Costello v Controller of Civil Aviation [1977] PNGLR 229 (4 August 1977)

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CIVIL AVIATION - Regulation of air navigation - Pilot’s licence - Appeal against refusal - Appeal by way of rehearing - Jurisdiction of National Court - Civil Aviation Regulation 1975 s. 272.

CIVIL AVIATION - Regulation of air navigation - Pilot’s licence - Appeal against refusal on ground that vision defect did not meet vision standards - What standards applicable - Colour perception standards under s. 47.3[ccxi]1 of the Air Navigation Orders (Australian), and under Chicago Convention construed - Civil Aviation (Interim Arrangements) Act 1973, s. 17[ccxii]2 - Civil Aviation Regulations 1975, s. 57[ccxiii]3, s. 267[ccxiv]⁴.

CIVIL AVIATION - Delegation of power conferred by statute - Power to refuse grant of air pilot’s licence - Purported exercise of power of refusal - Assumed delegation - Adoption by Controller of Civil Aviation - Civil Aviation (Interim Arrangements) Act 1973, s. 17[ccxv]5 - Civil Aviation Regulations 1975, s. 57[ccxvi]6, s. 267[ccxvii]7.

The appellant, who was a pilot of over 19 years’ experience, suffered from deuteranopia, “a dichromatic form of defective colour vision characterized by confusions of red, yellow and green and of white and blue-green”, which had been diagnosed in 1974 by a medical panel convened on behalf of the Australian Department of Transport. In January 1976, he applied to the Controller of Civil Aviation for a first class airline transport pilot licence, and was asked pursuant to the Civil Aviation Regulations, to undergo a medical examination.

On 12th January, 1976, he passed a test known as an Isochromatic Plate test, but by letter dated 21st May, 1976, the Controller informed the appellant, in effect that his application was refused because he did not meet the colour perception standard required, (the Controller acting on the report of the 1974 medical panel and the opinion of Lt. Col. Jeffery, formerly the Superintendent of Aviation Medicine in the Department of Health). Subsequently in November 1976, the appellant underwent a Farnsworth Colour Lantern test in Brisbane conducted by a medical opthalmologist, Dr. P. A. O’Connor and passed the test. The appellant then requested the Controller of Civil Aviation to reconsider his earlier decision, but it was refused and the appellant then appealed to the National Court purportedly under s. 272 of the Civil Aviation Regulation made under s. 15 of Civil Aviation (Interim Arrangements) Act 1973.

On the hearing of the appeal objection was taken to the jurisdiction of the Court to hear the appeal on the ground that there had been no decision of the Controller of Civil Aviation and therefor no decision which could be challenged under the Regulation s. 272 procedure, the argument being that the decision was that of the Australian Government (acting through the Civil Aviation Branch of its Transport Department) and that the Australian Government was acting as agent not of the Controller of Civil Aviation but of the Papua New Guinea Government.

(1) Construing the Civil Aviation (Interim Arrangements) Act 1973 and the Civil Aviation Regulations (s. 57 and s. 267), the responsibility for ensuring that an applicant is eligible for a licence on the appropriate medical standards, and for the grant of licences lies on the Controller. That he may be entitled to delegate the exercise of his powers of decision in regard to those two matters (and had certainly purported to do so in regard to the latter) does not prevent the actual decision in any such matter from becoming in law the decision of the Controller for the purposes of the Civil Aviation (Interim Arrangements) Act 1973.

(2) Accordingly, once Lt. Col. Jeffery had made his assessment (even if made as an officer de facto (The King v. The Corporation of Bedford Level [1805] EngR 148; (1805) 102 E.R. 1323) and without proper delegation in law) and it was not demurred to but in fact adopted by the Controller, it became the decision of the Controller.

(3) Accordingly, there being in fact no grant of a licence, the facts should be construed as amounting to a refusal with a right of appeal under the Civil Aviation Regulations s. 272(1)(d).

(4) There being no provision made under s. 16 of the Civil Aviation (Interim Arrangements) Act 1973 pursuant to s. 57(1)(a) of the Civil Aviation Regulations, relating to colour perception standards, accordingly by virtue of s. 17 of the Civil Aviation (Interim Arrangements) Act 1973 the appropriate Air Navigation Order (s. 47.3) of Australia made under the Air Navigation Act (Australia) applied.

(5) Construing par. 2 of s. 47.3 of the Air Navigation Order of Australia two things are required: first that the applicant have the ability to distinguish readily those colours used in aviation, the perception of which is necessary to the safe performance of his duties, and second that he shall demonstrate his ability in the manner prescribed in paragraphs 2 to 6 thereof.

(6) Accordingly, despite the fact that the appellant had demonstrated ability under paragraphs 2-6 of s. 47.3 of the Air Navigation Order of Australia, the Controller of Civil Aviation was on the material before him entitled to be dissatisfied that the appellant had the necessary ability to distinguish readily those colours used in aviation, the perception of which is necessary for the safe performance of his duties.

(7) Further, the effect of Papua New Guinea becoming a signatory to the Chicago Convention (on international standards and procedures of air navigation) without seeking any dispensation on the score of colour perception standards, considered in the light of s. 14 of the Civil Aviation (Interim Arrangements) Act 1973, had the effect that, notwithstanding the provisions of s. 267 of the Civil Aviation Regulations or any Civil Aviation Order or Air Navigation Order of Australia, the licensing of a person who cannot “perceive readily those colours the perception of which is necessary for the safe performance of his duties” is not authorized by the Civil Aviation (Interim Arrangements) Act 1973.

(8) In the circumstances, the appellant had not established his eligibility for a licence under s. 57(1)(a) of the Civil Aviation Regulations in that though able to demonstrate ability to pass the Farnsworth Lantern Test, he could not be found to have the ability to distinguish readily those colours used in aviation for the reason that he is a deuteranope, and that he has such a disability as renders him unable to perceive readily those colours the perception of which is necessary for the safe performance of his duties.

(9) Accordingly, the Controller of Civil Aviation was justified in refusing to grant the licence sought and the appeal should be dismissed.

There being no evidence before either the Controller or Lt. Col. Jeffery, or before the Court, that the medical examinations upon which the appellant relied to establish eligibility were made by “approved medical practitioners” within the meaning of s. 57 (a)(a) of the Civil Aviation Regulations, nor any evidence suggesting that the appellant made the declarations required under s. 57(1)(b) of the Civil Aviation Regulations, the Controller of Civil Aviation could not, for this reason, be satisfied as to the appellant’s eligibility for the licence.

This was an appeal brought under s. 272 of the Civil Aviation Regulations made under s. 15 of the Civil Aviation (Interim Arrangements) Act, 1973, against the refusal of the Controller of Civil Aviation to grant to the appellant a first class airline transport pilot licence.

An appeal to the Supreme Court of Justice was dismissed on grounds other than those decided herein (see infra p. 476).

PRENTICE DCJ: The appellant contends that he has been refused a pilot’s licence of a type to which he is entitled, by the respondent Controller of Civil Aviation. He appeals against the Controller’s decision to the National Court. The appeal purports to be brought under s. 272 of the Civil Aviation Regulation made under s. 15 of the Civil Aviation (Interim Arrangements) Act 1973. So far as relevant, Regulation s. 272 may be read as follows:

The “Controller” is defined by the Act to mean the Controller of Civil Aviation, who by s. 8 thereof is charged with the administration of the Act (and hence the Regulation). “Licence” is defined by Regulation s. 266(1) to include those provided for by Regulation s. 51, which covers a pilot licence Class VI, namely “First Class Airline Transport Pilot Licence, being a licence authorizing the holder to act in regular public transport services as pilot in any capacity”. Regulation s. 50 sub-s. (2) nominates the Controller as the authority who may grant such a licence. The appellant already holds a pilot’s licence Class V (which authorizes him to act only as a co-pilot in regular public transport services). He has applied for a Pilot Licence Class VI.

After the taking of evidence, and following submissions on the facts and law by appellant’s counsel, an objection was taken by the respondent’s counsel to this Court’s jurisdiction to hear the appeal. That such an objection should not have been disclosed to the appellant’s solicitor and documented at an early stage, is to my mind a most unsatisfactory state of affairs. I indicated during the hearing that I would have been prepared to grant any adjournment necessary to appellant’s counsel to meet this point which was “sprung” on him, and if necessary, to have ordered the costs involved therein to be paid by the respondent. However, Mr. Griffin was able to his own satisfaction, to meet the objection, and has since rendered written submissions at my invitation. The manner in which the objection was taken has thrown on me the burden of undertaking considerable research that should have been undertaken by respondent’s counsel. It is essential that matters of such importance both to the individual appellant and to the country at large, be openly discussed in the frankest way, and after proper consideration. In recent times the courts have deprecated the raising of surprise issues (sometimes known as “trial by ambush”) of which notice could have been given; I should hope that such a procedure will not be adopted again.

It was submitted in support of the objection to jurisdiction that there has been no decision of the Controller, and therefore no decision which can be challenged under the Regulation s. 272 procedure. The decision, it is said, is that of the Australian Government (acting through the Civil Aviation Branch of its Transport Department), and such a decision cannot be questioned in this Court. It is also submitted that the Australian Government was acting as agent not of the Controller — but of the Papua New Guinea Government; and that any remedy must therefore be sought against the Papua New Guinea Government, and at common law — not by an appeal such as this. It may be thought surprising that counsel for the Controller should submit such an argument when the present licence under which the appellant operates (as a second class airline transport pilot) — it is in evidence — is on a form headed “Papua New Guinea — Department of Transport Civil Aviation Division” and is signed over the legend “For Controller of Civil Aviation”.

The appellant in his affidavit of 15th April to which certain letters are supposed to be, but are not, annexed, relates the circumstances in which he is said:

In paragraph 4 of this affidavit of 30th May, 1977, the Controller of Civil Aviation in Papua New Guinea (Mr. Tauvasa) states inter alia, in relation to Mr. Costello’s affidavit and application for a licence:

“... Although the said application was referred to me it was not referred to me for my decision thereon, as the issue or refusal of the said licence was and is out of my hands as elaborated upon further in paragraph 5 of this my affidavit.”

In paragraph 5, the deponent sets out his understanding of the effect of an “Agreement” between the Governments of Australia and Papua New Guinea. Paragraph 10 of his affidavit proceeds as follows:

“10. I have given consideration to the application of the appellant for the issue of the licences referred to in paragraph 8 of this affidavit. In my opinion I have a clear duty not to extend to the appellant the right to enable him to act in command of an airline aircraft.” (Emphasis mine.) “Operational situations can be envisaged where the avoidance of a collision between aircraft could depend on the correct interpretation of the colour of navigation lights. I am informed and verily believe that the appellant’s condition known as deuteranopia could cause confusion between red and green, and perhaps between white and green. Such a confusion could lead to errors such as incorrect determination of the flight path of a conflicting aircraft. In such a situation, if the appellant were pilot in command of an airline aircraft he could make a decision which could endanger aircraft and passengers. Accordingly I concur with the action of the Civil Aviation Agency in any action it may take to refuse the said application of the appellant. I have not myself refused to grant to the appellant the licence referred to in his notice of appeal filed herein. I have been advised by the Civil Aviation Agency by letter dated December 8th, 1975, as follows: ‘During 1974, the question of the issue of a First Class Airline Transport Pilot Licence was referred to Central Office. The following answer was received:

‘In reaching the decision which was implicit in the agreement to renew Mr. Costello’s second class airline transport licence, the unusual circumstances involved played a significant part. The decision was in no way intended to replace the normal policy of refusing to issue licences to colour vision defectives above the commercial pilot level. In other words, the decision in Mr. Costello’s case is not intended to establish a precedent and we would not agree to the issue of either a First Class Airline Transport Pilot Licence or a Senior Commercial Licence, irrespective of any question of daylight flying only endorsement.’

In the past, Mr. Costello has requested removal of the restriction pertaining to in-command night flying from his licence. At the time he was informed that the issue of a second class ATPL with the endorsed restriction was a concession against the standards, and that there was no intention to grant him any further concessions. Mr. Costello has now applied for the issue of a Papua New Guinea Senior Commercial Pilot Licence.’ ”

The somewhat complicated structure of administration of Civil Aviation affairs in Papua New Guinea arises no doubt from a determination to maintain international standards in a setting where relatively little experienced staff of the necessary kind — administrative, engineering, controlling and operational-flying, is yet available from indigenous sources; and no doubt it has been contrived in the attempt to comply with Papua New Guinea’s international obligations. It has its origin in the Civil Aviation (Interim Arrangements) Act 1973, operative from 1st December, 1973, which by ss. 10 and 11 allows the Government to enter into agreements with persons or authorities (including Governments) in relation to any matters of civil aviation. Section 10 allows that such an agreement may provide for the exercise by some such power or authority of any powers or functions under the Act. Provisions of an agreement under the Act are to have the force of law as if contained in the Act itself. A reference in the Act to an authority of Papua New Guinea is to be read, as appropriate, as a reference to the relative person or authority specified in or under the agreement for the purpose. Section 11 allows the delegation of powers and functions under the Act.

Up to 1st December, 1973, the Air Navigation Act of Australia together with the Air Navigation Regulations made under it, had applied in Papua New Guinea. The Civil Aviation (Interim Arrangements) Act 1973 suspended the Air Navigation Act from operation (s. 3), but provided for it to apply where no adequate provision was made under the Act with respect to any matter (s. 17). The basic effect of this was, that as no regulations were made under the Act at this time (between self-Government and Independence) the Act applied the Australian Air Navigation Regulations, together with the various Air Navigation Orders made under those Regulations. Air Navigation Orders are the Australian equivalent of Civil Aviation Orders (s. 16 of the Papua New Guinea Act).

At Independence, the Civil Aviation Regulation made pursuant to s. 15 of the Act came into operation. Its provisions are virtually identical to those of the Air Navigation Regulations, except for certain minor alterations, e.g. “Controller” was inserted in place of “Director-General”. Since Independence, the position would seem to be, therefore, that while Papua New Guinea has its own Act, Regulation and Civil Aviation Orders; the Australian Act, Regulations and Air Navigation Orders apply with the necessary modifications where a matter is not dealt with under Papua New Guinea legislation.

An “Agreement” entitled “Arrangements between the Government of Australia and the Government of Papua New Guinea in relation to the administration of Civil Aviation in Papua New Guinea”, apparently purporting to implement the provisions of the Civil Aviation (Interim Arrangements) Act 1973, was entered into between the Government of Australia and self-Governing Papua New Guinea on 16th November, 1973. Apart from the effect that this arrangement was entered into prior to the passage of the Civil Aviation (Interim Arrangements) Act 1973; s. 10(3) of that Act provides that a Civil Aviation agreement will have “the force of law as if contained in this Act” (only) where the “agreement makes a provision which it states to be in accordance with subsection (2) of this section”. Since the hearing of this appeal a copy of the Agreement has been provided to me. A perusal of it indicates, as one would expect, that it includes no such statement.

The power to enter into s. 10 agreements was vested in the Administrator in Council, although by virtue of the Constitutional Change (Consequential Provisions) Act 1973 (Repealed) which also came into operation on 1st December, 1973, the reference to “Administrator in Council” was on the day the Act came into operation, amended to “High Commissioner in Council”.

The “Arrangements” were in fact signed by the Minister for Transport, who did not have and still does not have power to enter into a s. 10 Agreement, that power now being vested in the Head of State acting on advice (Interpretation (Interim Provisions) Act 1975). It would seem that a statement that a provision under s. 10(3)(a) of the Act was in accordance with s. 10(2) would be regarded as a condition precedent for the implementation of a transfer of power (as contrasted with a delegation of power), such as is envisaged by s. 10(2) of the Act.

It appears to have been contemplated by the parties to the “Arrangements” that they should be replaced upon Independence by “a formal international agreement” (s. 27.3 of the Schedule to the Arrangements). Since Independence, such an Arrangement or Agreement, if to create legally binding obligations, would require to comply with s. 117 of the Constitution; it would not, I consider, have survived the attaining of Independence under Sch. 2.6(2) of the Constitution as a pre-Independence “law”. Apparently the administrative arrangements have continued post-Independence, on the basis of an exchange of letters between Ministers of the respective Governments. I am unable to see that the Agreement or Arrangement has the force of law as stipulated for by s. 10(3) of the Act. Section 16.2 of the Schedule to the Arrangement indicates that its provisions were to be implemented by way of delegation under the law of Papua New Guinea. (Outright transfer would not seem to be consistent with the transitional handover of powers.) As I have said, I believe the document to be merely administrative arrangements, and not a s. 10 Agreement capable of implementation as such. It is interesting to note, however, that the Arrangements in any event provided for “Aviation Medicine” to be discharged by the Government of Papua New Guinea as from self-Government (s. 11.2 of the Schedule), though “licensing” was to be discharged by the Australian Government through its Department of Civil Aviation on behalf of the Government of Papua New Guinea (s. 13.1).

Contrary, therefore, to my first impression on the subject, I am of the opinion that it is unnecessary to have recourse to the “Arrangements” (except perhaps as background material), for the decision of this preliminary point.

One goes to the Act itself. I pause at this stage to state that in the endeavour to ascertain the true legal position and what has transpired as to the delegation of and exercise of Civil Aviation powers, I have had to go beyond the matters sworn to in the affidavits filed. Certain correspondence was tendered on the appeal and departmental documents have been produced at my request. By s. 15 the Controller is empowered to delegate all or any of his powers under the Act, together with a power to sub-delegate “to any person”. Effect was given to the Arrangements by delegations under this section to the Secretary to the Department of Transport of Australia and to the Director of the Civil Aviation Agency. It appears that by letter dated 30th November, 1973, the then Director-General of Civil Aviation in Australia, Mr. C. C. Halton, purported to sub-delegate powers as to “Aviation Medicine” which he apparently regarded as delegated to him, to Colonel R. J. Jeffery (who is a Lieutenant-Colonel R.A.A.M.C. serving with the Papua New Guinea Defence Force as Director of Health Services). On 17th July, 1975, Dr. K. N. E. Bradfield, then Director of Civil Aviation in Self-Governing Papua New Guinea, similarly purported to delegate those powers to Colonel Jeffery.

On 16th September, 1975, that is at Independence, the Controller purported to revoke all previous delegations and delegated certain of his powers, under the Regulations to the Department of Transport of Australia and to the Director of the Civil Aviation Agency of the Department of Transport of Australia. I annex copy of this delegation to my judgment. The aforementioned Civil Aviation Agency had been set up as an Australian Government Agency to act for and assist the Papua New Guinea Government. The Controller specifically excepted from his delegation his powers under certain sections of the Regulation, amongst which were those under Regulations s. 57. This section provides:

“(1) Subject to this Section, an applicant for a licence under this Part” (Part IV that governing the licence in question herein) “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 Controller that he meets the medical standards adopted by virtue of the Convention and notified by the Controller in Civil Aviation Orders.”

The “Convention” is defined (s. 1(1)) to mean the Convention of International Civil Aviation Chicago 7th December, 1944. Civil Aviation Orders are provided for in s. 16 of the Act as follows:

“(1) The Controller may make orders, not inconsistent with this Act and the Regulations, for the Regulation of Civil Aviation in the Papua New Guinea Air Zone;

(2) Subject to this Act and the Regulations, the powers to make orders conferred by subsection (1) of this section extends to matters in relation to which:

(b) publications, directions or instructions might be published, given or issued under the Air Navigation Act by any Australian authority.”

Apparently Air Navigation Orders, the equivalent of our Civil Aviation Orders, have been promulgated to cover “Medical Standards for Flight Crew Members and Aircraft-Colour Perception Standards”. (Air Navigation Orders Pt. 47, s. 47.3, Issue 6.) This order is being referred to in this appeal. It has not been established whether the Controller has made any such Civil Aviation Order for the implementation of the aforementioned colour perception standards, and it is assumed by both parties, I think correctly, that the Australian standard is in effect here by virtue of s. 17 of the Act. Section 17 is as follows:

“(1) In any case in which no provision, or no adequate provision, is made by or under this Act with respect to any matter, the provisions of the Air Navigation Act and the Air Navigation (Charges) Act, with the necessary modifications, apply by virtue of this subsection as if included in the Act.”

The Act defines “Air Navigation Act” so as to include any Regulations and Instruments made under it.

The position would appear to be that though power to grant licences was delegated by the Controller by Instrument of 16th September, 1975, a delegate could not grant a licence unless the Controller was satisfied as to the applicant’s medical standards under s. 57 of the Regulation (the matter of this section having been specifically excluded from the delegation). Since the specific revocation of prior delegations by the instrument on 16th September, 1975, it appears there has been no subsequent delegation from the Controller to Mr. Jeffery of the powers under s. 57 of the Regulation. I understand the files to indicate that such a delegation was intended. The position in law would appear to be that the powers under s. 57 of the Regulation remain in the Controller.

The Regulation provides that the Controller or his delegate can only refuse the grant of licence on the grounds specified in s. 267. Where a licence is refused, grounds for refusal must be specified to the applicant (s. 267(2)), who then has a right of appeal under s. 272(1) (a) of the Regulation. Section 267 so far as is relevant provides as follows:

“(1) The Controller shall not refuse to grant a licence or certificate except on one or more of the following grounds:

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

(ii) that the applicant is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of the licence or certificate for which the application was made.

(2) Whenever the Controller 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.”

On a study of the Act and subordinate legislation, it appears to me that in Papua New Guinea law the responsibility for ensuring that an applicant is eligible for a licence on the appropriate medical standards, and for the grant of licences, lies on the Controller. That he may be entitled to delegate the exercise of his powers of decision in regard to those two matters (and has certainly purported to do so in regard to the latter), does not, I think, prevent the actual decision in any such matter from becoming in law the decision of the Controller for purposes of the Act — and hence for purposes of appeal therefrom. It is noteworthy that “Where under a provision, a power or function may be delegated no such delegation affects the exercise or performance of that power or function by the delegator ...”. (Interpretation (Interim Provisions) Act 1975, s. 41.) Lieutenant-Colonel Jeffery’s affidavit establishes that on 2nd February, 1976, he advised Mr. Costello that he was unable to medically recommend his application for a licence. Following the receipt thereafter of further information, he on 27th March, 1976, advised that he was unable to review his previous medical assessment. As I have indicated above, it is my opinion that once his assessment had been made (even if made as an officer de facto (The King v. The Corporation of Bedford Level[ccxviii]⁸) and without proper delegation in law), and was not demurred to but in effect adopted by the Controller, it became the decision of the Controller. I consider the Controller’s letter of 21st May, 1976, would amount to a ratification or adoption of Lieutenant-Colonel Jeffery’s decision as his own. Strictly then, the matter had not it seemed, got to the point of requiring a grant or refusal of a licence, for the applicant’s eligibility had been ruled against. In fact, however, there has been no grant of a licence, so that the facts may I think be construed as amounting to a refusal, that refusal being a refusal of the Controller. For the above reasons I consider that an appeal lies to this Court under s. 272(1)(d).

It is contended on behalf of the appellant that the Controller, on the facts presented to him, was not entitled to refuse the grant of a licence. His powers, it was said, are those set out in Regulation s. 267 — to refuse on failure to meet a specified requirement. The appellant says that the only prescribed requirement which it has been suggested that he fails to meet, is the Colour Perception requirement in s. 47.3 Air Navigation Orders (Australian).

The evidence reveals that following his application for a licence the appellant was required to undergo a Pseudo Isochromatic Plate test; and that he passed the same when it was conducted by Dr. George Parsons at Lae on 12th January, 1976. The Controller’s letter of 7th April, 1976, indicated that the Controller had regarded this test as having resulted in a failure. In his affidavit of 30th May, 1977, Mr. Tauvasa conceded that this statement was in error, and maintained that the failure to meet the prescribed standard for colour vision perception, was based on examination of the appellant’s medical history. In November 1976 the appellant had himself tested by Dr. P. A. O’Connor in Brisbane, by the Farnsworth Colour Lantern test. He passed this test and the Controller was so informed. (The appellant also swears in his affidavit that he passed the same test again in the Department of Civil Aviation Brisbane on his same visit there.) However, the Controller, through the State Solicitor, advised him in December 1976 that he was not prepared to reconsider the decision taken. Dr. O’Connor gave evidence in the National Court in which he conceded that the appellant who passed the Farnsworth Lantern test on its first run is colour defective. He classified him as a deuteranope — that is a person within the middle range of colour defectiveness. And he accepted the diagnosis made by a panel of doctors, contained in the panel’s report of 9th August, 1974. Dr. O’Connor expressed doubts about the ability to simulate correct responses to either Ishihara or Farnsworth Lantern tests, but agreed that with the Ishihara, a good deal depends upon the care and attention with which the examiner carries out the test and the setting in which it is being conducted. He explained that an examiner can accept the result more easily as amounting to a pass, if he is not doing it closely and is expecting a normal result.

It is submitted on the appellant’s behalf that the successful passing of a Farnsworth Lantern test is all that matters — any previous history may not then be looked at. This result flows it is said from the terms of the Air Navigation Order s. 47.3; which it is convenient that I set out now:

1. The applicant shall have the ability to distinguish readily those colours used in aviation, the perception of which is necessary for the safe performance of his duties, and shall demonstrate his ability in the manner prescribed in paragraphs 2, 3, 4, 5 and 6 of this Standard.

2. An applicant shall undergo such tests — including tests on pseudo-isochromatic plates used in daylight or in artificial light approximating Illuminant “C” or “D” of the International Commission on Illumination and the Farnsworth colour vision lantern — as he may be required by the Director-General.

3. Where an applicant who has, pursuant to paragraph 2 above, undergone an Ishihara or Bostrom-Kugelberg pseudo-isochromatic plate test obtains a passing score in that test he may, subject to paragraphs 4 and 6, be assessed as fit.

4. An applicant who has not obtained a passing score in the test referred to in paragraph 3 above, or who, having obtained a passing score has not been assessed as fit, shall have the right to undergo a test on a Farnsworth colour vision lantern.

5. An applicant who obtains a passing score on a Farnsworth colour vision lantern shall, subject to paragraph 6, be assessed as fit.

6. Notwithstanding anything contained in this Standard, where the Director-General has doubts as to the results of the tests or as to the manner in which the tests were administered to or undertaken by an applicant, the Director-General may require the applicant to undergo further tests of colour perception.

It was conceded by the respondent that the Air Navigation Order s. 47.3 applied to the situation. This concession appears rightly to have been made. Section 57(1)(a) of the Regulation provides for medical standards to be notified in Civil Aviation Orders to be made under s. 16 of the Act. No such Civil Aviation Order relating to colour perception standards appears to have been made. Accordingly, by virtue of s. 17 of the Act, the appropriate Air Navigation Order (s. 47.3) of Australia made under the Air Navigation Act, would apply.

In the interpretation of the colour perception standard, emphasis is placed on the contrast between the use of the word “may” in paragraph 3 in relation to the Ishihara or Bostrom-Kugelberg test — and the use of the word “shall” in paragraph 4 as to the passing of the Farnsworth Lantern test. As the Controller has not expressed “doubts as to the results of the test or the manner in which the tests were administered to or undertaken by (the) applicant”, and did not require the appellant to undergo further tests of colour perception, the matter of fitness is concluded in this case — it is said.

Now there was no evidence before the Controller, or Lt.-Col. Jeffery, or indeed before this Court, that the medical examinations on which the appellant relies to establish eligibility, were made by “approved medical practitioners” within the meaning of the Regulation. Dr. O’Connor has explained that some of the more sophisticated techniques of examination to which the appellant had previously been submitted were not available in Brisbane. Inferentially, a similar state of affairs existed as to Dr. Parsons in Lae. Neither has it been shown that at the time of being tested by Dr. O’Connor, Dr. Parsons and Civil Aviation in Brisbane, the appellant made declarations stating that he had previously undergone medical examinations for the purpose of a grant of a licence and with what result (s. 57(1)(b)(i)). It is difficult, therefore, to see how the Controller could be satisfied as to the applicant’s eligibility for a licence (a preliminary point which he must reach). It is clear that the Controller was not in fact so satisfied, however inappropriately he may have expressed himself, adopting as he had done, the conclusions of Lt.-Col. Jeffery. The basis on which Lt.-Col. Jeffery had made the medical assessment on which the Controller has relied appears from his affidavit of 24th May, 1977. He has relied on the diagnosis by the Victorian College of Optometry of 30th July, 1974, of Mr. Costello as a deuteranope. This diagnosis appears from the Director’s letter of 16th February, 1976, which Dr. O’Connor (in accepting the diagnosis), interprets as indicating that the appellant had failed the Farnsworth 100 Hue Test and the Nagel Anomaloscope Test, and possibly the Farnsworth Dichotomous Test. He has relied also on the Flight Crew Medical Assessment of 23.2.76, marked “So far as Australian professional licences are concerned — continues to fail as he fails to meet the colour perception standard”. And finally, on the report of a special panel consisting of an ophthalmologist, Dr. Cole, the Director of the Victorian College of Optometry — (apparently the senior body in the field in Australia), Dr. A. Isaacs (an ophthalmologist) and Dr. J. L. Colins (specialist ophthalmologist, Department of Transport). The latter document describes the applicant’s colour vision defect as:

“Deuteronopia which is a dichromatic form of defective colour vision characterized by confusion of red, yellow and green and white and blue-green.”

The panel’s report suggests as a likely explanation of the appellant’s ability to have passed several pseudo-isochromatic plate tests since December 1973:

“1. Mr. Costello has a typical inherited and congenital and defective colour vision of severe degree which is found among about 1% of males.

2. Failing to pass the A.O.-H.R.R. pseudo-isochromatic plate test suggests that he required prior experience and exposure to the test in order to stimulate normal responses. The A.O.-H.R.R. is not commonly used and is therefore not readily available, currently out of print.”

I am of the opinion that the proper construction of paragraph 2, s. 47.3 Air Navigation Order is that it makes two requirements, that:

(a) the applicant have the ability to distinguish readily those colours used in aviation, the perception of which is necessary to the safe performance of his duties; and that

(b) he shall demonstrate his ability in the manner prescribed in paragraphs 2, 3, 4, 5 and 6.

By passing the Farnsworth Colour Lantern test the appellant demonstrated an ability in the form prescribed by the standard. But that such a demonstration does not necessarily prove conclusively an eligibility on colour perception standards, is shown by the fact that the Controller, where he has doubts as to the results of the test or the manner in which the tests were administered, may require the applicant to undergo further tests of colour perception. If the interpretation of the section that is contended for by the appellant were correct, an argument possibly could be erected, that where a requirement of further tests resulted in a failure in regard to certain tests but a pass on the Farnsworth Colour Vision Lantern test, the applicant who had failed the other tests would nevertheless by virtue of having passed the Farnsworth Lantern test, be eligible for a licence.

It seems to me that the Controller and the person through whom I think he should be taken to have worked, should have in the circumstances obtaining here, entertained doubts as to the results of the more recent Farnsworth Colour Lantern tests and the Ishihara tests, and the manner in which they were conducted, having regard to the provisions of Regulation s. 57(b) (i) which I have mentioned above, and to the previous test history available to them.

Despite the Controller’s failure to require tests under para. 6 of s. 47.3, I consider as I have said above, that the Air Navigation Order concerned required him to be satisfied that despite a demonstration of ability under paragraphs 2-6 of the standard, the applicant in fact had the ability necessary to distinguish readily those colours used in aviation, the perception of which is necessary for the safe performance of his duties; and that he was on the material before him, entitled to be dissatisfied in this regard.

If I am wrong in my conclusion in regard to the interpretation of Air Navigation Order s. 47.3; and the prima facie effect of passing the Farnsworth Colour Lantern test followed by the failure of the Controller to require further tests is to establish a fitness for both limbs of para. 1 of s. 47.3; there nevertheless remains a further consideration which must be looked at.

“(1) All persons and authorities involved in the administration of this Act must ensure that the relevant provisions of the Civil Aviation Conventions (including standards and recommended practices and procedures in force from time to time under Article 37 of the Chicago Convention) are observed as fully and effectually as if Papua New Guinea were a contracting State to those Conventions.

(2) Nothing in this Act authorizes the doing of any act (including the making of regulations or Civil Aviation Orders):

(a) that would involve Australia in a breach of the Civil Aviation Conventions; or

(b) that, if Papua New Guinea were a Contracting State to those Conventions, would involve Papua New Guinea in a breach of those Conventions.”

On 14th January, 1976, Papua New Guinea became a party to the Chicago Convention and a member of I.C.A.O. Annex 1 of the Convention relates to the licensing of personnel and chapter 6 specifies medical requirements. Colour perception requirements are contained in chapter 6.4 as follows:

“6.4.1 Each Contracting State shall use such methods of examination as will guarantee reliable testing of colour perception.

6.4.2 The applicant shall be required to demonstrate his ability to perceive readily those colours the perception of which is necessary for the safe performance of his duties.”

Any State which finds it impracticable to comply in all respects with any such international standard or procedure, or to bring its own regulations or practices into full accord with any international standard or procedure after amendment of the latter, or which deems it necessary to adopt regulations or practices differing in any particular respect from those established by an international standard, shall give immediate notification to the International Civil Aviation Organization of the differences between its own practice and that established by the international standard. In the case of amendments to international standards, any State which does not make the appropriate amendments to its own regulations or practices shall give notice to the Council within sixty days of the adoption of the amendment to the international standard, or indicate the action which it proposes to take. In any such case, the Council shall make immediate notification to all other states of the difference which exists between one or more features of an international standard and the corresponding national practice of that State.”

Apparently no question of impracticability or of intended deviation as to colour perception standards has been notified under Article 38.

I consider that the effect of Papua New Guinea becoming a signatory to the Chicago Convention without seeking any dispensation on the score of colour perception standards, considered in the light of s. 14 of the Civil Aviation (Interim Arrangements) Act, has the effect that notwithstanding the provisions of s. 267 of the Regulation or any Civil Aviation Order or Air Navigation Order of Australia; the licensing of a person who cannot “perceive readily those colours the perception of which is necessary for the safe performance of his duties” is not authorized by the Act.

The appellant has endeavoured to persuade the Court by his evidence that the ability of a pilot to distinguish colours during navigation is of minor importance. There is never a situation, he says, when the pilot is forced to rely on colour distinguishing alone as a cue. I find myself unable to accept such an assessment of the importance of the distinguishing lights of planes, beacons, runways and taxi-ways. It is self-evident, I should have thought, that differential colouring of lights and markers has always been, and remains, an important aspect of navigation and of the handling of vehicles both in the air and on the ground. One would presume it the more important in situations where planes flying at high speed are in close proximity to one another, or in situations of limited visibility, even having regard to the existence of sophisticated modern aids. That the Air Navigation authorities in Australia regard it as of continuing importance, may be gauged from the original endorsement against night operations which appeared on the appellant’s (now defunct) Australian licence in regard to his permission to act as a pilot. Col. Jeffery has stated the opinion that it is theoretically possible that circumstances could arise involving the pilot’s colour vision which could lead to an accident (though highly improbable), and that he is unable to recommend medically the issue of a “First Class A.T.P. Licence”.

Section 276a of the Regulation provides that this appeal shall “be by way of re-hearing and the Court may have regard to any evidence (including evidence not considered by the Controller) that is relevant to the matter”. Having regard to all the evidence brought before me, I come to the conclusion that the appellant has not established the eligibility for a licence under s. 57(1)(a), in that though able to demonstrate ability to pass the Farnsworth Colour Lantern test he cannot be found to have the ability to distinguish readily those colours used in aviation for the reason that he is shown to be a deuteranope.

I also find, as it appears the Controller found, that (despite his own belief to the contrary) the appellant has such a disability as renders him unable to perceive readily those colours the perception of which is necessary for the safe performance of his duties.

I conclude that the Controller is legally unable to grant the licence sought in that a grant of licence to Mr. Costello would be in breach of Annex 1, Chapter 6, of the Chicago Convention and of s. 14 of the Civil Aviation (Interim Arrangements) Act 1973.

I am of the opinion therefore that the Controller was justified in refusing to grant the licence sought and that this Court should also refuse to order the grant of such a licence.

I am also of the opinion that the applicant is not “a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of the licence for which the application was made”. I note in this regard the decision of the National Court (Frost C.J.) In re Sifter[ccxix]⁹ in regard to a somewhat similar section in the Medical Services Act that the phrase “fit and proper person” may refer not to the possession of qualifications but to such matters as “physical or mental defects or a sufficient knowledge of the English language”.

I annex copies of the Controller’s delegation of 16th September, 1975, and for completeness that of 18th July, 1977.

The Order of the Court will be: that the appeal against the Controller’s decision be dismissed, but that the Controller’s decision as set out in his letters to the appellant of 7th April, 1976, 21st May, 1976, and in the State Solicitor’s letter of 21st December, 1976, be varied by the substitution of the following reasons for the refusal of licence:

(a) That the applicant has failed to satisfy a requirement prescribed or specified under the Regulation in that he has failed to satisfy the Controller that he meets the medical standards adopted by virtue of the Chicago Convention, namely in regard to the ability to perceive readily those colours used in aviation, and those set out in paragraph 1 of s. 47.3 Air Navigation Orders of Australia;

(b) That the applicant is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of the licence for which the application was made — because he has been unable to demonstrate his ability to perceive readily those colours the perception of which is necessary for the safe performance of his duties.

I further order that the Controller in compliance with Regulation s. 267(2) forthwith furnish the appellant notification in writing of his refusal, specifying the ground of refusal as above and the facts and circumstances constituting the ground.

I further order that the appellant pay the respondent’s costs of this appeal.

In view of the extraordinary chain of circumstances by which the appellant has come to have an albeit restricted (Papua New Guinea) A.T.P. licence, I should think it most desirable in the interests of the public and himself that the question of whether he should continue to hold that licence be definitively examined. To this end the Controller is empowered to order further tests. I see no reason why, if required, these should not be ordered to be of particular types, and taken before a particular Board of approved medical experts, which had been provided beforehand, with all the material presently available to the Controller and his Superintendent of Aviation Medicine.

I should mention that since the conclusion of hearing evidence in this appeal I have become aware that a Nagel Anomaloscope is available in Papua New Guinea in the custody of the Government Psychologist, Dr. Symons.

I, JOSEPH JAMES TAUVASA, Controller of Civil Aviation by virtue of the powers conferred by Section 11 of the Civil Aviation (Interim Arrangements) Act 1973, as amended to date, all other powers me enabling, hereby delegate to the person for the time being holding the office of Secretary to the Department of Transport of Australia and to the person for the time being holding the office of Director, Civil Aviation Agency of the Department of Transport of Australia, severally:

(a) all my powers and functions under the Civil Aviation Regulation 1975 other than the provisions of that Regulation specified in the Schedule; and

(b) the power to further delegate all or any of those powers and functions to a person or a member of a class of persons,

(a) all my powers and functions under the Civil Aviation Regulation 1975 other than the provisions of that Regulation specified in the Schedule; and

(b) the power to further delegate all or any of those powers and functions to a person or a member of a class of persons.

AND I hereby revoke Instrument of Delegation signed by me and dated the Sixteenth day of September, 1975.

3, 4, 5, 6, 7, 8, 11, 14, 15, 21, 57, 82, 104, 105, 108, 129, 134, 209, 210, 268, 269, 270, 271, 329 and 336.

[ccxi]Civil Aviation Regulations 1975, s. 57 provides:

(1) Subject to this Section, 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 Controller that he meets the medical standards adopted by virtue of the Convention and notified by the Controller in Civil Aviation Orders; and

(b) at the time of the medical examination he—

(i) makes a declaration stating whether he has previously undergone a medical examination for the purpose of the grant of a licence and, if so, with what result; and

(ii) answers all questions that, in the opinion of the approved medical practitioner, are necessary for determining whether he meets the medical standards referred to in paragraph (a); and

(iii) authorizes the disclosure to the Controller of any information that has been acquired by any medical practitioner, hospital or other medical organization and may assist in the determination of whether he meets those medical standards.

[ccxii]Civil Aviation Regulations 1973, s. 267 provides:

REFUSAL TO GRANT LICENCE OR CERTIFICATE (AMENDMENT OF SECTION 267).

Section 267 of the Principal Regulation is amended by omitting Subsection (1) and substituting the following subsection:

“(1) Where an applicant—

(a) has failed to satisfy a requirement prescribed by or specified under this Regulation in relation to the grant or recognition of a licence or certificate; or

(b) has made in, or in connexion with, his application a statement that is false or misleading in a material particular; or

(c) in relation to the initial issue of a licence or certificate, was the holder of a licence or certificate that has been cancelled; or

(d) is not, in the opinion of the Controller a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of the licence or certificate for which the application was made.

the Controller may refuse to grant or recognize a licence or certificate.

[ccxiii]Section 17(1) of the Civil Aviation (Interim Arrangements) Act 1973 provides:

“(1) In a case in which no provision, or no adequate provision, is made by or under this Act with respect to any matter, the provisions of the Air Navigation Act and the Air Navigation (Charges) Act, with the necessary modifications, apply by virtue of this subsection as if included in the Act.”

[ccxiv]Section 47.3 of the Air Navigation Order (Australia) appears at p. 240.

[ccxv]Civil Aviation Regulations 1975, s. 57 provides:

(1) Subject to this Section, an applicant for a licence under this Part is not eligible for the grant of such a licence, unless—

(b) at the time of the medical examination he—

(i) makes a declaration stating whether he has previously undergone a medical examination for the purpose of the grant of a licence and, if so, with what result; and

(ii) answers all questions that, in the opinion of the approved medical practitioner, are necessary for determining whether he meets the medical standards referred to in paragraph (a); and

[ccxvi]Civil Aviation Regulations 1973, s. 267 provides:

REFUSAL TO GRANT LICENCE OR CERTIFICATE (AMENDMENT OF SECTION 267).

Section 267 of the Principal Regulation is amended by omitting Subsection (1) and substituting the following subsection:

“(1) Where an applicant—

(a) has failed to satisfy a requirement prescribed by or specified under this Regulation in relation to the grant or recognition of a licence or certificate; or

(b) has made in, or in connexion with, his application a statement that is false or misleading in a material particular; or

(c) in relation to the initial issue of a licence or certificate, was the holder of a licence or certificate that has been cancelled; or

the Controller may refuse to grant or recognize a licence or certificate.

[ccxvii]Section 17(1) of the Civil Aviation (Interim Arrangements) Act 1973 provides:

[ccxviii](1805) 102 E.R. 1323.

[ccxix][1975] P.N.G.L.R. 435 at p. 438.

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Papua New Guinea Law Reports

Costello v Controller of Civil Aviation [1977] PNGLR 229 (4 August 1977)

Papua New Guinea Law Reports - 1977