lantern tests.

(iii) University of New South Wales - 9 February 1978

On 9 February 1978, at the request of the Controller of Civil Aviation, Port Moresby, Mr Costello underwent a series of colour perception tests conducted by Mr JA Alexander, a Lecturer in the School of Optometry in that University.

The appointment was arranged by Dr Lane at the request of the authorities in Papua New Guinea who required the examination in connection with the proceedings instituted by the applicant in the National Court of Justice. In a report dated 17 February, 1978, a copy of which was before us as Exhibit T27, Mr Alexander summarised the results of the tests which he administered, as follows:-

"1. Ishihara Test. 14 errors out of 24. Diagnosis: strong deutan defect.

2. AO-HRR Pseudo-isochromatic Plates: Failed 6 out of 10 red-green diagnostic plates. Diagnosis: medium deutan defect.

3. City University Colour Vision Test. Failed 6 out of 10 plates. Diagnosis: strong deutan defect.

4. Tokyo Medical College Color Vision Test (Pseudo- isochromatic plates). Failed each of 13 plates (including a plate designed to test for malingerers or "total colour blindness"). Diagnosis: deuteranope.

5. Farnsworth Munsell 100 Hue Test. On first testing, the result indicated a mild deutan defect. However, there was a likelihood that the subject was able to glimpse the numbers on the back of the test caps. He was re-tested with one of the boxes, and asked to avoid turning the caps over. The subject took 10 minutes to complete the test (average time: 2 to 4 minutes), and gave a typical deuteranopic result. On completion, he appeared considerably distressed, and no further re-tests - were given.

6. Nagel Anomaloscope. All red/green mixtures (including pure red and pure green) were called "yellow", and were matched with the pure yellow reference colour. Diagnosis: deuteranopic.

7. Lovibond Colour Vision Analyser. Initially colours number 2, 6, 13, 14, 15, 17 and 26 were matched with the white reference stimulus when the saturation setting was 25. When the colours were re-presented to find the saturation threshold, the subject rejected all matches, failing to accept even the neutral-with-neutral match. No diagnosis was possible.

The Nagel Anomaloscope result was unequivocally that of a deuteranope. With the exception of the Lovibond Colour Vision Analyser, all other tests indicated poor colour discrimination. The subject's previous experience with colour tests probably enabled him to perform better on the Ishihara and AO-HRR Tests than expected from a deuteranope; it is worth noting that the subject failed completely with the Tokyo Medical College Test, which he had not seen before.

In my opinion, Mr Costello is a deuteranope or, at best, extremely deuteranomalous. It is highly likely that he could confuse colours such as red, yellow and green with each other or with neutral colours, particularly when the stimuli are small or dim or of low saturation.

Mr Costello mentioned that he regularly took chloroquine tablets as anti-malarial medication. Cases of acquired colour deficiency due to chloroquine have been documented. Therefore there is a possibility that Mr Costello inherited a milder defect (eg. deuteranomaly) which has been complicated by a defect acquired through the use of chloroquine. This would account for some of the variability in results which have been obtained over 20 years."

Mr Alexander was called by the respondent to give evidence at the hearing. He said that in 1961 he was awarded a Diploma in Optometry from Sydney Technical College; in 1965 he was awarded the Degree of Bachelor of Science (Hons) in Optometry by the University of New South Wales; in 1971, he gained the degree of Master of Science from the same University; and he had just completed his dissertation towards the degree of Doctor of Philosophy. He said that he had been a Fellow of the Institute of Optometrists of NSW and the American Academy of Optometry since 1962. Between 1966 and 1975 he was a Lecturer on colour vision theory and testing. In 1964 he was instrumental in establishing a clinic in the School of Optometry in the University of NSW to assist in the vocational guidance, mainly of children and young people who had failed colour vision screening tests. As far as Mr Alexander was aware (and this evidence was confirmed by Dr Cole) the School of Optometry at the University of NSW and the Victorian College of Optometry were the only two institutions in Australia in which comprehensive testing of colour perception deficiency could be undertaken.

Mr Alexander did not profess to have made any special study of the colour perception requirements for pilots, although he had read the Watkins Report (Exhibit 4) to which Dr Cole had referred. As his letter dated 17 February 1978 discloses, Mr Alexander limited his comments to the nature of the defect in colour vision from which the applicant suffers. He did not purport to express any opinion on the further question whether the applicant satisfied the colour perception standard in ANO 47.3 with which he conceded he was not familiar.

The applicant objected to Mr Alexander's report being in evidence before the Tribunal. He submitted, that as Mr Alexander was not an "approved medical practitioner" and that as the clinic operated within the School of Optometry at the University of N.S.W. was not a "medical organisation", the applicant was not obliged under regulation 57(1)(b)(iii) to authorise the disclosure to the Secretary of the Department of Transport of any information acquired by Mr Alexander. Indeed, he said, he had specifically refused to give any such authority. The examination and report, it will be recalled, had been commissioned by the Controller of Civil Aviation in Port Moresby. An apparently unsolicited copy of Mr Alexander's report was in fact provided to the Department by the Controller under cover of a letter dated 5 May 1978.

Although Mr Kasper, on behalf of the Secretary, did not suggest that Mr Alexander was a "medical practitioner", he did submit that the School of Optometry is a "medical organisation" within the meaning of regulation 57(1)(b)(iii). In support of this submission we were referred to Honeybone v Hambridge (1886) 18 QBD 418, a decision which would not, in our view, assist us greatly if we found it necessary to resolve the question.

We rather think, however, that the applicant's objection is misconceived. Regulation 57(1)(b)(iii) is, in our view, directed to ensuring that, in his consideration of the question whether an applicant meets the required medical standard, the Secretary will not be denied access to relevant information acquired by a medical practitioner, hospital or other medical organisation on grounds of medical professional privilege. The regulation says nothing about whether information acquired in a clinic such as that operated in the School of Optometry is admissible in evidence. That question is left to be determined, it would seem, according to the general law but subject to the provisions of section 33(1)(c) of the Administrative Appeals Tribunal Act 1975. As, at common law, it is clear that communications made to a medical practitioner are not protected (see Wheeler v Le Marchant (1881) 17 CLD 675 at p681), we fail to see on what basis communications to Mr Alexander should be seen as privileged.

In the final submissions placed before us on behalf of the respondent, there was the rather piquant suggestion that by refusing to give the requested authority (notwithstanding that the information was obtained by the Department by other means) the applicant was in breach of regulation 57(1)(b)(iii) and was thus ineligible for the grant of a licence. As this was not a ground relied upon by the Secretary at the time of refusal of the application for a licence; as it was not therefore one of the matters of which the applicant was on notice as being an issue affecting his eligibility for a licence; and because, consequentially, it raises a number of issues which were not canvassed properly before us (not the least of which are whether the clinic is a "medical organisation"; the point of time at which the authority is required to be given; and the relevance of the fact that the information was otherwise obtained), we do not think it proper that we should seek to resolve this question in the present application and we leave it to the Secretary to take any action in this regard that he may consider appropriate.

The applicant's attack upon Mr Alexander's report and the evidence he gave before the Tribunal was, however, much more trenchant. He said that his understanding from the Papua New Guinea Justice Department was that Mr Alexander would not be aware of his past history and that he would conduct an unbiased series of tests. However, when he presented himself to Mr Alexander he discovered that in fact he had been briefed by Dr Lane regarding his previous history. . The applicant stated that he therefore considered the tests a farce and he undertook the tests in that vein. Furthermore, he claimed that not one of the pseudo-isochromatic plate tests was carried out using a correct illuminant source. The Farnsworth 100-HUE test he also claimed was not conducted under the standard illumination required. He said that he had nothing but contempt for the manner in which the tests by Mr Alexander were administered.

We had before us as Exhibit 28 a copy of a letter dated 10th November, 1977 from Dr Lane advising Mr Alexander that Dr Lane had given Mr Alexander's name to the Papua New Guinea authorities as "a reliable source of colour vision testing in this country additional to the College of Optometry in Victoria". The letter concluded:-

"I thought I should let you know about my quoting your name to the P.N.G. authorities and also that you should be aware that Mr Costello is now an extremely experienced subject on colour vision tests and has made himself thoroughly familiar with the correct scoring on most of the commonly used ones."

Mr Alexander said in his evidence that prior to conducting the tests on the applicant he had received a fairly thick document containing the history of tests previously conducted on the applicant. He said, however, that he had not looked at the document prior to conducting his tests. He denied that knowledge of the applicant's previous history would pre-dispose him in any way in diagnosing a colour deficiency. Asked whether the expectation of a particular result might affect the outcome of the test Mr Alexander replied:-

"... it could influence you if you wanted it to, but I think that if you test a patient carefully and fairly I think there is no way that you could honestly come up with the wrong diagnosis. What I said before was that I would have preferred not to have known anything about the patient's previous history, but that was in terms of exact results and exact tests. Unless I wanted to be completely dishonest I think it would have been very difficult even with the full knowledge of previous tests for me to come to a conclusion other than that which I did come to."

With respect to the tests administered, Mr Alexander strenuously denied that any of the tests were conducted otherwise than in accordance with the instructions of the designer of each test. He said that the results of the tests, far from indicating that the applicant was being deliberately unco-operative, produced a result that was quite characteristic of the deuteranope colour defect.

We have no way of knowing nor do we think it is relevant for us to enquire as to the circumstances in which the applicant may have been requested by the Department of Justice in Papua New Guinea to undertake tests with Mr Alexander. What is clear, we think, is that at the time Mr Alexander conducted the tests he was aware that there was a problem over the applicant's colour vision and that he was required to conduct colour vision tests, the results of which would obviously be of some importance to the applicant's future career as a pilot. Despite the applicant's assertions regarding the tests not being correctly administered, we have no hesitation in accepting that Mr Alexander conducted the tests correctly and that the results of those tests provide a reliable indicator as to the applicant's colour perception ability. There is absolutely no reason on the evidence before us why we should doubt either Mr Alexander's competence or his honesty. In particular we do not believe that any knowledge which Mr Alexander may have gained of the applicant's prior history influenced his ultimate diagnosis.

Perhaps we should say in conclusion that even if we were wrong in having regard to Mr Alexander's evidence (which of course we do not believe to be the case), the rejection of his evidence would not materially improve the applicant's case. For in the final result Mr Alexander's evidence is merely corroborative of the tests conducted in 1974 by Drs Cole and Dain and, apart from the reference to the drug chloroquine as a possible cause of the variable results produced by the tests administered over the years to the applicant, did not throw any new light on the applicant's colour vision deficiency.

It was of course shortly after the examination by Mr Alexander that the applicant presented himself to Drs Goldacre and Rogers in Perth on the 22nd March, 1978. The applicant said that he had been sent to Western Australia by Mr Nuigini to do a conversion course onto the F28 jet aircraft and "being in Perth, (it) was the logical place to do the medical". On the following day, the 23rd March, 1978 he had lodged an application for an Australian Senior Commercial Pilot Licence. Notwithstanding that there is no evidence before us from either of these doctors to explain the circumstances in which they independently came to the conclusion, as approved medical practitioners under the Regulations, that the applicant satisfied the colour perception standard, it was submitted to us on behalf of the Secretary that we "could not fail to have doubts as to the results of the tests by Dr Goldacre and Dr Rogers or the manner in which the tests were administered or undertaken by the applicant."

The latter part of this submission is apparently based on the language of ANO 47.3.6 (Issue 6) - not Issue 7, which is the present form of the Order. It was not made clear as to the basis on which we should have doubts as to the manner in which the tests were administered as opposed to having doubts as to the results of the tests. We take it, however, that the submission relates to the evidence of Dr Lane in which he said that before the results of plate tests could be accepted, certain conditions must be fulfilled. The test material must be in good order; there must be proper illumination; correct procedures must be followed; and, most importantly, the examinee must not be thoroughly familiar with the test material. It was submitted that "Drs Rogers and Goldacre were not given a complete and detailed history by Mr Costello of the colour perception tests he had undergone and the results thereof."

However, no evidence was placed before the Tribunal from either doctor explaining the circumstances in which their colour perception tests were conducted and what meagre evidence there is on that issue is somewhat equivocal. The medical examination record sheet signed by both doctors (Exhibits T21) showed that the applicant disclosed that he had passed a civil aviation medical examination in 1974 but there then appears a handwritten notation - "? colour perception". It is not clear who made this notation, but it certainly suggests that the applicant made some reference to his colour perception problem.

In the course of his evidence before the Tribunal, the applicant was asked the following question by Mr Kasper on behalf of the respondent:-

"When you saw Dr Goldacre and asked him to carry out a test for air navigation purposes, did you tell him then about previous tests which have been carried out? - - - I told him that I was presently employed by Air Niugini and I had this court case business and the background surrounding it. I cannot really be more specific than that."

Commenting on this evidence in his final submission, the applicant submitted that "this involved explaining in detail to those doctors the entire background and history of my colour vision testing problems with the Department including details and transcripts of the two court cases in New Guinea". We find this submission rather puzzling as it provides the very detail on which, in evidence, Mr Costello had said he could not be specific.

Dr Lane, in the course of his evidence, was asked whether he had endeavoured to contact either Dr Rogers or Dr Goldacre in relation to the tests which they had conducted. Dr Lane said that he had not made any contact, but that Dr Goldacre in fact rang him. He was then asked by the applicant:-

"Would you tell the Tribunal what he had to say? - - - Well not very much and I cannot even actually recall at the moment when he rang me up, but the general gist of it was that he felt that he may - shall I say fallen into a trap and I said, well, not to worry. Other people have done it too. I think that it was about the gist of our conversation.

And Dr Goldacre did not say what sort of trap he had fallen into? - - - Well, it was not a very long conversation and I do not have a detailed account of it.

Would it not strike you that the fact that Dr Goldacre rang you would be indicative that he was fully briefed on the history? - - - I did not get that impression."

Dr Lane also said that he would not regard the tests conducted by Drs Goldacre and Rogers as valid tests as they did not know of the applicant's previous history. When pressed as to the basis of his statement, Dr Lane conceded that it was an assumption on his part.

That some enquiries should have been made of Drs Rogers and Goldacre before discarding as unreliable the results of the tests which they had administered appears implicit in the answer given by Dr Lane to the following question asked by the applicant:-

"So the results of any test are irrelevant; I must fail? - - - Any new test has to be taken into consideration but if it is inconsistent with a very substantial body of previous evidence, then according to the Order one has the opportunity or perhaps the obligation to request further evidence."

We do not see, on the basis of this evidence, how we can properly decide whether Drs Rogers and Goldacre were fully informed of the applicant's previous history. We would not be prepared to assume, as Dr Lane did, that the doctors were not fully informed. We can understand, on the other hand, why Dr Lane may have had doubts about the results, having regard to the applicant's previous history including, in particular, the tests which Dr Lane himself had administered.

If the success or failure of the applicant's case depended upon the resolution of this question we would have felt it necessary to invite the parties to submit further evidence and submissions on the point. But much as we feel that evidence from these two doctors would be likely to have assisted us in deciding one aspect of this application for review, we have concluded that the Tribunal would not be warranted in request that evidence at this stage. As the parties themselves have not seen fit to pursue the matter, we think that we should be guided by the counsel of prudence offered by Deane J in Re Sullivan and the Department of Transport (1978) 1 ALD 383 at p 402:-

"In the ordinary case, a tribunal which is under a duty to act judicially and which has the relevant parties before it will be best advised to be guided by the parties in identifying the issues and to permit the parties to present their respective cases in the manner which they think appropriate."

We therefore find, on the evidence as it stands, that the pass results obtained in the tests administered by Drs Roger and Goldacre, being inconsistent with the results of similar tests administered previously to the applicant, give cause for doubts as to the reliability of those results as indicators of the applicant's colour perception ability (see ANO 47.3.5(b)). Without further investigation whether those doubts are justified we would not be prepared, on the basis of those doubts alone, to assess the applicant as unfit as the Secretary purported to do. But in our view, the fate of the applicant's case depends on other evidence to which we must have regard in accordance with ANO 47.3.5(a).

At a glance

Court

Decision date

Source

Judgment (291 paragraphs)

Legislation Cited (5)

Cases Cited (12)

Costello and Department of Transport [1979] AATA 184 (30 November 1979)