Privacy - effect of consent - limitations on jurisdiction of court.

Public Service Act - whether obligations under regulations confer a private right of action - whether one Crown agent can be vicariously liable for actions of another.

Misfeasance of Office - knowledge requisite for the tort.

Costs - discretion of court to deny a successful respondent an order for costs - discretion to be exercised for some reason connected with the case - circumstances which raised such a reason - conflict of interest.

Privacy Act, 1988, ss. 13, 14, 15, 90, 93 and 94.

Federal Court of Australia Act, 1976, s. 43(2).

Verna Trading Pty Ltd v. New India Assurance Co Ltd [1991] VicRp 12; (1991) 1 VR 129

Farrington v. Thomson [1959] VicRp 49; (1959) VR 286 at 293

Century Impact Pty Limited v. Chief Commissioner of Business Franchise Licences (Tobacco) (Supreme Court of N.S.W., Sully J, unreported, 11 December 1992)

Revesz v. Commonwealth of Australia (1951) 51 SR(NSW) 63

Downey v. Pryor [1960] HCA 49; (1960) 103 CLR 353

Chapman v. Lord Ellesmere (1932) 2 KB 431

Loveday v. Sun Newspapers Limited [1938] HCA 28; (1938) 59 CLR 503

Adam v. Ward (1917) AC 309

SYDNEY, 30 November, 1-4, 7-11 and 14-18 December 1992

Counsel for the First Respondent: Mr R.A. Finkelstein QC with

Mr T. Ginnane

Solicitors for the First Respondent: Messrs Freehill

Hollingdale and Page

Counsel for the Second Respondent: Mr K.J. Martin until

8 December 1992, and after 8

December 1992 Mr R.A.

Finkelstein QC with Mr K.J. Martin

Solicitors for the Second Respondent: Messrs Parker and Parker

1. The application be dismissed.

2. There be no order as to the costs of the respondent, the Civil

Aviation Authority.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

BURCHETT J In 1989, the airline transport industry in Australia was shaken by a major industrial upheaval known as the Airline Pilots Dispute. Pilots resigned en masse from both the major domestic carriers, creating an overnight need for the recruitment of great numbers of pilots. Large national interests were affected, and many private interests were caught up in the turmoil. This case is concerned with the involvement of one individual, the applicant Mr Austen, who was drawn back to Australia to seek employment as a pilot with the first respondent ("Ansett") at that turbulent time. For it was a turbulent time, and the hasty recruitment procedures born of the dispute are at the heart of the present litigation, in which Mr Austen sued Ansett and the Civil Aviation Authority for actions taken in connection with the Authority's making available to Ansett of a medical file relating to Mr Austen. (The claims against Ansett were withdrawn during the hearing, and these reasons are concerned only with the claims against the Civil Aviation Authority.)

2. When the dispute broke out, Mr Austen was working as an airline transport pilot in the United Kingdom. He had worked there as a pilot since 1978, flying for a number of different employers, and working his way up from prop-jet to pure jet aircraft. In 1986, his airline transport pilot's licence had been suspended because of several episodes of atrial fibrillation, or (as regards the earlier episodes) what was suspected of having possibly been atrial fibrillation. Following that suspension, he had had exhaustive investigations, which revealed no abnormality of his heart and led to the reinstatement of his United Kingdom licence, subject to a condition that he have a co-pilot at all times, and the reinstatement of his Australian licence without that condition. Immediately before coming to Australia to seek employment with Ansett in 1989, he had been flying Boeing 737 200 series aircraft for an airline in the United Kingdom. He was leaving that airline, and had been accepted by another United Kingdom airline to fly Boeing 737 300 series aircraft. He decided instead to return to Australia to try to obtain employment with Ansett.

3. Mr Austen arrived back in Australia on 1 October 1989, but his application to Ansett was unsuccessful. Refusing to take no for an answer, he telephoned the airline's head office and asked for Sir Peter Abeles, its Joint Managing Director. A secretary took a message, and that evening his call was returned by Sir Peter Abeles, who seems to have been impressed by Mr Austen's determination, and doubtless was anxious to push forward the recruitment of experienced pilots. As a result, an appointment was made for Mr Austen to be interviewed at Perth Airport. After this interview, he was flown to Melbourne for a further interview, on 23 November 1989, with a Captain Terrell and a Mr Graham Stafford, to be followed by a medical examination and a simulator check at the Astrojet Centre at Tullamarine Airport. Mr Austen had, at that time, just secured the re-issue of his Australian senior commercial pilot's licence. After the interview with Captain Terrell and Mr Stafford, Mr Austen was told he had been successful in obtaining a job flying Boeing 737 aircraft, based in Melbourne, subject of course to passing the medical examination and simulator check. His medical examination by Dr David Lewis, Ansett's medical director, followed.

4. On this occasion, Mr Austen signed a number of forms. One form is headed "Ansett Transport Industries Limited Medical Examination Record Sheet". That form contains some personal details, and sets out findings upon the medical examination. Against the word "RESULT", Dr Lewis wrote "PASS". However, after some events which will be related, Dr Lewis wrote on the top of the front of the form the word "FAIL". Another form, which Mr Austen signed for Dr Lewis on the same day, contained a series of questions, beginning:

"Past History

Have you ever experienced in the past:-

1. Investigation at a hospital or clinic?"

There was provision for an answer, yes or no, to be ticked in respect of each question, and a note: "If yes to any of the above, note item number and give relevant information". Question one having been ticked affirmatively, there was a note referring to the investigation of atrial fibrillation and the reinstatement of the United Kingdom licence in November 1987, following suspension in 1986 on that account. The next question was: "2. Admission to a hospital or clinic?", again ticked affirmatively, with a note: "Removal of submandibular calculii (sic - scil. "calculi"; a calculus is a solid concretion or "stone" which may be found in a duct or cyst) and gland. Removal of vein from Rt leg."

5. Among the further questions in the series on this form was: "24. Psychiatric examination or treatment?" To this, the answer "No" was ticked. That answer is a matter of considerable importance in the case. It should be noted that Mr Austen's signature was written on the back of the form, under a declaration in the following terms:

"I hereby declare that I have carefully considered the

statements made overleaf and that to the best of my

knowledge they are complete and correct and I have not

withheld any relevant information or made any misleading

statement."

6. Endorsed on the form is a handwritten note, which appears to have been added by Dr Lewis later, in the following terms:

"Prev = Cox

Used to work for Dan Air

Pissed off overnight."

I shall return to this note, but I should state at once that Mr Austen's name was changed by deed poll at about the time of his marriage to his present wife in 1988; his previous name was Cox.

7. A third document which Mr Austen signed for Dr Lewis is also very important in this case. It described itself as a "Medical Information Authority", and it was in the following terms: "I Michael James Austen authorise the Director of Aviation Medicine, Aviation Medicine Branch, D.O.A. to supply details of my medical history to the Medical Director, Ansett". (This document is anachronistic in some of its language. It should have referred to the Director of Aviation Medicine as belonging to the Civil Aviation Authority which had, by 1989, replaced the Department of Aviation; but there is no dispute that the person to whom it must be understood to have been addressed was the Director of Aviation Medicine, to whatever body he was attached.)

8. On the same day on which Mr Austen attended the interview, 23 November 1989, having also attended the medical examination by Dr Lewis, and the simulator test, and apparently having passed both, he received a letter dated 23 November 1989, signed by Mr Stafford, which relevantly read as follows:

"This will confirm your appointment as an Intake Pilot with

Ansett W.A. at a commencing salary as set out in the

enclosed contract under which you will be employed. We

shall be glad if you will sign and return the Contract to

us, together with the Letter of Undertaking prior to

commencement.

Your course will commence on Tuesday, 5th December 1989 at

9.00 a.m. and you should report to our Flight Operation

Department located at Henderson Avenue, Perth Airport.

Please confirm as soon as possible that these arrangements

are acceptable to you.

. . .

We take this opportunity of welcoming you to Ansett W.A.

and wish you every success in your new career."

Also on the same day, a form of contract of employment was signed, both by Mr Austen and by Mr Stafford "For and on behalf of Ansett WA".

9. The medical information authority, which has been mentioned, was sent by Dr David Lewis by facsimile transmission to the Director of Aviation Medicine, Dr R.M. Liddell, in Canberra. In the unprecedented circumstances of the Pilots Dispute, a special arrangement had been made to enable such authorities to be dealt with by the Director of Aviation Medicine on behalf of both the Australian domestic carriers. The problem, of course, was that both airlines had a need to process a large number of pilot employment contracts in a short space of time, and their medical directors had difficulty in conducting all of the necessary medical examinations, as well as attending in Canberra to inspect medical files for details of medical histories. The arrangement, so far as Ansett was concerned, was that the Director of Aviation Medicine and his officers would themselves supply, on forms provided by Ansett, details of the medical histories of applicants for employment as pilots, so that it would not be necessary for the Medical Director of Ansett to attend in Canberra himself, unless there was some special problem in a particular case. In the case of Mr Austen, Dr Liddell personally signed the form, which was dated 27 November 1989. There was a space in this form headed "ABNORMAL FINDINGS". Dr Liddell wrote in after those words the further words "IN DOCUMENTS", so that the altered heading read: "ABNORMAL FINDINGS IN DOCUMENTS". He then wrote underneath that heading the following:

"1986 - attack of atrial fibrillation, which followed several

incidents of feeling unwell over the previous two yrs.

- extensively investigated c angiogram and holter and echo -

all NAD (ie., nothing abnormal detected).

- a thick file - history in 70s of ? suicide attempt - but

thought to be not serious - also in U.K. in June 86 - 12

propanolol tab ? as gesture.

- has had many jobs according to Corro.

I think you should see this file Dai". (Dr Lewis is known

familiarly as "Dai".)

10. The receipt of this document by Dr Lewis by facsimile transmission led to some very prompt action. Mr Stafford called Mr Austen on the telephone. He told Mr Austen that the contract was being held in abeyance, there being a medical problem. Mr Austen telephoned Dr Lewis, who said he had received some details of the medical history file; there was a problem; and he intended to go to Canberra to examine the file. According to Mr Austen's evidence, he replied:

"That it was then Thursday morning and I was due to start

work on contract on the Tuesday morning following, and

essentially asked him to expedite whatever he was doing and

communicate the result to me as fast as he could."

In the context, the Civil Aviation Authority relies on this as a further authorisation for the Medical Director of Ansett to examine the medical history file relating to the applicant.

11. Not hearing further, and being advised that he should comply with his contract, Mr Austen attended on the appointed day for commencement of his training course. He was, however, not permitted to start training. Instead, after some time, it was arranged that he attend an interview in Melbourne with a Captain Dorward, Captain Terrell and Dr Lewis. At that interview, there was debate about whether Mr Austen had told the truth to Dr Lewis. Mr Austen maintained that he did not have a nervous disability, while he had disclosed the atrial fibrillation (as, in fact, he had). A further interview followed with a Mr Oldmeadow and a Mr Gaye, and an arrangement was made eventually for Mr Austen to be seconded from Ansett W.A. to Ansett Airlines of Australia as a "Pilot Relations Officer from Monday 18 December 1989 for a period of three months". This arrangement was confirmed in writing by Mr Oldmeadow, who was Ansett's Director of Personnel, on 14 December 1989. Its object was to provide a breathing space, with the accomplishment of a useful task, on the understanding that Mr Austen would afterwards proceed to take up duties as a pilot in Western Australia.

The medical file of the Director of Aviation Medicine, perusal of

which appeared to have such consequences, was summarized by Dr Lewis in a memorandum which he wrote on 4 December 1989, as follows:

"SUMMARY

42 year old pilot with a previous history of reactive

depression and two apparent suicide attempts. Repeated

false statements and non disclosure. Has a heart

irregularity known as atrial fibrillation which may return

and could be incapacitating. Refused licence in U.K. (This

statement appears to involve a serious misapprehension by

Dr Lewis, and explains some evidence given by Mr Austen

that Sir Peter Abeles asked him at this time whether it was

in fact true that he held a U.K. airline transport pilot's

licence. It may also be the fact that Mr Austen's correct

claim to hold such a licence was one of the statements

characterized by Dr Lewis as "false".) Has an Australian

licence subject to annual investigations.

OPINION

Under normal recruitment procedure I would have not

(emphasis original) recommended selection. However, he has

been made a job offer to state (sic - scil. start) tomorrow

in A.W.A. A refusal now makes this a refusal on medical

grounds, with all that that implies under the Equal

Opportunities Legislation. We may well loose (sic) such a

case.

The risk level would appear to be low but higher than the

levels applied by Ansett in the past.

An executive decision is required bearing in mind the

statements over reduced standards being made by the

A.F.A.P. (Australian Federation of Airline Pilots)."

12. Following the arrangement made with Mr Oldmeadow, the applicant carried out satisfactorily the special duties assigned to him. He was paid, while doing so, about the amount a first officer would have earned. After the end of the three months, a firm decision was made that Mr Austen would fly as a pilot. In so finding, I accept the evidence of Mr Oldmeadow and Captain Terrell, the Deputy General Manager of Ansett, both of whom were impressive witnesses. It was a fairly chaotic period for the management of Ansett, which was only just coming out of the Pilots Dispute, and arrangements for Mr Austen to attend an appropriate training course were somewhat delayed. However, they were finally made. But then a disagreement developed about the salary and allowances to be paid during the training course. Ansett proposed to pay Mr Austen on the same basis as other intake pilots while he attended the course, and was concerned about the industrial implications if it did otherwise. Had Mr Austen proceeded directly to flying upon his being employed, he would have received a substantially reduced salary and allowances until the completion of his training. In the event, he had enjoyed a higher salary for some time, doing special work, but now that he was to do what all other intake pilots had had to do, he was to be paid on the same basis as they had been. Mr Austen did not accept this view of the matter, and resigned. He says his resignation was a consequence of the disclosures made to Dr Lewis by the Director of Aviation Medicine. Having regard to the evidence of Mr Oldmeadow and Captain Terrell, I reject that. I find that Mr Austen resigned by his own choice, and had he not done so, he would have been assured of flying as a pilot in accordance with the decision which had been made. This is not to say the disclosures to Dr Lewis had done the applicant no harm, although it does follow that any harm properly traceable to that source was much more limited than the applicant's case asserts. Nor is it to say Ansett's view may not have been different had it known the full truth, as revealed in the course of this proceeding, about the applicant's medical history; but it is unlikely the inquiries necessary to reveal the full truth would ever have been made except in the context of such a proceeding.

13. Mr Austen's claim in this Court against the Civil Aviation Authority is largely, although not quite entirely, based on the information communicated by Dr Liddell in writing to Dr Lewis, and upon the medical file subsequently produced to Dr Lewis. Additionally, a claim arises out of an alleged verbal communication by Dr Liddell to Dr Lewis, of which the handwritten endorsement on the medical examination record sheet of Dr Lewis, in respect of Mr Austen's departure from an airline known as Dan-Air, is alleged to have been a note. The causes of action pleaded include defamation in respect of the publication of the material under the heading "ABNORMAL FINDINGS IN DOCUMENTS", in respect of the alleged oral communication, and also in respect of the supply of documents from the medical file containing allegations against the applicant which had been medically investigated, particularly allegations of attempted suicide or of the making of suicidal gestures. The applicant alleges that Dr Liddell, whose sister was once married to the applicant from whom she obtained a very acrimonious divorce, was actuated by malice. He also alleges that, by reason of their former relationship, Dr Liddell had an interest in respect of the applicant which conflicted with his duty, and that he committed a breach of regs. 8A and 8B of the Public Service Regulations in force under the Public Service Act 1922. Further, he claims that the Civil Aviation Authority acted so as to induce a breach by Ansett of its contract with him, and that this was intentional on the part of Dr Liddell. The applicant makes a claim, too, under s. 93 of the Privacy Act 1988, alleging the breach of obligations of confidentiality pursuant to that section, and on the basis of an obligation in equity. Finally, he claims that the Civil Aviation Authority acted in breach of a duty of care owed to him in its disclosure of the contents of the medical file.

14. The applicant conducted his case in person. Having regard to the complexity of the issues of fact and law involved, that was a very difficult task to undertake. However, he is undoubtedly a man of well above average intellectual capacity, and I am satisfied the issues he wished to raise have been presented for decision. As he contended that the medical file, kept in relation to him by the Director of Aviation Medicine, was seriously inaccurate, defamatory, and contained information which should not have been disclosed to the Medical Director of Ansett, he presented his case in substantial measure by giving a detailed account of the events of his life, in so far as those events bore upon the matters related in the medical file.

15. Mr Austen, who was born in 1947, finally settled in Australia in 1966. He had obtained compassionate discharge from the Royal Air Force in order to join his family here. In the air force, he had been the youngest member of an intake of young recruits for training to be officers. On arrival in Australia, he considered joining the Royal Australian Air Force, and it is clear that he always nurtured an ambition to fly. However, his early employment was as a salesman. He decided to get flying lessons from time to time, paying for them out of his wages. On 15 June 1968, Mr Austen married Carol Chomley, who was then not quite 17 years and four months old. Her parents were opposed to their relationship, and it seems that the marriage was brought about by her pregnancy, her second to Mr Austen, although she subsequently miscarried. The earlier pregnancy, apparently, was terminated. Very soon, the marriage became a stormy one, and there were complaints by Carol Cox that her husband spent most of his money on learning to fly. He in fact applied early in 1969 for a student pilot's licence.

16. On 8 April 1969, an event occurred the consequences of which have certainly been very far reaching for the applicant. There is some conflict in the evidence between the applicant and his then wife, who was called as a witness, as to the details, but the broad outline is I think clear enough. I have been assisted in reaching the conclusions which I shall state by considering the versions given in evidence in the light of fairly contemporaneous records which were tendered. I accept as probable that Mr Austen was endeavouring to achieve a reconciliation with his wife following an acrimonious and even violent separation shortly before. In an attempt to put emotional pressure on his wife, Mr Austen threatened to commit suicide by gassing himself. On the probabilities, I do not think he had a settled intention to die, but I do think he was in a state of extreme emotional turmoil. His wife contacted the police, and Mr Austen was found lying on the bed in their bedroom, apparently calmly reading a book, with all jets on the gas stove on, all windows closed, and some stocking material wedged under the door. He says that his actions were entirely histrionic, and that he had kept the bedroom window open until the police actually arrived. He had put a suicide note on the window ledge. To the police, he said that he wanted to be left alone to die in peace. But he did not appear to be affected by gas.

17. These events occurred in Perth, and in 1969, by the law of Western Australia, an attempt to commit suicide was an offence. Mr Austen was charged with that offence, and remanded to a mental hospital known as Heathcote, being admitted on the same day, 8 April 1969. On 10 April 1969 Dr Ellison, the Psychiatrist Superintendent of Heathcote Hospital, certified that "at the time of committing the above offence (ie. attempted suicide) he was suffering from such a degree of mental illness as to be not responsible for his actions". It was proposed "to keep him in hospital for further treatment", but the charge was dismissed. Mr Austen was then admitted, no longer on remand, but as a patient. After some time in hospital, he discharged himself on 2 May 1969, but secured re-admission on 5 May 1969. He was discharged again on 6 June 1969, but re-admitted on 11 June 1969, and finally discharged himself on 9 July 1969. It is apparent from the hospital notes that Mr Austen continued, over a substantial period of time, to suffer from depression and severe emotional disturbance. At the time of his discharge on 9 July 1969, Dr H.S. Jones, the psychiatrist in charge of him, initialled a document indicating a diagnosis of an unspecified personality disorder.

18. After his discharge from Heathcote Hospital, Mr Austen moved interstate. He obtained his restricted pilot's licence in Melbourne where his family was then living. Upon their deciding to return to the west, he flew back to Perth, where he had news of his estranged wife that depressed him. He may also have been suffering pain from a condition which was at some stage diagnosed as a condition of submandibular calculi. On 24 May 1970 he received casualty treatment at Royal Perth Hospital for that condition. On 29 May 1970 he again attended the casualty department of the Royal Perth Hospital. The notes record: "Took 16 Codral forte tonight in a suicidal gesture. 12-12 ago gassed himself". It appears that no ill effects were observed and that on examination he was fully conscious. He was finally discharged on 2 June to see a psychiatrist. The incident was described in the hospital notes as a "pseudo suicide attempt". The consultant psychiatrist, Dr Derham, suggested he had a "personality disorder with sociopathic aspects", but it is clear that Mr Austen was seeking help to remedy his problems. He acknowledged, in evidence, that he was very confused at this time.

19. The admission to Royal Perth Hospital on 29 May 1970 was involved in another incident of some significance in the applicant's history as a pilot. On 2 June 1970, a telephone call was received by the then Director of Aviation Medicine, Dr J.C. Lane, advising him of allegations made by a man who described himself as the applicant's father-in-law. The allegations were that the applicant had been in Heathcote Hospital in the past, and was "at present a patient in the Royal Perth Hospital following an attempted suicide. This is not his first suicide attempt. He is also in trouble with the C.I.B." As the Director of Aviation Medicine had no record of any suicide attempt, or of any psychiatric condition, in relation to Mr Cox (as he then was), these allegations demanded some investigation. But before that investigation could proceed, the applicant was again admitted to Royal Perth Hospital, on 10 June 1970, for surgical removal of one of his submandibular calculi. The others had spontaneously ulcerated. He was operated upon and discharged on 11 June 1970.

20. Investigation of what the Director of Aviation Medicine somewhat incongruously described, almost by way of an oxymoron, as a "poison pen telephone call", led to the arrangement of a medical examination of Mr Austen by a specialist physician, Dr M. Traub. Dr Traub saw Mr Austen and referred him to Dr H.S. Jones of Heathcote Hospital. Both Dr Traub and Dr Jones reported in writing. Dr Jones referred to the admission, between 8 April 1969 and 9 July 1969, to Heathcote Hospital. He stated Mr Austen "was suffering from reactive depression precipitated by the collapse of his marriage - a marriage in which he had placed too much of his meagre emotional resources. He made a good recovery." The doctor went on to make the following observations:

"On my psychiatric examination today I could find no evidence

of depression or of psychosis. With regard to his

suitability to hold a pilot's licence, two factors have to

be considered. (1) Is he likely to use an aircraft as a

mode of suicide? I do not think that this is likely. (2),

is he likely, sometime in the future to be in such a state

of mental turmoil so that his judgement is so impaired as

to make him a hazard in charge of an aircraft. After due

thought I consider that on today's examination, that this

too is unlikely.

I therefore can see no psychiatric grounds why this man

cannot continue to hold the licence that he obtained after

his psychiatric illness."

21. Dr Traub, in his report, noted that the applicant had "faked an attempted suicide by turning on the gas oven and sitting by an open window". He also recorded that the applicant was informed after two days that

"he could either leave hospital or remain for group therapy.

He elected voluntarily to remain in hospital for group

therapy which was continued for a period of three months.

The charge of attempted suicide was dropped by the police.

During the three months he was treated by Dr Jones with

group therapy and an anti-depressant and was told that his

diagnosis was that of a reactive depression."

Dr Traub described the applicant's more recent admission to Royal Perth Hospital as being a consequence of his hearing depressing news about his wife. The doctor recorded:

"He was admitted to the R.P.H. for three days and eventually

he requested to be seen by a psychiatrist. The psychiatric

interview lasted only five minutes which left him feeling

very dissatisfied so he discharged himself from hospital

without receiving any treatment."

The doctor also noted that he was now suing for divorce and had a steady girlfriend. Dr Traub concluded:

"Throughout the interview he appeared quite calm and relaxed

with good insight to his problems. The reason for the

interview was fully explained and the need to obtain

release authorities which are enclosed was understood and

appreciated, but he expressed fears that this may affect

his future in obtaining a job as a pilot with an airline."

Having received these reports, the Director of Aviation Medicine advised the applicant on 2 November 1970 that

"both reports are favourable to you, and after considering

these the Director of Aviation Medicine is satisfied that

no further investigation is required, and that you continue

to meet the medical requirements for your licence."

A suspension of the licence, which had been imposed during the investigation, was lifted.

22. During 1970, the applicant met Kaye Liddell, an air hostess, who later became his second wife. At that time her brother Robert was a medical student. According to the applicant, his relationship with Miss Liddell's family was a very uneasy one. They were in a socially superior position, and he considered that they looked down upon him. He had second thoughts about the marriage, and actually called it off almost at the last moment, before finally deciding that he would go through with it. The marriage was celebrated at Perth on 6 May 1972, and Dr Robert Liddell was best man.

23. During the period preceding his marriage to Miss Kaye Liddell, the applicant once again attended the casualty department of Royal Perth Hospital, on 11 July 1971. On this occasion, the casualty record includes the following: "Took six tabs of Surmontil at 9.30 pm after feeling sorry for himself. ... Drove to Cas. himself." Surmontil is an anti-depressant drug, legally available in Western Australia only upon prescription. On examination, nothing abnormal was detected in relation to his central nervous system and he was discharged with a diagnosis: "No attempt at suicide. No overdose."

24. Some months after the marriage, on 13 September 1972, the applicant was again admitted to Royal Perth Hospital. The admission summary sheet records: "Overdose of Soneryl in suicide attempt". Soneryl is a sleeping tablet, legally available in Western Australia only upon prescription. The case summary includes a history of admission

"after taking an unknown amount of Soneryl tablets in a

suicide attempt. Prior to taking the tablets, he had rung

'The Good Samaritans' and after taking them, he rang them

again to state that he had, in fact, done it."

"more agitated and he became frankly impossible to manage in

a General Hospital Ward. He was seen in consultation by

members of the Psychiatric Department and on their advice

he was transferred to Heathcote Hospital."

That was on 14 September 1972. The case notes include a note that the overdose was "following break up with his wife" and that he had "attempted to contact wife unsuccessfully". He was noted as "abusive violent aggressive". On admission to Heathcote Hospital, on the evening of 14 September 1972, he was noted as "very abusive, aggressive, violent". It appears he had to be restrained, and was given Largactil. He was discharged to the care of his father on 16 September 1972. The Heathcote Hospital summary records diagnoses of anti-social personality disorder and transient situational disturbance, and notes that he "was taken to R.P.H. after another overdose following separation from his wife, and was transferred here because of aggressive and violent and abusive behaviour".

25. Mr Austen gave a very different account of his admission to Royal Perth Hospital on this occasion. According to his version, after what he described as a "fairly powerful fight" with his wife, she telephoned the police; he pulled the telephone out; she told the police that he was mad and that the house was her grandmother's; and the police took him in custody to the hospital, where he was examined and then transferred to Heathcote. I think it is likely that Mr Austen has elided two events, the second of which followed closely upon the other. He probably did have a fairly violent argument with his wife, as a result of which the police were called and he was required to leave the house. But I do not think the police took him to the hospital. That would be inconsistent with the hospital records. It is, of course, quite likely that he has no memory, or no reliable memory, of the admission itself, since the records suggest he was then in a somewhat drugged condition. But I think it is probable that, following the extreme emotional upset of the dispute with his wife and his forcible departure from the home, he did take an overdose. It may be an indication of the severity of the disorder and disturbance diagnosed, or perhaps of the extent of the effects of the overdose, that he claims to have had no recollection of being taken forcibly to Heathcote Hospital on this occasion until reminded by his father, during the currency of the litigation. Nor, according to his evidence, does he recollect taking the soneryl tablets. Having regard to the suicidal gestures he had made on other occasions, I think the likelihood is that this was not a serious attempt to commit suicide, but another theatrical affirmation by a seriously disturbed young man of the extent of his upset, intended to impress his wife. At the same time, it may well have been an outlet for feelings of despair.

26. In the event, Mr Austen did achieve some sort of reconciliation with his wife, and they decided their marriage would have a better chance if they moved to another state. They went to live in Melbourne, where Mr Austen took up employment selling cars, as he had done from time to time before. During this period, he consulted some psychologists who offered career guidance. He obtained from them a report, dated 1 April 1974, which eventually found its way onto the medical file of the Director of Aviation Medicine. The report is in many respects extremely flattering to Mr Austen, ranking his intellectual ability in the very superior category, but it does contain a number of indications that he has personality traits which could be unfavourable for his harmonious participation in the work of a team. Dr Lewis gave evidence at the hearing that this would be a significant negative, from Ansett's point of view, having regard to modern theories about the influence of personality upon cockpit safety. Most air accidents are said to be due to operational errors. Not surprisingly, however, the positive aspects of the psychological assessment which he had received encouraged Mr Austen to think that he could make a success of a career as a commercial pilot. Indeed, the report might well have encouraged him, had his inclination been otherwise, to think that very few professions were barred to him. But he was extremely concerned about the possible effect upon his career of his hospital admissions for psychiatric treatment. He therefore telephoned Dr Lane, to put, in substance, the question whether the events of 1969 and 1970 would exclude him from a career as a commercial pilot, and whether the records relating to them would be produced to an employer. Unfortunately, he was not frank with Dr Lane; he did not disclose his later psychiatric problems. But he did, according to Dr Lane's note, refer to the event that led to his admission to Heathcote Hospital as an "attempted suicide" when suffering from reactive depression, not a manipulative pretence. He was told that the matters he mentioned were not a bar, and that the records would not be produced without his express written authority. Somewhat reassured, he continued with his flying training, although he did it secretly since his wife was strongly opposed to his working as a pilot. In any case, the marriage did not last much longer, as his wife, after several previous temporary rifts in the relationship, finally separated from him in 1974, before the birth of their only child. When it came, the rupture was so complete that Mr Austen's parents have never seen their grandchild, who is known by the name Liddell.

27. After the separation, Mr Austen went to Sydney to attend a flying school at Bankstown airport. He succeeded in obtaining a commercial pilot's licence on 13 January 1975. His major problem then was to accumulate sufficient hours of flying to enable him to obtain employment as a commercial pilot. He secured work of a voluntary nature flying for a mission in Papua New Guinea. Later he flew in the outback areas of the Northern Territory and elsewhere, returning to Perth in about 1976. He then flew for charter operators. In December 1976, he made an appointment for a routine medical examination for renewal of his commercial pilot's licence, and when he attended found that he was being seen by a locum, who was Dr Robert Liddell. Dr Liddell carried out the examination and passed him.

28. Early in 1977, the applicant was planning to marry for the third time. He decided to seek a more settled employment, and applied for a job as an air traffic controller. After interview, he felt that his application had been successful, and that a medical examination would be a formality, since the same level of health was required as that for his commercial pilot's licence. He arranged to see Dr Traub on 4 August 1977, which was the very day after his third marriage. He filled in the appropriate form, and was examined. Dr Traub told him that he had passed the examination. Some weeks later, he received a request from Dr Lane, the Director of Aviation Medicine, to return to Dr Traub for a further examination. He telephoned Dr Traub to ask what it was about. According to his evidence, Dr Traub told him the Department was concerned that he had made a false statement in that he had answered negatively the question whether he had any nervous disability. Dr Traub referred to the events of 1969 and 1970.

29. In fact, of course, there had also been the subsequent events of 1971 and 1972, but these had not been disclosed, either upon the examination by Dr Traub in respect of the application for employment as an air traffic control officer, or upon renewal of the applicant's pilot's licence. So far as the pilot's licence was concerned, there had been an examination on 12 July 1973, at which Mr Austen had filled in a form which included the following question:

"SINCE YOUR LAST CIVIL AVIATION MEDICAL EXAMINATION IN (Mr

Austen filled in the incomplete date Dec. 1970) HAVE YOU

LOST ANY TIME FROM WORK OR HAVE YOU CONSULTED A DOCTOR

BECAUSE OF ANY ILLNESS OR INJURY? if (sic) YES give

details".

Mr Austen filled in "yes" after the question mark, and wrote after the word "details" the following:

"LT. submandibular gland excised (calculi) Aug. 1972".

"I hereby declare that I have carefully considered the

statements made above and that, to the best of my belief,

they are complete and correct and I have not withheld any

relevant information or made any misleading statement."

Mr Cox signed this declaration. It will be apparent that his statement transfered an operation, which was performed in June 1970, to a date more than two years later, which was in fact close to the date of his treatment at Royal Perth Hospital for an overdose of soneryl in what was recorded as a suicide attempt.

30. So far as the examination for the purpose of employment as an air traffic control officer is concerned, the applicant had completed a form which included the following:

"HAVE YOU EVER LOST ANY TIME FROM SCHOOL OR WORK OR HAVE YOU

EVER CONSULTED A DOCTOR BECAUSE OF -

1.0 ANY NERVOUS DISABILITY? (Including nerves,

nervousness, nervous breakdown, mental or emotional

instability, neurasthenia or anxiety state).

. . .

1.16 ANY ILLNESS NOT ALREADY MENTIONED?"

Mr Austen answered "NO" to each of these questions, and signed a declaration in the same terms as the declaration quoted above.

31. There was a quite specific reason why Mr Austen was required to attend upon Dr Traub for a second time in 1977. An anonymous telephone call had been received by Dr Traub after the initial examination. The doctor wrote to Dr Lane, Director of Aviation Medicine, about this call in the following terms:

"The caller stated -

he is irresponsible

prone to violent outbursts

has threatened bodily injury

has been married 3 times

runs up large debts

has had psychiatric therapy

has abnormal genes 'mosaic'

his father has been

treated in Grayland's (a general psychiatric hospital in

Perth)".

Dr Lane, upon receipt of Dr Traub's letter, noted his distaste for such an anonymous accusation, but added: "He did after all make a false statement". This was a reference to the failure to disclose the admissions in 1969 and 1970 to Heathcote Hospital and Royal Perth Hospital. Dr Lane also made a note that "(t)he present anonymous call to Traub looks very much like the same thing (ie. as the call from Mr Austen's then father-in-law in 1970) and I must say I am very disinclined to pursue it". However, he added: "Of course there is a false statement in his medical examination report in as much as he said no to 'any nervous disability'". In the upshot, Mr Austen saw Dr Traub again, and Dr Traub furnished to the Director of Aviation Medicine a further report dated 6 September 1977. In that report, Dr Traub wrote:

"His excuse for making a false statement ... was that he

considered it was already on record regarding his past

psychiatric history and that there was nothing further to

add and he did not want to have to go over it all again

because of the embarrassment and having to re-live all his

past experiences.

. . .

He has obviously worked very hard to obtain his Commercial

Pilot Licence and his First Class Instrument Rating, which

seems rather unusual to give this all up to become an Air

Traffic Control Officer. His reply was now that he had

married he wanted a more stable position with regular

employment because he considered that he was now ready to

settle down.

He seems most persuasive but also genuine in his attitudes

and the psychological appraisal (the one done in Melbourne)

pictures him as an exceptional type of person.

My interview did not indicate any evidence for the presence

of psychosis or depression and I did not feel that a

special psychiatric examination was indicated."

Dr Lane endorsed on this report, when he received it, his own conclusion: "I am satisfied with this - he's tried very hard to qualify himself to get into commercial flying."

32. However, the applicant did not obtain the job as an air traffic control officer, and I think there is little doubt that the disclosure, by virtue of the anonymous telephone call, of a psychiatric history which he had previously concealed was the reason for his rejection.

33. It was following his failure to obtain employment as an air traffic control officer that the applicant decided to seek employment as a pilot in the United Kingdom. He left Australia on 6 March 1978 to do an eight weeks accelerated course in order to obtain a British air transport pilot's licence. He passed. Mr Austen then obtained employment as a pilot with a company, Dan-Air Services Ltd (Dan-Air), flying prop-jets, particularly between Aberdeen and the Shetlands. According to Mr Austen, there were problems with the maintenance of the aircraft, and in terms of the flying standards of the airline. He was offered employment elsewhere on condition that he could start on 1 February 1979. He gave a little more than a month's notice, claiming to take into account his leave entitlement to make up the notice period which, Dan-Air insisted, was three months. There was disagreement, but Mr Austen left. Subsequently, there were crashes of Dan-Air planes, including a crash of a plane he had flown, in which some of his former colleagues or crew were killed. The suggestion was that he was justified by the airline's poor maintenance in his abrupt departure from his employment. Some years later, Dr Liddell joined Dan-Air as a Medical Director and Boeing 727 pilot, thus having an opportunity to become aware of the circumstances of Mr Austen's leaving the company. He denied looking at the relevant records at Dan-Air. But he said that, while he was giving treatment to an administrative officer of the airline, mention happened to be made of the applicant, as another Australian who had been there in the past, and he was told Mr Austen had "pissed off overnight". He did not deny telling Dr Lewis; and he admitted he "could have".

34. Mr Austen's career as a pilot in the United Kingdom progressed, but his third marriage failed, as he says because his wife wanted to return to Australia. He married for the fourth time in Ireland, where he was then flying as chief pilot for a small charter operation. That marriage also failed, and in 1986 Mr Austen was living in a de facto relationship in England, and about to join a company in Birmingham called Birmingham Executive Airways, when the next medical event of significance for his career as a pilot occurred. It was on 30 June 1986, when an ECG recording demonstrated that he had atrial fibrillation. Over the preceding two years, he had had two earlier attacks of a peculiar feeling in his chest, but otherwise he had been in good health. Previous ECG recordings had been normal. He admitted to smoking up to 40 cigarettes daily and had always been a heavy coffee drinker. Air Vice Marshall Kelly, who examined him at Civil Aviation Authority House in London, took the view that he would have to be grounded, at any rate for six months, while the condition of his heart was carefully checked. He informed Mr Austen of this on 2 July 1986.

35. Mr Austen became extremely concerned about his future. He also had at the time multiple domestic problems, including a serious quarrel with his de facto wife. He went drinking with an acquaintance, and ended up in a hospital at Burton on Trent at about 4.30 in the morning of 6 July 1986. There is some dispute concerning the precise circumstances, but I am satisfied that, whilst depressed about his situation, Mr Austen did impulsively take a quantity (approximately 12) of propanolol tablets. He was with someone else at the time, and as was the case on the occasions which have been recounted when he was younger, I do not think he had a serious and fixed intention to kill himself. Prof. German, a very highly qualified psychiatrist and physician, could not recall a single instance of a suicide attempt involving the taking of a beta-blocker (propanolol is one of this group of drugs, and is a fairly common medication, sold under the proprietary name Inderal). I do not think Mr Austen would have known with any assurance what the effect of taking 12 propanolol tablets would be, but he probably did not really think they would be fatal to him, and help was at hand. It has not been shown that the ingestion of the alleged quantity of propanolol would in fact have been particularly dangerous. The most obvious effect of propanolol is to lower blood pressure, and Mr Austen's blood pressure, when taken at the hospital, was in the normal range. He was not thought to be in a suicidal state, and after being given a gastric lavage, he was discharged. He was not drunk. However, he was found on examination to be in atrial fibrillation.

36. Following these events, the applicant returned to Australia, where his atrial fibrillation was very thoroughly investigated. He underwent coronary angiography on 11 September 1986, and was found to have normal coronary arteries and normal left ventricular function. He also had an echocardiogram, the report of which disclosed: "The heart valves and chambers are normal. In particular left atrium size is normal and left ventricular function is normal." As well, he had three separate periods, each of 24 hours, of ambulatory ECG monitoring on 14, 21 and 23 October 1986, all of which proved satisfactory. On 12 November 1986, he was advised in a letter written on behalf of the Australian Director of Aviation Medicine that he had been given a pass assessment at the level of senior commercial pilot licensing, but that his continuing fitness was subject to annual electrocardiograms and echocardiograms being within normal limits.

37. The Civil Aviation Authority of the United Kingdom seems to have been harder to satisfy. On 19 June 1987, its Chief Medical Officer advised the applicant that it could not "at present ... issue a Medical Certificate". Mr Austen obtained a Holter Monitor report from Royal Perth Hospital, dated 7 September 1987, and returned to the United Kingdom, where he had an echocardiograph on 25 September 1987, which was reported as "(t)otally normal". His United Kingdom airline transport pilot's licence was finally revalidated in November 1987, and he returned to employment with Birmingham Executive Airways.

38. In 1988, Mr Austen married for the fifth time, and continued his flying career in the United Kingdom. At the end of the year, he started simulator training to fly Boeing 737 aircraft, and commenced flying them on 30 March 1989.

39. Basing themselves on a more or less complete knowledge of the matters I have recounted, several psychiatrists expressed views on the question whether Mr Austen suffers, or has ever suffered, from a psychiatric illness. On the one hand, Prof. German, whose evidence was supported by Dr Frank Farrelly, asserted that "Mr Austen is psychiatrically healthy, and does not suffer from any form of nervous condition, nor has he ever done so". On the other hand, the opinion of Dr Ian Parkin was "that there is ample evidence that (Mr Austen) has a personality disorder which is enduring". He thought that Prof. German and Dr Farrelly simply could not have had all the information made available to them. It is I think true that Mr Austen failed to make a full disclosure of all relevant matters to his doctors, but the matters omitted, when put to Prof. German in cross-examination, did not alter his opinion. He considered they show that Mr Austen had suffered from re-active depression, which he did not regard as an illness, and was prone to suicidal gestures as a means of manipulating others, but this too did not demonstrate an illness. Prof. German was of the view that manipulative behaviour of the kind evidenced, and certain narcissistic traits in Mr Austen's personality, far from suggesting that he might endanger the lives of passengers when flying, provided some assurance that he would not be likely to do so, since he would not in reality threaten his own life, nor would be depart from high professional standards.

40. But the evidence of Prof. German does not really confront the issues in this case. It is not the true view according to medical science of Mr Austen's mental health which is in question; rather the case is concerned with the actions of Dr Liddell in relation to the relevant medical history file, and with the truthfulness of the information furnished by the applicant, in response to the written questions he was required to answer at various times for the Civil Aviation Authority, and upon the occasion of his employment by Ansett. The answers to the questions in the Ansett form requiring relevant information about any investigation at a hospital, admission to a hospital, or psychiatric examination or treatment, were simply untrue, and in any case misleading. Truthful answers required disclosures of admissions to Royal Perth Hospital and Heathcote Hospital, and examinations and treatment at those institutions, which were not made. Even if Prof. German's opinion be wholly accepted, the applicant was certainly investigated at those hospitals; he was admitted to them; and he underwent psychiatric examination and treatment. Ansett was entitled to evaluate for itself the significance of the fact that a psychiatrist thought such an examination to be called for, whatever the result; and it was entitled to have the opportunity of obtaining an assessment from its own experts.

41. Likewise, the answer filled in by Mr Austen on his medical examination, on 12 July 1973, for renewal of his pilot's licence, which has been quoted above, was untrue, or at least misleading. Certainly, the statement that he had not withheld any relevant information or made any misleading statement was untrue. He had consulted a doctor at Royal Perth Hospital on 11 July 1971 in connection with his alleged taking of six tablets of surmontil, and he had been admitted both to Royal Perth Hospital and to Heathcote Hospital in September 1972 following his taking an overdose of soneryl. He disclosed neither. And even if Prof. German's view that Mr Austen had never truly suffered from nervous disability be correct, that would not justify the negative answer given in the form completed for the purpose of employment as an air traffic control officer, since this form clearly indicated that as used in the form, the expression "nervous disability" carried a much wider sense. By language a layman could not mistake, the form called for a disclosure of any such matter as the various consultations with doctors at Heathcote Hospital, and Royal Perth Hospital, in respect of "nerves, nervousness, nervous breakdown, mental or emotional instability ... or anxiety state". And even if it be suggested that none of these hit the nail precisely on the head, the declaration on the same form declared that no relevant information had been withheld and no misleading statement had been made. In the face of a very broad question about nervous problems, as well as a further question about "any illness not already mentioned", it must have been misleading to omit all reference to the various admissions in question.

42. But Mr Austen contended that the file kept by the Director of Aviation Medicine could not truly be described as a medical history file. He argued that such a file should be strictly confined to proven facts. However, on the evidence of the highly qualified medical experts who were called in this case, I am clearly of opinion that the various matters recorded in the file were properly matters of medical history. Such a file properly includes a wide variety of information bearing on the health of the person who is its subject. A statement made may legitimately be included in such a file, even if it is investigated and found to be false, for the making of a false allegation is itself a fact of potential significance. Of course, if an allegation is found to be false, a medical history file should make it clear that the allegation has been investigated and is rejected. Precisely what should be included in such a file is not, however, a legal question; but a matter for the professional judgment of the qualified persons by whom and for whose purposes the file is kept. Provided some piece of information is capable of being regarded as relevant from a medical point of view, and is in fact placed in a file kept by the appropriately qualified person or persons as a medical history file, I do not see how, speaking generally, a court can exclude it from belonging to the category of documents which form part of a medical history file. That the applicant himself was conscious of the relevance of details of his psychiatric dossier is best evidenced by his persistence in attempting to conceal it on his applications for a position as an air traffic controller and to Ansett, on occasions when truthful answers to medical questionnaires demanded its disclosure, and by seeking an assurance from Dr Lane that it would not be revealed to an employer. He had earlier shown a similar awareness of the significance of his admissions to Heathcote Hospital in 1969 and to Royal Perth Hospital in 1970 when, according to the report of Dr Traub about those admissions to which I have already referred, he "expressed fears that this may affect his future in obtaining a job as a pilot with an airline".

43. A further complaint made by Mr Austen concerned the taking of copies of documents in the medical history file by Dr Lewis. The argument was that an authorization "to supply details of my medical history" was not a permission to take copies. However, the authority does not specify the manner of supply of details, and writing is the normal mode of communication of complicated facts, such as might be contained in a medical history file. In Downey v. Pryor [1960] HCA 49; (1960) 103 CLR 353, the High Court considered the effect of a statutory authority expressed in the following terms: "Any elector may at the council's office inspect the books of account and the report of the auditor ... ". Kitto J said (at 361):

"Kinsella J held that a right to take notes of the contents

of the books of account was incidental to the right of

inspection, and he referred to the judgment of Lindley LJ

in Mutter v. Eastern and Midlands Railway Co. (1888) 38 Ch

D 92, at p 105. ... I entirely agree in his Honour's

view, and I see no advantage in elaborating the point."

"I agree with Kinsella J that a right of inspection carries

by implication a right to take copies or extracts."

If a mere right of inspection carries such an implication, I think a right to the supply of details should, in the present context, be understood as involving a right to take copies.

44. Given that the Medical Information Authority entitled the Director of Aviation Medicine to permit Ansett's Medical Director to take copies of portions of the medical file, as well as to permit inspection of the file, I think consent is a complete answer to the cause of action in defamation founded on those matters. It is irrelevant that Mr Austen may not have known exactly what was in this file; in any case, he did know that it would be likely to contain so much of his psychiatric history as he had not been able to conceal, together with a detailed record dealing with his atrial fibrillation, its consequences, and its investigation. It is also irrelevant that Dr Lewis appears to have drawn a hasty and incorrect conclusion that Mr Austen had been refused a licence in the United Kingdom, and, perhaps, even that he did not at the time of his application to Ansett hold such a licence. In Chapman v. Lord Ellesmere (1932) 2 KB 431, there was consent to the publication in the Racing Calendar of any decision by the stewards of the Jockey Club withdrawing or suspending a trainer's licence. Lord Hanworth MR said (at 450-451):

"What was published was the decision of an agreed domestic

tribunal in the terms reached by that tribunal. It was for

that tribunal to embody its decision in its own terms,

provided it acted bona fide, honestly intending to act in

accordance with its determination. If it does this, I do

not think that after the communication has been published

in the course of the ordinary duty of the tribunal the

privilege will be lost, because a jury put a different

interpretation upon the words used to that honestly

intended by the tribunal and which the words simpliciter

convey ... ."

It seems to me that this logic applies to the medical file, and provided the file was honestly kept (as I think it was) as the medical file which it was the duty of the Director of Aviation Medicine to keep in respect of the applicant, it does not matter that Dr Lewis may have misunderstood what the consent enabled him to see.

45. Slesser LJ in Chapman v. Lord Ellesmere said (at 465):

"(A)pplying the doctrine of volenti non fit injuria, I hold

that the plaintiff must fail in respect of the publication

in the Racing Calendar by reason of his assent thereto."

This passage erects out of consent a defence separate from the defence of qualified privilege. The distinction is noted, and Chapman v. Lord Ellesmere is cited, in Loveday v. Sun Newspapers Limited [1938] HCA 28; (1938) 59 CLR 503 at 523-524, per Dixon J. The view that consent is a bar to a recovery for defamation under the general principle of volenti non fit injuria is also discussed in some detail in the Canadian case Jones v. Brooks (1974) 2 WWR 729 at 735 et seq., where reference is made to United States authority to the same effect: see Teichner v. Bellan (1959) 181 NYS 2nd 842, a decision of the appellate division of the Supreme Court of the State of New York.

46. It may be suggested that different considerations apply to the document sent to Dr Lewis by facsimile transmission. However, I have come to the conclusion that an authorization "to supply details of my medical history to the Medical Director, Ansett" is sufficiently wide to amount to a consent to the supply of the details in fact entered upon the form by Dr Liddell and communicated to the Medical Director of Ansett. It is not shown that any statement made in that document does not fairly answer the description of a detail of the medical history file maintained by the Director of Aviation Medicine. I except, of course, the last sentence: "I think you should see this file Dai". But that statement was certainly not defamatory. Nor did it, as Mr Austen sought to argue, somehow obliterate the very medical information authority in pursuance of the purposes of which it was written. Its effect was not to substitute a new invalid authority given by Dr Liddell himself, but to indicate that there remained "details of (Mr Austen's) medical history", to be obtained by Dr Lewis personally, in reliance on the original authority, by visiting Canberra and perusing the relevant file. I should also point out, in fairness both to the applicant and to Dr Liddell, that the summary statements made by Dr Liddell about the two important aspects of Mr Austen's medical history, the atrial fibrillation and the possible suicide attempts, are both favourable to him. Of the atrial fibrillation, Dr Liddell states that it has been "extensively investigated" and that nothing abnormal has been detected. So far as the question of suicide is concerned, he uses the word "gesture" of the most recent incident, and describes the earlier history as "thought to be not serious".

47. If (contrary to my opinion) the consent does not cover some aspect of the documentary information conveyed to Dr Lewis, there would remain the defence of qualified privilege. The facsimile transmission was received in Victoria, and the inspection of the file occurred in the Australian Capital Territory. In both places, the common law defence of qualified privilege would apply: Australian Defamation Law and Practice, T.K. Tobin and M.G. Sexton, (1991) para. 14,005. The essence of that defence was stated by Lord Atkinson in Adam v. Ward (1917) AC 309 at 334, when he said:

"It was not disputed, in this case on either side, that a

privileged occasion is, in reference to qualified

privilege, an occasion where the person who makes a

communication has an interest or a duty, legal, social, or

moral, to make it to the person to whom it is made, and the

person to whom it is so made has a corresponding interest

or duty to receive it. This reciprocity is essential."

In my opinion the necessary reciprocity existed in the present case. There can be no doubt that both the Director of Aviation Medicine and the Medical Director of Ansett had a legitimate concern that information should be made available to Ansett bearing on the medical fitness, including the psychological fitness, of a pilot who would be responsible for the lives of large numbers of persons. In my opinion, each of the occasions in question was a privileged occasion. That throws on the applicant an onus to prove malice in fact, which I find has not been shown.

48. Somewhat different considerations are applicable to the claim made by the applicant for slander, which arises out of Dr Lewis's notes: "Used to work for Dan Air (sic)" and "Pissed off overnight". In my opinion, the inference clearly arises that Dr Liddell, who admits he had been told these very things when he was at Dan-Air, made a statement to the effect noted by Dr Lewis, either in Canberra or over the telephone to Dr Lewis in Melbourne. The statement was, in my opinion, not true. Whether or not Mr Austen was justified in the attitude he took at the time of his departure from Dan-Air, he did not leave without any notice, or so abruptly as to justify Dr Liddell's statement. He gave a substantial period of notice (in excess of one calendar month), and claimed to add to that a further period of holiday entitlement. It must be accepted that he did not give the full period of notice required by his contract, which was three months. He alleged in justification repeated failures by Dan-Air's maintenance staff, which would have put his life at risk while he continued to fly for the airline. I do not have to reach a conclusion about that, since it is quite clear that Mr Austen did not leave Dan-Air under such circumstances, or in such a manner, as would be required to make Dr Liddell's statement correct.

49. But does this conclusion mean that slander is established against the Civil Aviation Authority? I do not think so. Whatever might have been the position if the communication of the contents of the medical file in respect of Mr Austen had amounted to the publication of a libel, the statement made by Dr Liddell to Dr Lewis about Mr Austen's employment at Dan-Air was in an entirely different position. The information did not come from the medical file; it came from Dr Liddell's own recollection of what he had been told, not in his capacity of Director of Aviation Medicine responsible for the keeping of medical files, but on some casual occasion a number of years ago when he was a pilot and Medical Director with Dan-Air. The statement was one which he took it upon himself to make, repeating an allegation he had heard. In no sense was he purporting to speak on behalf of the Civil Aviation Authority. Certainly, he was not responding to the medical information authority which set the parameters of the official intercourse between Ansett and the Director of Aviation Medicine, of the official function the Director was performing, and of any authorisation he may have had to speak or act in this matter on behalf of the Civil Aviation Authority.

50. The same disclosures are relied on also as breaches of obligations of confidentiality under the Privacy Act 1988 and in equity. Of course, the oral communication did not relate to any confidential information entrusted to the Civil Aviation Authority. So that matter may be dismissed from further consideration. But the Civil Aviation Authority does not dispute that it is a "record-keeper" within the meaning of s. 10 of the Privacy Act, and that the information in the medical history file concerning the applicant is "personal information" as defined in s. 6. Mr Austen claims to enforce a duty of "confidentiality, accuracy, relevancy and due diligence" sounding in damages under s. 93 of the Privacy Act and in equity.

51. This aspect of Mr Austen's case confronts a number of difficulties. In the first place, s. 13 would protect any act or practice of the Authority, as an "agency" within the meaning of the Act, from being regarded as an interference with Mr Austen's privacy for the purposes of the Act unless there has been a breach of what is described as "an Information Privacy Principle". The Information Privacy Principles are set out in s. 14. But a number of those principles, by virtue of s. 15, apply only in relation to information collected after the commencement of the Act, that is after 1 January 1989. None of the information which is relevant to the present case was collected after that date. This case is not concerned with any claim for damages in respect of any alleged breach of the remaining Information Privacy Principles. I should add that if Principle 11, which refers to the disclosure of information to a third party, had been applicable on the basis that some of the information had been collected after the commencement of the Act, it would not have provided the applicant with a cause of action, if only because it expressly permits disclosure where "the individual concerned has consented to the disclosure".

52. The applicant relies on s. 93 of the Privacy Act, which provides for the recovery of damages in certain cases of breach of an obligation of confidence with respect to personal information. However, by virtue of s. 90(1), this section only applies to an obligation of confidence "in respect of a breach of which relief may be obtained (whether in the exercise of a discretion or not) in legal proceedings", that is to say, in respect of an obligation capable of enforcement by some kind of court order under the pre-existing law. Furthermore, the jurisdiction conferred is, by s. 94, limited to the courts of the Australian Capital Territory. No jurisdiction is conferred on this court, and that the conferral of jurisdiction was deliberately limited is confirmed by a comparison with the breadth of the range of courts referred to in s. 96 and by the express conferral of jurisdiction upon this court for the different purposes of s. 98. In any case, it seems to me the authority signed by the applicant is a complete answer to any claim on the basis of a breach of an obligation of confidence.

53. The applicant also claims that the Authority owed him a duty of care and duties under Public Service Regulations 8A and 8B, as well as pursuant to the Privacy Act and the ethical obligations of the Director of Aviation Medicine as a medical practitioner. In my opinion, there is no basis for a claim against the Authority in negligence. If any such claim lay, it would be barred by volenti non fit injuria. But I am unable to find that there has been any breach of any duty of care. The information made available to the Medical Director of Ansett, leaving aside the reference to Dan-Air which was not made on behalf of the Authority, was all covered by the medical information authority and properly furnished pursuant to it. I do not think the regulations under the Public Service Act 1922, which impose duties owed by officers to the Crown, can confer upon the applicant, in the circumstances of this case, a private cause of action against the Authority. Presumably, any liability would have to be vicarious, for the officer's breach of the Regulations.

54. Section 97(1)(k) provides that the Governor-General-

"may make regulations, not inconsistent with this Act,

prescribing matters:

. . .

(k) for making provision about the duties and conduct of

officers".

"An officer shall:

(a) perform with skill, care, diligence and impartiality

the duties of his or her office ... to the best of

his or her ability;

(b) comply with any enactments, regulations,

determinations, awards or departmental instructions

applicable to the performance of his or her duties;

. . .

(e) in the course of his or her duties treat members of

the public and other officers with courtesy and

sensitivity to their rights, duties and aspirations;

(f) provide reasonable assistance to members of the

public in their dealings with the Service and help

them understand their entitlements and any

requirements with which they are obliged to comply;

(g) avoid waste, or extravagance in the use, of public

resources;

(h) not take, or seek to take, improper advantage, in the

interests, pecuniary or otherwise, of the officer,

any other person or any group, of any official

information acquired, or any document to which he or

she has access, as a consequence of his or her

employment; and

(i) at all times behave in a manner that maintains or

enhances the reputation of the Service."

"An officer who has an interest, pecuniary or otherwise, that

could conflict with the proper performance of his or her

duties shall, as soon as possible after the relevant facts

have come to the officer's notice:

(a) disclose that interest to his or her supervisor; and

(b) take whatever action is required to avoid that

conflict."

In my opinion, it cannot be said that s. 97(1)(k) is intended to authorize the making of regulations conferring a private right of action for their breach, nor that regs. 8A and 8B are intended to have that effect. They create rights and obligations of a different order. See Revesz v. Commonwealth of Australia (1951) 51 SR(NSW) 63 at 71-72, per Owen J. As Mason J said in John Pfeiffer Proprietary Limited v. Canny [1981] HCA 52; (1981) 148 CLR 218 at 230, the real question in cases where a cause of action for breach of statutory duty is alleged is whether the statute confers such a civil cause of action. This, of course, is a question of construction. In the present case, it must be answered against the applicant.

55. The applicant's case raised additional claims for the alleged intentional inducement of a breach of contract by Ansett (as to this cause of action, see Building Workers' Industrial Union of Australia v. Odco Pty Ltd [1991] FCA 87; (1991) 29 FCR 104 at 140-141), and for the alleged commission of the tort of misfeasance of office. Neither of these has been made out. It has not been shown that Ansett, having regard to the misrepresentations made to it by Mr Austen, was ever actually in breach of any contractual obligations that bound it in relation to him, nor that the Civil Aviation Authority or Dr Liddell was aware of the terms of Ansett's contract with the applicant, nor that the Authority or Dr Liddell had the alleged intention. The mere production of the information referred to in the medical information authority cannot have involved the commission of this tort. Nor can compliance with the terms of the authority have amounted to a misfeasance of office. So far as that tort is concerned, neither the Authority nor Dr Liddell acted maliciously, or "acted with knowledge that what he did was an abuse of his office": Farrington v. Thomson [1959] VicRp 49; (1959) VR 286 at 293; and see Bourgoin S.A. v. Ministry of Agriculture, Fisheries and Food (1986) QB 716 at 777; Century Impact Pty Limited v. Chief Commissioner of Business Franchise Licences (Tobacco) (Supreme Court of N.S.W., Sully J, unreported, 11 December 1992). The last case involved an unlawful seizure of property, which excited the judge's strong condemnation. Yet he refused (at 79) to find against the officer concerned "that, when he actually effected the unlawful seizure, he knew positively that what he was doing was unlawful". On this basis, Sully J rejected the claim for misfeasance.

56. The statement of claim (which was the ninth amended statement of claim) is a rather diffuse document. However, the issues which were fought between the parties were, I think, sufficiently identified, and have been dealt with so far as is necessary for the purposes of reaching a decision in these reasons. Other issues would, of course, have required to be decided if I had taken a different view on those issues which have been discussed. A general defence to the applicant's claims was raised, namely, that the Civil Aviation Authority cannot, in the circumstances, be vicariously liable for a tort committed by Dr Liddell. That proposition is founded on the contention that the Civil Aviation Authority is a Crown agent, and Dr Liddell who is not its employee, but was appointed under the Public Service Act 1922, is also a Crown agent. Reference was made to the principles discussed in Hogg on the Liability of the Crown 2nd ed. (1989) at 257-260. I have found it unnecessary to decide this question.

57. Had the applicant succeeded, there would also have been a very real question as to the extent of any damages. I would not have been prepared to conclude that the loss of the applicant's contract with Ansett was caused by any of the breaches alleged in the applicant's various causes of action, had any of them been made out. As I have already made clear, I accept the evidence of Captain Terrell and Mr Oldmeadow. Having regard to that evidence, the loss of the contract with Ansett must be regarded as the result of a dispute about matters incidental to the training course Mr Austen was to attend, and not any conduct or action of the Civil Aviation Authority.

58. At the hearing, I raised a question as to the costs order which it might be appropriate to make in the event of the Authority succeeding. Section 43(2) of the Federal Court of Australia Act 1976 provides: "Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge." The Supreme Court of Victoria, which has a similarly wide discretion in respect of costs by s. 24 of the Supreme Court Act 1986 (Vic), has held in Verna Trading Pty Ltd v. New India Assurance Co Ltd [1991] VicRp 12; (1991) 1 VR 129 that its discretion is wide enough to enable the court, not only to deprive a successful defendant of costs, but even to make an order that the successful defendant pay costs to an unsuccessful plaintiff. Of course, it is only in an extremely rare case that the court would do so. There must be some grounds for the exercise of a judicial discretion, either as to the denial, or as to the imposition, of a costs order. Generally, a successful litigant should receive his costs. Nevertheless, the statements limiting the circumstances in which a discretion, such as that which the Federal Court of Australia Act confers upon me, should be exercised, are littered with qualifications such as "speaking generally" or "in the absence of special circumstances", as will be apparent if the citations made by Kaye J in his judgment in Verna Trading are examined. Kaye J cited (at 153-154) a statement of Viscount Cave LC in Donald Campbell and Co v. Pollak (1927) AC 732 at 811-812:

"A successful defendant in a non-jury case has no doubt, in

the absence of special circumstances, a reasonable

expectation of obtaining an order for the payment of his

costs by the plaintiff; but he has no right to costs unless

and until the Court awards them to him, and the Court has

an absolute and unfettered discretion to award or not to

award them. This discretion, like any other discretion,

must of course be exercised judicially, and the judge ought

not to exercise it against the successful party except for

some reason connected with the case."

See also Tekmat Investments Pty Ltd v. Ward (1988) 81 ALR 278.

59. The principles to which I have referred may, of course, be affected in a particular case by special rules, such as the rule permitting costs to be awarded to a party in respect of an issue on which he succeeds, although he may lose the action (see Lombok Pty Ltd v Supetina Pty Ltd (1987) 71 ALR 333 at 347, 354, but see also Australian Conservation Foundation v. Forestry Commission (1988) 81 ALR 166 at 169). Also, the nature of a particular type of litigation may introduce special considerations, as is not infrequently the case in administrative appeals, where a governmental authority may have a general interest in the clarification of the law not shared by the other party (see Minister for Community Services and Health v. Dibo Pty Limited [1992] FCA 485; (1992) 38 FCR 292 at 294; Arnold v. Queensland [1987] FCA 148; (1987) 73 ALR 607 at 635; Gray v. Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 500; (1992) 38 FCR 351 at 355).

60. In my opinion, there is here a strong reason connected with the case to exercise my discretion in favour of the applicant, so as to deny the Civil Aviation Authority an order for its costs. Although the applicant has failed to establish a breach of his rights, circumstances for which the Authority was ultimately responsible were certainly such as to provoke a legitimate and reasonable suspicion on his behalf. Had they not done so, he might never have brought his claim. I refer to the fact that the Director of Aviation Medicine dealt personally with Ansett's request for information pursuant to the medical information authority in relation to Mr Austen, and communicated personally with Dr Lewis about the matter. Indeed, as I have held, he even went outside the scope of the medical information authority and the medical history file to inform Dr Lewis of something he himself only knew at second-hand, and inaccurately, which, though relevant so far as Ansett was concerned, was not relevant to the duties of the Director of Aviation Medicine, nor to those of the Civil Aviation Authority. The particular matter of concern raised by this situation is, of course, that Dr Liddell is the brother of the applicant's former wife Kaye, from whom he had an acrimonious divorce after a stormy and apparently very unhappy marriage. It is plain there has been a degree of continuing ill-will between Mr Austen and his former wife. Whether or not an actual breach of the letter of the Public Service Regulations occurred, it was plainly contrary to their spirit and to ordinary principles of administrative propriety and fairness for Dr Liddell to have played the role which he did. I should make it clear, if it is not already clear from the findings I have made, that I do not think Dr Liddell actually took advantage of the situation to harm the applicant, or took any step in relation to the medical history file an independent officer would not have taken; but he should not have been involved. According to his evidence, it was a mere matter of chance that Mr Austen's file came before him, and not before another medical officer. In that case, it could easily have been handed over to one of the other medical officers to whom it might quite possibly have come in the first instance. Even if Dr Liddell's position as Director of Aviation Medicine might not have allowed him to withdraw from the matter entirely, it certainly did not debar him from giving the task of initial consideration to another, and he could, and should, have made his own conflict of interest very clear to Ansett before assuming any personal part. What he did was the opposite. He involved himself, as I have said, unnecessarily, and to the applicant's prejudice, by passing on information not the subject of Ansett's request, because not in the medical history file, which was both second-hand and inaccurate. By doing so, Dr Liddell did tell an untruth to Dr Lewis which, had Ansett reacted differently, might have been the source of very real harm.

61. In all the circumstances, I have come to the conclusion that the proper order to make is that the application be dismissed, but that no order be made in respect of the Civil Aviation Authority's costs.