Costello v Controller of Civil Aviation [1977] PGSC 4; [1977] PNGLR 476 (23 November 1977)

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CIVIL AVIATION - Regulation of air navigation - Pilot’s licence - Appeal against refusal on ground that applicant by reason of colour vision defect did not meet vision standards - Onus on applicant for licence to prove his eligibility - Failure to prove requirements of medical standards met - Civil Aviation (Interim Arrangements) Act 1973 ss. 14, 17, Civil Aviation Regulations 1975 s. 57[dx]1, s. 267.

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’s 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. Jeffrey, 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 specialist ophthalmologist, 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.

The appeal being dismissed (see Costello v. The Controller of Civil Aviation (No. 1) [1977] P.N.G.L.R. 229, the appellant appealed therefrom to the Supreme Court of Justice pursuant to s. 4 of the Supreme Court Act, 1975.

N1>(1) The onus is on the applicant for a licence under the Civil Aviation (Interim Arrangements) Act 1973, to establish his eligibility for a licence including compliance with s. 57(1)(b) of the Civil Aviation Regulations; it is not for the Controller of Civil Aviation to prove his ineligibility.

N1>(2) Accordingly an applicant for such a licence cannot establish his eligibility and therefore is not entitled to a licence unless he submits himself to a medical examination as prescribed, and also makes full disclosure of previous medical examinations for the purpose of the grant of a licence and the result of each such examination.

N1>(3) In the circumstances, the appellant had not shown that he was eligible for the grant of a licence, and the refusal of the Controller of Civil Aviation to grant a licence was justified on the ground that the appellant had failed to satisfy the requirements prescribed by s. 57(1)(b) of the Civil Aviation Regulations.

N1>(4) Accordingly the appeal should be dismissed and the order of the National Court varied accordingly.

(per Frost C.J. and Williams J. Kearney J., dissenting.) To meet the standard of colour perception required by s. 47.3 of the Air Navigation Order (Australia), the applicant for the grant of a licence must show that he has the ability to distinguish readily those colours used in aviation, the perception of which is necessary for the safe performance of his duties, and demonstrate his ability in the manner prescribed in paragraphs 2-6 of that Order.

This was an appeal pursuant to s. 4 of the Supreme Court Act 1975. The appellant brought an appeal 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 licence, which was dismissed (see Costello v. The Controller of Civil Aviation (No. 1) [1977] P.N.G.L.R. 229 and this was an appeal therefrom.

FROST CJ: This appeal arises out of the refusal by the Controller of Civil Aviation to grant to the appellant, Mr. Costello, a First Class Airline Transport Pilot’s Licence.

An appeal against that decision was made to the National Court under the Civil Aviation Regulation 1975, s. 276a, and dismissed. This appeal from the National Court is brought under the Supreme Court Act, 1975, s. 4.

The appellant, who is a pilot of over 19 years’ experience, is employed by Air Niugini. He is the holder of a Second Class Airline Transport Pilot’s Licence which enables him in his present employment to act as co-pilot of Fokker F27 aircraft. After a previous tour of duty in 1966, he came to Papua New Guinea in 1973, having held a Commercial Licence for 8 years. At the end of 1975 he applied to the Controller for a First Class Licence. His professional qualifications are not in question. The application was refused on the ground that Mr. Costello had a colour vision defect and did not meet the vision standards required.

Mr. Costello contends that he for himself is not aware of any such defect. It was first noticed and brought to this attention when he failed a colour book plate test about 20 years ago when he was learning to fly. His present licence was at first subject to a night flying restriction but the restriction was removed after about 12 months. His Australian licence has lapsed because of non-renewal.

Apparently after December 1973 he had passed several pseudo-isochromatic plate tests which seem to have been made pursuant to an application for an Australian licence. In that type of test plates of varying shades of colour are displayed.

Following those tests a specialist medical panel was convened on 9th August 1974 in Melbourne, on behalf of the Australian Department of Transport. It was this panel which made the diagnosis of deuteranopia, which it found was a defect of a severe degree and defined as “a dichromatic form of defective colour vision characterized by confusions of red, yellow and green and of white and blue green’. It went on to find that the likely explanation of the appellant’s previous results was prior knowledge of the test, and use of extrinsic clues enhanced by oblique viewing. The panel did not pass the appellant upon the Farnsworth lantern test, under which lights showing red, green and white in varying combinations are illuminated upon a large cylinder.

After the appellant became aware of the panel’s decision he was puzzled, having been led to believe, he said, that he had no worries so far as sight was concerned, so on 1st December 1975 he called at the Victorian College of Optometry, from which panel members had been appointed, and underwent further tests. However, it seems that he gave the staff only a general clue. All he said was that he was interested in aviation and there may be doubts about his colour perception abilities. So the tests were conducted and assessed without the examiners being aware of the panel decision. In fact the appellant was assessed as passing the pseudo-isochromatic plate test, the Farnsworth test and also a Nagel anomaloscope test, in which yellow and mixtures of red and green colours are required to be matched. Encouraged by these results and having become sufficiently senior in Air Niugini to qualify for command training, the appellant then made his application for the First Class Licence.

Under the Civil Aviation Regulation made under the Civil Aviation (Interim Arrangements) Act 1973, a general medical examination including a colour perception test is required. It was for that purpose that the appellant presented himself before Dr. Parsons at Lae in January 1976. Dr. Parsons is an ophthalmologist, practising at that time at Angau Hospital at Lae. His finding was that the appellant passed the Ishihara plate test and the result was accordingly normal. However, acting on the report of the panel and the opinion of Lieut-Colonel R. J. Jeffrey, formerly the Superintendent of Aviation Medicine in the Department of Health, that the appellant suffered from deuteranopia permanently and to such degree that he did not meet the required standard, the Controller felt bound to refuse the licence.

Subsequently, on 4th November 1976 in Brisbane, the appellant presented himself to a specialist ophthalmologist, Dr. P. A. O’Connor, for a Farnsworth lantern test. He passed the test on the first run without error and again the result of the test was found to be normal. A request was made on behalf of the appellant that the Controller reconsider his decision, but it was refused and accordingly the appeal was brought to the National Court.

The relevant provisions of the Regulation are first those relating to medical standards, to be found in s. 57. Subparagraph (1) provides, so far as is relevant, that subject to the section an applicant for a licence under Pt. IV, which includes pilot licences, is not eligible for the grant of such a licence unless:

N2>“(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

(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 ...”

It is thus quite clear that an applicant cannot establish his eligibility and therefore is not entitled to a licence unless he submits himself to a medical examination as prescribed, and also makes full disclosure of previous medical examinations for the purpose of the grant of a licence, and the result of each such examination.

Secondly, Regulation s. 267 is relevant in relation to the Controller’s power to grant a licence. It provides that the Controller shall not refuse to grant a licence except on various grounds including that the applicant had failed to satisfy a requirement prescribed by the Regulation in relation to the grant of a licence, or inter alia, that in relation to the initial licence, that the applicant was not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of the licence applied for. (Section 267(1)(a)(i) and (ii)). That sub-paragraph has since been recast but is substantially to the same effect. Civil Aviation (Grant, etc., of Licence) Regulation 1976, No. 6 of 1977. The section also provides that whenever the Controller so refuses he should 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, s. 267(2).

Thirdly, in the provisions made for appeal to the National Court it is provided that the appeal shall be by way of rehearing and the Court may have regard to any evidence (including evidence not considered by the Controller) that is relevant to the matter. In deciding the appeal the Court may confirm, vary or reverse the decision of the Controller, (s. 267a(2) and (3)).

In his judgment upon the appeal to the National Court the Deputy Chief Justice dealt first with an objection by the Controller to the jurisdiction taken on the ground that the decision, it was said, was that of the Australian Government (acting through the Civil Aviation branch of the Department of Transport), and such a decision could not be questioned on appeal.

His Honour dealt in detail with the interim application of the Australian legislation and finally concluded that the Controller’s decision amounted to a ratification of Lieut-Colonel Jeffrey’s decision, and that on the facts the failure to grant a licence could be construed as a refusal by the Controller. In this Court Mr. Dabb, on behalf of the Controller, did not seek to canvass that ruling and indeed accepted it as correct.

His Honour then went on to consider the merits of the Controller’s refusal. His Honour pointed out that there was no evidence before the Controller or Lieut-Colonel Jeffrey, or indeed before the National Court, that the medical examinations on which the appellant relied to establish eligibility were made by “approved medical practitioners” within the meaning of the Regulation. Neither had it been shown that, at the time of being tested by Dr. O’Connor or 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). His Honour took the view that it was difficult therefore to see how the Controller could be satisfied as to the applicant’s eligibility for a licence, a preliminary point which the applicant must reach.

His Honour then considered whether upon the examinations actually conducted by the doctors concerned the appellant met the requirements of Australian Air Navigation Order 47.3[dxii]3 which pursuant to the Civil Aviation (Interim Arrangements) Act 1973, s. 17, was applicable, there being no provision under the Act with respect to the matter of medical standards. Upon this part of the case his Honour upheld the Controller’s refusal to grant the licence.

At the outset of the proceedings in this Court Mr. Dabb drew attention to the provisions of the Regulation, s. 57(1)(b), and applied for leave to read an affidavit by Lieut-Colonel Jeffrey in which it was said reference was made to the results of the various colour vision tests undergone over the years by the appellant for the purpose of a licence. Mr. Dabb also indicated that he would be seeking to support the decision of the National Court upon the ground that the applicant had not shown his eligibility under that section. He did not object to the appellant being called to give evidence upon this matter.

Upon consideration the Court refused the application on the ground that, as Mr. Dabb frankly admitted, the facts sought to be adduced were available at the time of the hearing before the National Court and it was because of an oversight that the evidence was not adduced. The requirements of the fresh evidence rule which is applicable under Supreme Court Act 1975, s. 7, were thus not satisfied. The Government of Papua New Guinea and Davis v. Barker[dxiii]⁴.

The view taken by the Court was that the particular provisions of that section over-ride the general provision contained in s. 9(e) which enables the Court to exercise any powers which may be exercised by the National Court, which would include the power of the National Court under the Civil Aviation Regulation 1975, s. 276a, to have regard to evidence not considered by the Controller. Mr. Dabb submitted that an exception should be made to the fresh evidence rule upon grounds of public policy such as where the public interest in air safety was involved. However, having regard to the nature of the evidence sought to be adduced which was only indirectly related to the issue, the Court did not feel it necessary to give any final ruling on that aspect of the argument and refused the application. Mr. Herron’s application to call the appellant would have involved the procedure, quite inappropriate to proceedings before a final court of appeal, of re-opening an entire issue of fact. It also was refused. Submissions were then made by counsel upon the whole of the case.

In my opinion the appeal does turn on the operation of s. 57(1)(b). I consider that Mr. Dabb’s submission is correct, that the onus is on the appellant to establish his eligibility for a licence including the compliance with s. 57(1)(b). It cannot be the effect of the Regulation for the Controller to prove that a pilot applying for a licence was ineligible.

Mr. Herron put forward two submissions on this point. He first relied upon the presumption omnia praesumuntur rite esse acta, which means all things are presumed to have been rightly performed. But this presumption applies to public offices and the presumption has been stated in these terms, that the duty of those who fill them are performed with regularity. Wills on Evidence, 3rd ed. p. 54. See also Halsbury, 4th ed., Vol. 17, par. 118.

In the circumstances of this case however a doctor conducting an examination is in no way fulfilling a public function or duty. His services are retained by the applicant, apparently at the latter’s expense. There can be no presumption that Drs. Parsons or O’Connor procured from the appellant a full and accurate declaration prescribed by the Regulation. The obligation to make the declaration is applicable only to the appellant.

Mr. Herron’s second submission was that the Controller must be restricted to the ground of the refusal and the facts or circumstances constituting that ground of which he gave written notification to the appellant. He thus argued that the Controller must be taken to have been satisfied that a medical examination in accordance with the provisions of s. 57(1) (a) and (b) (i) had been carried out. In this circumstance, it was said, no issue arose before the National Court on this aspect of the matter and the function of the Court was limited to the determination of issues raised between the parties. However, there is nothing in the regulations which enables the Controller to waive any of the requirements of eligibility for the grant of a licence. As has been observed earlier, the appeal to the National Court was by way of rehearing and the Court was standing in the shoes of the Controller. The appellant sought from the Court an order that he was entitled to a grant of the licence sought. It was thus incumbent on the appellant to satisfy the Court that all the requirements of the regulations relating to eligibility were met. In the rehearing before the National Court the point was certainly raised by the judge, in the terms already referred to, although he preferred to base his decision on the merits.

Moreover, it is basic to the facts of this case that the question of the appellant’s eligibility for a licence under s. 57(1)(b) is no mere technicality. (I shall leave aside the requirement, to apply the definition in s. 1, that the examination is to be conducted by a medical practitioner approved by the Controller, an objection which Mr. Dabb felt bound to press). I have already referred to the panel’s explanation of the appellant having apparently passed several psuedo-isochromatic plate tests. Included in the panel’s report is a comment upon the appellant’s apparent failure to pass a test of the same type called the AO-HRR. The panel suggested that “he requires prior experience and exposure to the tests, in order to simulate normal responses. The AO-HRR is not commonly used and therefore not readily available.”

The evidence of Dr. O’Connor, who was called for the appellant, bears upon this matter also. He was questioned about the comment by Dr. B. L. Cole, Ph.D., Director of the Victorian College of Optometry, that “successful simulation of normality is more likely if the examiner’s expectation is for a normal result”. Dr. O’Connor agreed that that was a possibility, “you can accept the test more easily if you are not doing it closely and expecting a normal result.” (So far as the Ishihara is concerned he considered that an applicant would find it difficult to learn by heart. Whether random testing is possible does not emerge.) It appears from the cross-examination that Dr. O’Connor was not at the time of the test aware of the panel’s report and diagnosis of deuteranopia. All that was put to Dr. O’Connor on behalf of the appellant was whether he was aware when he conducted the tests that other people had failed the appellant in certain tests. He answered that he could not remember definitely but he thought he was.

So far as Dr. Parson’s assessment is concerned, it is improbable that if he had been aware of the panel report his assessment would have been confined to the formal statement that the appellant was passed as fit without any reference to that report. It was not suggested in the hearing in the National Court that either doctor had been told of the appellant’s medical history.

In my opinion the absence of any evidence that the appellant made the required declaration is a matter of real substance and greatly affects the weight to be attached to the tests conducted by both Dr. Parsons and Dr. O’Connor. Accordingly, in my opinion, it has not been shown that the appellant was eligible for the grant of a licence and the Controller’s refusal is justified on the ground that the appellant failed to satisfy the requirements prescribed by s. 57(1)(b).

Having regard to that finding it is strictly unnecessary for my decision to express any opinion upon the proper construction of Air Navigation Order 47.3. However, it may be useful to add some brief observations. I agree with the Deputy Chief Justice that full effect has to be given to all the words to be found in paragraph 1 of that Order, so that to meet the standard the applicant must show that he has the ability to distinguish readily those colours used in aviation, the perception of which is necessary for the safe performance of his duties, and demonstrate his ability in the manner prescribed in paragraphs 2,3,4,5 and 6 of that Order.

The standard required is plainly not one of perfection, as Mr. Dabb for the Controller conceded. We are concerned only with the small group of persons, on the statistics, amounting to about 8 per centum, who suffer from defective colour vision. An applicant for a licence may suffer a colour vision defect and yet have the required ability to distinguish the necessary colours and, further, be able to demonstrate his ability in the manner prescribed. It is not clear whether this applies in the case of deuteranopia. The panel apparently thought not. But Dr. O’Connor, whilst conceding that deuteranopia was not excluded, was not prepared to discard the results of his Farnsworth lantern test. The finality accorded a pass on a Farnsworth colour vision lantern indicates that ability to distinguish red, green and white is sufficient. If a medical examination is conducted in accordance with the Regulation, the provisions of the colour perception standard would not seem difficult of application. Thus if an applicant, aware that he has this type of defect, provides himself with the reports of all former tests for the purpose of a licence and is thus enabled to comply with s. 57(1)(b) and make the required declaration, and an approved medical examiner after a full consideration of that history assesses him as having the required ability to distinguish colours, and the applicant demonstrates that ability as required, then I do not consider it would be open to the Controller to refuse the licence on the basis of the same medical history already taken into account by the examiner. The only course open to the Controller, it would seem, would be to give consideration as to whether he should exercise his rights under paragraph 6 of the Air Navigation Order.

There are two other matters I should advert to. The Deputy Chief Justice had regard to the colour perception requirements prescribed in the annex to the Chicago Convention to which Papua New Guinea is party. See annex 1, 6.4.2. Under the Civil Aviation (Interim Arrangements) Act, s. 14, that is a standard which Papua New Guinea is bound to observe. However, the terms of the standard which are that 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, does not seem to me to extend any further than the provisions of the Australian Air Navigation Order s. 47.3. The recommendations also are couched in rather indefinite terms.

Finally, I do not consider that this was a case in which, within the meaning of s. 267(1), it could be said that the appellant was not a fit and proper person to have the responsibilities of and exercise the functions of a holder of a First Class Licence. The expression “fit and proper person” has been the subject of judicial construction as shown in the cases cited by Mr. Herron. Thus “their very purpose is to give the widest scope for judgment and indeed for rejection. ‘Fit’ ... with respect to an office is said to involve three things, honesty knowledge and ability”. Hughes and Vale Pty. Ltd. v. New South Wales (No. 2)[dxiv]⁵, per Dixon C.J. The cases are collected also in Sakellis v. Officer in Charge Police, Paddington[dxv]⁶. Ability in body is of course included. But in view of the special provision for medical standards in s. 57 the expression “fit and proper person” must to that extent be limited and cannot extend to that subject matter. That was the reasoning behind the decision In re Sifter[dxvi]⁷. The special provisions for professional qualifications in that case meant that the expression could not apply to that subject matter, but otherwise its general application including bodily fitness was left unimpaired. Indeed Mr. Dabb does not seek to support the decision of the Deputy Chief Justice on this point.

For these reasons in my opinion the appeal should be dismissed. But as a view of the case has been taken which differs from the d ecision of the National Court, the order should be amended by the substitution of the following reason for the refusal of the licence, that is to say, that the applicant has failed to satisfy the requirements prescribed under the Regulation, s. 57(1)(a), in that he has not shown that he submitted himself to a medical examination by an approved medical practitioner or that at the time of the medical examination he made a declaration within the meaning of s. 57(1)(b), and that accordingly he is not eligible for the grant of a licence.

I note that on the evidence the National Court raised the question of the appellant’s fitness to hold his existing co-pilot licence. With respect to his Honour that matter was not in issue before the Court and remains one purely for the Controller.

WILLIAMS J: I have had the opportunity of reading in draft form the judgment of the Chief Justice. I agree with his conclusions and the order he proposes.

KEARNEY J: The appellant applied to the Controller of Civil Aviation for a first class airline transport pilot licence, in January, 1976. He was asked to undergo a medical examination. On 12th January before Dr. Parsons an ophthalmologist, he passed a test — known as the Ishihara Pseudo-Isochromatic plate test — to determine his ability to distinguish colours used in aviation. Before this Court it was conceded that Dr. Parsons was an ‘approved medical practitioner’, but that was never established below. By letter dated 21st May the Controller informed him, in effect, that his application was refused because he did not meet the colour perception standard required. On 4th November, he passed a Farnsworth colour vision lantern test in Queensland before an ophthalmologist, Dr. O’Connor; the Controller had not required him to take that test, nor arranged it; and Dr. O’Connor was never shown to be an ‘approved medical practitioner’ for the purposes of s. 57(1)(a) of the Civil Aviation Regulation 1975[dxvii]⁸. In December the Controller informed the appellant that he would not reconsider his decision. On 17th March, 1977 the appellant appealed to the National Court against that refusal. On 4th August, 1977 the National Court dismissed his appeal. From that decision of the National Court this appeal is brought.

An applicant for the licence must meet the colour perception standard. This requirement comes about as follows.

Certain international standards were adopted as minimum standards for the licensing of members of the operating crew of aircraft by the International Civil Aviation Organization[dxviii]⁹ and certain practices were recommended by it; these are set out in Annexes to the Convention on International Civil Aviation (Chicago, 7th December, 1944)[dxix]¹⁰, to which Papua New Guinea is and was at all material times, a party. ICAO considers that the uniform application of each standard is necessary, and the uniform application of each recommended practice is desirable, for the safety of international air navigation. Amongst them, are standards and recommended practices designed to enable the assessment of the medical fitness of an applicant for a licence. Of these, the following in Annexe I are presently relevant:

N2>“1.2.4.1. Contracting States shall designate examiners, licensed in the practice of medicine, to conduct the examinations for the assessment of medical fitness of applicants for the issue or renewal of the licenses. ...

N2>1.2.4.1.1. RECOMMENDATION — Examiners so designated should possess practical knowledge and experience of the environmental conditions in which the holders of professional licences and ratings carry out their duties.

N2>1.2.4.2. An applicant for a licence or rating for which medical fitness is prescribed shall sign and furnish to the medical examiner a declaration stating whether he has previously undergone such an examination, and if so, with what result.

N2>1.2.4.4. The Contracting State shall not issue or renew a licence if the medical requirements prescribed for the licence are not met. However, under special circumstances, the licence may be issued or renewed if the following conditions are fulfilled ...

N2>6.1.3. The applicant shall give a statement, certified by himself, of medical facts covering his personal, familial and hereditary history. The applicant shall be made aware of the necessity for giving a statement that is as complete and as accurate as his knowledge permits ...

N2>6.4.1. Each Contracting State shall use such methods of examination as will guarantee reliable testing of colour perception.

N2>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.

N2>6.4.2.1. RECOMMENDATION — The applicant should be tested for his ability to correctly identify a series of pseudo-isochromatic plates (tables) in daylight or in artificial light of the same colour temperature such as that provided by Illuminant ‘C’ or ‘D’ as specified by the International Commission on Illumination (I.C.I.). An applicant obtaining a satisfactory score as prescribed by the Licensing Authority should be assessed as fit. An applicant failing to obtain a satisfactory score in such a test may nevertheless be assessed as fit provided he is able to readily and correctly identify aviation coloured lights display by means of a recognized colour perception lantern.”

The Convention obligations are given effect to in the internal law of Papua New Guinea. Regulation 57 provides, so far as is relevant:

(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

N5>(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; ...”.

The medical standards are set out in the Air Navigation Orders[dxx]¹¹, which is Australian legislation in force here by virtue of s. 17 of the Civil Aviation (Interim Arrangements) Act 1973. Section 47.3 of the ANO sets out the colour perception standard required of flight crew members of aircraft; it is set out in the judgment of the Chief Justice.

I consider that the Controller’s letter of 21st May amounted to a notification in writing to the appellant of refusal to grant the licence sought; that it sufficiently specified a ground of refusal within s. 267(1)(a) of the Regulation, that is, that the applicant was ineligible in terms of s. 57(1)(a); and also sufficiently specified the facts or circumstances which constituted that ground, that is, a failure by the applicant to meet the colour perception standard. As was made clear before the National Court, the Controller had decided from an examination of the appellant’s medical history, particularly a report of 9th August, 1974, that he suffered from a colour vision defect known as deuteranopia; that as a result he could confuse the colours red and green, and possibly white and green; and that such confusion could be a hazard to air navigation.

The respondent very properly conceded before this Court that the Controller was the competent licensing authority. I might record here my concurrence with my brothers in the decision during the hearing to refuse the application by the respondent to adduce fresh evidence, for the reasons they have set out.

Before the National Court the appellant contended that the Controller had power to refuse to grant a licence only upon a ground specified in s. 267(1) of the Regulation; that the only such ground advanced was one within s. 267(1)(a), in that the appellant failed to meet the colour perception standard in s. 47.3 of the ANO; that, by passing the Farnsworth lantern test, and as the Controller had not expressed the doubts mentioned in par. 6 of s. 47.3 or required him to undergo further colour perception tests, he had in fact met the colour perception standard; and therefore, pursuant to par. 5 of s. 47.3. the Controller had to assess him as fit, and eligible for the grant of a licence so far as colour perception was concerned.

The Court considered that the effect of Papua New Guinea becoming a party to the Convention without qualification under Article 38, in the light of s. 14 of the Act, is that a person who cannot “perceive readily those colours the perception of which is necessary for the safe performance of his duties”, in the words of subdivision 6.4.2 of Annexe 1, cannot be licensed. On the evidence before it, the Court found that the appellant had a disability which rendered him unable so to perceive, and therefore he could not be licensed. I do not think, with respect, that this ground can be sustained. Subdivision 6.4.2. involves only a requirement that an applicant demonstrate the necessary ability, and the Court had earlier found that the appellant had done so.

Another ground was that “the applicant is not a fit and proper person”, within s. 267(1)(c)(ii) of the Regulation[dxxi]¹², on the basis that that phrase aptly described an applicant unable to meet the medical standard. Reliance was placed on In re Sifter[dxxii]¹³. For the reasons set out in my brothers’ judgment, I do not think this ground can be sustained. Ineligibility under s. 57(1)(a) of the Regulation is a ground solely for refusal under s. 267(1)(a), not s. 267(1)(c)(ii).

The Court observed that it had not been shown that the appellant had complied with s. 57(1)(b)(i), of the Regulation and therefore “it was difficult to see how the Controller could be satisfied as to the applicant’s eligibility for a licence”. The point does not appear to have been argued below but the respondent now contends it was part of the Court’s decision. The reasons for decision do not make it entirely clear whether the reference was to the evidence before the Court as well as the evidence before the Controller. It had been conceded before the Court that the appellant had been requested by the Controller to undertake a medical examination, and that he underwent it as requested.

There is thus some obscurity. The position is that it is for the applicant affirmatively to prove that he complied with s. 57 (1)(b)(i), and it was not possible for the point to be waived or conceded before either the Controller or the Court. I agree with the views of my brothers on the vital importance of this point, for the reasons they give; and on its effect.

As a third ground, in the forefront, the Court was of opinion that par. 1. of s. 47.3 of the ANO requires a successful applicant to:

The passing of a Farnsworth colour lantern test before Dr. O.Connor met requirement (b); but the appellant had also to satisfy the Controller as to (a), and on the evidence before him the Controller was entitled to decide that he was not so satisfied. On the evidence before it, the Court found that the appellant was a deuteranope and, as such, could not meet (a).

It is clear that under s. 57(1)(a) of the Regulation the Controller must be satisfied that an applicant meets certain medical standards. Amongst these is the standard for colour perception, detailed in the 6 paragraphs of s. 47.3 of the ANO. This provides the only relevant criteria for assessment of the applicant’s fitness.

The National Court was of opinion that par. I specified 2 requirements. I am, with respect, unable to accept that there is a true dichotomy. Ability or capacity such as the one in question is an innate quality, and its possession can be shown only by demonstration. The purpose of the Annexes and the internal legislation implementing them is to lay down objective tests to be applied uniformly, in the interests of air safety. The Standards in subdivision 6.4.1. and 6.4.2. of Annexe 1 are laid down in terms of methods and demonstration. The room for subjective assessment by the licensing authority is to be reduced as far as possible; its major function is to prescribe the passing score in the objective tests. If an applicant demonstrates an ability in accordance with the whole of pars. 2-6 of s. 47.3, then he has that ability. There is in my opinion a single standard — an applicant must satisfy the Controller that he has the ability to distinguish readily those colours used in aviation, the perception of which is necessary for the safe performance of his duties.

The various tests prescribed in s. 47.3 provided the technical means by which the applicant’s ability may be objectively demonstrated to the Controller, so that he may assess the applicant’s fitness. The Controller may be satisfied by a passing score in a test in par. 3 that the applicant has the required ability; but it is a matter for him — he has a discretion in the matter. There is in my opinion, no merit in the argument that “may” is to be construed as if it were the imperative “shall” in par. 3, particularly as par. 4 specifically contemplates an applicant tested under par. 3 and “who, having obtained a passing score has not been assessed as fit”. The Farnsworth colour vision lantern tests referred to in pars. 4 and 5 must be tests undergone at the direction of the Controller and in accordance with s. 57 of the Regulation; where par. 4 applies, as here, the applicant may require the Controller to direct such a test. A passing score in terms of par. 5 amounts to a direction to the Controller to find that the applicant has the required ability, unless the Controller invokes par. 6; I do not think that view is vitiated even if the Controller made his own Civil Aviation Orders under s. 16 of the Act, to replace the ANO. I consider that par. 6 vests in the Controller in the widest terms a discretion to require such further tests of colour perception as he thinks fit, where he entertains doubts; though he is not bound so to require. In considering the results of tests under s. 47.3 it is proper for the Controller to take into account the results of previous tests as a factor in determining whether further tests should be required, but it would not, in my opinion, be open to the Director to refuse to assess as fit on the basis of previous tests and medical history, an applicant who obtains a passing score on all tests, taken in accordance with the statutory requirements, as the Controller requires him to take under s. 47.3.

This is sufficient to dispose of the appeal. The Controller was quite entitled to refuse to assess the appellant as having the necessary ability, even though, in terms of par. 3, he passed the Ishihara test before Dr. Parsons. The appellant then had a right to undergo a Farnsworth test, in terms of par. 4, had he established that Dr. Parsons was an approved medical authority; and the Controller should then have arranged for him to do so, and considered the results before coming to the conclusion he did, in his decision of 21st May, 1976.

The Farnsworth test taken by the appellant upon his own initiative before Dr. O’Connor in November 1976 is not a test for the purposes of s. 47.3 of the ANO, and neither the Controller nor the Court need give it any weight.

The appellant may not have had the benefit of his right under par. 4, but he has not sought to enforce that particular right in these proceedings, or to attack the Controller’s decision as invalid; he claims the right to be eligible for a licence, as regards colour perception ability. A right to a test under par. 4 is not a right to be assessed as fit.

The most practicable order in the circumstances is that the appeal be dismissed. I agree with the terms of the order proposed by my brothers, and with their comments concerning the appellant’s fitness to hold his current licence.

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

N2>(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 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 organisation and may assist in the determination of whether he meets those medical standards.

[dxi]Infra p. 481.

[dxii]s. 47.3.

N2>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.

N2>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.

N2>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.

N2>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.

N2>5—An applicant who obtains a passing score on a Farnsworth colour vision lantern shall, subject to paragraph 6, be assessed as fit.

N2>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.

[dxiii][1977] P.N.G.L.R. 386.

[dxiv][1955] HCA 28; (1955) 93 C.L.R. 127 at pp. 156-157.

[dxv](1968) 88 W.N. (Pt. 1) (N.S.W.) 541.

[dxvi][1975] P.N.G.L.R. 435.

[dxvii]Hereinafter referred to as ‘the Regulation’.

[dxviii]Hereinafter referred to as ‘ICAO’.

[dxix]Hereinafter referred to as ‘the Convention’.

[dxx]Hereinafter referred to as ‘the ANO’.

[dxxi]Now re-numbered as s. 267(1)(d).

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

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Supreme Court of Papua New Guinea

Costello v Controller of Civil Aviation [1977] PGSC 4; [1977] PNGLR 476 (23 November 1977)

Papua New Guinea Law Reports - 1977