FEDERAL COURT OF AUSTRALIA

Ovens v Civil Aviation Safety Authority [2010] FCA 1354

THE COURT ORDERS THAT:

1.    The decision of the Tribunal be set aside.

2.    The parties are to file proposed draft orders by 14 December 2010.

3.    The parties are to file submissions on costs by 14 December 2010.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    Mr Ovens is 62 years old and has held a private pilot’s licence since 1981. He was diagnosed with Type 1 diabetes in 1960 at the age of 12. He is insulin dependent and since 12 December 2008 has used an insulin pump which enables him to monitor his blood sugar levels. Mr Ovens has a Class 2 medical certificate enabling him to fly with a safety pilot. He sought a Class 2 medical certificate from the Civil Aviation Safety Authority (the Authority) without the requirement for a safety pilot. He said that he wished to fly up to 300 hours a year for social and recreational purposes.

2    The Authority refused Mr Ovens’ request on the grounds that he does not meet the safety requirements under the Civil Aviation Act 1988 (Cth) (the Act) and the Civil Aviation Safety Regulations 1998 (Cth) (the Regulations). The Authority issued Mr Ovens with a Class 2 medical certificate with a condition permitting him to fly an aircraft as an insulin dependent pilot but only when accompanied by a safety pilot (the Authority decision). Upon receipt of a letter from Mr Ovens, the Authority decision was affirmed by the Authority. Mr Ovens applied to the Administrative Appeals Tribunal (the Tribunal) for review of the Authority decision. The dates of the hearing were 9 April and 28 April 2010. The Tribunal’s decision was handed down on 29 June 2010. The Tribunal affirmed the Authority decision. Mr Ovens now appeals the Tribunal’s decision to this Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).

3    The underlying factual matters are not in dispute. The Tribunal considered in detail the medical evidence in relation to Mr Ovens and the Tribunal’s findings in that regard are not challenged.

4    Mr Ovens contends that he was denied procedural fairness by the Tribunal in the way in which the Tribunal considered and applied the Authority’s “Protocol for Type 1 Diabetic Pilot Applicants” (the Published Protocol), which contains specific requirements for the issue of a Class 2 medical certificate. The Published Protocol was based on, but not identical with, a protocol issued by the US Federal Aviation Authority (the FAA Protocol). As recorded by the Tribunal at [6] of its reasons, a final version of the Published Protocol was issued on 22 April 2010 during the course of the Tribunal proceedings while the matter was adjourned part-heard. It is accepted for the purposes of this appeal that the Published Protocol was not brought to Mr Ovens’ attention or to the Tribunal’s attention until the evidence of the last witness at the hearing. The Published Protocol was tendered in evidence during re-examination of the Authority’s last witness, immediately prior to submissions by counsel for Mr Ovens to the Tribunal.

5    Mr Ovens was aware of a draft of the Published Protocol (the Draft Protocol). Mr Ovens formed the view, which is not challenged, that he could not bring himself within the application of the Draft Protocol. This is because the Draft Protocol could not apply to a person who uses an insulin pump, as Mr Ovens does. Mr Ovens’ application to the Tribunal concerned the application of the FAA Protocol to him.

6    Mr Ovens did not and does not challenge the admission of the Published Protocol into evidence before the Tribunal. He does not challenge the Tribunal taking account of the Published Protocol within the principles of Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. He submits that he was denied procedural fairness in the way in which the Tribunal considered and applied the Published Protocol without affording him the opportunity to deal with it.

7    For the purposes of this appeal, it will only be necessary to consider the relevant aspects of the Tribunal’s reasons. It will not be necessary to examine in detail the underlying medical issues with which the Tribunal dealt. The Tribunal’s conclusions on those medical issues are not the subject of this appeal.

8    Mr Ovens seeks orders that:

    The Tribunal’s decision be set aside.

    Upon Mr Ovens providing evidence to the Authority of his capacity during 15 dual pilot flights to monitor his blood sugar levels in conformity with the requirements of the Published Protocol, he should be included in the Published Protocol.

    Upon the receipt of satisfactory evidence, a direction that the Authority issue Mr Ovens with a 12 month Class 2 medical certificate to fly solo upon the condition that he monitor his blood sugar levels while performing flight duties.

Mr Ovens accepts that it is not for this Court to make the latter two of those orders.

The Tribunal decision

9    The Tribunal identified the issues as raised by Mr Ovens’ application at [8]:

    Whether Mr Ovens satisfies the criteria in reg 67.180 of the Regulations;

    If so, whether the medical certificate issued to him should be subject to any condition(s), and if so, what condition(s);

    Whether any condition(s) should be imposed in accordance with the Published Protocol, or the FAA Protocol, or a like protocol devised by the Tribunal.

It would seem from this description by the Tribunal of the issues that the hearing was not limited to the application of the FAA Protocol.

The Tribunal’s Application of the Medical Evidence to the Regulations

10    The Tribunal recited the evidence from Mr Ovens together with the evidence that was given by three endocrinologists who gave concurrent evidence, namely Professor Eastman, Dr Sulway and Professor Nicholson. Other evidence was received from Dr Navathe, the principal medical officer of the Authority, and Dr Fitzgerald, a senior medical officer at the Authority. Dr Fitzgerald provided a report dated 10 November 2009 and an affidavit dated 20 April 2010. Neither of those reports annexed the Published Protocol. As part of his evidence, Dr Fitzgerald said that he had consulted Dr Silberman of the US Federal Aviation Authority (the FAA) who, as set out by the Tribunal at [67], had said, inter alia, that the FAA had not accepted a blood sugar level below 6.4 as ‘it would put a pilot at an unacceptable risk of hypoglycaemia’ and that the FAA would not accept under the FAA Protocol a pilot with diabetes who had documented autonomic neuropathy or hypoglycaemic unawareness. One of the key medical issues before the Tribunal was Mr Ovens’ level of autonomic neuropathy and of potential hypoglycaemic unawareness.

11    The Regulations provide for the issuing of medical certificates. Regulation 67.195 allows the Authority to issue a medical certificate to a person who has applied under the Regulations ‘subject to any condition that is necessary in the interests of the safety of air navigation, having regard to the medical condition of the person’. Regulation 67.180 prevents the Authority issuing a medical certificate unless the person meets the “relevant medical standard” or, to the extent that the person does not meet that standard, the Authority is satisfied that the person is not likely to endanger the safety of air navigation. The criteria for medical standard 2 are set out in reg 67.155. The Tribunal noted at [76] that Mr Ovens has not met certain of those criteria, in that he has a “safety-relevant” condition that ‘produces any degree of functional incapacity or a risk of incapacitation’. Mr Ovens’ safety-relevant condition is insulin dependent Type 1 diabetes mellitus. Mr Ovens’ insulin therapy produces a risk of incapacitation due to hypoglycaemia. That is, Mr Ovens does not meet medical standard 2.

12    In exercising its discretion pursuant to reg 67.195 of the Regulations to issue a special certificate subject to any conditions considered necessary by the Authority, as noted by the Tribunal at [77], the Authority must be satisfied either that the person’s medical condition is not ‘likely to reduce’ the person’s ability to pilot an aircraft, or that allowing the person to fly is not ‘likely to endanger the safety of air navigation’. As the Tribunal noted at [78], the use of “likely” requires an exercise of judgment made within the ‘overriding consideration in the Act that any grant of a medical certificate must ensure the decision is not likely to endanger the safety of air navigation’. The Tribunal adopted Dr Navathe’s expression of the test as being ‘whether there is a real and substantial (and not trivial) risk to the safety of air navigation’. The Tribunal concluded at [79] that for a person with diabetes, ‘this means that the person must not suffer from significant diabetic complications and can provide evidence of an acceptable level of blood glucose control and freedom from hyperglycaemia requiring intervention’.

13    The Tribunal noted at [80] that reg 67.180(2) requires an examination of the extent to which the person does not meet the medical standard in determining what is acceptable. Again the Tribunal said that the principal consideration will be the extent to which the person is likely to endanger the safety of air navigation, taking into account the personal, aviation and aeromedical circumstances of the individual.

14    The Tribunal identified the issue as being whether the extent to which Mr Ovens did not meet the relevant criteria of medical standard 2 due to his peripheral and autonomic neuropathy, any resultant hypoglycaemic unawareness and biochemical hypoglycaemic episodes would not endanger the safety of air navigation.

15    As to the relevant medical issues, the Tribunal found:

    Mr Ovens’ health and visual ability provides no ‘real and substantial (and not trivial) risk to the safety of air navigation’.

    Mr Ovens’ peripheral neuropathy by itself at present provides no ‘real and substantial (and not trivial) risk to the safety of air navigation’.

    On its own, Mr Ovens’ autonomic neuropathy is not likely to provide a ‘real and substantial (and not trivial) risk to the safety of air navigation’.

    The risk of hypoglycaemia leading to cognitive unawareness is the most serious for a pilot with diabetes mellitus.

    Mr Ovens’ level of autonomic neuropathy cannot be looked at on its own. Mr Ovens’ age, the length of time in which he has suffered from diabetes mellitus and the fact that associated symptoms are progressive and irreversible even though, at this stage, they would not affect his ability to fly are all matters that must be looked at in conjunction with Mr Ovens’ level of autonomic neuropathy.

The Tribunal’s Approach to the Published Protocol

16    The condition imposed by the Authority on Mr Ovens’ licence was that he can only fly with a safety pilot. Mr Ovens sought an alternative condition in the Tribunal, namely that he be permitted to fly without a safety pilot but in compliance with the safety conditions in either the FAA Protocol, the “Authority’s Protocol” or a protocol as modified by the Tribunal (at [81]). The “Authority’s Protocol” referred to the Draft Protocol. The Tribunal in its reasons referred to the Published Protocol as the subject of one of the alternatives sought by Mr Ovens. The Published Protocol was not in existence when Mr Ovens filed his application with the Tribunal.

17    It is asserted by Mr Ovens and not challenged in this appeal that he did not direct his application to the Draft Protocol, which was then current, and which was, to Mr Ovens’ knowledge, the only protocol issued by the Authority, as the Draft Protocol provided that flights should not commence within 90 minutes of the administration of insulin (either the short or long-acting types). As Mr Ovens was on an insulin pump, he could not fulfil this requirement at the threshold. The Published Protocol added the proviso ‘unless an insulin pump is used’. The Tribunal observed, however, that the Published Protocol cites as exclusory criteria autonomic neuropathy and retinopathy without specifying any extent or level of either condition.

18    The Tribunal noted at [95] that counsel for Mr Ovens argued that the Tribunal should apply the FAA Protocol. The Tribunal said that this was in part ‘because counsel, like the Tribunal, was unaware that the [Published] Protocol was about to be published’. The Tribunal also noted that it reflected ‘the fact that on its face, the FAA Protocol does not include autonomic neuropathy as an absolute bar to solo flying of a pilot with diabetes mellitus’. The Tribunal noted the evidence from Dr Silberman that, in practice, the discretion to allow a person to fly solo would not be exercised in relation to a person with autonomic neuropathy. The Tribunal accepted that this evidence was correct. It concluded that, without any information as to what level of the condition would be exclusionary, this negated the principal benefit which adoption of the FAA Protocol would provide for someone like Mr Ovens (at [96]). In any event, the Tribunal noted that the Published Protocol was promulgated by the Authority ‘with the benefit of the FAA Protocol as a guide’.

19    The Tribunal accepted that the Published Protocol should be applied in Australia and, therefore, to Mr Ovens’ application. Because of the Published Protocol, the Tribunal considered it inappropriate to devise a specific protocol for Mr Ovens, given that the Published Protocol followed extensive consultation with experts, an advantage not available to the Tribunal. There were, however, other difficulties in applying the Published Protocol in the absence of consideration by the parties and submissions. The Tribunal said at [94]:

The Tribunal had no evidence to assist in resolving this issue since the Tribunal was only made aware that the Authority had issued its [Published] Protocol during the last day of hearing and it did not have the opportunity to see the [Published] Protocol before the end of the hearing. However, it recommends that the Authority clarify whether simply having any of these conditions is exclusionary or whether it is only if the condition poses a ‘real and substantial (and not trivial) risk to the safety of air navigation’ that someone would not be able to fly.

The Authority has in this appeal readily accepted that the test is whether or not the stated conditions pose a ‘real and substantial (and not trivial) risk to the safety of air navigation’. It is immediately apparent that the Tribunal’s uncertainty as to the test to be imposed in that regard is of importance, as Mr Ovens’ autonomic neuropathy would have precluded him immediately from application of the Published Protocol if the test were absolute in terms of the presence of that condition.

20    Turning to the application of the Published Protocol, the Tribunal noted that Mr Ovens would need to establish compliance with the criteria for its application. The Tribunal concluded that one of those criteria would be met but said at [98] that it was not in a position to assess whether Mr Ovens would meet other requirements in the Published Protocol. The Tribunal noted that, depending on the way in which the Published Protocol is construed and subject to clarification, Mr Ovens would be able to meet certain of its criteria. However, it is apparent that the Tribunal considered that the evidence did not address those criteria specifically and that it was not able to assess whether or not Mr Ovens would meet the requirements in the Published Protocol.

21    At [99]–[102] the Tribunal stated as follows:

The Tribunal is aware that the conjunction of the issue of the [Published] Protocol with the Tribunal proceedings meant the hearing, in many respects, was premature. That is because the Tribunal did not have the benefit of evidence in Mr Ovens’ case in relation to all the criteria in the [Published] Protocol. The Tribunal’s findings on some, but not all, of the matters covered in the [Published] Protocol indicate its findings that, in Mr Ovens’ case, the extent of some of the medical conditions relevant to whether he could fly without a safety pilot were not of such a real and significant nature as to be disqualifying.

The Tribunal notes that Professor Eastman suggested that Mr Ovens’ level of autonomic neuropathy should be tested with a nerve conduction study, a view with which it agrees. The Tribunal also notes the suggestion by Professor Eastman and Dr Sulway that for Mr Ovens, before the safety pilot can be dispensed with, he should be subjected to a period of observation, according to the medical experts for two to three hours, to ensure he could maintain control over his blood sugar levels while flying in a variety of conditions, and be tested to demonstrate his ability to comply with the [Published] Protocol.

However, if any degree of autonomic neuropathy or retinopathy is sufficient to disqualify a pilot from flying in accordance with the [Published] Protocol, Mr Ovens would automatically not be eligible.

If that is not the case, and it is only a real and significant level of diabetes-related conditions that create a real and substantial risk to the safety of air navigation which is exclusionary, then the Tribunal recommends that Mr Ovens be considered favourably for inclusion in the cohort of those who should trial the [Published] Protocol.

22    The Tribunal then noted Mr Ovens’ experience in managing his insulin pump, his awareness of impending hypoglycaemic episodes, his ability to manage his condition on a lengthy flight and in difficult flying conditions, his proficiency in using his blood sugar recording device and the fact that his conditions are not currently disabling and that the risk of having a hypoglycaemic episode is within the internationally tolerated 1% level. The Tribunal suggested that permission to participate in the cohort to trial the criteria in the Published Protocol (the Cohort), including the presence of a safety pilot for the requisite number and length of flights, would provide the objective evidence of Mr Ovens’ capacity which was not available at that time. However, ‘given the state of the evidence’, the Tribunal said at [104] that it had no option but to affirm the decision under review and to deny Mr Ovens’ request for a medical certificate without the condition that he fly with a safety pilot.

The notice of appeal

23    The questions of law as set out in the notice of appeal are:

1.    Whether the Tribunal denied Mr Ovens natural justice by deciding the application by reference to the Published Protocol in the circumstances summarised above.

2.    Whether the Tribunal breached s 39(1) of the AAT Act by reason of a failure to ensure that Mr Ovens had a reasonable opportunity to present his case in the circumstances.

3.    Whether the Tribunal failed to take relevant matters into account in its determination that there was no evidence of the matters referred to in [98] of its decision and that in consequence it was not in a position to assess whether Mr Ovens would meet the requirements in the Published Protocol.

24    The notice of appeal sets out a number of circumstances and grounds for the asserted denial of natural justice. As pressed at the hearing and in summary they are:

    The Published Protocol was newly promulgated and tendered without warning at the conclusion of the hearing.

    The Published Protocol was not considered by the Tribunal until after its decision was reserved.

    Mr Ovens had no opportunity to address the matters in the Published Protocol, or its application to him, or to adduce evidence on those matters.

    Mr Ovens had not presented his case on the basis of the Published Protocol and could not have done so as it was not published as at the date of his application and was not known to him or tendered in evidence until the conclusion of the hearing. If the Tribunal decided to apply the Published Protocol, in these circumstances it was obliged to inform Mr Ovens that it would consider the requirements of the Published Protocol and that evidence was lacking as to some of those requirements. This was necessary to enable Mr Ovens to address those issues and to consider whether or not to call additional evidence. In the alternative, the Tribunal should have offered Mr Ovens an adjournment to consider the Published Protocol and its effect on the presentation of his case.

25    In the notice of appeal the Court is asked to make findings of fact as to whether or not Mr Ovens has met the requirements of the Published Protocol. At the hearing, counsel for Mr Ovens accepted that those matters were not for the determination of this Court in an appeal under s 44 of the AAT Act.

Additional matters relevant to the application to the Tribunal

26    In his application to the Tribunal for a review of the Authority decision, Mr Ovens gave as one of his reasons that the Authority had failed to address the possibility of permitting him to fly in accordance with the FAA Protocol. There was no reference to the Draft Protocol. His request to the Authority had similarly referred only to the FAA Protocol. The response by Dr Fitzgerald on behalf of the Authority to a request by Mr Ovens to apply the FAA Protocol was in terms of Mr Ovens’ ‘marked peripheral and autonomic neuropathy’ and his ‘frequent biochemical hypoglycaemic episodes, [his] risk of hypoglycaemia and hypoglycaemia unawareness in flight’ which would make him ‘particularly unsuitable for such a protocol’. Those medical issues were addressed before the Tribunal.

27    In his written statement of evidence before the Tribunal, Dr Navathe referred to the FAA Protocol and questioned its adequacy, mainly by reference to the absence of evidence to support its safety and the fact that the data only record the number of reported incidents or accidents involving insulin dependent class 2 pilots. Dr Navathe said that ‘in the Australian context, the approach underpinning the [FAA] Protocol is not one which fits conformably with s 9A of the Act’. Dr Navathe noted that the Authority has a conservative position on the subject of insulin dependent diabetes based upon the statutory requirement that it must regard the safety of air navigation as the most important consideration. In referring to an Australian protocol, Dr Navathe annexed the Draft Protocol. As already noted, the Draft Protocol did not allow for insulin to be administered within 90 minutes of the commencement of a flight. Accordingly it excluded someone who, like Mr Ovens, has an insulin pump.

28    That is, Mr Ovens application to the Tribunal and the evidence in respect of that application centred on the FAA Protocol, with some reference to the Draft Protocol.

The TENDERING OF THE PUBLISHED PROTOCOL DURING the Tribunal HEARING

29    The Published Protocol was first mentioned in the evidence-in-chief of Dr Fitzgerald, who gave evidence for the Authority. Dr Fitzgerald said: ‘I don’t think we made any significant changes to our Protocol... I think the final draft of the Protocol didn’t change that much, from my memory.’ Of course, the change concerning the insulin pump, which the Authority’s counsel now refers to as “minor”, is a major change as far as Mr Ovens is concerned because the Published Protocol does not automatically exclude him.

30    The Published Protocol was first mentioned as having been published when counsel for the Authority then asked Dr Fitzgerald what the up-to-date position was with the Authority’s protocol. Dr Fitzgerald said that the Published Protocol had been released on the website the previous week as a final version. It was not tendered in evidence at that stage. At the end of re-examination, counsel for the Authority said that ‘it may be of assistance to the Tribunal again because today was the first time I’d even heard that it had been published on the website ... for us to obtain a copy of that and provide that’. Without any criticism of counsel, who obviously had not seen the Published Protocol, he stated that ‘we’ve annexed the preliminary version to Dr Navathe’s statement, so it really is updating the Tribunal, in respect of his evidence’. No attention was drawn to the change in the Published Protocol to the use of insulin pumps. The Published Protocol was then tendered as an exhibit.

31    The Tribunal then asked what it termed a ‘general question’ as follows:

We now know that the [Published] Protocol is on the website. And therefore, presumably, Mr Ovens could apply under that Protocol.

Mr Ovens’ counsel responded:

Well, he’s going to get knocked back. That’s – the big problem in this case is the late-rising issue of autonomic neuropathy.

32    Either counsel did not appreciate that Mr Ovens was now eligible or he understood, it is now known wrongly, that Mr Ovens would not meet the test for the Published Protocol because he suffered marginally from autonomic neuropathy, which would act as an absolute bar. The latter was the matter questioned by the Tribunal in the absence of submissions, as referred to in [19] above. The Tribunal then observed that ‘maybe this whole case has been premature’. Counsel for the Authority submitted that evidence of matters such as competence, capability and ability to fly under the Published Protocol could be considered and he observed that the safety pilot condition was ‘in fact an aspect of the [Published] Protocol anyway’. The Tribunal then said, ‘Alright. As long as you’re both aware that that was my thinking and my concern’. Mr Ovens’ counsel said, ‘Yes, I’ve got that’. It is not clear what counsel ‘got’.

33     Following this exchange, counsel for Mr Ovens addressed primarily on the application of the FAA Protocol. The Tribunal then asked him:

Now that we know that the [Published Protocol] is on the website, how can I avoid taking into account the current policy which is on the website, in relation to Mr Ovens’ application?

Counsel’s response was that he had only had a quick glance at that document during lunchtime and that he was not in a position to talk in detail about it. Counsel’s further response did not really address the Tribunal’s question.

34    The Tribunal then observed that the Published Protocol was not for consultation and that, following Drake, unless there was something unreasonable about the policy, the Tribunal should follow it. Counsel for Mr Ovens then submitted that it was unreasonable, by reference to the FAA Protocol. He repeated that he was unable to assist the Tribunal because he had not looked at the Published Protocol and continued:

I was attacking their thing in draft form, in unsettled form and dealing with the FAA Protocol, and then that’s taken away from me, here at the last minute. It’s most unfair, and not proper for a model litigant to be behaving in this manner when I’m in the middle of a hearing. It’s ridiculous. Most unfortunate for [Mr Ovens] who spent a lot of money doing this.

35    Counsel for the Authority then said:

Well, I’ve asked my friend to deal fairly with the issue, and the fact is that Annexure E of Dr Navathe’s statement sets out the [Draft] Protocol that’s now been placed on the website with one minor – well, one particular amendment to it that Dr Fitzgerald gave some evidence about.

The Tribunal then responded:

Unfortunately… for you, that particular amendment is of particular relevance to [Mr Ovens].

36    Counsel for Mr Ovens did not apply for an adjournment. The only reference to an adjournment was from counsel for the Authority who said:

With respect why in the conduct of a process that my friend knows is ongoing, that if there’s a point in time in which something is published, it was always going to be published, if the same comment had been made in January, or February, or March ... or if we were going to adjourn again, should we then not have published it on the website until such time as this particular case has been finished?

Counsel for the Authority then characterised such a suggestion in somewhat derogatory terms.

CONSIDERATION

37    There is no dispute that according procedural fairness in the making of administrative decisions denotes a common law duty to act fairly. As noted in Fletcher v Federal Commissioner of Taxation (1988) 84 ALR 295 at 308, citing Mason J in Kioa v West (1985) 159 CLR 550 at 585, the duty conveys ‘the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case’ and applies to proceedings in the Tribunal, in which the duty of the Tribunal can be likened to that of a court.

38    A denial of procedural fairness is an error of law for the purposes of an appeal from a decision of the Tribunal and the ground of such a denial raises a question of law. That is so whether or not the denial of procedural fairness results from a course of action chosen by the Tribunal in conducting a case before it and whether or not a denial is unintended and results from an error of fact made by the Tribunal (Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 at [8] per Gray ACJ and North J).

39    Mr Ovens points to Sullivan v Department of Transport (1978) 1 ALD 383 where the Full Court, in considering s 39 of the AAT Act, observed that the failure on the part of the Tribunal to adjourn the matter to enable a witness to be called or to alert the appellant of his right to apply for an adjournment constituted a denial of a reasonable opportunity to present the case. Justice Deane found that this is not only a statutory requirement under s 39 but also a statutory recognition of an obligation which the law would, in any event, imply. His Honour pointed out at 403 that ordinarily, in the absence of a request for assistance or guidance by a party who is appearing in person, a tribunal should not unduly interfere in the way in which a party conducts his or her case. However, his Honour drew a distinction between a refusal to grant an adjournment and circumstances where no application for an adjournment was made. His Honour noted that it is highly probable that the Tribunal in Sullivan would have acceded to such an application but said that the absence of an application for adjournment does not necessarily conclude the issue adversely to an appellant. It may, conceivably, constitute a failure to allow a party the opportunity of properly presenting the case, even though the party in question has not expressly sought an adjournment. The obligation on the part of the Tribunal is to ensure that a party is given a reasonable opportunity, although the Tribunal is not obliged to ensure that a party takes the best advantage of an opportunity to which he or she is entitled.

40    The gravamen of Mr Ovens’ submissions is that he accepted that the Draft Protocol did not apply to him and sought the application of the FAA Protocol. If the Tribunal was bound by the time of its decision to apply the Published Protocol, which Mr Ovens does not dispute, it should, he submits, have taken account of the fact that it was not tendered until the very end of the hearing and after his evidence was closed. Mr Ovens submits that if the Tribunal formed the view that he had not established on the evidence addressed to a different protocol that he came within the criteria of the Published Protocol, he should have been given the opportunity to address the Published Protocol and adduce further evidence, if he considered it necessary.

41    Prior to the re-examination of Dr Fitzgerald, the hearing before the Tribunal proceeded on the bases that Mr Ovens’ application was to apply the FAA Protocol and that there was no protocol issued by the Authority that was or could be applicable to Mr Ovens as an insulin-dependent pilot. In his written submissions Mr Ovens asserts, and the Authority does not dispute, that he did not object to the tender of the Published Protocol because it constituted an acknowledgement by the Authority that there were circumstances in which a diabetic with an insulin pump could fly without a safety pilot.

42    Mr Ovens contends that there was sufficient evidence before the Tribunal to allow it to find that he had satisfied the criteria to be admitted into the Cohort, the group of insulin-dependent pilots who satisfied the criteria and were then to be subject to in-flight testing. He has now provided a schedule of references to the evidence for each criterion. It is not, however, for this Court to determine whether or not the criteria were met, as Mr Ovens recognises. Rather, the purpose of the schedule of references is, he says, to demonstrate what he could have established before the Tribunal, given the opportunity. Mr Ovens’ schedule of references is sufficient to satisfy me that it cannot be said that, had he been given the opportunity to put further submissions or evidence to the Tribunal, it would have had no bearing on the outcome (Dagli v Minister for Immigration (2003) 133 FCR 541 at [91], citing Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1069 at [34] per Hely J).

43    The Authority submits that the prime issue before the Tribunal was whether, pursuant to reg 67.195 of the Regulations, the medical certificate that the Authority had issued to Mr Ovens should be subject to any conditions and, if so, what conditions. The Authority submits that the existence of the Published Protocol and its formal publication by the Authority was a matter duly open to be taken into account by the Tribunal in determining whether conditions different from those that the Authority had imposed on Mr Ovens’ medical certificate could apply. That is not disputed by Mr Ovens. He simply asserts that procedural fairness required that he be given the opportunity to call evidence and make submissions to the Tribunal as to that Published Protocol.

44    The Authority says that Mr Ovens recognised that his medical certificate must be subject to a relevant condition and that this may in turn be affected by various protocols developed by aviation authorities or by the Tribunal. That is so. However, it is not, in my view, the appropriate basis on which to dismiss the consequences of the application of a newly published protocol in the circumstances of this case. The Published Protocol raised different criteria to the FAA Protocol and the Draft Protocol. Different submissions on the evidence needed to be directed to those criteria and, perhaps, additional evidence called. Mr Ovens did not have the opportunity to seek to adduce such further evidence in this application or to make such submissions. Mr Ovens now points to evidence that he says would have satisfied the criteria of the Published Protocol. Whether or not the evidence relating to the criteria in the Published Protocol was already before the Tribunal is not to the point. Mr Ovens was not given the opportunity to direct the Tribunal’s attention to that evidence in the context of the criteria.

45    In his application to the Tribunal, Mr Ovens sought an order permitting him to fly without a safety pilot. The Authority submits that, once the Tribunal applied the Published Protocol, the Tribunal could not have made an order to that effect because the Published Protocol contains a requirement that a safety pilot be used in undertaking the necessary flights for the purpose of assessment for the Cohort. However, this requirement is only for the purpose of assessing the safety of a pilot under the Published Protocol. Mr Ovens was not given the opportunity to make submissions to the Tribunal as to whether or not he would be prepared to fly with a safety pilot for the purpose of this assessment.

46    The Tribunal put Mr Ovens on notice that it considered that Drake required the Published Protocol to be applied. Mr Ovens did not seek an adjournment of the Tribunal hearing, a factor on which the Authority relies in its submissions. It is possible that, had an adjournment been sought, it would have been granted. However, bearing in mind the way in which the evidence was adduced by the Authority, it is understandable that Mr Ovens did not appreciate the effect of the tender of the Published Protocol. It is fair to say that neither the Authority nor the Tribunal made explicit the effect of the acceptance of the Published Protocol into evidence. Although counsel for Mr Ovens said ‘I’ve got that’ in relation to the Published Protocol, he did not address the Published Protocol. In the circumstances, the Tribunal was not relieved of its obligations (Sullivan). The Tribunal did not explain its view that Mr Ovens had not adduced or directed his evidence to the criteria in the Published Protocol. This does not represent an obligation on the Tribunal to signal to Mr Ovens its contemplated decision. It is an evidentiary matter. It is apparent from Mr Ovens’ submissions to the Tribunal that he did not direct his case to the Published Protocol. The Published Protocol was a document the existence of which was apparently unknown (even) to counsel for the Authority (cf Donnelly v Repatriation Commission (1987) 73 ALR 350 at 358 per Burchett J). It was unknown to Mr Ovens. The possible significance of that document to the Tribunal decision was not evident to Mr Ovens. Mr Ovens did not have the opportunity within the time frame of the hearing fully to appreciate or to consider the criteria in the Published Protocol and the way in which the evidence could be directed to those criteria.

47    I accept that, with the exception of the change involving the insulin pump, the Published Protocol contains the same relevant criteria as the Draft Protocol. However, while the Authority repeatedly emphasises in its submissions that there is only a small change between the Draft Protocol and the Published Protocol, that change is crucial. It is the difference between a protocol that could apply to Mr Ovens and one that could not. That, in turn, affected his evidence and submissions.

48    Mr Ovens’ evidence was not directed to the Draft Protocol, as the Tribunal itself indicated. It is the case, as pointed out by the Authority, that Mr Ovens recognised the existence of the Draft Protocol, cross-examined witnesses and made submissions on aspects of that protocol. However, that was in the context of Mr Ovens’ application to apply the FAA Protocol in Australia. It was by way of comparison with the FAA Protocol and not to address his satisfaction of the criteria in the Draft Protocol. The fact that Mr Ovens was aware of the Draft Protocol and that it formed part of his evidence and submissions, in a context where it could not be applied to him but was used by analogy with the FAA Protocol, does not in any way derogate from his submission that he ought to have been afforded the opportunity to call evidence and make submissions on the Published Protocol, which the Tribunal determined should apply. At the very least, Mr Ovens should have had the opportunity to reconsider the evidence in order to make submissions that the evidence already available to the Tribunal satisfied the criteria of the Published Protocol.

49    I accept that the task of the Tribunal was to determine the correct or preferable administrative decision upon the evidence before it in relation to Mr Ovens’ medical certificate. I accept that the Regulations provide for the issue of a medical certificate subject to conditions, if such conditions are necessary in the interests of the safety of air navigation having regard to the medical condition of an applicant. The Authority points out that the Tribunal rejected the applicability of the FAA Protocol. Had the Draft Protocol been the only other alternative, Mr Ovens would not have succeeded before the Tribunal because he was not eligible for its application. However, he was eligible for consideration for the application of the Published Protocol. It did not automatically preclude a diabetic who used an insulin pump. From the Tribunal’s reasons it is apparent that the Tribunal considered it possible, if not likely, that Mr Ovens could apply to join the Cohort.

50    As I read the Tribunal’s reasons and its comment on the possible prematurity of the application, it gave a clear indication to the parties as to the appropriate course after its rejection of Mr Ovens’ approach. It may be for that reason that the Tribunal did not feel the need to offer Mr Ovens the opportunity to reopen his case or to make further submissions on the Published Protocol. It was not, and did not need to be, explained to the Court why the course suggested by the Tribunal was not adopted by the parties. However, in my view, the fact that it was not adopted is most unfortunate. It has apparently necessitated this application. It is even more puzzling as, during the hearing, Mr Ovens indicated that he was willing to join the Cohort to participate in the trialling of the criteria contained in the Published Protocol, which provides for a safety pilot for the requisite number and length of flights.

51    Nevertheless, in conducting its review the Tribunal was bound by the principles of natural justice (Fletcher). Mr Ovens should have been afforded an opportunity to deal with matters adverse to his interests that the Tribunal proposed to take into account in conducting its review (Kioa). Mr Ovens does not dispute that the Tribunal was obliged to consider the Published Protocol (Drake). Once the Tribunal received the Published Protocol into evidence, applied it by reason of Drake and rejected the utilisation of the FAA Protocol to which Mr Ovens’ application was directed, the Tribunal was obliged to bring to his attention the “critical issue or factor”, namely his compliance with the criteria of the Published Protocol (Kioa at 587, Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539 at [70]). As the Full Court said in Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590–591 (affirmed in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [32] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ), a party liable to be directly affected by the decision of the Tribunal is to be given the opportunity of being heard, which ‘would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material’ (original emphasis); that is, the issues arising in relation to the decision under review (at [33]).

52    Mr Ovens was made aware of the Published Protocol and the fact that the Tribunal considered the Published Protocol to be relevant to its decision. However, he was not made aware of the fact that the Tribunal proposed to apply the criteria to him, or that he needed to adduce evidence directed to those criteria, or to draw the Tribunal’s attention to the existing evidence as relevant to those criteria.

Conclusion

53    While the rules of natural justice did not require the Tribunal to reveal to Mr Ovens that it intended to rely on information of which he was or should have been aware (Re Minister for Immigration and Multicultural Affairs; Ex parte Cassim (2000) 175 ALR 209 at [22]), in the circumstances of the hearing and the way in which the Published Protocol came to the attention of Mr Ovens, it was apparent that he did not have sufficient opportunity to examine it in detail, or to determine the effect of it on his case. In the circumstances, the Published Protocol raised a new matter in respect of which, in fairness, Mr Ovens ought to have been afforded an opportunity to respond by way of further evidence and submissions (Pilbara at [72], and see generally the discussion by Goldberg J in Sokourenko v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 892 at [29]–[31]). This did not require the Tribunal to inform Mr Ovens of its preliminary or evaluative conclusions or its provisional views. There was practical injustice that followed the breach of the rules of natural justice (Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502). I am not persuaded that the breach could not have had a bearing on the outcome (Dagli at [96]).

54    I am satisfied that Mr Ovens was denied the opportunity to present his case on the applicability of the Published Protocol. The Tribunal may have been of the opinion that it was unnecessary to give that opportunity in view of its expressed suggestion that Mr Ovens should be included within the Cohort. However, for a reason unknown to the Tribunal and to the Court, that course has not been followed.

55    In written submissions after the hearing, the Authority affirmed a position that it made clear at the hearing, namely:

It is [the Authority’s] clear position that subject to [Mr Ovens’] level of autonomic neuropathy being tested with a nerve conduction study (as the Tribunal found should be undertaken…) and [Mr Ovens] providing updated information as required by the [Published] Protocol… such that he meets the “entry criteria”, he will be accepted into the [Cohort] as recommended by the Tribunal.

56    This, considered together with Mr Ovens’ position, as stated in his written submissions and during the hearing, suggests that the Tribunal’s suggestion was correct and that there is no real dispute. I was not informed why the various positions were not acceptable and it was not relevant to the application before me. However, it may be relevant to costs.

57    Mr Ovens has established that he was denied procedural fairness in the course of his application to the Tribunal. It follows that the decision should be set aside. The matter should be remitted to the Tribunal. I will hear from the parties as to any qualifications to this remittal. The parties should file short written submissions as to costs within 7 days.

Associate:

Dated:    7 December 2010