Brian Michael Costello v The Controller of Civil Aviation (No 2)

• Jurisdiction: Papua New Guinea
• Judge: Williams J:
• Judgment Date: 23 November 1977
• Citation: [1977] PNGLR 476
• Court: Supreme Court
• Year: 1977
• Judgement Number: SC128

Supreme Court: Frost CJ, Williams J, Kearney J

Judgment Delivered: 23 November 1977

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

BRIAN MICHAEL COSTELLO

V

THE CONTROLLER OF CIVIL AVIATION (NO. 2)

Waigani

Frost CJ Williams Kearney JJ

10-11 November 1977

23 November 1977

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. 57Civil 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 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.1, s. 267.

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 — Colour perception standards under s. 47.3Infra p. 481.2 of the Air Navigation Orders (Australian) construed.

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.

Held

(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.

(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.

(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.

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

Semble

(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.

Appeal

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.

Counsel

B. J. Herron Q.C. and I. R. Molloy, for the appellant.

G. P. M. Dabb, for the respondent.

Cur. adv. vult.

23 November 1977

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...