Austen v Ansett Transport Industries (Operations) Pty Ltd

MICHAEL JAMES AUSTEN v. ANSETT TRANSPORT INDUSTRIES (OPERATIONS) PTY LTD and
CIVIL AVIATION AUTHORITY
No. WAG3 of 1991
FED No. 584
Number of pages - 27
Defamation - Privacy - Public Service Act - Misfeasance of Office - Costs

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Burchett J(1)

CATCHWORDS

Defamation - statements in medical file kept by Director of Aviation Medicine in respect of a pilot suggesting he attempted to commit suicide and had suffered a psychiatric illness - authority signed by pilot in connexion with application for employment by Ansett to Director of Aviation Medicine to supply details of medical history - what is a medical history - whether defences of consent and qualified privilege - whether consent to supply of details authorizes taking of copies.

Privacy - effect of consent - limitations on jurisdiction of court.

Public Service Act - whether obligations under regulations confer a private right of action - whether one Crown agent can be vicariously liable for actions of another.

Misfeasance of Office - knowledge requisite for the tort.

Costs - discretion of court to deny a successful respondent an order for costs - discretion to be exercised for some reason connected with the case - circumstances which raised such a reason - conflict of interest.

Privacy Act, 1988, ss. 13, 14, 15, 90, 93 and 94.

Public Service Act, 1922, s. 97(1)(k).

Public Service Regulations, regs. 8A and 8B.

Federal Court of Australia Act, 1976, s. 43(2).

Verna Trading Pty Ltd v. New India Assurance Co Ltd (1991) 1 VR 129

Farrington v. Thomson (1959) VR 286 at 293

Century Impact Pty Limited v. Chief Commissioner of Business Franchise Licences (Tobacco) (Supreme Court of N.S.W., Sully J, unreported, 11 December 1992)

Revesz v. Commonwealth of Australia (1951) 51 SR(NSW) 63

Downey v. Pryor (1960) 103 CLR 353

Chapman v. Lord Ellesmere (1932) 2 KB 431

Loveday v. Sun Newspapers Limited (1938) 59 CLR 503

Adam v. Ward (1917) AC 309

HEARING

SYDNEY, 30 November, 1-4, 7-11 and 14-18 December 1992

#DATE 26:8:1993

Applicant appeared in person.

Counsel for the First Respondent: Mr R.A. Finkelstein QC with

Mr T. Ginnane

Solicitors for the First Respondent: Messrs Freehill

Hollingdale and Page

Counsel for the Second Respondent: Mr K.J. Martin until

8 December 1992, and after 8 December 1992 Mr R.A. Finkelstein QC with Mr K.J. Martin

Solicitors for the Second Respondent: Messrs Parker and Parker

ORDER

THE COURT ORDERS THAT:

1. The application be dismissed.

2. There be no order as to the costs of the respondent, the Civil Aviation Authority.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

BURCHETT J In 1989, the airline transport industry in Australia was shaken by a major industrial upheaval known as the Airline Pilots Dispute. Pilots resigned en masse from both the major domestic carriers, creating an overnight need for the recruitment of great numbers of pilots. Large national interests were affected, and many private interests were caught up in the turmoil. This case is concerned with the involvement of one individual, the applicant Mr Austen, who was drawn back to Australia to seek employment as a pilot with the first respondent ("Ansett") at that turbulent time. For it was a turbulent time, and the hasty recruitment procedures born of the dispute are at the heart of the present litigation, in which Mr Austen sued Ansett and the Civil Aviation Authority for actions taken in connection with the Authority's making available to Ansett of a medical file relating to Mr Austen. (The claims against Ansett were withdrawn during the hearing, and these reasons are concerned only with the claims against the Civil Aviation Authority.)

When the dispute broke out, Mr Austen was working as an airline transport pilot in the United Kingdom. He had worked there as a pilot since 1978, flying for a number of different employers, and working his way up from prop-jet to pure jet aircraft. In 1986, his airline transport pilot's licence had been suspended because of several episodes of atrial fibrillation, or (as regards the earlier episodes) what was suspected of having possibly been atrial fibrillation. Following that suspension, he had had exhaustive investigations, which revealed no abnormality of his heart and led to the reinstatement of his United Kingdom licence, subject to a condition that he have a co-pilot at all times, and the reinstatement of his Australian licence without that condition. Immediately before coming to Australia to seek employment with Ansett in 1989, he had been flying Boeing 737 200 series aircraft for an airline in the United Kingdom. He was leaving that airline, and had been accepted by another United Kingdom airline to fly Boeing 737 300 series aircraft. He decided instead to return to Australia to try to obtain employment with Ansett.
Mr Austen arrived back in Australia on 1 October 1989, but his application to Ansett was unsuccessful. Refusing to take no for an answer, he telephoned the airline's head office and asked for Sir Peter Abeles, its Joint Managing Director. A secretary took a message, and that evening his call was returned by Sir Peter Abeles, who seems to have been impressed by Mr Austen's determination, and doubtless was anxious to push forward the recruitment of experienced pilots. As a result, an appointment was made for Mr Austen to be interviewed at Perth Airport. After this interview, he was flown to Melbourne for a further interview, on 23 November 1989, with a Captain Terrell and a Mr Graham Stafford, to be followed by a medical examination and a simulator check at the Astrojet Centre at Tullamarine Airport. Mr Austen had, at that time, just secured the re-issue of his Australian senior commercial pilot's licence. After the interview with Captain Terrell and Mr Stafford, Mr Austen was told he had been successful in obtaining a job flying Boeing 737 aircraft, based in Melbourne, subject of course to passing the medical examination and simulator check. His medical examination by Dr David Lewis, Ansett's medical director, followed.
On this occasion, Mr Austen signed a number of forms. One form is headed "Ansett Transport Industries Limited Medical Examination Record Sheet". That form contains some personal details, and sets out findings upon the medical examination. Against the word "RESULT", Dr Lewis wrote "PASS". However, after some events which will be related, Dr Lewis wrote on the top of the front of the form the word "FAIL". Another form, which Mr Austen signed for Dr Lewis on the same day, contained a series of questions, beginning:

"Past History

Have you ever experienced in the past:-

1. Investigation at a hospital or clinic?"

There was provision for an answer, yes or no, to be ticked in respect of each question, and a note: "If yes to any of the above, note item number and give relevant information". Question one having been ticked affirmatively, there was a note referring to the investigation of atrial fibrillation and the reinstatement of the United Kingdom licence in November 1987, following suspension in 1986 on that account. The next question was: "2. Admission to a hospital or clinic?", again ticked affirmatively, with a note: "Removal of submandibular calculii (sic - scil. "calculi"; a calculus is a solid concretion or "stone" which may be found in a duct or cyst) and gland. Removal of vein from Rt leg."

Among the further questions in the series on this form was: "24. Psychiatric examination or treatment?" To this, the answer "No" was ticked. That answer is a matter of considerable importance in the case. It should be noted that Mr Austen's signature was written on the back of the form, under a declaration in the following terms:

"I hereby declare that I have carefully considered the statements made overleaf and that to the best of my knowledge they are complete and correct and I have not withheld any relevant information or made any misleading statement."

Endorsed on the form is a handwritten note, which appears to have been added by Dr Lewis later, in the following terms:

"Prev = Cox

Used to work for Dan Air

Pissed off overnight."

I shall return to this note, but I should state at once that Mr Austen's name was changed by deed poll at about the time of his marriage to his present wife in 1988; his previous name was Cox.

A third document which Mr Austen signed for Dr Lewis is also very important in this case. It described itself as a "Medical Information Authority", and it was in the following terms: "I Michael James Austen authorise the Director of Aviation Medicine, Aviation Medicine Branch, D.O.A. to supply details of my medical history to the Medical Director, Ansett". (This document is anachronistic in some of its language. It should have referred to the Director of Aviation Medicine as belonging to the Civil Aviation Authority which had, by 1989, replaced the Department of Aviation; but there is no dispute that the person to whom it must be understood to have been addressed was the Director of Aviation Medicine, to whatever body he was attached.)
On the same day on which Mr Austen attended the interview, 23 November 1989, having also attended the medical examination by Dr Lewis, and the simulator test, and apparently having passed both, he received a letter dated 23 November 1989, signed by Mr Stafford, which relevantly read as follows:

"This will confirm your appointment as an Intake Pilot with Ansett W.A. at a commencing salary as set out in the enclosed contract under which you will be employed. We shall be glad if you will sign and return the Contract to us, together with the Letter of Undertaking prior to commencement.

Your course will commence on Tuesday, 5th December 1989 at 9.00 a.m. and you should report to our Flight Operation Department located at Henderson Avenue, Perth Airport. Please confirm as soon as possible that these arrangements are acceptable to you.

. . .

We take this opportunity of welcoming you to Ansett W.A. and wish you every success in your new career."

Also on the same day, a form of contract of employment was signed, both by Mr Austen and by Mr Stafford "For and on behalf of Ansett WA".

The medical information authority, which has been mentioned, was sent by Dr David Lewis by facsimile transmission to the Director of Aviation Medicine, Dr R.M. Liddell, in Canberra. In the unprecedented circumstances of the Pilots Dispute, a special arrangement had been made to enable such authorities to be dealt with by the Director of Aviation Medicine on behalf of both the Australian domestic carriers. The problem, of course, was that both airlines had a need to process a large number of pilot employment contracts in a short space of time, and their medical directors had difficulty in conducting all of the necessary medical examinations, as well as attending in Canberra to inspect medical files for details of medical histories. The arrangement, so far as Ansett was concerned, was that the Director of Aviation Medicine and his officers would themselves supply, on forms provided by Ansett, details of the medical histories of applicants for employment as pilots, so that it would not be necessary for the Medical Director of Ansett to attend in Canberra himself, unless there was some special problem in a particular case. In the case of Mr Austen, Dr Liddell personally signed the form, which was dated 27 November 1989. There was a space in this form headed "ABNORMAL FINDINGS". Dr Liddell wrote in after those words the further words "IN DOCUMENTS", so that the altered heading read: "ABNORMAL FINDINGS IN DOCUMENTS". He then wrote underneath that heading the following:

"1986 - attack of atrial fibrillation, which followed several incidents of feeling unwell over the previous two yrs. - extensively investigated c angiogram and holter and echo - all NAD (ie., nothing abnormal detected). - a thick file - history in 70s of ? suicide attempt - but thought to be not serious - also in U.K. in June 86 - 12 propanolol tab ? as gesture.

- has had many jobs according to Corro. I think you should see this file Dai". (Dr Lewis is known familiarly as "Dai".)

The receipt of this document by Dr Lewis by facsimile transmission led to some very prompt action. Mr Stafford called Mr Austen on the telephone. He told Mr Austen that the contract was being held in abeyance, there being a medical problem. Mr Austen telephoned Dr Lewis, who said he had received some details of the medical history file; there was a problem; and he intended to go to Canberra to examine the file. According to Mr Austen's evidence, he replied:

"That it was then Thursday morning and I was due to start work on contract on the Tuesday morning following, and essentially asked him to expedite whatever he was doing and communicate the result to me as fast as he could."

In the context, the Civil Aviation Authority relies on this as a further authorisation for the Medical Director of Ansett to examine the medical history file relating to the applicant.

Not hearing further, and being advised that he should comply with his contract, Mr Austen attended on the appointed day for commencement of his training course. He was, however, not permitted to start training. Instead, after some time, it was arranged that he attend an interview in Melbourne with a Captain Dorward, Captain Terrell and Dr Lewis. At that interview, there was debate about whether Mr Austen had told the truth to Dr Lewis. Mr Austen maintained that he did not have a nervous disability, while he had disclosed the atrial fibrillation (as, in fact, he had). A further interview followed with a Mr Oldmeadow and a Mr Gaye, and an arrangement was made eventually for Mr Austen to be seconded from Ansett W.A. to Ansett Airlines of Australia as a "Pilot Relations Officer from Monday 18 December 1989 for a period of three months". This arrangement was confirmed in writing by Mr Oldmeadow, who was Ansett's Director of Personnel, on 14 December 1989. Its object was to provide a breathing space, with the accomplishment of a useful task, on the understanding that Mr Austen would afterwards proceed to take up duties as a pilot in Western Australia.

The medical file of the Director of Aviation Medicine, perusal of

which appeared to have such consequences, was summarized by Dr Lewis in a memorandum which he wrote on 4 December 1989, as follows:

"SUMMARY

42 year old pilot with a previous history of reactive depression and two apparent suicide attempts. Repeated false statements and non disclosure. Has a heart irregularity known as atrial fibrillation which may return and could be incapacitating. Refused licence in U.K. (This statement appears to involve a serious misapprehension by Dr Lewis, and explains some evidence given by Mr Austen that Sir Peter Abeles asked him at this time whether it was in fact true that he held a U.K. airline transport pilot's licence. It may also be the fact that Mr Austen's correct claim to hold such a licence was one of the statements characterized by Dr Lewis as "false".) Has an Australian licence subject to annual investigations. OPINION

Under normal recruitment procedure I would have not (emphasis original) recommended selection. However, he has been made a job offer to state (sic - scil. start) tomorrow in A.W.A. A refusal now makes this a refusal on medical grounds, with all that that implies under the Equal Opportunities Legislation. We may well loose (sic) such a case.

The risk level would appear to be low but higher than the levels applied by Ansett in the past.

An executive decision is required bearing in mind the statements over reduced standards being made by the A.F.A.P. (Australian Federation of Airline Pilots)."

Following the arrangement made with Mr Oldmeadow, the applicant carried out satisfactorily the special duties assigned to him. He was paid, while doing so, about the amount a first officer would have earned. After the end of the three months, a firm decision was made that Mr Austen would fly as a pilot. In so finding, I accept the evidence of Mr Oldmeadow and Captain Terrell, the Deputy General Manager of Ansett, both of whom were impressive witnesses. It was a fairly chaotic period for the management of Ansett, which was only just coming out of the Pilots Dispute, and arrangements for Mr Austen to attend an appropriate training course were somewhat delayed. However, they were finally made. But then a disagreement developed about the salary and allowances to be paid during the training course. Ansett proposed to pay Mr Austen on the same basis as other intake pilots while he attended the course, and was concerned about the industrial implications if it did otherwise. Had Mr Austen proceeded directly to flying upon his being employed, he would have received a substantially reduced salary and allowances until the completion of his training. In the event, he had enjoyed a higher salary for some time, doing special work, but now that he was to do what all other intake pilots had had to do, he was to be paid on the same basis as they had been. Mr Austen did not accept this view of the matter, and resigned. He says his resignation was a consequence of the disclosures made to Dr Lewis by the Director of Aviation Medicine. Having regard to the evidence of Mr Oldmeadow and Captain Terrell, I reject that. I find that Mr Austen resigned by his own choice, and had he not done so, he would have been assured of flying as a pilot in accordance with the decision which had been made. This is not to say the disclosures to Dr Lewis had done the applicant no harm, although it does follow that any harm properly traceable to that source was much more limited than the applicant's case asserts. Nor is it to say Ansett's view may not have been different had it known the full truth, as revealed in the course of this proceeding, about the applicant's medical history; but it is unlikely the inquiries necessary to reveal the full truth would ever have been made except in the context of such a proceeding.
Mr Austen's claim in this Court against the Civil Aviation Authority is largely, although not quite entirely, based on the information communicated by Dr Liddell in writing to Dr Lewis, and upon the medical file subsequently produced to Dr Lewis. Additionally, a claim arises out of an alleged verbal communication by Dr Liddell to Dr Lewis, of which the handwritten endorsement on the medical examination record sheet of Dr Lewis, in respect of Mr Austen's departure from an airline known as Dan-Air, is alleged to have been a note. The causes of action pleaded include defamation in respect of the publication of the material under the heading "ABNORMAL FINDINGS IN DOCUMENTS", in respect of the alleged oral communication, and also in respect of the supply of documents from the medical file containing allegations against the applicant which had been medically investigated, particularly allegations of attempted suicide or of the making of suicidal gestures. The applicant alleges that Dr Liddell, whose sister was once married to the applicant from whom she obtained a very acrimonious divorce, was actuated by malice. He also alleges that, by reason of their former relationship, Dr Liddell had an interest in respect of the applicant which conflicted with his duty, and that he committed a breach of regs. 8A and 8B of the Public Service Regulations in force under the Public Service Act 1922. Further, he claims that the Civil Aviation Authority acted so as to induce a breach by Ansett of its contract with him, and that this was intentional on the part of Dr Liddell. The applicant makes a claim, too, under s. 93 of the Privacy Act 1988, alleging the breach of obligations of confidentiality pursuant to that section, and on the basis of an obligation in equity. Finally, he claims that the Civil Aviation Authority acted in breach of a duty of care owed to him in its disclosure of the contents of the medical file.

The applicant conducted his case in person. Having regard to the complexity of the issues of fact and law involved, that was a very difficult task to undertake. However, he is undoubtedly a man of well above average intellectual capacity, and I am satisfied the issues he wished to raise have been presented for decision. As he contended that the medical file, kept in relation to him by the Director of Aviation Medicine, was seriously inaccurate, defamatory, and contained information which should not have been disclosed to the Medical Director of Ansett, he presented his case in substantial measure by giving a detailed account of the events of his life, in so far as those events bore upon the matters related in the medical file.
Mr Austen, who was born in 1947, finally settled in Australia in 1966. He had obtained compassionate discharge from the Royal Air Force in order to join his family here. In the air force, he had been the youngest member of an intake of young recruits for training to be officers. On arrival in Australia, he considered joining the Royal Australian Air Force, and it is clear that he always nurtured an ambition to fly. However, his early employment was as a salesman. He decided to get flying lessons from time to time, paying for them out of his wages. On 15 June 1968, Mr Austen married Carol Chomley, who was then not quite 17 years and four months old. Her parents were opposed to their relationship, and it seems that the marriage was brought about by her pregnancy, her second to Mr Austen, although she subsequently miscarried. The earlier pregnancy, apparently, was terminated. Very soon, the marriage became a stormy one, and there were complaints by Carol Cox that her husband spent most of his money on learning to fly. He in fact applied early in 1969 for a student pilot's licence.
On 8 April 1969, an event occurred the consequences of which have certainly been very far reaching for the applicant. There is some conflict in the evidence between the applicant and his then wife, who was called as a witness, as to the details, but the broad outline is I think clear enough. I have been assisted in reaching the conclusions which I shall state by considering the versions given in evidence in the light of fairly contemporaneous records which were tendered. I accept as probable that Mr Austen was endeavouring to achieve a reconciliation with his wife following an acrimonious and even violent separation shortly before. In an attempt to put emotional pressure on his wife, Mr Austen threatened to commit suicide by gassing himself. On the probabilities, I do not think he had a settled intention to die, but I do think he was in a state of extreme emotional turmoil. His wife contacted the police, and Mr Austen was found lying on the bed in their bedroom, apparently calmly reading a book, with all jets on the gas stove on, all windows closed, and some stocking material wedged under the door. He says that his actions were entirely histrionic, and that he had kept the bedroom window open until the police actually arrived. He had put a suicide note on the window ledge. To the police, he said that he wanted to be left alone to die in peace. But he did not appear to be affected by gas.
These events occurred in Perth, and in 1969, by the law of Western Australia, an attempt to commit suicide was an offence. Mr Austen was charged with that offence, and remanded to a mental hospital known as Heathcote, being admitted on the same day, 8 April 1969. On 10 April 1969 Dr Ellison, the Psychiatrist Superintendent of Heathcote Hospital, certified that "at the time of committing the above offence (ie. attempted suicide) he was suffering from such a degree of mental illness as to be not responsible for his actions". It was proposed "to keep him in hospital for further treatment", but the charge was dismissed. Mr Austen was then admitted, no longer on remand, but as a patient. After some time in hospital, he discharged himself on 2 May 1969, but secured re-admission on 5 May 1969. He was discharged again on 6 June 1969, but re-admitted on 11 June 1969, and finally discharged himself on 9 July 1969. It is apparent from the hospital notes that Mr Austen continued, over a substantial period of time, to suffer from depression and severe emotional disturbance. At the time of his discharge on 9 July 1969, Dr H.S. Jones, the psychiatrist in charge of him, initialled a document indicating a diagnosis of an unspecified personality disorder.
After his discharge from Heathcote Hospital, Mr Austen moved interstate. He obtained his restricted pilot's licence in Melbourne where his family was then living. Upon their deciding to return to the west, he flew back to Perth, where he had news of his estranged wife that depressed him. He may also have been suffering pain from a condition which was at some stage diagnosed as a condition of submandibular calculi. On 24 May 1970 he received casualty treatment at Royal Perth Hospital for that condition. On 29 May 1970 he again attended the casualty department of the Royal Perth Hospital. The notes record: "Took 16 Codral forte tonight in a suicidal gesture. 12-12 ago gassed himself". It appears that no ill effects were observed and that on examination he was fully conscious. He was finally discharged on 2 June to see a psychiatrist. The incident was described in the hospital notes as a "pseudo suicide attempt". The consultant psychiatrist, Dr Derham, suggested he had a "personality disorder with sociopathic aspects", but it is clear that Mr Austen was seeking help to remedy his problems. He acknowledged, in evidence, that he was very confused at this time.
The admission to Royal Perth Hospital on 29 May 1970 was involved in another incident of some significance in the applicant's history as a pilot. On 2 June 1970, a telephone call was received by the then Director of Aviation Medicine, Dr J.C. Lane, advising him of allegations made by a man who described himself as the applicant's father-in-law. The allegations were that the applicant had been in Heathcote Hospital in the past, and was "at present a patient in the Royal Perth Hospital following an attempted suicide. This is not his first suicide attempt. He is also in trouble with the C.I.B." As the Director of Aviation Medicine had no record of any suicide attempt, or of any psychiatric condition, in relation to Mr Cox (as he then was), these allegations demanded some investigation. But before that investigation could proceed, the applicant was again admitted to Royal Perth Hospital, on 10 June 1970, for surgical removal of one of his submandibular calculi. The others had spontaneously ulcerated. He was operated upon and discharged on 11 June 1970.
Investigation of what the Director of Aviation Medicine somewhat incongruously described, almost by way of an oxymoron, as a "poison pen telephone call", led to the arrangement of a medical examination of Mr Austen by a specialist physician, Dr M. Traub. Dr Traub saw Mr Austen and referred him to Dr H.S. Jones of Heathcote Hospital. Both Dr Traub and Dr Jones reported in writing. Dr Jones referred to the admission, between 8 April 1969 and 9 July 1969, to Heathcote Hospital. He stated Mr Austen "was suffering from reactive depression precipitated by the collapse of his marriage - a marriage in which he had placed too much of his meagre emotional resources. He made a good recovery." The doctor went on to make the following observations:

"On my psychiatric examination today I could find no evidence of depression or of psychosis. With regard to his suitability to hold a pilot's licence, two factors have to be considered. (1) Is he likely to use an aircraft as a mode of suicide? I do not think that this is likely. (2), is he likely, sometime in the future to be in such a state of mental turmoil so that his judgement is so impaired as to make him a hazard in charge of an aircraft. After due thought I consider that on today's examination, that this too is unlikely.

I therefore can see no psychiatric grounds why this man cannot continue to hold the licence that he obtained after his psychiatric illness."

Dr Traub, in his report, noted that the applicant had "faked an attempted suicide by turning on the gas oven and sitting by an open window". He also recorded that the applicant was informed after two days that

"he could either leave hospital or remain for group therapy. He elected voluntarily to remain in hospital for group therapy which was continued for a period of three months. The charge of attempted suicide was dropped by the police. During the three months he was treated by Dr Jones with group therapy and an anti-depressant and was told that his diagnosis was that of a reactive depression."

Dr Traub described the applicant's more recent admission to Royal Perth Hospital as being a consequence of his hearing depressing news about his wife. The doctor recorded:

"He was admitted to the R.P.H. for three days and eventually he requested to be seen by a psychiatrist. The psychiatric interview lasted only five minutes which left him feeling very dissatisfied so he discharged himself from hospital without receiving any treatment."

The doctor also noted that he was now suing for divorce and had a steady girlfriend. Dr Traub concluded:

"Throughout the interview he appeared quite calm and relaxed with good insight to his problems. The reason for the interview was fully explained and the need to obtain release authorities which are enclosed was understood and appreciated, but he expressed fears that this may affect his future in obtaining a job as a pilot with an airline."

Having received these reports, the Director of Aviation Medicine advised the applicant on 2 November 1970 that

"both reports are favourable to you, and after considering these the Director of Aviation Medicine is satisfied that no further investigation is required, and that you continue to meet the medical requirements for your licence."

A suspension of the licence, which had been imposed during the investigation, was lifted.

During 1970, the applicant met Kaye Liddell, an air hostess, who later became his second wife. At that time her brother Robert was a medical student. According to the applicant, his relationship with Miss Liddell's family was a very uneasy one. They were in a socially superior position, and he considered that they looked down upon him. He had second thoughts about the marriage, and actually called it off almost at the last moment, before finally deciding that he would go through with it. The marriage was celebrated at Perth on 6 May 1972, and Dr Robert Liddell was best man.
During the period preceding his marriage to Miss Kaye Liddell, the applicant once again attended the casualty department of Royal Perth Hospital, on 11 July 1971. On this occasion, the casualty record includes the following: "Took six tabs of Surmontil at 9.30 pm after feeling sorry for himself. ... Drove to Cas. himself." Surmontil is an anti-depressant drug, legally available in Western Australia only upon prescription. On examination, nothing abnormal was detected in relation to his central nervous system and he was discharged with a diagnosis: "No attempt at suicide. No overdose."
Some months after the marriage, on 13 September 1972, the applicant was again admitted to Royal Perth Hospital. The admission summary sheet records: "Overdose of Soneryl in suicide attempt". Soneryl is a sleeping tablet, legally available in Western Australia only upon prescription. The case summary includes a history of admission

"after taking an unknown amount of Soneryl tablets in a suicide attempt. Prior to taking the tablets, he had rung 'The Good Samaritans' and after taking them, he rang them again to state that he had, in fact, done it."

He was drowsy on admission, but later became

"more agitated and he became frankly impossible to manage in a General Hospital Ward. He was seen in consultation by members of the Psychiatric Department and on their advice he was transferred to Heathcote Hospital."

That was on 14 September 1972. The case notes include a note that the overdose was "following break up with his wife" and that he had "attempted to contact wife unsuccessfully". He was noted as "abusive violent aggressive". On admission to Heathcote Hospital, on the evening of 14 September 1972, he was noted as "very abusive, aggressive, violent". It appears he had to be restrained, and was given Largactil. He was discharged to the care of his father on 16 September 1972. The Heathcote Hospital summary records diagnoses of anti-social personality disorder and transient situational disturbance, and notes that he "was taken to R.P.H. after another overdose following separation from his wife, and was transferred here because of aggressive and violent and abusive behaviour".

Mr Austen gave a very different account of his admission to Royal Perth Hospital on this occasion. According to his version, after what he described as a "fairly powerful fight" with his wife, she telephoned the police; he pulled the telephone out; she told the police that he was mad and that the house was her grandmother's; and the police took him in custody to the hospital, where he was examined and then transferred to Heathcote. I think it is likely that Mr Austen has elided two events, the second of which followed closely upon the other. He probably did have a fairly violent argument with his wife, as a result of which the police were called and he was required to leave the house. But I do not think the police took him to the hospital. That would be inconsistent with the hospital records. It is, of course, quite likely that he has no memory, or no reliable memory, of the admission itself, since the records suggest he was then in a somewhat drugged condition. But I think it is probable that, following the extreme emotional upset of the dispute with his wife and his forcible departure from the home, he did take an overdose. It may be an indication of the severity of the disorder and disturbance diagnosed, or perhaps of the extent of the effects of the overdose, that he claims to have had no recollection of being taken forcibly to Heathcote Hospital on this occasion until reminded by his father, during the currency of the litigation. Nor, according to his evidence, does he recollect taking the soneryl tablets. Having regard to the suicidal gestures he had made on other occasions, I think the likelihood is that this was not a serious attempt to commit suicide, but another theatrical affirmation by a seriously disturbed young man of the extent of his upset, intended to impress his wife. At the same time, it may well have been an outlet for feelings of despair.
In the event, Mr Austen did achieve some sort of reconciliation with his wife, and they decided their marriage would have a better chance if they moved to another state. They went to live in Melbourne, where Mr Austen took up employment selling cars, as he had done from time to time before. During this period, he consulted some psychologists who offered career guidance. He obtained from them a report, dated 1 April 1974, which eventually found its way onto the medical file of the Director of Aviation Medicine. The report is in many respects extremely flattering to Mr Austen, ranking his intellectual ability in the very superior category, but it does contain a number of indications that he has personality traits which could be unfavourable for his harmonious participation in the work of a team. Dr Lewis gave evidence at the hearing that this would be a significant negative, from Ansett's point of view, having regard to modern theories about the influence of personality upon cockpit safety. Most air accidents are said to be due to operational errors. Not surprisingly, however, the positive aspects of the psychological assessment which he had received encouraged Mr Austen to think that he could make a success of a career as a commercial pilot. Indeed, the report might well have encouraged him, had his inclination been otherwise, to think that very few professions were barred to him. But he was extremely concerned about the possible effect upon his career of his hospital admissions for psychiatric treatment. He therefore telephoned Dr Lane, to put, in substance, the question whether the events of 1969 and 1970 would exclude him from a career as a commercial pilot, and whether the records relating to them would be produced to an employer. Unfortunately, he was not frank with Dr Lane; he did not disclose his later psychiatric problems. But he did, according to Dr Lane's note, refer to the event that led to his admission to Heathcote Hospital as an "attempted suicide" when suffering from reactive depression, not a manipulative pretence. He was told that the matters he mentioned were not a bar, and that the records would not be produced without his express written authority. Somewhat reassured, he continued with his flying training, although he did it secretly since his wife was strongly opposed to his working as a pilot. In any case, the marriage did not last much longer, as his wife, after several previous temporary rifts in the relationship, finally separated from him in 1974, before the birth of their only child. When it came, the rupture was so complete that Mr Austen's parents have never seen their grandchild, who is known by the name Liddell.
After the separation, Mr Austen went to Sydney to attend a flying school at Bankstown airport. He succeeded in obtaining a commercial pilot's licence on 13 January 1975. His major problem then was to accumulate sufficient hours of flying to enable him to obtain employment as a commercial pilot. He secured work of a voluntary nature flying for a mission in Papua New Guinea. Later he flew in the outback areas of the Northern Territory and elsewhere, returning to Perth in about 1976. He then flew for charter operators. In December 1976, he made an appointment for a routine medical examination for renewal of his commercial pilot's licence, and when he attended found that he was being seen by a locum, who was Dr Robert Liddell. Dr Liddell carried out the examination and passed him.
Early in 1977, the applicant was planning to marry for the third time. He decided to seek a more settled employment, and applied for a job as an air traffic controller. After interview, he felt that his application had been successful, and that a medical examination would be a formality, since the same level of health was required as that for his commercial pilot's licence. He arranged to see Dr Traub on 4 August 1977, which was the very day after his third marriage. He filled in the appropriate form, and was examined. Dr Traub told him that he had passed the examination. Some weeks later, he received a request from Dr Lane, the Director of Aviation Medicine, to return to Dr Traub for a further examination. He telephoned Dr Traub to ask what it was about. According to his evidence, Dr Traub told him the Department was concerned that he had made a false statement in that he had answered negatively the question whether he had any nervous disability. Dr Traub referred to the events of 1969 and 1970.
In fact, of course, there had also been the subsequent events of 1971 and 1972, but these had not been disclosed, either upon the examination by Dr Traub in respect of the application for employment as an air traffic control officer, or upon renewal of the applicant's pilot's licence. So far as the pilot's licence was concerned, there had been an examination on 12 July 1973, at which Mr Austen had filled in a form which included the following question:

"SINCE YOUR LAST CIVIL AVIATION MEDICAL EXAMINATION IN (Mr Austen filled in the incomplete date Dec. 1970) HAVE YOU LOST ANY TIME FROM WORK OR HAVE YOU CONSULTED A DOCTOR BECAUSE OF ANY ILLNESS OR INJURY? if (sic) YES give details".

Mr Austen filled in "yes" after the question mark, and wrote after the word "details" the following:

"LT. submandibular gland excised (calculi) Aug. 1972".

There followed on the form the words:

"I hereby declare that I have carefully considered the statements made above and that, to the best of my belief, they are complete and correct and I have not withheld any relevant information or made any misleading statement."

Mr Cox signed this declaration. It will be apparent that his statement transfered an operation, which was performed in June 1970, to a date more than two years later, which was in fact close to the date of his treatment at Royal Perth Hospital for an overdose of soneryl in what was recorded as a suicide attempt.

So far as the examination for the purpose of employment as an air traffic control officer is concerned, the applicant had completed a form which included the following:

"HAVE YOU EVER LOST ANY TIME FROM SCHOOL OR WORK OR HAVE YOU EVER CONSULTED A DOCTOR BECAUSE OF -

1.0 ANY NERVOUS DISABILITY? (Including nerves, nervousness, nervous breakdown, mental or emotional instability, neurasthenia or anxiety state). . . .

1.16 ANY ILLNESS NOT ALREADY MENTIONED?"

Mr Austen answered "NO" to each of these questions, and signed a declaration in the same terms as the declaration quoted above.

There was a quite specific reason why Mr Austen was required to attend upon Dr Traub for a second time in 1977. An anonymous telephone call had been received by Dr Traub after the initial examination. The doctor wrote to Dr Lane, Director of Aviation Medicine, about this call in the following terms:

"The caller stated -

he is irresponsible

prone to violent outbursts

has threatened bodily injury

has been married 3 times

runs up large debts

has had psychiatric therapy

has abnormal genes 'mosaic'

his father has been

treated in Grayland's (a general psychiatric hospital in Perth)".

Dr Lane, upon receipt of Dr Traub's letter, noted his distaste for such an anonymous accusation, but added: "He did after all make a false statement". This was a reference to the failure to disclose the admissions in 1969 and 1970 to Heathcote Hospital and Royal Perth Hospital. Dr Lane also made a note that "(t)he present anonymous call to Traub looks very much like the same thing (ie. as the call from Mr Austen's then father-in-law in 1970) and I must say I am very disinclined to pursue it". However, he added: "Of course there is a false statement in his medical examination report in as much as he said no to 'any nervous disability'". In the upshot, Mr Austen saw Dr Traub again, and Dr Traub furnished to the Director of Aviation Medicine a further report dated 6 September 1977. In that report, Dr Traub wrote:

"His excuse for making a false statement ... was that he considered it was already on record regarding his past psychiatric history and that there was nothing further to add and he did not want to have to go over it all again because of the embarrassment and having to re-live all his past experiences.

. . .

He has obviously worked very hard to obtain his Commercial Pilot Licence and his First Class Instrument Rating, which seems rather unusual to give this all up to become an Air Traffic Control Officer. His reply was now that he had married he wanted a more stable position with regular employment because he considered that he was now ready to settle down.

He seems most persuasive but also genuine in his attitudes and the psychological appraisal (the one done in Melbourne) pictures him as an exceptional type of person. My interview did not indicate any evidence for the presence of psychosis or depression and I did not feel that a special psychiatric examination was indicated."

Dr Lane endorsed on this report, when he received it, his own conclusion: "I am satisfied with this - he's tried very hard to qualify himself to get into commercial flying."

However, the applicant did not obtain the job as an air traffic control officer, and I think there is little doubt that the disclosure, by virtue of the anonymous telephone call, of a psychiatric history which he had previously concealed was the reason for his rejection.
It was following his failure to obtain employment as an air traffic control officer that the applicant decided to seek employment as a pilot in the United Kingdom. He left Australia on 6 March 1978 to do an eight weeks accelerated course in order to obtain a British air transport pilot's licence. He passed. Mr Austen then obtained employment as a pilot with a company, Dan-Air Services Ltd (Dan-Air), flying prop-jets, particularly between Aberdeen and the Shetlands. According to Mr Austen, there were problems with the maintenance of the aircraft, and in terms of the flying standards of the airline. He was offered employment elsewhere on condition that he could start on 1 February 1979. He gave a little more than a month's notice, claiming to take into account his leave entitlement to make up the notice period which, Dan-Air insisted, was three months. There was disagreement, but Mr Austen left. Subsequently, there were crashes of Dan-Air planes, including a crash of a plane he had flown, in which some of his former colleagues or crew were killed. The suggestion was that he was justified by the airline's poor maintenance in his abrupt departure from his employment. Some years later, Dr Liddell joined Dan-Air as a Medical Director and Boeing 727 pilot, thus having an opportunity to become aware of the circumstances of Mr Austen's leaving the company. He denied looking at the relevant records at Dan-Air. But he said that, while he was giving treatment to an administrative officer of the airline, mention happened to be made of the applicant, as another Australian who had been there in the past, and he was told Mr Austen had "pissed off overnight". He did not deny telling Dr Lewis; and he admitted he "could have".
Mr Austen's career as a pilot in the United Kingdom progressed, but his third marriage failed, as he says because his wife wanted to return to Australia. He married for the fourth time in Ireland, where he was then flying as chief pilot for a small charter operation. That marriage also failed, and in 1986 Mr Austen was living in a de facto relationship in England, and about to join a company in Birmingham called Birmingham Executive Airways, when the next medical event of significance for his career as a pilot occurred. It was on 30 June 1986, when an ECG recording demonstrated that he had atrial fibrillation. Over the preceding two years, he had had two earlier attacks of a peculiar feeling in his chest, but otherwise he had been in good health. Previous ECG recordings had been normal. He admitted to smoking up to 40 cigarettes daily and had always been a heavy coffee drinker. Air Vice Marshall Kelly, who examined him at Civil Aviation Authority House in London, took the view that he would have to be grounded, at any rate for six months, while the condition of his heart was carefully checked. He informed Mr Austen of this on 2 July 1986.
Mr Austen became extremely concerned about his future. He also had at the time multiple domestic problems, including a serious quarrel with his de facto wife. He went drinking with an acquaintance, and ended up in a hospital at Burton on Trent at about 4.30 in the morning of 6 July 1986. There is some dispute concerning the precise circumstances, but I am satisfied that, whilst depressed about his situation, Mr Austen did impulsively take a quantity (approximately 12) of propanolol tablets. He was with someone else at the time, and as was the case on the occasions which have been recounted when he was younger, I do not think he had a serious and fixed intention to kill himself. Prof. German, a very highly qualified psychiatrist and physician, could not recall a single instance of a suicide attempt involving the taking of a beta-blocker (propanolol is one of this group of drugs, and is a fairly common medication, sold under the proprietary name Inderal). I do not think Mr Austen would have known with any assurance what the effect of taking 12 propanolol tablets would be, but he probably did not really think they would be fatal to him, and help was at hand. It has not been shown that the ingestion of the alleged quantity of propanolol would in fact have been particularly dangerous. The most obvious effect of propanolol is to lower blood pressure, and Mr Austen's blood pressure, when taken at the hospital, was in the normal range. He was not thought to be in a suicidal state, and after being given a gastric lavage, he was discharged. He was not drunk. However, he was found on examination to be in atrial fibrillation.
Following these events, the applicant returned to Australia, where his atrial fibrillation was very thoroughly investigated. He underwent coronary angiography on 11 September 1986, and was found to have normal coronary arteries and normal left ventricular function. He also had an echocardiogram, the report of which disclosed: "The heart valves and chambers are normal. In particular left atrium size is normal and left ventricular function is normal." As well, he had three separate periods, each of 24 hours, of ambulatory ECG monitoring on 14, 21 and 23 October 1986, all of which proved satisfactory. On 12 November 1986, he was advised in a letter written on behalf of the Australian Director of Aviation Medicine that he had been given a pass assessment at the level of senior commercial pilot licensing, but that his continuing fitness was subject to annual electrocardiograms and echocardiograms being within normal limits.
The Civil Aviation Authority of the United Kingdom seems to have been harder to satisfy. On 19 June 1987, its Chief Medical Officer advised the applicant that it could not "at present ... issue a Medical Certificate". Mr Austen obtained a Holter Monitor report from Royal Perth Hospital, dated 7 September 1987, and returned to the United Kingdom, where he had an echocardiograph on 25 September 1987, which was reported as "(t)otally normal". His United Kingdom airline transport pilot's licence was finally revalidated in November 1987, and he returned to employment with Birmingham Executive Airways.
In 1988, Mr Austen married for the fifth time, and continued his flying career in the United Kingdom. At the end of the year, he started simulator training to fly Boeing 737 aircraft, and commenced flying them on 30 March 1989.
Basing themselves on a more or less complete knowledge of the matters I have recounted, several psychiatrists expressed views on the question whether Mr Austen suffers, or has ever suffered, from a psychiatric illness. On the one hand, Prof. German, whose evidence was supported by Dr Frank Farrelly, asserted that "Mr Austen is psychiatrically healthy, and does not suffer from any form of nervous condition, nor has he ever done so". On the other hand, the opinion of Dr Ian Parkin was "that there is ample evidence that (Mr Austen) has a personality disorder which is enduring". He thought that Prof. German and Dr Farrelly simply could not have had all the information made available to them. It is I think true that Mr Austen failed to make a full disclosure of all relevant matters to his doctors, but the matters omitted, when put to Prof. German in cross-examination, did not alter his opinion. He considered they show that Mr Austen had suffered from re-active depression, which he did not regard as an illness, and was prone to suicidal gestures as a means of manipulating others, but this too did not demonstrate an illness. Prof. German was of the view that manipulative behaviour of the kind evidenced, and certain narcissistic traits in Mr Austen's personality, far from suggesting that he might endanger the lives of passengers when flying, provided some assurance that he would not be likely to do so, since he would not in reality threaten his own life, nor would be depart from high professional standards.
But the evidence of Prof. German does not really confront the issues in this case. It is not the true view according to medical science of Mr Austen's mental health which is in question; rather the case is concerned with the actions of Dr Liddell in relation to the relevant medical history file, and with the truthfulness of the information furnished by the applicant, in response to the written questions he was required to answer at various times for the Civil Aviation Authority, and upon the occasion of his employment by Ansett. The answers to the questions in the Ansett form requiring relevant information about any investigation at a hospital, admission to a hospital, or psychiatric examination or treatment, were simply untrue, and in any case misleading. Truthful answers required disclosures of admissions to Royal Perth Hospital and Heathcote Hospital, and examinations and treatment at those institutions, which were not made. Even if Prof. German's opinion be wholly accepted, the applicant was certainly investigated at those hospitals; he was admitted to them; and he underwent psychiatric examination and treatment. Ansett was entitled to evaluate for itself the significance of the fact that a psychiatrist thought such an examination to be called for, whatever the result; and it was entitled to have the opportunity of obtaining an assessment from its own experts.
Likewise, the answer filled in by Mr Austen on his medical examination, on 12 July 1973, for renewal of his pilot's licence, which has been quoted above, was untrue, or at least misleading. Certainly, the statement that he had not withheld any relevant information or made any misleading statement was untrue. He had consulted a doctor at Royal Perth Hospital on 11 July 1971 in connection with his alleged taking of six tablets of surmontil, and he had been admitted both to Royal Perth Hospital and to Heathcote Hospital in September 1972 following his taking an overdose of soneryl. He disclosed neither. And even if Prof. German's view that Mr Austen had never truly suffered from nervous disability be correct, that would not justify the negative answer given in the form completed for the purpose of employment as an air traffic control officer, since this form clearly indicated that as used in the form, the expression "nervous disability" carried a much wider sense. By language a layman could not mistake, the form called for a disclosure of any such matter as the various consultations with doctors at Heathcote Hospital, and Royal Perth Hospital, in respect of "nerves, nervousness, nervous breakdown, mental or emotional instability ... or anxiety state". And even if it be suggested that none of these hit the nail precisely on the head, the declaration on the same form declared that no relevant information had been withheld and no misleading statement had been made. In the face of a very broad question about nervous problems, as well as a further question about "any illness not already mentioned", it must have been misleading to omit all reference to the various admissions in question.
But Mr Austen contended that the file kept by the Director of Aviation Medicine could not truly be described as a medical history file. He argued that such a file should be strictly confined to proven facts. However, on the evidence of the highly qualified medical experts who were called in this case, I am clearly of opinion that the various matters recorded in the file were properly matters of medical history. Such a file properly includes a wide variety of information bearing on the health of the person who is its subject. A statement made may legitimately be included in such a file, even if it is investigated and found to be false, for the making of a false allegation is itself a fact of potential significance. Of course, if an allegation is found to be false, a medical history file should make it clear that the allegation has been investigated and is rejected. Precisely what should be included in such a file is not, however, a legal question; but a matter for the professional judgment of the qualified persons by whom and for whose purposes the file is kept. Provided some piece of information is capable of being regarded as relevant from a medical point of view, and is in fact placed in a file kept by the appropriately qualified person or persons as a medical history file, I do not see how, speaking generally, a court can exclude it from belonging to the category of documents which form part of a medical history file. That the applicant himself was conscious of the relevance of details of his psychiatric dossier is best evidenced by his persistence in attempting to conceal it on his applications for a position as an air traffic controller and to Ansett, on occasions when truthful answers to medical questionnaires demanded its disclosure, and by seeking an assurance from Dr Lane that it would not be revealed to an employer. He had earlier shown a similar awareness of the significance of his admissions to Heathcote Hospital in 1969 and to Royal Perth Hospital in 1970 when, according to the report of Dr Traub about those admissions to which I have already referred, he "expressed fears that this may affect his future in obtaining a job as a pilot with an airline".
A further complaint made by Mr Austen concerned the taking of copies of documents in the medical history file by Dr Lewis. The argument was that an authorization "to supply details of my medical history" was not a permission to take copies. However, the authority does not specify the manner of supply of details, and writing is the normal mode of communication of complicated facts, such as might be contained in a medical history file. In Downey v. Pryor (1960) 103 CLR 353, the High Court considered the effect of a statutory authority expressed in the following terms: "Any elector may at the council's office inspect the books of account and the report of the auditor ... ". Kitto J said (at 361):

"Kinsella J held that a right to take notes of the contents of the books of account was incidental to the right of inspection, and he referred to the judgment of Lindley LJ in Mutter v. Eastern and Midlands Railway Co. (1888) 38 Ch D 92, at p 105. ... I entirely agree in his Honour's view, and I see no advantage in elaborating the point."

Windeyer J said (at 366):

"I agree with Kinsella J that a right of inspection carries by implication a right to take copies or extracts."

If a mere right of inspection carries such an implication, I think a right to the supply of details should, in the present context, be understood as involving a right to take copies.

Given that the Medical Information Authority entitled the Director of Aviation Medicine to permit Ansett's Medical Director to take copies of portions of the medical file, as well as to permit inspection of the file, I think consent is a complete answer to the cause of action in defamation founded on those matters. It is irrelevant that Mr Austen may not have known exactly what was in this file; in any case, he did know that it would be likely to contain so much of his psychiatric history as he had not been able to conceal, together with a detailed record dealing with his atrial fibrillation, its consequences, and its investigation. It is also irrelevant that Dr Lewis appears to have drawn a hasty and incorrect conclusion that Mr Austen had been refused a licence in the United Kingdom, and, perhaps, even that he did not at the time of his application to Ansett hold such a licence. In Chapman v. Lord Ellesmere (1932) 2 KB 431, there was consent to the publication in the Racing Calendar of any decision by the stewards of the Jockey Club withdrawing or suspending a trainer's licence. Lord Hanworth MR said (at 450-451):

See also Tekmat Investments Pty Ltd v. Ward (1988) 81 ALR 278.

The principles to which I have referred may, of course, be affected in a particular case by special rules, such as the rule permitting costs to be awarded to a party in respect of an issue on which he succeeds, although he may lose the action (see Lombok Pty Ltd v Supetina Pty Ltd (1987) 71 ALR 333 at 347, 354, but see also Australian Conservation Foundation v. Forestry Commission (1988) 81 ALR 166 at 169). Also, the nature of a particular type of litigation may introduce special considerations, as is not infrequently the case in administrative appeals, where a governmental authority may have a general interest in the clarification of the law not shared by the other party (see Minister for Community Services and Health v. Dibo Pty Limited (1992) 38 FCR 292 at 294; Arnold v. Queensland (1987) 73 ALR 607 at 635; Gray v. Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 351 at 355).
In my opinion, there is here a strong reason connected with the case to exercise my discretion in favour of the applicant, so as to deny the Civil Aviation Authority an order for its costs. Although the applicant has failed to establish a breach of his rights, circumstances for which the Authority was ultimately responsible were certainly such as to provoke a legitimate and reasonable suspicion on his behalf. Had they not done so, he might never have brought his claim. I refer to the fact that the Director of Aviation Medicine dealt personally with Ansett's request for information pursuant to the medical information authority in relation to Mr Austen, and communicated personally with Dr Lewis about the matter. Indeed, as I have held, he even went outside the scope of the medical information authority and the medical history file to inform Dr Lewis of something he himself only knew at second-hand, and inaccurately, which, though relevant so far as Ansett was concerned, was not relevant to the duties of the Director of Aviation Medicine, nor to those of the Civil Aviation Authority. The particular matter of concern raised by this situation is, of course, that Dr Liddell is the brother of the applicant's former wife Kaye, from whom he had an acrimonious divorce after a stormy and apparently very unhappy marriage. It is plain there has been a degree of continuing ill-will between Mr Austen and his former wife. Whether or not an actual breach of the letter of the Public Service Regulations occurred, it was plainly contrary to their spirit and to ordinary principles of administrative propriety and fairness for Dr Liddell to have played the role which he did. I should make it clear, if it is not already clear from the findings I have made, that I do not think Dr Liddell actually took advantage of the situation to harm the applicant, or took any step in relation to the medical history file an independent officer would not have taken; but he should not have been involved. According to his evidence, it was a mere matter of chance that Mr Austen's file came before him, and not before another medical officer. In that case, it could easily have been handed over to one of the other medical officers to whom it might quite possibly have come in the first instance. Even if Dr Liddell's position as Director of Aviation Medicine might not have allowed him to withdraw from the matter entirely, it certainly did not debar him from giving the task of initial consideration to another, and he could, and should, have made his own conflict of interest very clear to Ansett before assuming any personal part. What he did was the opposite. He involved himself, as I have said, unnecessarily, and to the applicant's prejudice, by passing on information not the subject of Ansett's request, because not in the medical history file, which was both second-hand and inaccurate. By doing so, Dr Liddell did tell an untruth to Dr Lewis which, had Ansett reacted differently, might have been the source of very real harm.
In all the circumstances, I have come to the conclusion that the proper order to make is that the application be dismissed, but that no order be made in respect of the Civil Aviation Authority's costs.

[1993] FCA 584

26 AUGUST 1993