FEDERAL COURT OF AUSTRALIA

Atieh v Civil Aviation Safety Authority [2012] FCA 1027

THE COURT ORDERS THAT:

1.    The application dated 24 November 2011 be dismissed.

2.    The applicant pay the respondent’s costs, to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The respondent, the Civil Aviation Safety Authority (CASA) primarily seeks orders for summary judgment pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act).

2    The applicant's case in this matter is based on allegations of unlawful discrimination. The alleged discrimination is related to the fact that CASA requested the applicant, in 2010, to submit additional medical reports as part of CASA's determination of whether the applicant would be issued with a medical certificate to enable him to lawfully pilot an aircraft.

3    Put shortly the applicant regarded these requests as unnecessary or unreasonable in light of the applicant's previous dealings with CASA. Indeed he informed the Court that he regarded the request by CASA that he submit a psychiatric report as insulting to him personally. For these reasons, the applicant refused to comply with these lawful requests and continues to do so. The applicant did not assert any inability on his part to comply with CASA's requests due to any disability. He was simply unwilling to do so for his own reasons.

4    I am satisfied that the application should be summarily dismissed under s 31A of the FCA Act. There is no foundation for the allegations of unlawful discrimination whether direct or indirect made by the applicant against CASA, and CASA should be spared any further expense and inconvenience in defending these proceedings. The applicant has no reasonable prospect of successfully prosecuting his application. There is therefore no need to consider the alternative relief claimed.

CASA's statutory function in issuing pilot licences and medical certificates

5    CASA is a statutory authority, established under the Civil Aviation Act 1988 (Cth) (the Act).

6    CASA's functions relevantly include conducting the safety regulation of civil air operations in Australian territory: s 9(1)(a) of the Act. CASA does this by means of, among other things, issuing certificates, licences, registrations and permits: s 9(1)(e) of the Act.

7    CASA, in exercising its powers and performing its functions, must regard the safety of air navigation as the most important consideration: s 9A(1) of the Act.

8    The statutory scheme and regulatory provisions provide for the following in the applicant's case:

(a)    It is an offence for a pilot to perform any duty authorised by a flight crew licence (such as the licence held by the applicant) if he or she does not hold a current medical certificate: Civil Aviation Regulations 1988 (Cth) reg 5.04.

(b)    The requirements for a medical certificate are set out in Pt 67 of the Civil Aviation Safety Regulations 1998 (Cth) (the Regulations). Subpart 67.C sets out the medical criteria for different medical standards and the means of meeting those standards. These include standards for the issue of medical certificates.

(c)    A medical certificate is obtained by application to CASA: reg 67.175 of the Regulations.

(d)    The requirements for issue of a medical certificate include that the applicant:

(i)    has undergone any relevant examinations that, in the opinion of CASA, are necessary in the particular case: reg 67.180 of the Regulations;

(ii)    has no medical history or clinical diagnosis of psychosis, personality disorder or mental abnormality that is safety-relevant: reg 67.150(1); 67.155(1); 67.160(1) of the Regulations;

(iii)    has no safety-relevant condition that produces any degree of functional incapacity or a risk of incapacitation: reg 67.150(1); 67.155(1); 67.160(1) of the Regulations; and

(iv)    has no physical conditions or limitations that are safety-relevant: reg 67.150(1); 67.155(1); 67.160(1) of the Regulations.

(e)    CASA can issue a medical certificate only if the person meets the relevant medical standards or if issuing a certificate will not affect the safety of air navigation: reg 67.180(2)(e) of the Regulations.

(f)    A medical certificate issued by CASA to a person who has undergone any relevant examinations required for the purpose of the issue of the certificate remains in force for the period set out in the certificate: reg 67.205 of the Regulations.

(g)    CASA may require a person holding a current medical certificate to submit to assessments to demonstrate that he or she continues to meet the relevant standard or that the continuance of the certificate does not adversely affect the safety of air navigation: reg 67.230 of the Regulations.

9    Section 98(6B) of the Act, in addition, provides that the Regulations may contain provisions inconsistent with the Disability Discrimination Act 1992 (Cth) (DD Act) if that is necessary for the safety of air navigation.

The relief claimed by the applicant and his allegations of discrimination

10    The originating application which is brought under the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act) claims $700,000 compensation as sole relief. He had earlier brought the same claim by complaint to the Australian Human Rights Commission (AHRC) which was on 11 October 2011, terminated by a Delegate of the President of the Commission under s 46PH(1)(c) of that Act. A formal Notice of Termination was issued to the applicant from the Commission on 11 October 2011. That termination enabled the applicant to bring the present proceeding in this Court.

11    The relief is claimed on the basis of discrimination; specifically, the DD Act. The applicant states the following in his originating application:

CASA discriminate against me & my family, did not do by the Rules set by CASA. CASA provide wrong information (mis Leading information). Will claim $700,000.

Transcribed without amendment.

12    I will now describe the applicant's case for discrimination before the AHRC and now this Court.

13    On 28 March 2008, the applicant applied for a flight crew licence with CASA. At that time, the applicant submitted to a number of medical assessments and tests, and had his application for a licence approved along with a medical certificate as certified by CASA. The medical certificate was expressed to be valid until 22 September 2010.

14    The applicant applied for renewal of his medical certificate in May 2010. He completed a Medical Questionnaire and Examination Form on 1 May 2008. This included, relevantly, information that he had been stabbed in 1998 in his right forearm requiring tendon and vascular repair but that he had made a full recovery. He later provided CASA with a handwritten note from a Dr Sam dated 13 August 2010 which was considered by a panel of doctors.

15    This note, whilst, in part, is difficult to read, records that the applicant had previously suffered from depression for which he was prescribed medication called Luvox. The note concludes:

He has some depression and sometimes he doesn’t trust some people.

16    CASA then wrote to the applicant by letter dated 9 December 2010. It was authored by Dr Ian Cheng from CASA’s Aviation Medicine section and contains CASA’s requests for further medical reports to be provided by the applicant. It is these two requests with which the applicant refused to comply and which are the genesis of this proceeding. It is instructive to set out its terms in full.

09 December 2010

Mr Mustafa Mahmoud Mustafa Atieh

84 HUNTINGDALE ROAD

HUNTINGDALE WA AUSTRALIA 6110

Dear Mr Atieh

The information supplied to date has been discussed by a panel of doctors. Unfortunately, the hand written note from Dr Sam dated 13/8/10 and extracts from what appears to be your case notes are neither sufficient nor legible enough for us to proceed with an appropriate risk assessment of your medical condition. It is also noted from the information provided from Royal Perth Hospital that it appears you did not attend the psychiatry outpatients appointment made for you for 17 December 2007.

Also, it is noted that you sustained a stab would (sic) to your right upper forearm in 1998. Dr Baskaranathan noted that at the time you could not use your hand to do even minor activities as it would provoke pain. The OT functional assessment stated you were unable to lift half a jug which weighed 800 gm.

Further to the letters from Dr Drane of 29/7/10 and 2/9/10, in order to finalise your medical assessment, more detailed information is required regarding your history of;

1) Mental health condition. CASA requires a typed report from a psychiatrist with respect to:

•    Date when first assessed

•    Onset of condition

•    Symptoms, including any of suicidal ideation, psychosis, mania or anxiety

•    Details of any hospital assessment

•    Treatment, response to treatment and side effects

•    DSM IV diagnosis

•    Current clinical status

•    Ongoing management plan

•    Prognosis

2) Right upper limb injury. CASA requires a typed report from your treating doctor with respect to:

•    Range of movement

•    Strength

•    Neurovascular status

•    Any ongoing requirement for analgesia

Please you show this letter to the doctors to ensure the required information is provided. On receipt of the two reports we will be pleased to continue the assessment. CASA is unable to cover any cost incurred.

Yours faithfully

Dr Ian Cheng

Aviation Medicine

17    The applicant has simply refused to comply with CASA’s requests for the two further reports described in this letter and indeed complained about being asked for such information in a letter to CASA dated 1 February 2011.

18    CASA responded by its letter of 15 March 2011 which stated:

15 March 2011

Mr Mustafa Atieh

84 Huntingdale Road

Huntingdale WA 6110

Dear Mr Atieh,

I refer to your correspondence of 1 February 2011 in which you complain that officers from the Civil Aviation Safety Authority (CASA) have requested additional information in relation to your aviation medical certificate. You state that CASA knew about your medical conditions when you initially applied for a student pilot licence and that these conditions have not changed since 1998. You believe that by issuing a medical certificate to you in 2008 CASA has wasted your time, effort and $30 000. You request compensation for the losses you have incurred.

In investigating your complaint I have reviewed the information you sent to me, CASA's file and information provided by your doctors. The outcome of my investigation is set out below.

On the 9th May 2008 CASA received a Medical Questionnaire and Examination Form for the Original issue of a Medical Certificate form for you completed by Dr Dymond. On that form your doctor advised that you had suffered pain severe enough to be disabling, taken medically prescribed drugs for longer than two consecutive weeks and had a major surgical operation.

In the comments section of that form, Dr Dymond notes that in 1998 you were attacked by a group of drunken individuals and stabbed in the proximal, medial right forearm. This required tendon and vascular repair and for several weeks you took pain killers and anti-inflammatory medication. Dr Dymond noted that you made a full recovery with ‘ROM, strength and no sensory loss’ and that you no longer required any medication.

Dr Dymond said that you have have (sic) not:

- ‘suffered from any nervous breakdown or anxiety state

- received any psychiatric examination or treatment.’

You did not disclose your use of the drug Luvox or your history of depression and anxiety on this form. Your medical certificate was issued on the basis of the information you provided.

On 3rd March 2010, in a phone conversation with CASA officer Tim Popham, you advised that you have been on Luvox since 2002. On the Medical Questionnaire and Examination Form for the Original issue of a Medical Certificate form dated 22 July 2010 Dr Ward advised that you have taken medically prescribed drugs for longer than two consecutive weeks and, in the comments section, advised that you were prescribed Luvox at 50mg per day. He notes

-'Pt reports that he does not take this when flying and he takes the tablets when he is stressed.'

Dr Ward also answered yes to the question

-'Do you consider there are any areas of concern in the applicant's assessment which require specialist referral or counselling?'

There are a number of inconsistencies between the medical history provided to CASA in 2008 and that which has subsequently come to light. First, although you were prescribed an anti-depressant from 2002, this was not disclosed on your 2008 medical form. If you had disclosed that information at the time, CASA medical officers would have undertaken the same investigations and assessments at that time as are currently in train.

Further, in a telephone conversation with CASA's Chief Medical Officer on 7 September 2010 you advised that you had been in receipt of a disability support pension from Centrelink. The fact that you had been in receipt of such a payment, even if it ceased at some point, suggests that you have or had a level of impairment that was not disclosed to CASA.

From my investigation it appears that CASA officers relied on the information you and your doctor provided in 2008 to issue you with a medical certificate. It has subsequently become evident that the information on which they relied was not complete. It is not possible for me to decide whether you would or would not have been issued with a medical certificate at that time if your complete medical history was known - that would have been dependent on the assessment of the medical officers at that time. However it is not reasonable to say that these officers were deficient in any way in issuing your certificate at that time when they relied on the information provided by you.

Further, when learning of your psychological condition and that you have previously been assessed by another Australian government agency to have an impairment that warranted the payment of a disability support pension, the CASA medical officers had no option but to seek further and better particulars of your medical conditions in order to make a proper assessment. I understand that they asked you to provide information from your treating doctors in order to fully understand the nature and effect of your depression and the limitation in movement and strength in your previously injured arm. The Aviation Medicine Branch is awaiting those details in order to make an assessment about your current medical certificate.

Consequently I do not believe that members of the Aviation Medicine Branch are acting inappropriately in seeking further information about your medical conditions or that they were deficient in issuing your medical certificate in 2008. I trust this has clarified the situation.

Yours sincerely

Elizabeth Hampton

Industry Complaints Commissioner

19    The applicant claims that CASA had not performed their duties towards him with "fairness and decency" and he blames CASA for its "careless contradicting sense of judgment". He states that he "wasted nearly 2 years and over 30 thousand dollars".

Other evidence filed by the applicant

20    The applicant has also filed an affidavit dated 15 June 2012 in support of his claims.

21    The affidavit largely repeats allegations already made above, but adds the further detail that, according to the applicant, he provided certain information to Dr Dymond who was the doctor who assessed him in 2008 as part of his application for a medical certificate. Specifically, the applicant seems to claim that he filled in a form at the time he was assessed by Dr Dymond, advising that he was on "disability", presumably a disability pension, and taking pain killers.

Respondent's interlocutory application

22    The grounds for the application are set out in the interlocutory application. CASA submits that the proceeding should be dismissed under:

(a)    section 31A(2) of the FCA Act; and/or

(b)    rule 26.01(1)of the Federal Court Rules 2011 (Cth).

23    Specifically, CASA relies on there being no evidence of:

(a)    any attribute of the applicant in respect of which the respondent is said to have discriminated unlawfully against the applicant;

(b)    any basis upon which it might, even arguably, be contended that the respondent has discriminated unlawfully (indirectly or directly) against the applicant in any way; and

(c)    any loss which can conceivably be said to have arisen from any relevant alleged unlawful discrimination.

Section 31A of the FCA Act

24    Section 31A(2) of the FCA Act provides:

(2)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

25    The purpose of the Migration Litigation Reform Bill 2005, which inserted s 31A into the FCA Act, was described in the Minister’s Second Reading Speech (10 March 2005) as “strengthen[ing] the power of the courts to deal with unmeritorious matters, by broadening the grounds on which federal courts can summarily dispose of unsustainable cases”: see also, Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 at [124].

26    The plurality in the High Court decision of Spencer v Commonwealth of Australia (2010) 241 CLR 118 observed the following at [52] and [59]:

[52]     … the inquiry required … is whether there is a “reasonable” prospect of prosecuting the proceeding, not an inquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.

. . .

[59]     In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or “faulty”. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A.

Unlawful discrimination under the AHRC Act and the DD Act

27    The Court's jurisdiction in the present case is invoked under s 46PO of the AHRC Act. Part IIB of the AHRC Act, in which s 46PO is situated, deals with redress for unlawful discrimination. Under s 3 of the AHRC Act, unlawful discrimination includes, relevantly, any acts, omissions or practices that are unlawful under Part 2 of the DD Act. The DD Act does not itself provide any person with a cause of action in regard to an act of unlawful discrimination. That right is provided by the AHRC Act.

28    Division 1 of Pt IIB of the AHRC Act, which consists of ss 46P to 46PN inclusive, deals with conciliation by the President of the AHRC following the lodging of a complaint with the AHRC alleging unlawful discrimination. The AHRC's duty then, through the President, is to attempt to conciliate the complaint. If there is no reasonable prospect of the complaint being settled by conciliation, it may be terminated by the President.

29    Division 2 of Pt IIB of the AHRC Act, which consists of ss 46PO to 46PV inclusive, then deals with proceedings in the Federal Court and the Federal Magistrates Court where a complaint has been terminated by the President of the AHRC. Section 46PO does not provide for a general statutory cause of action available to anyone who may have been at any time affected by the unlawful discrimination. The statutory cause of action is only available to those who made the complaint or on whose behalf the complaint was made and it only lies in respect of the subject matter of the complaint to the AHRC.

30    If the Court is satisfied that there has been unlawful discrimination, it may make such orders as it thinks fit: s 46PO(4) of the AHRC Act. The orders specifically mentioned include an order requiring the respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent: s 46PO(4)(d) of the AHRC Act.

31    For a right of relief to be available under s 46PO of the AHRC Act, then, the applicant must demonstrate unlawful discrimination within the meaning of one of several Acts: the Age Discrimination Act 2004 (Cth); the DD Act, the Racial Discrimination Act 1975 (Cth) or the Sex Discrimination Act 1984 (Cth).

32    The applicant's allegations concern the DD Act which divides discrimination into direct and indirect disability discrimination, and prohibits it by reference to particular situations in which discrimination is made unlawful. It would appear that s 29 of this Act is the relevant prohibition in this case and it reads as follows:

It is unlawful for a person who performs any function or exercises any power under a Commonwealth law or for the purposes of a Commonwealth program or has any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program, to discriminate against another person on the ground of the other person's disability in the performance of that function, the exercise of that power or the fulfilment of that responsibility.

33    The definition of "discriminate" picks up ss 5 and 6 of the DD Act and their description of what it is to engage in direct or indirect discrimination.

34    Pursuant to s 5 of this Act, direct discrimination occurs if:

because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.

35    Pursuant to s 6(1) of this Act, indirect discrimination occurs if:

(a)    the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

(b)    because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and

(c)    the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.

36    Under s 6(2) indirect discrimination can also arise if:

(a)    the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

(b)    because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and

(c)    the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.

No reasonable prospect of success

37    When it terminated the applicant's complaint, the AHRC summarised the effect of his complaint of discrimination in a manner which CASA submits, and I accept, correctly articulates why the applicant has no reasonable prospects of successfully prosecuting the same claim in this Court.

38    The AHRC in its Termination Letter dated 11 October 2011, stated at 3:

In relation to your complaint, it appears that the relevant requirement or condition you are aggrieved about is CASA's requirement that you provide additional information regarding your medical condition(s). However, there is insufficient information before the Commission to indicate that because of your disability you can not comply with this requirement. Rather, it appears that you have decided not to comply with the requirement as you do not believe it is necessary.

39    Assuming, but without finding, that the applicant has a relevant disability for present purposes, the uncontentious evidence is incapable of supporting a finding that CASA engaged in any unlawful discrimination in requiring him to submit to the relevant medical assessments in 2010.

40    There is no evidence to suggest that CASA treated, or proposed to treat, the applicant less favourably than it would treat any other person, nor for example, that CASA did not require other people to undertake medical assessments. The requirement, by itself, that a person submit to medical assessments or obtain a medical certificate is not unlawfully discriminatory and, in any event, would be justified and authorised by s 98(6B) of the Act as being necessary for the safety of air navigation.

41    Nor is there evidence or even a submission by the applicant that he was unable to comply with CASA's requests that he submit himself for the relevant medical assessments in 2010 in order for CASA to determine whether to grant him a medical certificate. Rather, the applicant regarded these requirements as unnecessary or unreasonable in light of his previous dealings with CASA and so declined to comply. He had no inability to comply with CASA's requests; simply an unwillingness to do so.

42    Central to the applicant's complaint is that CASA did grant him a medical certificate in 2008, but then required him to provide additional medical reports before it would grant a further certificate in 2010. These requests carried with them a requirement for the applicant to undergo the necessary psychiatric and medical assessments necessary for the provision of these further reports. It appears that the applicant believed that nothing had changed by 2010, and that the requests were unnecessary. He resisted these requests because he thought CASA already had all the information it needed and he shouldn’t have to do anything further. That was the applicant's choice. It does not constitute discrimination.

43    Even if it were assumed, for present purposes, that the requests for further medical reports in 2010 were unnecessary because CASA already had sufficient information to make a decision on whether to grant a medical certificate to the applicant, that would still not give rise to any unlawful discrimination. Even if CASA was aware of all relevant information in 2008 (which CASA denies) the fact that CASA imposed a requirement in 2010 for additional medical reports that was not imposed in 2008 does not demonstrate unlawful discrimination.

44    This is not a proceeding in which the merits of the administrative decision-making process undertaken by CASA can be challenged. CASA is entitled to require an applicant for a medical certificate, including a person holding a current certificate, to submit to a medical examination: reg 67.180; reg 67.230 of the Regulations.

45    I find that the applicant has no reasonable prospect of successfully prosecuting this proceeding because even accepting the applicant’s version of the facts, there is no evidence capable of sustaining his claim of discrimination. Dismissal of the proceeding under s 31A is accordingly apt.

46    It is unnecessary, in these circumstances, to consider the merits of the claim for compensation which in any event is unparticularised.

47    There will be orders that the originating application dated 24 November 2011 be dismissed with costs.

Associate:

Dated:    20 September 2012