Sullivan, Brian John Delegate of the Secretary Department of Transport [1978] FCA 48

Federal Court of Australia|1978-06-28|Before: Fisher JJ, Smithers J

i Van. Administrative Law - Administrative Appeals Tribunal -

Appeal from refusal by administrator to renew appellant's

pilot's and radiotelephone operator's licences - Duty of Tribunal to grant applicant '@ reasonable opportunity of presenting his case - Failure of Tribunal to direct its attention to

Federal Court of Australia:- question of law - Administrevive

Air Navigation Regulations rr. 5, 57, 255, Air. Navigation

BRIAN JOHN SULLIVAN v._ THs DELEGATE OF THE SECRETARY

DECISION OF THE ADMINISTRA APPEALS PREDUNAL TN TTS Geiy

Respondent JUDGES MAKING ORDER: Smithers, Deane and Fisher JJ. DATE OF ORDER: 28 June 1978 WHERE MADE: - Melbourne

(2) The matter be remitted to the Administrative Appeals

(3) 'The respondent pay the appellant's costs of and incidental

SMITHERS J.: This is an appeal to the Court from a decision of the

Administrative Appeals Tribunal (the Tribunal) given on 15 November '377

whereby the Tribunal affirmed the decision of the Delegate of the Secretary of the Department of Transport of 7 March 1977 "refusing to grant the applicant a commercial pilot licence and a radiotelephone operator licence", The applicant is referred

Admin' strative Appeals Tribune] Act 1975 which is in the

"hi.(1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question. of law, from any decision of the Tribunal in that proceeding."

By s.44(4) it is provided that this Court shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision. The jurisdiction so

exercised is part of the original jurisdiction of this Court

(s.19(2) of the Federal Court of Australia Act 1976. )

The circumstances leading to this appeal, the issues which have arisen and a summary of the proceedings before the tribunal which are under appeal are set forth in the reasons for judgment of my brother Deane which I have had the advantage

of reading. I would express my concurrence with what is so set

forth and adopt the same for reference in these reasons.

. The grounds of appeal appearing in the appellant's

"4, The said decision appealed from - (a) was wrong in law;

(b) was against the evidence and the weight of evidence.

The said Tribunal should at its hearing on the 30th day of September 1977 -

(a) have adjourned the hearing to afford the plaintiff the opportunity of calling "as a witness, and to obtain the evidence of Dr. Larry Evans; :

(b) have informed the appellant of his right to apply for the adjournment referred to in sub-paragraph (a) hereof. ,

(b) inform the plaintiff of his right hereinbefore referred to -

each constituted a failure to exercise its powers and discretions judicially and constituted an error of law.

4, The said Tribunal's failures referred to in paragraph 3 hereof each involved a failure on its part in its duty to act fairly towards the plaintiff and operated to the prejudice of the plaintiff and constituted an error of law.

(a) the plaintiff had an established medical history or clinical diagnosis of a psychosis;

(b) there was no ground to grant a licence subject to the condition and/or limitations under sub- regulation (2) of regulation 57 of the Air Navigation Regulations -

was wrong in law and against the evidence and the weight of evidence.

The said Tribunal failed to give due weight to the state of the plaintiff's medical and clinical condition in November 1976 and subsequent thereto (of which there was evidence) in concluding that the paramount interests of air safety required the refusal of any licence pursuant to sub-regulation 57.(2) of the Air Navigation Regulations."

The Tribunal is established to exercise afunction in the sphere of government. The objective is the achievement of justice in the relations between the citizen and the State compatible with standards only definable as those of good governme: This is a function of a very gpecial nature. Its proper .

performance depends upon the Tribunal having the wide powers and

flexible procedures with which it is provided, see in particular s.33 of the Administrative Appeots Tribunal Act. For the per- formance of its function it would seem appropriate, according to circumstances, for the Tribunal to take certain initiatives,

and to regard itself as unfettered by the strict rules of the adversary system, And s,39 is to be seen.as imposing

a duty upon the Tribunal consistent with this conception

of its function. Section 329 is in the following terms:-

"39, Subject to sections 35 and 36, the Tribunal shall. ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceedings and to make submissions in relation to those documents."

Critical to the grant or refusal by the Delegate of the Secretary of the Department of Transport of renewal of the applicant's commercial pilot's licence and, radiotelephone

operator's licence were the provisions in regulation 57 of the

Air Navigation Regulations (the Regulations). So far as material

"57. - (1) Subgect 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;

(2) Where an applicant for the grant of a licence under this Part fails to meet the medical standards referred to in paragraph (a) of the last preceding

sub-regulation, the Director-General may grant the licence subject to -

(a) the condition that the holder of the licence is not authorised to engage in international air nevigation; and

(b) such other limitations (if any) as the Director- General considers necessary in the interests of the safety of air navigation, having regard to the applicant's experience and ability and to the nature and extent of his failure to meet the medical standards referred to in paragraph (a) of the last preceding sub-regulation."

By definition "grant" means grant of the licence in question either by way of initial issue or by renewal from time to time See regulation 5(1) . we . Soot '

By Para. 2.3 of s.47.1 of the Air Navigation Orders the "notifies" medical standards include the requirement that "the applicant 'shall have no established medical history or clinical diagnosis of... (i) a psychosis." This requirement is subject to the qualification thet a history of acute toxic psychosis need not be regarded as disqualifying "provided that the applicant has suffered no permanent impairment",

. It is provided by regulation 255(1) that the Director-General shall not refuse to grant a licence except on one or more grounds specified therein. So far as material that regulation reads

"255 -(1) The Director-General shall not refuse to grant a licence or certificate except on one or more of the following grounds, namely:-

(a) that the applicant has failed to satisfy a requirement prescribed by or specified under these Regulations in relation to the grant of the licence or certificate;

(b) that the applicant has made in, or in connexion with, his application a statement that was false or misleading in a material particular."

"(2) Whenever the Dircector-Ceneral so refuses, he shall forthwith furnish to the applicant notification in writing of the refusal, specifying the ground of the refusal and the facts or circumstances that constitute that ground."

In this case the decision of the Delegate was furnished to the appellant and the notification thereof contained the following intimation from one F, 0. Hudson for

Your application for renewal of your Commercial and Radiotelephone licences, dated 16.11.76 has been considered by me as delegate of the Secretary, and I have decided to refuse and hereby do refuse to grant the licence you have applied for.

In accordance, therefore, with Regulation 255(2) of the Air Navigation Regulation, I hereby notify you that

the ground of the refusal is that you have failed to satisfy a requirement prescribed by or specified under the Air Navigation Regulations, namely the medical standards notified in Air Navigation Orders Part 47.

The facts and circumstances that constitute this ground have been communicated to you in a letter from the Director of Aviation Medicine.

If you are aggrieved by the refusal to issue this licence you are entitled'to apply within 35 days of receipt of this letter to the Administrative Appeals Tribunal for a review of my decision. The form of application is set out in the Administrative Appeals Tribunal Regulations. The provisions of the Administrative Appeals Tribunal Act 1975 supersede the rights granted by Regulation 259 of the Air Navigation Regulations.

The letter of the Director of Aviation Medicine referred to contained no matter qualifying this notification, The failure to satisfy the requirensicnt prescribed in Air Navipsation

Oreers s.47 resulted from an established history of psychosis

But by reason of the provisions of regulation 57(2) the failure of an applicant so to satisfy the requirement: was not, in itself, necessarily fatal to a renewal of the licences in question upon conditions or subject to limitations. It is apparent that the duty of the Delegate in a case in which the applicant fails to meet the standards referred to in regulation 57(1) is to proceed to consider whether having regard to the particular state of health of the applicant and all other relevant considerations a renewal subject to conditions or limitations is appropriate. But the terms of regulation 255(2) tend to preclude the Director-General from making clear to an applicant for a renewal that he has considered whether a grant subject to conditions or Limitations would be appropriate and if he has, why he decided against that course. When the ground of refusal is expressed in accordance with regulation 255(1) (a), regulation 57(2) is immediately shown to have been applicable, but the notification provides no information that it has been applied and if so of the ground upon which even a grant subject

to conditions or limitations was not considered appropriate.

It appears to me that the illogical restrictions that are imposed by regulation 255(1)(a) create a false environment and may well be responsible for the miscarriage of the application for review and possibly for the decision of the Delegate to refuse

the annlication for the renewal of the Jicences in question.

However, in stating his reasons to the Administrative

Appeals Tribunal. pursuant to s.37 of the Administrative Apne

Tribunal Act 1975 the Delegate was not subject to the restraints

of regulation 255(1). In this statement no suggestion appears that the Delegate did consider whether or not having regard to the actual state of health of the appellant and all other relevant considerations a grant of what might be called a conditional licence might be appropriate. As a result, when the question arose before the Tribunal, the Tribunal was unaware whether the Delegate had considered the matter, and if he had, why he had considered that in the course of good government there were no conditions or limitations which it would be reasonable to impose,and which, if imposed, would render a renewal of the licences or one of them compatible with the public and private interests involved. If in fact the matter was considered then the reasons for the decision of the Delegate as stated by him to the Tribunal were incomplete in a critical respect. On the material before the Tribunal it did not appear that the appropriateness of a renewal pursuant to regulation 57(2) had

in fact been considered. If it had it is surprising that the Tribunal was not informed of the reasons for refusing such a renewal, Ifit had not then the appellant's second ground of appeal namely that the refusal was an excessively severe restriction in view of his illness and subsequent recovery was well founded. This factor might well have induced the Tribunal then and there to seek amplification of the Delegate's statement of reasons or to review the decision and remit the matter to the

As the matter stood both the fribunal and the appellant were at a disadvantage. When the appellant was asked by the Tribunal what limitations he wovld suggest, he answered, not unreasonably, that the Delegate would be the best judge of that although he preferred unrestricted commercial. And indeed until the Tribunal knew what the Delcgate had done in performing his duty under regulation 57(2) it was not necessarily well placed to grapple with the question itself. The only finding of

'the Delegate communicated to the Tribunal was one demonstrating that regulation 57(2) was applicable and consistent with a possible renewal thereunder. Although one member of the Tribunal was experienced in flying and aeronautical affairs this was the matter on which, if the Delegate had considered it, the Tribunal was entitled to guidance. Without any guidance from the Delegate as to his views on the matter the relevant factors remained unexpressed. In such circumstances an undue burden is placed on an expert memberoaf tha Tribunal and there arises an

inappropriate situation so far as the others are concerned.

In view of the fact that the appellant had clearly suffered a psychotic episode in February and March 1976 an adverse finding under regulation 57(1) was inevitable, and the real question before the Delegate was whether the appellant had recovered sufficiently to be granted a conditional licence. That question involved consideration of the kind of conditions or limitations . that might be practical and reasonable, and for that purpose examination of the nature and extent of the appellant's failure

to'meet the medical standards specified under Air Navigation

Rerulations and the significance thereof in relation to the state of the appellant's current end probable physical and mental health, On this latter question some up to date information would have seemed necessary. On the former the scope of possible limitations were those which might be devised in a positive approach, according to practical considerations which would be peculiarly appropriate for the judgment of the 'Delegate. Mr. Jerks.who appeared for the Delegate of the Secretary of the Department of Transport before the Tribunal

said nothing expressly, nor I think impliedly, to suggest that

the question of a conditional renewal had been considered by.

Having regard to the strength of the evidence that the appellant had an established history of psychosis it is difficult to think that he ever had any real prospect of establishing error in that respect. The only case which the appellant 'could hope to make was that his recovery was sufficient to justify a conditional renewal of his licences. But as often happens with a litigant in person he was attracted to issues where technical expertise was required and which he lacked the competence to . pursue. The appellant's notion that he could show from the evidence of any of the medical experts that his episode of February-March 1976 was not one of psychosis was totally without foundation. His efforts in this respect however, tended to - submerge the presentation of the aspect of his case that because of his recovery he should have been granted a conditional renewal of his licences. Yet this case was clearly propounded

in the second ground of his appeal to the Tribunal. It was masked

by reference to hardship but the substance was there. It said the decision, namely the refusal to renew the licences, was "an excessively severe restriction in view of the circumstances

of my illness and subsequent recovery". This placed squarcly in issue the nature and extent of his psychosis, the extent of his recover and whether a conditional rather than a total

In his untutored way the appellant endeavoured to present his case on these issues. He said he desired to have the evidence of Dr. Evans to show that, although Dr. Evans had considered he . should not fly military aircraft, the ground for this was that the strains and stresses of such flying may be much greater than those of civil flying or at any rate certain areas of civil flying. The appellant informed the Tribunal that Dr,

Evans had told him that this was so, There was ground for thinking that Dr. Evans would support this view in what Dr.

Evans had already written. The suggestion that Dr, Evans considered the appellant fit for civil flying may well be thought to be implied from what Dr. Evans had written. It appeared quite unequivocally, from what the appellant said to the Tribunal that he desired to question Dr. Evans on that matter. Such questions would have gone directly to the issue of renewal of a conditional licence and inevitably would have led to the presentation of

Dr. Evans! views as to the appellant's current and future state of health and its relation to the nature and extent of his earlier

psychosis. In this last respect the nature of the psychosis

as a short episode the consequence of an unusual and temporary

It is clear that the appellant put before the Tribunal . a submission that his health had greatly improved. His statements as to his promotion and the responsibilities recently placed on him by his superior officers went directly to this. The evidence of Dr..Evans would: also have gone to this. Dr. Evans was the psychiatrist who most recently had examined the

"Undoubtedly Major Sullivan has suffered from a Schizonhreniform reaction of the type occasionally seen in iilitary personnel who have been under severe physical and psychological stress. In Major Sullivan's case this reaction has occurred as a result of extreme stress, sleep deprivation, and poor nutrition, He has made a satisfactory response to treatment and now shows no evidence

of any residual symptoms. I would suggest that he have a random blood sugars done to exclude hypo- glycaemia, and if these are normal I would recommend the following:

That he is not fit to pass a military aircrew medical in view of the particular

and peculiar stresses which military pilots might be required to face during their duties.

"UR EA" indicates "Fit Everywhere" a military category but apparently "P.E." is consistent with being not fit to pass a military aircrew medical test, The statement that there was no evidence of any residual symptoms was of course of much

importance. The approval by Dr. Evans of the appellant having

ceased medication was a mattcr going directly to. the accurecy of Dr. Arden's assessment of the nature and extent of the

It may be said that it was not necessary for the appellant to present his case reasonably that Dr, Evans be called hbecsuse his written certificate was in evidence. But in my opinion this is not a sound view. The impact that may be made by the witness in person is of the utmost importance in understanding and weighing what he says and there .were implications in the written statement which could only be elucidated by the word

In my opinion if the appellant was to present his case reasonably it was essential that Dr. Evans be called as a witness. The reason he was not called was that although expected to appear at the hearing he did not actually appear. Counse1 for the respondent indicated that the respondent had taken no steps to have him present as it was understood that the appellant would arrange for him to be preseni. The appelient told the Tribunal that the doctor had said to him that he would be present. That the appellant desired to question

However, the Tribunal proceeded to a decision in the application before it without directing any inquiries as to

Dr. Evans! whereabouts or his intention as to his attending

the hearing and withsut giving sny indication to the appellant that he might apply for an adjournment or that the procedure of summons to witness was available on the direction of the

President. (See A@ministrative Anneals Tribunal Act s.4G(4A)

One does not know what the appellant knew about his rights or duties as an advocate or litigant. His general approach was certainly untutored. He was obviously not competent to nandle his own case properly. But he did make clear that ne wished to question Dr. Evans on matters which would 'have been ' relevant to 'the issue of whether a conditional renewal of his licences should be granted. He seemed to be under the impression that his ability to call Dr. Evans depended on Dr. Evans being available then and there, After it had been ascertained that Dr. Evans, although expected by the appellant to be in attendance at the hearing had not in fact appeared, the appellant said "In the absence of Dr. Evans the only way I can substantiate that claim is by directing questions to Dr. Arden or Colonel Naughton", That claim was that the recommendation of Dr. Evans that the appellant was not fit to pass 'the medical test for flying military aircraft was based upon the added stress sometimes imposed on military air crew as opposed to those involved in civil aviation. But to 'attempt to "substantiate that claim" through Dr. Arden or Colonel Naughton was no substitute for calling Dr. Evans as a witness, In the result the evidence of Dr. Evans which the appellant clearly desired to submit was not called because, it

Without Dr. Evans the appellant had no opportunity to put before the Tribunal the oral evidence of a competent witness who could speak as to his physical and mental state at his trost recent medical examination and who, as appeared from the terms of his written certificate and from what he had told the appellant, might well have been expected to testify that the appellant was fit to fly civil aircraft, at least subject to

The situation appears to have been one to which s,39 was applicable. But the Tribunal took no action to ensure that Dr. Evans was called. Inevitably however, the extent to which a Tribunal will exercise initiative in such a matter Gepends upon its view of what is involved in the proper presentation of the case of an applicant. After much consideration I have come to the conclusion that in this case the view of the Tribunal was that the only real issue was whether the applicant had suffered a history of psychosis not occasioned by acute toxicity. This accords with what is stated in the reasons for the decision of the Tribunal, that in the light of the finding that the appellant suffered a psychotic illness and that that psychotic illness was not occasioned by acute

'toxicity, "s.47.1 of the Air Navigation Orders determines the

present application". But the real effect of the finding wes not to determine the application but only to call repulation 57(2) into operation. Clearly a gremlin had entered into the

proceedings the source of which may be found in regulation 255(1 )

in combination with the presentation of his case by the appelisnt in a manner which obscured his reliance on repulation 57(2).

The existence of the discretion under regulation 57(2) is certainly recognised in the reasons of the Tribunal for its decision. But nevertheless it would appear that in the practical approach to the question of the exercise of that discretion, the current and future health of the appellant was treated as not havinz Significance. The reasons for the decision do not discuss the possibility that the appellant's improved state of health might be material to the substantive issue arising under regulation 57(2),. The question of hardship is dealt with as a matter pertaining to that discretion but that was not the essential consideration in relation to it. True it was,as the Tribune pointed out that the interests of air safety were paramount,

But if the current and probable future physical and mental health of the appellant were such that the interests of air safety were satisfied by the imposition of appropriate conditions and limitations in respect of any licence renewed, it would have been a hardship that a conditional renewal should have been

The critical matter going to the discretion under regulation 57 (2) was accordingly the current and probable future health of the appellant. And it was to this matter

However, the extent of the appellant's recovery and

future health prospects was not considered by the Tribunal

not because of a failure to observe the provisions of s.349 but because the view was taken that evidence on that matter would not assist the appellant and was not involved in the

It has been pointed out that towards the end of the hearing the learned President asked the appellant did he wish to add anything to what he had already said. The appellant said he did not. But the decision to proceed in the absence of Dr. Evans, for whatever reason, had been made in a final way, at a much earlier stage of the hearing and it is reasonable to believe that neither the Tribunal nor the appellant would regard the President's question as directed to a re-opening of that matter. As a matter of intellectual choice the question of pursuing the matter of calling Dr. Evans was left to the appellant. But according to the personality and competence of the appellant in the face of the Tribunal that might mean very little. Particularly was this pertinent because, reflecting , logically the view that the case for the appellant would not be advanced by evidence of Dr. Evans along the lines suggested, certain observations of the learned President were made in terms _ which might well have influenced the appellant to refrain from

pursuing his desire that Dr. Evans be called as a witness.

It appears from the foregoing that I am in general agreement with the views expressed in this matter by my brothers Deane and Fisher that as a matter of reality there was a failure"to penetrate the camouflage which tended to conceal the

question whether restricted licencés should be granted",

and it is apparcnt in iy view, that the course taken at. the

The result is that it is secn that an important aspect of the case was excluded from consideration and accordingly an error of law occurred.

In the result I would order that the appcal be allowed and the matter remitted to the Tribunal for re-hearing. Such

e~hearing s should not be restricted to a consideration whether

restricted licences should be granted pursuant to regulation -57(2).. I would order that the vespondent pay to the appellant

preceding pases a: a"e8 are a true co e preeedin: py of the

2S ror Lement here} . Mr. Justi Judgment herein of his Honou Mr. Justice Sites

DEANE J: The appellant is an acting Major in the Australian Military Forces. He has a distinguished record of military service. He was, in March, 1976, the holder of a commercial pilot's licence and a radiotelephone operator's licenee issued

pursuant to the provisions of the Air Navigation Regulations

On 16 November 1976, the appellant applied to the Secretary of the Department of Transport for the renewal of the two licences. On 7 March 1977 that application was refused by the Delegate of the Secretary of the Department. The ground of such refusal was stated to be a failure "to satisfy a require

ment prescribed by or specified under the Air Navigation

Regulations, namely the medical standards notified in Air

Navigation Orders Part 47". Regulation 255 of the Regulations provides that the grant of a, licence shall not be refused except on one or more of a number of specific grounds (the relevant one being failure to satisfy a prescribed or specified requirement) and requires that the ground for the refusal of

a licence (and the facts or circumstances constituting it)

be furnished to the unsuccessful applicant. It is apparent that, apart from matters relating to the appellant's medical history and standards, the application for renewal of the

licences would have been granted and new licences would have

The appéllant, being aggrieved by the refusal to issue

the licences, duly applied to the Administrative Appeals

Tribunal ("the Tribunal") for a review of the decision of the

Delegate. The Tribunal affirmed the decision. The appellant

appeals to this Court: from that decision of the Tribunal. By

reason of the provisions of s.44 of the Administrative Appeals

Tribunal Act, 1975, the appellant's appeal to this Court is

Regulation 57(1) of the Regulations provides that an

applicant for either of the two relevant licences is not

eligible for the grant (which, by definition, includes renewal: Reg. 5(1)) of such a licence unless, inter alia, he satisfies the Director-General that he meets the "medical standards" adopted in pursuance of the Chicago Convention on International

Civil Aviation and notified by the Director-General in Air

Navigation Orders. Ineligibility consequent upon a failure

to meet those medical standards is not complete for all purposes. Regulation 57(2) provides that, in such circumstances, the Director-General (whose powers the Delegate of the Secretary of the Department was exercising) may grant the relevant licence subject to the condition that the holder of the licence is not authorized to engage in international air navigation and subject to such other limitations "as the Director-General considers necessary in the interests of the safety of air navigation having regard to the applicant's experience and ability and to.. the nature and extent of his failure to meet those medical

standards". By paragraph 2.3 of s.47.1 of Air Navigation

Orders the "notified" medical standards include the require- ment that "the applicant shall have no established medical history or clinical diagnosis of ... (i) a psychosis". This requirement is subject to the qualification that a history of acute toxic psychosis need not be regarded as disqualifying

"provided that the applicant has suffered no permanent

The Tribunal heard the matter on 30 September 1977 and subsesuently published its decision and reasons. It found as a fact that the appellant had, in March, 1976, suffered a psychotic illness which was not occasioned by acute toxicity.

The Tribunal held that, in the light of that finding, the

appellant had an established medical history or clinical diagnosis of a psychosis other than acute toxic psychosis and was not eligible for the grant of the relevant licences. The Tribunal further held that there was "no ground for exercising"

the power to, grant a restricted licence under Regulation 57(2).

The primary ground advanced on behalf of the appcllant on the hearing of the appeal was that the Tribunal, being under a duty to act judicially, failed so to act or, to put the matter in more common and colourful language, that the Tribunal denied natural justice to the appellant. The alleged denial of natural justice or failure to act judicially was, it was submitted, to be found in the failure of the Tribunal either. to adjourn the hearing of the matter to enable steps to be'taken for a medical witness, Dr. Larry Evans, to be called to give oral evidence or to alert the appellant of his right to apply for an adjournment to enable such evidence to be called. An alternative ground of attack was that the Tribunal, being under a duty to consider whether, in all the circumstances, limited licences should have issued to the appellant pursuant to the provisions of Regulation 57(2), failed properly to direct its attention to the considerations

found mainly in a number of documents which were, with the

waa AF the onnellant veceived as evidence by the Tribunal

B.M. Jackson, Dr. Larry Evans and Dr. Warren White and some

"in-patient" medical examination record sheets prepared

mainly by Dr. Arden. Dr. Arden and Dr. Larry Evans are both psychiatrists who examined (and, in the case of Dr. Arden, treated) the appellant. Dr. B.M. Jackson is, apparently,

one of a group of specialist pathologists carrying on practice under the name "Queensland Medical Laboratory". Dr. White

is a consultant psychiatrist whose "report" consisted of a letter setting out his views on the basis of written material

Dr. Arden's medical examination records and reports extend over a peviod from 3 March 1976 when he first saw the appellant on the day of his admission to/Military Hospitel at Yeronga until 18 October 1976 which was, apparently, the last occasion upon which he saw him. The reports indicate that the appellant had, in Dr. Arden's opinion, had a psychotic illness of brief duration some short time prior to Dr. Arden's first seeing him. At the time Dr. Arden saw him, he had been sedated and Dr. Arden's opinion was based partly upon notes written by the doctor who had admitted the appellant to hospital, partly upon the appellant's own account "of his experiences" and partly upon Dr. Arden's own observation. On 5 March 1976 a pathology report by Dr. Jackson indicating that amphetamine had been found as a result of a drug screen of the appellant's urine had become available to Dr. Arden. Dr. Arden, in his first report, included among the "factors" which "must be

considered" in relation to the "aetiology" of the appellant's

state "amphetamine intoxication" for the reason that "amphetamines

_were demonstrated in this man's urine passed on the evening of 3rd March, '76", Included among the other "factors" were "severe sleep deprivation which occurred with the pressure of work 'during" flood relief operations and "emotional stress in the responsibility and anxieties over the safety of crews and

The medical examination records indicate that Dr. Arden saw the appellant on 8 March 1976 and that, on this occasion, his own observation led him to diagnose that the appellant was clinicaliy psychotic. Six specific procedures and treatments which Dr. Arden thought should be implemented are listed. The first was "collect urine for amphetamine assay". Further tests were carried out. Three separate additional reports of Dr. Jackson stated that drug screen tests carried out on samples of the appellant's urine received on 8 March 1976, 11 March 1976 and 16 March 1976 respectively disclosed a significant presence of amphetamine.

Dr. Arden's notes for 12 March 1976 read as follows:

" We are tn a real problem with this pattent, who today presents as sane, with no evidence of psychosts.

He flatly denies ingestion of amphetamines, yet on two occasions (separated by a pertod when he was not elinically psychotic) he has been psyenotte and urinary amphetamines have been demonstrated.

drawn are either (7%) He is lying . . "or (it) Anphetamines are being gtven

~ him without his knowledge' or (iii) He has repressed the memory

of taking amphetamines - t.e. due to unconscious and/or

brain injury faetors, the memory ts not avatlabie to consetous thought.

Of these three, tne first two possthilittes seem unlikely, and tt seems probable that the man has taken these drugs and lost the memory for it. If this is the case, there ts no guarantee that this will not happen again, and I feel that the ma should not fly an_aeroplane" (underlining adie

There is no suggestion in Dr. Arden's notes (or indeed anywhere else in the evidence) that the appellant was clinically

The appellant was discharged from hospital in March, 1976. Dr. Arden's report of an out-patient examination of the appellant on 29 March 1976 states that the appellant "is going satisfactorily" and "shows no evidence of on-going psychotic illness", The report of a subsequent examination of 12 April 1976 reports that there was 'no evidence of on- going psychotic process". On 24 May 1976, however, Dr. Arden summarized the results of an examination as follows:

"Gotng reasonably well, although does show some -evidence of ongoing paranoid fantasies; I would ' class these as being over-valued tdeas, rather than delusions, and I would not regard these as psuchottie per se. I would feel, however that thts ts an indic- ation that the man ts not yet out of the woods". The last three reports of Dr. Arden's examinations indicate ""roing reasonably well", "going satisfactorily" and "going reasonably enough". They also indicate the emergence of an

apparent antagonism in the appellant towards the treatment

which Dr. Arden was prescribing. Dr. Arden's report of 30

"Capt. Sullivan informed me today that he has not taken any Largacttl for approximately seven weeks, and that he ts dotng this in the knowledge that he has clear instructions to continue to take Largacttl, and also in the knowledge that he has had elear advice that he may well be making himself liable to a recurrence of his earlier psychotte tliness.

So far, things are going satisfactorily for him wtthout a major tranquillizer, and tt remains to be seen whether he wtll be able to remain well wtthout tablets or not. My own feeltng is thai, even disregarding the question of obeying instruct- tons, the risk that ne ts running ts not worth tt".

Dr. Arden's last report was in respect of an examination of

"It would appear that this man is going reasonably enough, to judge from the informatton available. Capt. Sullivan reports that he has felt renewed interest tn his work stnee attending courses. Hot taking any drugs, although he has been instructed to do so". The references:to "clear instructions," "obeying instructions", and "has been instructed" perhaps indicate a view that a military

officer is under a duty to ingest whatever drugs his medical

ve As has been mentioned, Dr. Arden's written reports express both the conclusion that the appellant had, shortly before he saw him on 3 March 1976, had a psychotic illness of brief duration and the diagnosis that the appellant was, when Dr. Arden examined him on 8 March 1976, clinically psychotic. The reports themselves, if accepted, set forth and establish a history of a psychosis. They also establish a history of having taken amphetamine which, if correct, would raise a query

whether the history of a psychosis was "a history of acute toxic

from the power to issue licences subject to limitations con- tained in Regulation 57(2) and the qualification in relation to .-acute toxic psychosis, Dr. Arden's reports, if accepted, meant that the appellant was not eligible to be granted the

In so far as the question whether licences subject to limitations should be granted to the appellant pursuant to Regulation 57(2) is concerned, the extract from Dr. Arden's report of 12 March 1976 was cxtremely relevant: "If this is the case, there is no guarantee that this will not happen again, and I feel that the man should not fly an aeroplane". It has been seen that the postulated contingency was that the appellant had taken amphetamine and repressed the memory of so doing: the event which could not be guaranteed as not being going to happen again was the appellant's taking amphetamine and again repressing the memory. In fact, it was ultimately found (and is now common ground) that the appellant had neither repressed nor lost any memory of having taken amphetamine for the simple reason that he had not taken the drug. Dr. Jackson's four separate reports showing the presence of amphetamine in different samples of the appellant's urine were all wrong. 'The explanation was, apparently "a technical error". In so far as Dr. Arden's reports establish that the appellant had a "history"

of taking amphetamine or had repressed or lost the memory of

Dr. Larry Evans cxamined the appellant on one occas- ion only. That was on 18 January 1977. His report indicates that, 'the history has been obtained from the officer himself, who has proved most co-operative and frank at interview, a scrutiny of the medical documents" (presumably including Dr. Arden's reports) "and from the Unit Medical Officer". Dr. Evans' conclusion was that the appellant had "suffered from a schizophreniform reaction of the type occasionally seen in military personnel who have been under serious physical and psychological stress" and that the reaction had "occurred as a result of extreme stress, sleep deprivation, and poor nutrition". Dr. Evans expressed the view that the appellant "has made a satisfactory response to treatment and now shows

no evidence of any residual symptoms". Subject to some blood

tests, his recommendations to the appropriate military auth-

That he ts not fit to pass a military atrerev medical in view of the partteutar and pecultar stresses which milttary pilots might be requtred to face during their, duties.

' 3. He cease medication (he has already done so)".

The first of these recommendations amounted to a recommendation of an up-grading of the appellant's then medical category.

At a glance

Court

Decision date

Before

Source

Judgment (441 paragraphs)