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

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.

2. 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.

7. 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:

2. 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-

2. 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.

The third may well, with justification, have been seen by the appellant as a vindication of his refusal to follow Dr.

Arden's instructions to continue taking Largactil. The careful

wording of the second could indicate that, in the context

of his conclusion that the appellant "showed no evidence of .

any residual symptoms", Dr. Evans was intending to draw a

distinction between the appellant's fitness to fly military

Dr. White had not, at least at the time he wrote his report, ever seen the appellant. Mle obviously hased his assessment of the appellant largely on Dr. Arden's medical reports to which reference has already been made. From these reports he concluded that, "in terms of the legal requirements having an established history and diagnosis of psychosis", the appellant "could not be granted' any form of pilot's licence". In the light of the provisions of Regulation 57(2), Dr. White's conclusion of the effect of the legal requirements was, like so much else in the medical reports relating to the appellant,

. ; " However, a complteation arises tn that tit might be argued that he had a toxte psychosis which would entitle him to further constderatton.

In the documents provided there was some evidence that he cculd have been suffering from an amphetamine psychosis which ts well known to mimic schizophrenta. If he tad an amphetamine psychosts one would need to consider personality factors

• and capacity for coptny witth stress, so that a

deciston could be made as to whether one or other was a prime factor and whether toxte psychosis could be seen as a primary diagnosis and thereby entitle him to further consideratton.

However, a medteal report by Lieutenant "Cotonel M.A. Naughton dated 29th July, 1976, refers to the faet that it had been demonstrated that evidence of amphetamine tntake was the result of a technical crror and that Captain Sullivan did not take this drug (the evidence for this is not provided). .

Thus, with amphetamine psychosts ruled out, the whole matter takes on a grimmer significance prognostically in that it would appear that Captain Sullivan had developed sehizophrenta as a result

of an tnteraction between constitutional and environmental factors and this could happen again.

In summary, he shows evidence of havtig had a psychosis and therefore is excluded from holding a ptlot's lieence, tf he had elaim to have had a primary amphetamine psychosis, then persoralit: features and possible neurotie features whiten 2 him to forget taking amphetamine would in there be of suffictent weight to bar him from holdt: licence on the grounds that he could, within years of the date of ttcenetug endanger the sx of an atreraft",

As has been said, all of the abovementioned medical reports were, with the appellant's consent, admitted into evidence at the commencement of the hearing before: the Tribunal. Analysis of the contents of the reports indicate that Dr.

Arden, Dr. Evans and Dr. White all expressed the view that the appellant had had a psychotic illness. The reports themselves document, in respect of the appellant, an established history

of a psychosis. On their face, once it is known that the appellant had not taken amphetamine, they are, however, calculated to raise some questions. It would seem that Dr. White's and Dr. Evans' conclusion that the appellant had had

a schizophreniform reaction was largely based on Dr. Arden's reports. Dr. White's report indicates that his interpretat-

ion of Dr. Arden's reports and notes cn March, 1976 was that they provided "some evidence that he could have been suffer-

ing from an amphetamine psychosis which is well known to mimic schizophrenia". The conStant stressing in Dr. Arden's notes and records of - if I might use the phrase - the spurious amphetamine connection invited questions as to the part which his belief that the appellant had been taking the drug played in his

In so far as the question whether the appellant should be granted limited licences pursuant to Regulation 57(2) was concerned, Dr. Arden had expressed the view that the appellant should not fly an aeroplane. This view had however, in clear terms, been related by Di. Arden to the conclusion that the appellant had been taking amphetamine and had repressed the memory of so doing when in fact he had not been taking amphctamine and had no memory in that regard to repress. Dr. Ardcn's expressed view was, once the true facts were known, no longer relevant. Accepting that the appellant had not been taking amphetamine, Dr. White did not state any express view on the question whether a licence pursuant to Regulation 57(2) should be issued to the appellant. His report indicates that, possibly as a result of a failure to advert to the provisions of Regulation 57(2), he simply did not address his mind to that question. As has been seen, the careful words which Dr. Evans used to express his view that the appellant should not fly military aircraft were, at worst from the appellant's point of view, neutral on the question whether he was fit to fly civil aircraft. On the other hand, the view expressed in the penultimate paragraph of the extract from Dr. White's report which is set out above, that the appellant "had developed

schizophrenia ... and this could happen again" (underlining

added), was clearly of considerable significance on the question whether the appellant should be granted restricted licences

After documentary cyidence (including all of the medical reports to which reference has been made) had been reccived in evidence before the Tribunal, the appellant was asked whether he wished to open his case. He accepted the invitation. He stated that there were three grounds upon

which he pressed his appeal. He identified these as follows:

"The first ground is that the ground for the medteat refusal has not been substantiated. The second ground that I had prepared was that the medical standards were open to wide interpretation and, therefore, various situations eould be interpreted as being or not being a ease of psychosis and the third ground is the ground of hardship".

He proceeded to draw a distinction between standardsfor flying military aircraft and standards for flying civil aircraft.

He indicated his dissatisfaction with the medical treatment

he had received from Dr. Arden, that he had discontinued the course of treatment prescribed by Dr. Arden because he did

not think that the treatment was necessary and that his inter- views with Dr. Arden had been terminated at his request. He stated that he accepted Dr. Evans' report as "a fair assessment

of the situation" and, referring to Dr. Evans' report, added:

" In his recommendation 2 he says that the recommendatton is that, "He is not fit to pass a military air erew medical". I believe from discuss- tons Dr. Evans has indicated that recommendation was purely conveyed on his assessment of the added stresses in this military air crew as opposed to etvil air crew in that as well as operating the aircraft safely you have another job to do, whereas it could be claimed that civil ptlots are more concerned with operating the aircraft safely and other. factors play a lesser part in the whole sttuation".

"HIS HONOUR: It is a matter for you how you destre to develop that, but I am sure you will be aware that Captain Gibbs has had constderable expertence in the operatton of atreraft and Mr. Marsh has nad considerable experience in medical matters for aviatton. If you wish to develop further it may be of assistance to the Tribunal.

MR. SULLIVAN: It may be tf IT ask tf Dr. Evans ts avatlable if he would answer my questions regarding this.

HIS HONOUR: That ts a matter enttrely for you as to how you wtsh to conduct your case.

MR. SULLIVAN: In that case, if Dr. Evans is avail- able I will have to ask that he be eatled as a

HIS HONOUR: Mr. Jerks, do you know tf Dr. Evans is present?

MR. JERKS: As far as I know we have not requested him to be present. I think Mr. Sullivan told us he

HIS HONOUR: lave you been tn touch with Dr. Evans, Mr. 'Sullivan?

MR. SULLIVAN: He informed me he was gotng to be in attendance today although I have not at this stage

' MR, SULLIVAN: In the absence of Dr. Evans the only way I can substantiate that claim ts by directing questions to Dr. Arden or Colonel Naughton".

" : Regarding the second claim that the medical standard is open to wide tnterpretations I am afratd without Dr. Evans here I am not able to proceed with that argument".

It should be noted that the "claim" or ground referred to would appear to have been related to the question whether the appellant had, in fact, suffered "a psychosis" in the relevant

Two witnesses (Dr. Arden and Colonel Michael Naughton) were called to give oral.evidence on behalf of the respondent Delegate. Colonel Naughton was the Commanding Officer of the Military Hospital at Yeronga, Queensland, to which the appellant had been admitted in March, 1976. He gave evidence which supported Dr. Arden's conclusion that the appellant had had a psychotic illness of brief duration. shortly before Dr. Arden first saw him. Dr. Arden, in his evidence, referred to his notes and reports which were already in evidence. He clearly relied upon them for much of his re- collection. He did not mention the fact that much of what was written in these notes and reports was plainly misleading in view of the belief which he had previously held that the appellant had been taking amphetamine. When questioned by the appellant however, he readily conceded that "the whole question of amphetamine has been a very unpleasant red herring caused by laboratory error". He described the situation in which the appellant had been placed: "undoubtedly I think it is intenselyrceasonable to get very angry and agitated if you are unjustly accused of taking drugs, taking amphetamine,

because my understanding is that this would be grossly improper

behaviour for a pilot". In truth, these remarks of Dr. Arden understate the appellant's predicament: the appellant was

not only being wrongly accused of having taken amphetamine

put was being treated as suffering from mental illness by

reason of his assumed lack of memory of having taken the

drug ina situation where, presumably, he well knew that he

had not taken it. The questions which the appellant asked

Dr. Arden were clearly intended to suggest that the symptoms which caused Dr. Arden to diagnose a psychosis were in fact the anger, agitation and frustration resulting from this predicament - in which the appellant found himself. Dr.-Arden denied that this was so. It is however apparent that the appellant's predicament could well be considered a factor to be added to the "sleep deprivation" and "emotional stress" to which he had been subjected in the course of his recent flood relief work in assessing the combination of circumstances in the context of which the appellant was clinically diagnosed by Dr. Arden as psychotic. In this regard, that predicament was relevant

to the question whether there was any real likelihood that

the appellant, if subjected to those stresses which the

holder of a commercial pilot's licence or a radiotelephone operator's licence could be expected to encounter, would

again become psychotic. A reading of the whole of the transcript of the proceedings before the Tribunal tends to give the impress- ion that the appellant saw the oral evidence which he had hoped to obtain from Dr. Evans as being relevant to the assessment of whether there was any such likelihood. Dr. Evans was the only medical expert who had examined the appellant within the eleven

months preceding the hearing of the application to the Tribunal.

The oral evidence of Dr. Evans which the appellant wished to lead may well have proved relevant to the question whether

the appellant should have been granted limited licences

pursuant to the provisions of Regulation 57(2). The appellant at no stage expressly indicated that that was so or that he regarded oral] evidence from Dr. Evans as important to establish- ing anything other than that, on a proper approach to the

nature of "a psychosis", he had never suffered a psychotic

After the oral evidence of Dr. Arden and Colonel Naughton had been completed, the learned President of the Tribunal inquired of the appellant whether he had any further evidence which he wished to place before the Tribunal. In response to that invitation, the appellant submitted some documents which were admitted into evidence. He was then asked by the learned President: "Is there any other material"?

: I have set out the relevant background facts and circumstances in considerable detail for two reasons. The first is that the appellant's claim that the Tribunal was in breach of its duty to act judicially by reason of its failure either to adjourn the matter of its own motion or to alert the appellant of his right to apply for an adjournment, can only properly be considered in the context of the overall procecdings before the Tribunal. The second is that, unsat - -

isfactory though the medical evidence was in many respects,

it is, upon analysis, apparent that that evidence (in the

state in which it was left) all but compelled the finding which

the Tribunal made that the appellant had an established history. of a psychosis. The appellant expressly informed the Tribunal that he accepted Dr. Evans' report as a "Lair assessment of

thé situation". Dr. Evans' sveport stated that the appellant

"undoubtedly" had suffered from a schizophreniform reaction.

Dr. Arden, in his oral evidence, confirmed his actual diagnosis of a psychosis. Colonel Naughton's evidence supported that diagnosis. Once it was accepted that the appellant had an established history of a psychosis (and, on the evidence, acceptance of that was all but. inevitable), the only real question was whether the circumstances were such that conditional

licences should be granted pursuant to the provisions of

Act provides, for present purposes, that "the Tribunal

shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his case". In dealing with an application for review, the Tribunal is plainly under a duty to act judicially, that is to say,

with judicial fairness and detachment. In these circumstances, the requirement contained in s.39 that the Tribunal shall ensure that a party to the proceedings before it be given a reason- able opportunity to present his case constitutes statutory recognition of an obligation which the law would, in any

event, imply. Where a Tribunal is under a duty to act judicially, the 'principle that a party must be given a ree2son - -

able opportunity to present his case is at the heart of the

requirements of natural jusiice which it is obliged to observe (see R. v. Moodie, (1977) 17 A.L.R. 219 at p. 225). If, in all the circumstances, the failure of the Tribunal to adjourn the matter to enable Dr. Evans to be called as a witness or to alert the appellant of his right to apply for such an adjourn- ment constituted a denial to the appellant of a reasonable opportunity of presenting his case, both the common law principles applicable to a tribunal under a duty to act judic-

ially and the specific provisions of s.39 of the Act entitle

Section 33(1)(b) of the Act requires that the' proceedings of the Tribunal shall be conducted with as little formality and technicality, and with as much expedition as the requirements of the Act and of every other relevant enact-.. ment and a proper consideration of the matters before the Tribunal permit. Jt is apparent that the objectives of expedition and of lack of formality or technicality and the requirements of fairness will ordinarily be best achieved by a ready identification of the issues which are, in truth, in dispute between the parties in a particular application for review. In the ordinary case, a tribunal which is under a duty to act judicially and which has the relevant parties before it will be best advised to be guided by the parties in identifying the issues and to permit the parties to present their respective cases in the manner which they think appropriate. Circumstances may, of course, arise in which such a svatutory tribunal, in the proper performance of its

functions, will be obliged to raise issues which the parties

do not wish to dispute and to interfere, either by giving guid- ance or by adverse ruling, with the manner in which a particular party wishes to present his case. Ordinarily however, in the absence of a request for assistance or guidance by a party who

is appearing in person, a tribunal under a duty to act judicially should be conscious of the fact that undue interference in the manner in which a party conducts his case may, no matter how

wel] intentioned, be counter-productive and, indeed, even

overawe and distract a partly appearing in person to the extent

that it leads to a failure to extend to him an adequate

A refusal to grant an adjournment can constitute a failure to give a party to procecdings the opportunity of adequately presenting his case. If the Tribunal had, in the present matter, refused an application by the appellant for an adjournment to enable him to procure Dr. Evans' attendance as a witness, that refusal may well have constituted such a failure. No such application for an adjournment was, however, made. If it had been made, it is highly probable that the Tribunal would have acceded to it: indeed, Counsel who appeared for the appellant stated that he did not dispute that, if the appellant had applied for an adjournment, the Tribunal would have granted it. The absence of any application for an adjournment does not, however, necessarily conclude the issue adversely to the appellant. The failure of a tribunal which is under a duty to act judicially to adjourn a matter may, conceivably, constitute a failure to allow a party

the opportunity of properly presenting his case even though the

party in question has not expressly sought an adjournment (sce

Priddle v. Fisher & Sons [1968] 1 W.L.R. 1478). In this regard however, it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tri.sunal the impossible

task of ensuring that a party takes the best advantage of

It is apparent from'the transcript that the appellant wished to call Dr. Evans, as a witness. When Dr. Evans was found not to be in attendance however, the appellaut gave no indication that he thought it appropriate that the proceedings be adjourned to permit Dr. Evans to be called. It was suggested by counsel for the appellant that the appellant may have been ' under a misapprehension as to the ability of the Tribunal to procure Dr. Evans' attendance or as to his right to seek an adjournment. there is, in my view, nothing to indicate that that was the case. It was also suggested by counsel for the appellant that the comments which the learned President made as to the experience of Captain Gibbs and Mr. Marsh and his statement, in response to the appellant's suggestion that he ask Dr. Evans some questions, that it was a matter entirely for the appellant as to how he wished to conduct his case, may have led the appellant wrongly' to infer that there was no need to call evidence from Dr. Evans or that the Tribunal was not prepared to assist him in terms of procedural matters. Again, there is, in my view, nothing. to indicate that the appellant was, in

. . fact, under any such misapprehension. In the context of the

express invitation to the appellant, at the conclusion of

the cvidence, to adduce any further evidence or other material and of the complete absence of any indication by the appellant that he was under any misapprehension or that he desired that the proceedings be adjourned, the failure of the Tribunal either to adjourn the proceedings of its own motion or expressly to inform the appellant of his right to seck an adjournment did not, in my view, constitute a failure to ensure that the appellant was given a reasonuble opportunity of putting his

case or otherwise 'involve a fdilure to observe the requirements

It is therefore necessary to consider the appellant's alternative ground of attack, namely, that the Tribunal, being under a duty to consider whether, in all the circumstances, conditional licences should have been issued to the appellant pursuant to the provisions of Regulation 57(2), failed properly to direct its attention to the considerations relevant to the

"S?, - (1L) Subject to this regulation, an appltecant for a lteenece under this Part ts not eligible for the grant of such a@ licenee, unless -

(a) he submits himseif to a medtcal 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 Atr Navigation Orders; ind...

(2) Where an applteant for the grant of a tteence under thts Part fatls to meet the medical standards referred to tn paragraph (a) of the tast preceeding sub-regulation the Director-General may grant the lieence subject to -

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

(b) such other Limitations (tf any) as the Director- General considers necessary tin the interests of the safety of atr navigatton, having regard to the applicant's experience and abiltty and to the nature and extent of his fatlure tomeet the medical standards referred to tn paragraph (a) of the last preceeding sub-regulation".

The Regulation adopts distinct and contrasting approaches to the effect of failure to meet the notified medical standards as regards grant of a licence which permits engaging in international air navigation and as regards grant of a licence which, by its terms, excludes engaging in inter- national air navigation. Those medical standards were, as Regulation 57(1) states, adopted in pursuance of the Chicago Convention. In so far as a licence which authorizes the holder to engage in international air navigation ("an international licence") is concerned, failure to meet those standards is conclusive against a grant and it matters not that the failure is, for example, the result of some long past history of a psychotic disturbance which has been shown to be devoid of residual effect or likelihood of recurrence. The failure to meet the standards in itself constitutes mandatory ineligibility. Failure to meet those standards does not, in itself, constitute ineligibility for the grant of a conditional licence pursuant to Regulation 57(2). On the contrary, such a failure is in

itself the fulfilment of the condition precedent to the

operation of the sub-Regulation. . The question whether there

has been a failure to meet the relevant medical standards

must be answered in the negative before an international licence can be granted. It must be answered in the affirmative before the power to issue a conditional licence pursuant to

Once the conclusion wus reached that the appellant had an established history of a psychosis, he was an applicant for the grant of a' licence who failed to mect the medical standards referred to in paragraph (a) of Regulation 5S7(i). That failure constituted fulfilment of the condition precedent for the operation of. Regulation 57(2). It has not been suggestcd, on behalf of the respondent, that the question of the grant of conditional licences pursuant to Regulation 37(2) was not properly before both the Delegate end the Tribunal. The question was, without objection, expressly raised before the Tribunal and dealt with by the Tribunal in its reasons for decision. It is apparent that, on the evidence, any real prospect of success which the appellant may have had

Regulation 57(2) does not specify the considerations to which regard should be had in deciding whether a conditional licence should be granted in pursuance of its provisions.

Those considerations are, however, manifest from the overall

provisions of the Air Navigation Act 1920 and the Regulations.

They are considerations relating to the safety and orderly conduct both of particular air operations and of air navigation

generally. The first question for consideration under Regulation

ee . -26- 57(2) is whether, notwithstanding the failure to meet the relevant medical standards, a conditionsl licence excluding engagement in international air navigation, could be granted without undue prejudice to the safety and orderly conduct of air navigaticr. The second question will arise for consideration if the first is answered in the negative. It is whether appropriate and acecptable limitations can be framed so as to ensure that the grant cf a conditional licence accompanied by such additional limitations would not involve any such prejudice.

The prima facie position is that, in the event of an affirmative

answer to the first of these questions, a conditional licence

should be granted subject only to the statutory limitations (i.e. excluding engagement in international air navigation) and, in the case of an affirmative answer to the second, a conditional licence should be granted subject to both the statut- ory condition and any further necessary limitations. It may, in some cases, be apparent that the grant of a conditional licence would unduly prejudice the safety of air navigation and that no acceptable limitations could be framed which would avoid that prejudice. In such a case the answer to the question whether a conditional licence should be granted pursuant to Regulation 57(2) will be straightforward without any need for the precise 'assessment of the cffect of the televant failure to comply with medical standards or of the effect which possible additional limitations upon the licence might have. In the ordinary case however, as the references in Regulation 57(2) to the applicant's "experience and ability" and to "tne nature and extent" of the failure to meet the prescribed standards clearly indicate, the question whether a conditional licence

should be granted will involve an assessment, in the context

of the ability and experience of the applicant, of the likely

-27- effect, both present and future, of the particular medical condition of the applicant, in the event that a licence is granted, upon the safety of particular air operations and of air navigation generally. 'There is clearly more scope for legitimaic differences of opinion than would ordinarily be the case as regards the question whether the medical standards

The question whether conditional licences should be granted to the appellant in the present matter involve assess- ment of the extent to which he hed recovered from the psychotic nosed in March 1976 and the like-

lihood of recurrence of a psychosis. The Tribunal found that

the appellant's psychotic Cisturbance occurred "after a veriod of intense activity, severe sleep deprivation and considerable emotional stress" during which he had been engaged in "the onerous duty of assisting flood relief operations". There is no suggestion that there was an actual recurrence of a psychotic condition after 8 March 197C. Dr. Evans! report stated that

= the appellant had made a satisfactory response to treatment and, as at 8 January 1977, "showed no evidence of any residual symptoms". Dr. Evans' report also recommended that the appellant cease medication. The careful wording of Dr. Evans' report at least leaves open the possibility that Dr. Evans' opinion was that the appellant was fit for civil, as distinct from military, aircrew duties. The appellant's comments to the Tribunal indicated that it was his belief that this was,

. In these circumstances, it is not apparent to me that the question whether the appellant should be granted conditional licences pursuant to Regulation 57(2) was one which, having

regard to considerations of the safety of air navigation,

obviously necessitated an answer in the negative. This is particularly the case as repards the application for a flight radiotelephone operator's licence. Unless the view were taken that any established history of the occurrence, within some arbitary period, of a psychosis precluded the grant of a licence pursuant to Regulation 57(2), the question whether the appellant should be granted limited licences plainly required consider- ation of his current medical condition, cf the likelihood of a recurrence of a psychotic disturbance and of the question whether, if any detriment to the safety or orderly conduct of air navigation would otherwise result from the grant of licences to him, that detriment could be averted by the imposition of appropriate and acceptable limitations. If the view were taken that any such cstablished history of a psychosis precluded altogether the grant of a licence pursuant to Regulation 57(2), it is reasonable to assume that that view . would have been communicated to the appellant so that, if he thought fit, he could seek to question, either by evidence or submission, the reasonableness or propriety of that approach to the provisions of Regulation 57(2). It was not suggested by the Delegate's representative before the 'Tribunal or by his

counsel on the appeal that such e view was appropriate or that

In his final submissions to the Tribunal, the representative of the Delegate commented that both Dr. Evans and Dr. Arden had, in their reports, stated that the appeliant

was "not fit to fly". This unqualified comment was plainly

not justified by what those reports said. In fact, the evidence

as to the appellant's fitness to pilot a plane was Jeft in

an unsatisfactory state. Dr. Arden's conditional statement of unfitness had been rendered irrelevant by reason of non- fulfilment of the expressed condition. Dr. White's adverse comnents had been made under an expressed and relevant misapp-chension of the legal position. Dr. Evans' report was consistent with the appellant's suggestion that Dr. Fvans' view was that the appellant was fit to fly civil aircraft.

The one express statement to the effect that the appellant was

not fit to fly an aeroplane which remained was the answe3 given to a question asked by a member of the Tribunal (Nr. Marsh) of Dr. Arden at the conclusion of his evidence. The

"Q. On the final page of the handwritten notes I think you said there was no furtner evi of a psychotie tilness. That would be 15 page 4? I nottee that hargaetil was pre and again on 19 Maren. ( take tt this u confirn your earlter opinton on sheet 4 'should not fly an aeroplane?

The "opinion" of Dr. Arden which was "confirmed" was the irrelevant opinion to which reference has already been made. The dates referred to were 15 March and 19 March 1976 which were more than eighteen months before the hearing before the Tribunal. Dr. Arden's prescription of Largactil at a subsequent time was clearly open ta some possible cifference of opinion from Dr. Evans. It is searcely likely that the Tribunal would, in fairness to the appellant, have placed much worth on the cryptic affirmative answer to such a question. There

was no express reference at al] in the evidence as to the

appellant's fitness to hold a radiotelephone operator's licence.

The submissions which were made to the Tribunal by the appellant and on behalf of the respondent Delegate have been reproduced in the appeal book. It is fair to comment

that the Tribunal is unlikely to have derived real assistance

from them on the question whether concitional licences should

be granted pursuant to Regulation 57(2). The Delegate reference to Regulation 57(2) in the statement lodged pursuant to s.39 of the Act and his representative, on the hearins of the appeal, likewise made no express reference to it. While the appellant expressly stated his reliance on the provisions of Regulation 57(2), he appears, mistakenly, to have assumed that a primary consideration in determining whether limited licences should issue to him wes the hardship which he would suffer if such licences were refused. The appellant did make some submissions in relation to limitations which might appropriately be imposed upon licences granted pursuant to Regulation 57(2) but indicated that, in his view, the nature of appropriate limitations was "more in the Department of Transport's court in (view of) the fact that they may have a reco. of previous restrictions applied". In fairness to

the appellant, it should be mentioned that, when he did raise the question whether his military medical rating was such as to preclude him from flying as co-pilot (a question which was relevant to a limitation which could conceivably have been thought appropriate to the grant of a licence under Regulation 57(2)) one of the members of the Tribunal appears to have indicated that that matter was irrelevant. The representative of the Delegate thade no subini ssion whatever addressed to the question of possible limitations which could be imposed vpon

the licences pursuant to Regulation 57(2). It is conceivable

that the Delegate's approach was that it was for the appellant to indicate the type of limitations which would, if additional limitations were necessary, be accepteble to him or that the questions whether there were any appropriate limitations and, if so, what they were, were matters within the expert knowledge of one or more members of the Tribunal. His representative

did not say anything which indicated that the Delegate

reached the conclusion that the material before it simply did not enable it to find that the circumstances were such as to warrant the grant of either licence pursuant to Regulation 57(2}. In the event that it so decided, it would, subject to compliance with the requirements of s.43(2) of the Act (see below), be neither surprising nor improper for the Tribunal to refrain

from dealing in detail with the conceivable arguments which

could have been, but were not, advanced to support the grant

of conditional licences (Mohamac Kunjo S/R Ramalan v. Public

Prosecutor [1978] 2 W.L.R. 130 at p. 135). On the other hand,

one could, in view of the manner in which the matter was pre- sented to the Tribunal by both parties, well understand the Tribunal losing sight of the question whether conditional licences should issue pursuant to Regulation 57(2). That whole question was, no doubt as a result of the appellant's lack of forensic experience, largely ignored in both evidence and submissions. The ground of hardship which the appellant propounded in relation to it was not only largely irrelevant:

it was obviously apt to distract the Tribunal's attention from

the considerations which were in fact relevant to the deter-

The only reference to the possible grant of licences pursuant to Regulation 57(2) to be found in the Tribunal's reasons for decision occurs after the Tribunal had examined the eyidence and reached the cenclusion that the appellant was not eligible for the grant of a licence unden Regulation 57(1). That conclusion was, as has been mentioned, the necessary starting point for consideration of the question whether conditional licences should be granted pursuant to Regulation 57(2). The relevant pessage in the Tribunal's

" In our view there is no ground for exercising a adise tonary power to grant a restricted licence under sub-regulation 57(&). Major Sullivan pressed us with the ground of near ship but tn cases cf this kind, however hardlz dectsion may bear upon the Applicant, the inte: of air safety are paramount and requtre us to ref the grant of any licence pursuant to sub-reguiatition 67(2)". Q «

That passage does not clearly indicate whether the Tribunal, ever directed its attention to the considerations relevant

to thé- determination of the question whether conditional licences should issue in the particular circumstances of the particular case or whether, having rejected "hardship" as a proper ground for the issue of such conditional licences, the Tribunal failed to direct its attention to the considerations

which were relevant to the determination of that question.

Section 43(2) of the Act provides that the Tribunal

shall give reasons in writing for its decision and "those

reasons shall include its findings on material questions of fact". Apart from the general statement of "no ground", the decision of the Tribunal contains no findings on sny of the specific questions of fact which would scem material to the question whether restricted licences should be granted. The absence of such findings and the Tribunal's reference to what was required in the undefined "eases of this kind" tend, in my view, to indicate that the Tribunal, having rejected hard- ship as a ground, dia not dircet its attention to the consider- ations relevant to the questicn whether, in the particular circumstances, conditional licences sould be granted. The absence of any reference, in its decision, to the unsatisfactory state of the evidence as to the appellant's current medical condition or to the failure of the representative of the Delegate to make any submissions expressly directed to the grat of conditional licences or to possible additional limitations

an which could be imposed on such a grant, the apparent dis- interest in the question whether the appellant's military medical rating was such as to permit him to fly military air- craft as a co-pilot regardless of whether such aircraft were

currently in military use, the absence of any analysis of the

effect of the medical evidence in so far us it related to the appellant's present fitness to fly civil aircraft, the absence of any reference to the question whether there was any real likelihood of a recurrence of the psychosis which the appellant had suffered under circumstances of great physical and mental strain and the absence of any reference to the different con-- sidcratio:.s which might be applicable as regards the grant of

a conditional commercial pilot's licence and as regards the

grant of a conditional flight radiotelephone operator's licence all tend to support that view. In the result, I have, with serious misgivings, reached the conclusion that the Tribunal did, in truth, fail to penetrate the camouflage which tended to .conceal the question wheller restricted licences should

be granted, Tt has not been suggested that that question, however camcuflaged, was not properly before the Tribunal.

The Tribunal's failure to direct its attention to the con- siderations properly relevant to the determination of it was, in the circumstances, undersiandable. The consequence of that failure is, however, that the proceedings before the Tribunal

miscarried in that the Tribunal failed to deal, by reference

to the relevant considerations, with a matter which arose for

its determination and which it purporied to determine.

In the result, the appeal should be allowed and the matter should be remitted to the Tribunal for a rehearing. In all the circumstances, I consider that it would be in- appropriate to restrict the Tribunal, on that rehearing, to a consideration of the question whether restricted licences should be granted pursuant to Regulation 57(2). The question whether any licence should be granted to the appellant is, of course, a question for the Tribunal which has not been involved

in this appeal. The respondent should pay the appellant's

As has been mentioned, it was not submitted, on behalf of the respondent, that the question whether limited

licences should be granted pursuant to the provisions of

Regulation 57(2) was not properly before both the Delerate

and the Tribunal. The Tribunal purported expressly to

detemaine that question. In these circumstances, it has not been necessary to consider whether it is encunmbent uwpen tne Director-General (or other officer exercising his powers) to considerwhether a Licence should be granted pursuant to Negulation 57(2) jn every case where an epplicant fer a Licence is found by him to fail to meet the medical stancaras reterred

to in Regulation 57(1)(a) resardless of whether an express application for a restricted licence pursuant to Regulation S¢(2)

has been made or whether any enpress incication has been civen

as to the applicant's prenarcd Limitations preseribed by Repulation OTC) and any other, anc

FISHNR J.: The relevant facts in this matter are set out in the reasons for judgment of my brother Deane which I have had the advantage of reading. I agree with his statement of those facts liis conclusions and his reasons for reaching his

conclusions which J edopt. I agree that the appeal should

There is however one matter which has given me some concern and upon which T desire to.make comment. Pursuant to Section 44 (1) of the Administcative Appeals Tribunal Act 1°75 an appeal lics to this Court only cn a question cf law. I would therefore wish to ensure thet in allowing this appeal we are completely satisiicd that there was an error of law on the part of the Tribunal. I am particularly concerned that this be so im that the error of lew in my opinion lics only on the question of renewal upon conditions of the appellant's licences

or either of them pursuant to Regulation 57 (2) of the Air

Navigation Regulations. Moxcover, this error of law arises circumstances where there is no evidence that the Director General of Air Navigation gave consideration to the exercise of his discretion under Regulation 57 (2) in respect of either licence and the Tribunal, thseugh no fault of its own, gave no effective consideration to factors which as a matter of law were in my opinion material to the question of the grant of such

restricted licences. In the ultimate I am satisfied that an

An error of law arises if there has been on the part of the Tribunal misapprehension or failure to take account of any material fact. "Relevant considerations must be taken into

account and irrelevant considerations disregarded":

Edition pages 84 and 253. Reference should also be made to

per Dixon J. (as he then was) and R. v War Pensions Pntitjcmenk'

In the present matter the error of law can be shortly stated as failure to take into account material facts in the exercise of the discretion under Regulation 57 (2). It is therefore necessary to determine what facts are beyond doubt material and to be satisfied that the Tribunal did not take

Under Regulation 57 (?) the Director General mey where the applicant fails to meet prescribed medical standards grant a licence subject to a specified condition and subject to such other limitations (if any) as the Director General considers necessary. Whe legislature gives no express indication of the considerations or factors material to the exercise of the discretion to grant such a restrictcd licence. This discretion

I hexeafter call "the primary Giscretion". It does however

give directions as to the conside: the optional imposition of limitations under 57 (2)(b). 57 (2) (b is in the following tc1ms namely:

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 way of contrast with the primary discretion, guidelines are thus provided as to the factors material to the Limitations which the Director General has a Giscretion to impose. 'There

is no obligation on the Director General to impose any

limitations other than the obligatory condition specifica

The Director Genera]. in the present circumstances had a discretion as to whether he would qrant either or both of the relevant licences, and iff hic did grant them, or either of them, he was obliged to impose the condition that the holder had no authority to engage in international air navigation, and he hac a Giseretion to impose other limitations. There is as T have stated no information as to what conside:ations the Directcr General should take into account in determining whether to

grant such a conditional licence, with or without limitations.

It these circumstances it seems to me that the conments of

& Sons 56 CLR 20 @ 32 assist to Getermine the material

factors. In reference to the powers conferred upon a Taxation Board of Review His Honovx had this to say: "A power given by the word "may" in such a provision must, I think, be understood as discretionary. It confers a discretion to release, or not to release, the taxpayer according to the boards' opinion of the justice of the

• case. Except for implications of inferences from the

three paragraphs prescribing the conditions precedent,

the subsection gives no information as to the congiderat by which an exercise of the discretion is to be guided. The nature of those considerations must be gathered from

Applying these words to the present matter, it is neccessary

to determine the scope and object of the provisions for the

purse of arriving as a matter of construction at the considerations relevant to the exercise of the primary discretion, The Tribunal found that there was no basis for exercising the discretion on the ground of hardship, and with this I would agree. However, the Tribunal went on to state that "the interests of air safety aie paramount and require us to refuse the grant of any licence". I would agree that the interests of air safety are expressly made paramount in determining what, if any, additional Limi tations are necessary but they are not expressly so stated in respect of the primary discretion to grant the restricted licence. Moreover, in considering air safety the Director General is required to consider it in the context of certain specified matters which are personal to the applicant. A further factor is that two licences were here under review, possibly requiring separate

As to the scope and cbject of the provision, it is obvious that Regulation 57 is based on.an assumption that a person should not hold an unconditional licence if he fails to meet certain medical standards. 'This assumption in my opinion provides the clue to certain matters that undoubtedly are material to the exercise of the primary discretion. The duration and the degree of recovery must surely be 'relevant fact ors, as must be all evidence as to the current medical condition (and prognosis) of the applicant. A fortiori such factors must be relevant where the disqualifying illness extended over

This inference as to the material factors, drawn from a consideration of the scope and object of the provision, receives support from the express reference to be found in Regulation 57 (2)(b) to the nature and extent of the failure of the applicant to meet prescribed modical standards. Additionalis in so far as there is express reference to the applicant's experience and ability as relevant to the limitations to be imposed, it is sufficiently clear that experience and obility should be factors to be taken into wecount in exercising the diseretion to grant one er other (or both) licences as

Thus it appears to me, as it ayyears to Deane J. that the Tribunal was in error if by referring to air safety it indicated its opinion that this was the only material factor. I am of opinion that ability, expexience and medical condition in the

sense above are material factors which the Tribunal is bound

to take into account, and there may be other factors. The gue tion is whether we can be satisfied that the fribunal failed to' pay regard to these factors, either on the ground that it

' 'But for certain statutory provisions to which I refer

later it might well have been difficult to be so satisfied.

The Tribunal has referred only shortly to the irrelevance of one factor which was pressed upon it, namely hardship, and then has merely stated that air safety is paramount. In these circum- stances it might be considered that "the precise reasons on

which the Board acted are not stated and are not known":

Denver Chemical Manufacturing Co v Commissioner of Taxation

(NSW) 79 CLR 296 @ 313 per Dixon J.). In that event the learned Judge goes on to say "it is probably necessary that, on a full consideration of the material which the Board had before it, the Court should be able to say that the decision of the Board could not be cmpluined on any ground which would be connected with the valid exercise of functions comaitted

to it" before the Court was entitled to intervene. As the present decision is capable of explanation on the basis that all material factors had boen considered by the Tribunal and that on balance the Tribunal was of opinion that the intercsis of air safety outweighed other relevant considerations, an erro:

Yowever in my opinion, this difficulty does not arise

because of the presence of Section 43 (2) in the Administrative

Appeals Tribunal Act 1°75, This subsection provides as follows: "(2) Subject to Sections 35 and 36 the Tribunal shall give reasons in writing for its decision and those reasons shall include its findings on material facts and a reference to the evidence or other material on

The crucial provisions of a similar enactment were considered

108 574 and in particular by Denning L.J. (as he then was) at

The Tribunal is thus obliged to give the precise reasons upon which it has acted and in particular its findings on material facts. It musk be assumed to. lave complied with the

requirements of Section 43 (2). In so far as it has not mado

any findings on those facts which in my opinion are materie]

to the exerc have considered that such facts were not material. As T have found these facts to be material, the Tribunal has failed to

take account of material facts. In so Going it has erred in

Jaw and thus en appeal J , it being on a question of law in

accordance with the require: of Section 44°(1) of the

I certify that this and the 7 preceding pages are a true copy of the Reasons for Judgment of Mr. Justice Fisher. ,