Neal v Secretary, Department of Transport

[1980] FCA 49

Re: ROBERT NEAL
And: THE SECRETARY, THE DEPARTMENT OF TRANSPORT
N.S.W. No. G60 of 1979
Administrative Law
3 ALD 97/29 ALR 350

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Franki J.
Lockhart J.
Sheppard J.

CATCHWORDS

Administrative Law - appeal to Federal Court from Administrative Appeals Tribunal - application for student pilot's licence - applicant admitted to have suffered one psychotic episode - whether evidence of established medical history of psychosis - whether applicant's submission raised question of law - whether meaning of certain Air Navigation Orders made pursuant to regulations under Air Navigation Act 1920 restricted by the Chicago Convention approved by that Act - Administrative Appeals Act 1975, s.44 - Air Navigation Act 1920, ss.3A and 26 - Air Navigation Regulations, reg.57 - Air Navigation Orders, s.47.1.

HEARING

SYDNEY

#DATE 30:4:1980

ORDER

1. The appeal is dismissed.

2. Decision of the Tribunal is affirmed.

3. Applicant to pay the costs of the respondent of this appeal.

JUDGE1

This purports to be an appeal on a question of law from the Administrative Appeals Tribunal under s.44 of the Administrative Appeals Tribunal Act 1975. An appeal lies to this Court from a decision of the Administrative Appeals Tribunal on a question of law. No appeal lies on any question other than one of law.

The applicant, Robert Neal, had applied for a student pilot's licence under the provisions of the Air Navigation Regulations made under the provisions of s.26(1)(b) of the Air Navigation Act 1922 ("the Act"). Section 26(1)(b) of the Act provides that the Director-General may make regulations not inconsistent with the Act "for the purpose of carrying out and giving effect to the Chicago Convention, . . . any Annex to the Convention relating to international standards and recommended practices, (being an Annex adopted in accordance with the Convention) . . ."

Section 3A(1) of the Act provides:
"The ratification on behalf of Australia of the Chicago Convention is approved".
One Annex adopted in pursuance of the Convention deals with personal licensing and chapter 1 inter alia, deals with the "validity of licences" and "decrease in medical fitness". Paragraph 1.2.6.1 requires each contracting state, so far as is practicable, to ensure that a licensed holder does not exercise the privileges of his licence during any period in which his medical fitness has, from any cause, decreased to an extent that would have prevented the issue or renewal of his licence. Paragraph 6.2.3 provides that:
"The medical examination and assessment should be based on the following requirements of physical and mental fitness."

Paragraph 6.2.3.3 sets out certain of these requirements and para. 6.2.3.3.1 contains a recommendation apparently for the guidance of the examining authority.

Regulation 57 of the Air Navigation Regulations deals with medical standards and reg. 57(1)(a) provides:
"Subject to this regulation, an applicant for a licence under this Part is not eligible for the grant of such a licence unless -
(a) he submits himself to a medical examination, conducted by an approved medical practitioner, and satisfies the Director-General that he meets the medical standards adopted in pursuance of the Convention and notified by the Director-General in Air Navigation Orders; and. . . "
Regulation 57(1)(b) contains certain provisions which are not relevant to the case under consideration. Regulation 57(2) provides that where the applicant for the grant of a licence under that part of the Act fails to meet the medical standards referred to in reg.57(1)(a) the Director-General may grant a licence subject to, inter alia, such limitations (if any) as the Director-General considers necessary in the interests of the safety of air navigation having regard, inter alia, to the extent of the applicant's failure to meet the medical standards referred to in reg.57(1)(a).

The relevant air navigation orders concerning the physical standards required for a student pilot are those set out under the heading "Physical Standard No. 3" in s.47.1 of the Air Navigation Orders issued on 26 June 1972. Paragraph 3.1 of this physical standard provides:
"The medical examination and assessment shall be based on the following requirements of mental and physical fitness".
and para. 3.3 which is headed "Mental fitness" provides:
"(a) The applicant shall have no established medical history or clinical diagnosis of either of the following:
(i) a psychosis;
(ii) any personality disorder severe enough to have repeatedly resulted in overt acts.
(b) The applicant shall have no established medical history or clinical diagnosis of a mental abnormality, personality disorder, neurosis, alcoholism or drug dependence which makes it likely that within two years of the examination, he will be unable to safely exercise the privileges of the licence or rating applied for or held.
Note.-A history of acute toxic psychosis need not be regarded as disqualifying, provided that the applicant has suffered no permanent impairment."

Section 47.0 of these Air Navigation Orders indicates the way the standards which follow are to be regarded. Paragraph 3 of s.47.0 provides, inter alia, that "The standards of this Part cannot include sufficient detailed specifications to cover all conditions."

The applicant was refused a student pilot's licence and he then applied to the Administrative Appeals Tribunal which affirmed the decision of the Secretary, Department of Transport, refusing to grant the applicant a student pilot's licence.

The grounds of the appeal to this Court as set out in the notice of appeal are as follows:
"The Tribunal erred in law in affirming the decision appealed from when it was satisfied on the evidence before it -
(a) that there was a reasonable doubt that at all relevant times the Applicant had had an established medical history or clinical diagnosis of a psychosis which was a non-toxic psychosis;
(b) that there was a doubt that the Applicant had suffered from a toxic psychosis in February, 1967 which responded to therapeutic treatment;
(c) that in February, 1967 the Applicant had suffered from a psychosis which was probably a non-toxic psychosis.
Alternatively, the Tribunal erred in fact and in law in the following respects:
(a) its finding that the Applicant had an established medical history or clinical diagnosis of psychosis at any material time or at all was against the weight of evidence;
(b) its finding that on the balance of probabilities the evidence showed that the Applicant suffered from a non-toxic psychosis in February, 1976 was against the weight of evidence; and
(c) its reasons for deciding that a conditional licence under Section 57(2) of the Regulations could not properly be issued to the Applicant were against the weight of evidence."

At the commencement of the proceedings before us, the respondent submitted that the grounds of appeal did not raise any question of law. No application was made to amend the notice of appeal under order 53 rule 4 of the Federal Court Rules. In my opinion the notice of appeal did not state in any clear terms what question or questions of law were to be raised in the appeal.

As far as I could follow the argument of the applicant, he sought to argue three questions. First, it was said that the physical standard set out, in s.47.1.3.3 of the Air Navigation Order Part 47, was not in accordance with the standards prescribed in Annex 1 to the Convention. The applicant here was specifically referring to para. 6.2.3.3 and 6.2.3.3.1. In view of the way in which these standards are to be viewed I cannot see any substance in this argument. In any event I consider that the grounds of appeal do not embrace this ground.

The major argument advanced by the applicant related to the words "established medical history" and "a psychosis". It was submitted that an established medical history meant an established history of more than one episode and that "a psychosis" was not satisfied by one psychotic period. There is no appeal to this Court on anything other than a question of law and therefore the Court is not concerned with whether or not it would have come to the same conclusion as the Tribunal came to but only with the question of whether the Tribunal erred in law. However, it is necessary at this stage to consider the facts in outline. There is no doubt that during the period between 16 February 1967 and 17 March 1967 the applicant was in hospital following a nervous breakdown and was given treatment for this condition which a Dr. Moriarty, a medical practitioner specialising in psychiatry, diagnosed as acute undifferentiated schizophrenia. The Tribunal accepted the fact that that had been Dr. Moriarty's diagnosis and that it was in effect a finding of a non-toxic psychosis. There was evidence that a psychosis is of two types and may either be a toxic psychosis which is one induced by, for example, drugs or alcohol or a non-toxic or functional psychosis. Whilst the evidence was not entirely clear that the applicant had suffered from a non-toxic psychosis there was considerable evidence to support the finding of the Tribunal that on the balance of probabilities it was not prepared to reject the conclusion of Dr. Moriarty. The Tribunal found that the applicant had suffered from a non-toxic psychosis in February 1967. There was abundant evidence that a non-toxic psychosis could re-appear at least up to 15 years later without any apparent reason and there was also some evidence that if such a condition recurred, it would be a hazard to flying.

It is clear from the terms of reg.57(1)(a) that the onus is upon the applicant to satisfy the Director-General that he meets the medical standards notified by the Director-General in Air Navigation Orders. There was no evidence that the applicant had suffered any further psychosic incident since March 1967 although for a number of years he received treatment with various forms of drugs including tranquillisers. There were a number of other matters upon which there was some evidence, for example, that the applicant's sister commited suicide and that his father had threatened suicide.

The main argument presented by the applicant was that the single psychotic incident in 1967 did not constitute an established medical history of a psychosis. In my opinion the expression "established medical history" means no more than a medical history which is established on the balance of probabilities and that a series of incidents is not necessary to constitute an established medical history of psychosis. There is no doubt in this case that there was an established medical history of a psychosis during the period between the middle of February and the middle of March 1967. There may be some doubt whether that psychosis was a toxic or non-toxic psychosis but the provisions of s.47.1 para. 3.3(a) is satisfied whether the psychosis is toxic or non-toxic. The note to that paragraph is no more than an indication to the relevant examining authority that even an acute toxic psychosis need not be regarded as disqualifying provided the applicant has suffered no permanent impairment. This however is a matter for the discretion of the examining authority. In any event there is no doubt that there was a clinical diagnosis in 1967 of a psychosis. If indeed either "established medical history" or "clinical diagnosis" is a phrase comprising non-legal but technical words and technical evidence is admissible as to its meaning there was evidence from two medical practitioners who gave evidence before the Tribunal that Dr. Moriarty made a clinical diagnosis of psychosis in 1967 and there is also considerable evidence, which it was open to the Tribunal to accept, that one episode was sufficient to constitute an established medical history of psychosis.

Although I have considerable doubt whether the grounds set out in the notice of appeal adequately raise this issue I am prepared to assume that they do but I do not consider that the applicant has established this issue.

The third argument of the applicant flows from the alternative ground of appeal which is cast in terms that the Tribunal erred in fact and in law and raises the question of the weight of evidence. It is perfectly clear that this Court is not concerned with the weight of evidence unless indeed the evidence is not capable of supporting a finding. It is perfectly clear in this case that there is ample evidence from which the Tribunal could draw the conclusions to which it came.

Finally, there was a reference to the power to grant a licence under reg.57(2) where the medical standards referred to in reg.57(1)(a) have not been met. The Tribunal clearly considered this question and came to the conclusion that the possibility of the recurrence of a psychotic condition still existed and that such a recurrence, should it occur while the applicant was in charge of an aircraft, could definitely prejudice air safety. There is nothing before the Court to suggest that the Tribunal failed to consider its powers under s.43 of the Administrative Appeals Tribunal Act to exercise the powers and discretions conferred upon the Director-General under reg.57(2) or that it misdirected itself or conducted itself in any way which constituted an error in law.

In my opinion the application should be dismissed and the decision of the Tribunal affirming the decision of the Secretary, Department of Transport, refusing to grant to the applicant a student pilot's licence should be affirmed. I would therefore dismiss the appeal and order that the applicant pay the costs of the respondent of the appeal to this Court.

JUDGE2

This is an appeal from a decision of the Administrative Appeals Tribunal under s.44 of the Administrative Appeals Tribunal Act 1975 affirming the decision of the delegate of the Secretary, Department of Transport refusing to grant a Student Pilot's Licence to the applicant.

The applicant applied for a Student Pilot's Licence under the provisions of the Air Navigation Regulations ("the Regulations") on 18 November 1978. The application was refused by the delegate of the Secretary on the ground that the applicant failed to satisfy a standard prescribed by the Regulations namely, the medical standards notified in s. 47 of the Air Navigation Orders ("the Orders").

Section 26 (1) (b) of the Air Navigation Act 1922 ("the Act") provides that the Director-General may make regulations not inconsistent with the Act for the purpose of carrying out and giving effect to the Chicago Convention and any Annex to the Convention relating to international standards and recommended practices.

The Chicago Convention is part of the law of Australia: s. 3 A (1) of the Act.

Regulation 57 of the Regulations deals with medical standards and so far as relevant provides:-
"57 (1) Subject to his regulation, an applicant for a licence under this Part is not eligible for the grant of such a licence, unless --
(a) he submits himself to a medical examination, conducted by an approved medical practitioner, and satisfies the Director-General that he meets the medical standards adopted in pursuance of the Convention and notified by the Director-General in Air Navigation Orders; . . ."
"57 (2) Where an applicant for the grant of a licence under this Part fails to meet the medical standards referred to in paragraph (a) of the last preceding sub-regulation, the Director-General may grant the licence subject to --
(a) the condition that the holder of the licence is not authorized to engage in international air navigation; and
(b) such other limitations (if any) as the Director-General considers necessary in the interests of the safety of air navigation, having regard to the applicant's experience and ability and to the nature and extent of his failure to meet the medical standards referred to in paragraph (a) of the last preceding sub-regulation."

Section 47 of the Orders states the standards of medical fitness required of certain classes of persons which includes the applicant. The relevant medical standards required for a student pilot are set out in s. 47.1 of the Orders issued on 26 June 1972 under the heading "Physical Standards No. 3". The relevant paragraphs of this physical standard provide:-
"3.1 - The medical examination and assessment shall be based on the following requirements of mental and physical fitness.
3.2 - The applicant shall be free from any congenital or acquired disability causing such degree of functional incapacity as is considered likely to interfere with the safe operation of the aircraft under ordinary conditions.
3.3. - Mental fitness.
(a) The applicant shall have no established medical history or clinical diagnosis of either of the following:-
(i) a psychosis;
(ii) any personality disorder severe enough to have repeatedly resulted in over acts.
(b) The applicant shall have no established medical history or clinical diagnosis of a mental abnormality, personality disorder, neurosis, alcoholism or drug dependence which makes it likely that within two years of the examination, he will be unable to safely exercise the privileges of the licence or rating applied for or held.
Note. - A history of acute toxic psychosis need not be regarded as disqualifying, provided that the applicant has suffered no permanent impairment."

An appeal to this court under s.44 lies on a question of law only.

The respondent submitted that the grounds of appeal raised no question of law. The applicant made no application to amend the notice of appeal. The notice of appeal sets out the grounds of appeal as follows:-
"The Tribunal erred in law in affirming the decision appealed from when it was satisfied on the evidence before it -
(a) that there was a reasonable doubt that at all relevant times the Applicant had had an established medical history or clinical diagnosis of a psychosis which was a non-toxic psychosis;
(b) that there was a doubt that the Applicant had suffered from a toxi psychosis in February, 1967 which responded to therapeutic treatment;
(c) that in February, 1967 the Applicant had suffered from a psychosis which was probably a non-toxic psychosis.
Alternatively, the Tribunal erred in fact and in law in the following respects:
(a) its finding that the Applicant had an established medical history or clinical diagnosis of psychosis at any material time or at all was against the weight of evidence;
(b) its finding that on the balance of probabilities the evidence showed that the Applicant suffered from a non-toxic psychosis in February, 1976 was against was against the weight of evidence; and
(c) its reasons for deciding that a conditional licence under Section 57 (2) of the Regulations could not properly be issued to the Applicant were against the weight of evidence.

In my opinion no question of law arises on the face of the grounds of appeal; but as there was considerable argument before this court on a number of questions and the matter obviously is one of importance to the applicant, I do not propose to take an unduly technical approach to the matter.

Counsel for the applicant argued a number of matters. First he submitted that the physical standards prescribed in paragraph 3.3 of s. 47. of the Orders differed materially from the physical standards prescribed in paragraphs 6.2.3.3. and 6.2.3.3.1. of Annex 1 to the Chicago Convention, that the former should be read down to conform with the latter and that on the evidence, the applicant satisfied the requirements of the latter.

This submission was not put to the Tribunal nor is it within the grounds of appeal to this court. However, counsel for the applicant sought to argue the question, so I shall deal with it.

This squarely raises the question whether the two medical standards are consistent with each other.

There is a difference in language and form between the two medical standards. However, in my opinion there is no difference in substance. In particular, if one reads paragraphs 3.1, 3.2 and 3.3 of "Physical Standard No. 3" in s. 47.1 of the Orders and reads the standards prescribed by paragraphs 6.2.3.2, 6.2.3.3 and 6.2.3.3.1 of the Annex, I see no material difference. Hence this argument fails.

The second submission by counsel for the applicant was founded on the words "established medical history" and "psychosis" in paragraph 3.3 of s. 47.1 of the Orders. It was submitted that in order to answer the description of an "established medical history" it was necessary that there be more than one episode and that a "psychosis" required more than one psychotic episode. It was then submitted that on the evidence before the Tribunal, the most that could be found was one episode or psychotic period so that the applicant did not fail to meet the prescribed medical standards.

In my opinion the expression "established medical history" means a medical history which is proved, established or confirmed. There is no necessity for a number or series of episodes or events to occur before there is an "established medical history". Nor do I see any warrant for requiring a series of episodes or incidents before there could be said to be "a psychosis". These conclusions are reinforced when it is remembered that the purpose of the medical standards prescribed by the Orders is to require minimum standards of health of persons seeking a licence to fly aircraft. It is not only the safety of the pilot that attracts the concern of the Government; but the safety of other persons flying aircraft or otherwise affected by the movement of aircraft.

The expressions "established medical history" and "a psychosis" are not mere terms of art. They are expressions adopted in the Orders which must have a fixed meaning and not one that varies according to the facts of a given case. What constitutes an established medical history of a particular patient or a particular psychosis may, of course, be a matter for evidence; but the meaning of those expressions is not variable.

Even if the expressions were technical and were therefore susceptible of interpretation in the light of expert evidence, there is ample evidence, which the Tribunal was at liberty to accept, that one episode or incident was sufficient to constitute an established medical history of a psychosis.

It is for the applicant to satisfy the Director-General that he meets the requisite medical standards: see paragraph 57 (1) (a) of the Regulations.

The Tribunal found that the applicant had suffered from a non-toxic psychosis in February 1967, that such a psychosis could re-appear at least up to 15 years later for no apparent reason and that if it did re-appear it would be a hazard to flying. The Tribunal's finding is supported by the evidence. Early in 1967, the applicant was admitted to hospital for an operation on his eye. During a period of post-operative treatment he suffered a nervous breakdown. Dr. Moriarty, a medical practitioner who specialized in psychiatry, made a diagnosis of acute undifferentiated schizophrenia. Dr. Moriarty died in 1971 but his partner, a Dr. Lea, saw the applicant. Dr. Lea gave evidence before the Tribunal that the applicant had suffered an acute psychotic illness. This evidence was before both the Director-General and the Tribunal. It was not challenged.

The evidence establishes that a psychosis is of two types, a toxic psychosis which is one induced by substances such as drugs or alcohol or a non-toxic psychosis or, as it is sometimes called, a functional psychosis.

The applicant does not appear to have suffered from any further psychotic problems since 1967 although, for some years, he received treatment with drugs of various descriptions. There was ample evidence before the Tribunal that there was an "established medical history" of a psychosis during the period February-March 1967. It may be open to argument whether it was a toxic or non-toxic psychosis but this is irrelevant for the purpose of paragraph 3.3 of s. 47.1 of the Air Navigation Orders. There is a note to that paragraph that:-
"A history of acute toxic psychosis need not be regarded as disqualifying, provided that the applicant has suffered no permanent impairment."

The applicant relied on this to found an argument that if there was an established medical history of psychosis it was an acute toxic psychosis and that this did not render an applicant ineligible for a licence. The argument is unsound. The note to the paragraph is a guide to the medical examiner or perhaps to the Director-General, that an acute toxic psychosis need not be regarded as disqualifying provided the applicant has suffered no permanent impairment. It is for the medical examiner or the Director-General to determine in his discretion whether such a history need disqualify. In any event there was ample evidence before the Tribunal to support its findings that the psychosis was non-toxic.

Whether the psychotic episode in 1967 was toxic or non-toxic does not matter. What is important is that there was a psychotic episode which in itself was sufficient to constitute an "established medical history of a psychosis", thus disqualifying the applicant from the right to hold the relevant licence.

Leaving aside the fact that the notice of appeal does not raise this point, clearly the applicant failed to discharge the onus of satisfying the Director-General that he met the requisite medical standards as required by paragraph 57(1)(a).

Counsel for the applicant submitted as an alternative argument that this was an appropriate case for a conditional licence to issue under sub-reg. 57 (2).

The Tribunal held that the medical evidence clearly established that the possibility of a recurrence of a psychotic condition still existed, and that should such a recurrence occur while the applicant was in charge of an aircraft, air safety would be impaired. The Tribunal expressed the view that a conditional licence could not properly issue. It has not been established that the Tribunal was in error.

The case is unfortunate because the applicant's life has been difficult. His health has been impaired by a number of incidents over the years. He wants to have a Student Pilot's Licence so as to enable him to qualify as a pilot and purchase an aircraft for use in his occupation as a woolclasser. He would be able to travel from station to station, particularly to the larger ones, throughout Australia. He is a proficient woolclasser. He gave evidence before the Tribunal that generally woolclassers travelled by car from station to station but, on the travelling allowance payable, he thought he could operate an aircraft and, with the reduction of travelling time involved, could increase his earnings and obtain more time for leisure. Whilst one cannot fail to have sympathy for the applicant, one cannot lose sight of the fact that he is seeking to hold a licence which would enable him to fly aircraft throughout this country.

The appeal should be dismissed and the decision of the Tribunal affirming the decision of the delegate of the Secretary, Department of Transport refusing to grant to the applicant a Student Pilot's Licence should be affirmed. The applicant must pay the costs of the respondent of this appeal.

JUDGE3

This is an appeal by one Robert Neal against a decision of the Administrative Appeals Tribunal made on 21st September, 1979. The appeal is brought pursuant to the provisions of s.44 of the Administrative Appeals Tribunal Act 1975. Such an appeal lies only if there is raised for decision a question of law. It perhaps should be said that the appeal is not a true appeal. The Tribunal is an administrative one. It does not exercise judicial power so that the "appeal" to this Court involves it in exercising original rather than appellate jurisdiction; cf. Commissioner of Taxation v. Finn, 103 C.L.R. 165. Nothing turns on that circumstance. No formal tender of the evidence which was before the Tribunal was made, but the entirety of it was treated by both parties as being properly before the Court.

The applicant has for many years been desirous of obtaining a licence as a student pilot. Air Navigation Orders made pursuant to the Regulations made under the Air Navigation Act 1920 provide that an applicant for a student pilot's licence must meet what is described as physical standard No.3. Section 47.1 of the relevant Air Navigation Order provides in chapter 3 for that standard. Paragraph 3.3 of the chapter is as follows:
"Mental fitness.
(a) The applicant shall have no established medical history or clinical diagnosis of either of the following:
(i) a psychosis;
(ii) any personality disorder severe enough to have repeatedly resulted in overt acts.
(b) The applicant shall have no established medical history or clinical diagnosis of a mental abnormality, personality disorder, neurosis, alcoholism or drug dependence which makes it likely that within two years of the examination, he will be unable to safely exercise the privileges of the licence or rating applied for or held.
Note. - A history of acute toxic psychosis need not be regarded as disqualifying, provided that the applicant has suffered no permanent impairment."

The principal submission made on behalf of the applicant was that there was no evidence that the applicant had an established medical history of a psychosis within the meaning of sub-para.(a)(i) of the Order. That is the ground upon which the delegate of the Secretary, Department of Transport, found him medically unfit, a ground which the Tribunal upheld.

The evidence discloses that the applicant was admitted to the Tamworth Base Hospital early in 1967 for an operation on his eye. Post-operative treatment necessitated that he remain perfectly still for a period of some 10 days. During this time he was placed in a sitting position in bed and his body packed with sand bags. He was unable to open either eye. He suffered a mental breakdown which was diagnosed by a psychiatrist in Tamworth, Dr. Moriarty, as an episode of acute undifferentiated schizophrenia following the removal of a traumatic cataract from the applicant's right eye. Dr. Moriarty died in 1971 but the applicant was seen thereafter from time to time by Dr. Moriarty's partner, Dr. Lea. Dr. Lea said that the applicant in February 1967 had developed an acute psychotic illness.

The evidence referred to was the principal evidence of a history of psychosis which was available to the delegate. It was also before the Tribunal. There was no contest before the Tribunal nor before this Court that the evidence was correct. Counsel for the applicant frankly conceded to us that the incident which occurred in February 1967 was a psychotic episode. But his submission was that one psychotic episode did not constitute an established medical history of psychosis within the meaning of the provision. In his contention at least two episodes were required before there could be an established medical history of psychosis.

The submission led to argument concerning the meaning to be ascribed to the expressions "medical history", "established medical history" and "psychosis". It was the respondent's submission that whether or not some or all of those expressions were technical terms or ordinary English words, the question of their meaning was a question of fact. If they were technical terms or terms of art, evidence could be called (as it was before the Tribunal) to ascertain their meaning; otherwise recourse might only be had to dictionaries and other standard works; cf. The Australian Gas Light Co. v. The Valuer General (1940) 40 S.R. (NSW) 126 at p.137 and Lombardo v. Federal Commissioner of Taxation 79 A.T.C. 4542 at p.4544. In either event no question of law arose for decision. But what is involved is the true construction of a statutory instrument (the relevant Air Navigation Order). That raises a question of law. The meaning of a statute (or an instrument made pursuant thereto) cannot vary depending upon what view a tribunal of fact takes of the meaning of its words. That is not to say that there will not be expressions used in statutes and statutory instruments which are capable of applying, but which may not necessarily apply, to a variety of factual situations. To ascertain whether they do in fact apply or not will most usually raise a question of fact. It will only be where a given factual situation is said to be necessarily within or outside the statutory provision that a question of law will arise; see Farmer v. Cotton's Trustees (1915) A.C. 922 at p.931, Australian Gas Light Co. v. The Valuer General at p.138, para.(4), Federal Commissioner of Taxation v. Broken Hill South Limited 65 C.L.R. 150, per Williams J. at p.160, and Lombardo at p.4544. In such cases it is not the proper construction of the statute which is usually in question. It is rather a question of whether a given factual situation falls within or outside a statutory provision, the true construction of which is not in contest.

The present case differs from the type of case instanced in the references just mentioned because the applicant's submission calls into question the proper construction of a statutory instrument. What is the meaning and effect of the provision which says that in order to meet the required medical standard for a student pilot's licence an applicant shall have no established medical history of a psychosis. Did the draftsman intend that there could be no established medical history of a psychosis unless there were evidence of at least two separate and distinct psychotic episodes.

It is true that in order to embark upon the exercise of construction which is involved the Court needs to know the meaning of certain words and expressions. But the fact that the ascertainment of the meaning of a word, as distinct from the true meaning and effect of a statutory provision, may itself be a question of fact does not to my mind mean that no question of law is involved. The distinction is, with respect, well drawn by Isaacs J. in Life Insurance Co. of Australia v. Phillips 36 C.L.R. 60. He referred (p.78) first of all to what had been said by Lindley L. J. in Chatenay v. Brazilian Submarine Telegraph Co. ( (1891) 1 Q.B. 79 at p.85) namely:
"The expression 'construction,' as applied to a document, at all events as used by English lawyers, includes two things: first, the meaning of the words, and, secondly, their legal effect, or the effect which is to be given to them. The meaning of the words I take to be a question of fact in all cases, whether we are dealing with a poem or a legal document. The effect of the words is a question of law."
Isaacs, J. continued:
"The 'meaning of the words' is what I call interpretation, whether the words to be interpreted into ordinary English are foreign words or code words or trade words or mere signs or even ordinary English words which on examination of surrounding "circumstances turn out to be incomplete. Their effect when translated into complete English is construction. If that distinction be borne in mind very little difficulty remains."

He went on to refer (pp.78-79) to what had been said by the Privy Council in McConnel v. Murphy ( (1873) L.R. 5 P.C. 203 at p.219) and continued (p.79):
"Once there is established the full mutual expression of the agreement in English words, the construction of the document is, as Lindley L.J. says, a pure matter of law. Lord Chelmsford in Di Sora v. Phillipps ( (1863) 10 H.L.C. 624 at pp.638, 639) makes this clear to demonstration, and there separates the interpretative function from that of true construction (see also per Lord Atkinson in Williams Brothers v. Ed. T. Agius Ltd. ((1914) A.C.510, at p.527). For this purpose no external evidence is permissible. All preliminary operations of interpretation are assumed to have been performed and, if necessary, by appropriate evidence, as explained by Lord Chelmsford in Di Sora v. Phillipps, and, the Judge's mind being sufficiently informed, he must be left to his own office of construing the language of the instrument in question."

What was said by Isaacs J. in Phillips was specifically referred to by Jordan C.J. in The Australian Gas Light Co. v. The Valuer General in support of his proposition that the question of what is the meaning of an ordinary English word or phrase as used in a statute is one of fact not of law (40 S.R. at p.137). He ought not therefore to be taken as having departed at all from the views expressed by Isaacs J. in the passage which I have cited. Accordingly, I would reject the respondent's submission that the applicant's principal proposition does not raise a question of law.

I turn then to deal with that proposition. The authorities to which I have referred show that before embarking on the exercise of construction a judge needs to ascertain the meaning of the various expressions used in the instrument to be construed. Really he needs to ascertain the meanings of which the expressions are capable. As I have earlier said, if words used are technical words or terms or art (or, I would add, expressed in a foreign language) recourse may be had to evidence to explain them. If they are ordinary English words their meaning may only be ascertained by reference to dictionaries and other standard works. To the references earlier given I add a reference to the decision of the Court of Appeal in England in Marquis of Camden v. Inland Revenue Commissioners (1914) 1 K.B. 641, particularly at pp.647-8. The decisions to which I have referred provide clear authority for the proposition that a court concerned only with deciding a question of construction (that is a question of law) may inform itself of the meaning of ordinary English words by reference to dictionaries and other standard works notwithstanding that the meaning of such words is a question of fact. The Court has to be able to take that course. Otherwise it cannot put itself in a position to construe the statute. In The Australian Gas Light Co. v. The Valuer General, Davidson J. in his dissenting judgment made this clear when he gave as an instance of the problem the determination of a demurrer which raised a question of construction for decision (40 S.R. at p.143). Although he dissented he did so not on any question of principle but on the construction of the statute which was in that case in question.

In the present case we were referred, quite properly, to the dictionary meanings of the various expressions used in the provision in question. We were also referred to evidence given before the Tribunal as to their meaning. But it would only be if all or some of the various expressions were used in a technical sense that it would be appropriate to have regard to the evidence. I think there is a question as to whether the words are used in a technical sense. I think the word "psychosis" probably is; but I have a real doubt myself as regards the expression "medical history" or, if one looks at it as one expression, the phrase "established medical history". I have reached the conclusion that I do not need to resolve this question. Whether one looks at the evidence or at dictionaries and standard works the result is the same. Gould's Medical Dictionary, 3rd edition, is a standard work. "Medical history" is there defined as the account obtained from a patient (or from persons close to him) as to his health, past and present, and the symptoms of his disease. A synonym for the expression is said to be anamnesis which is defined to mean information gained from the patient and others regarding his past medical history. If one goes to the Shorter Oxford Dictionary and has regard to the words "medical" and "history", a similar, if more general meaning, is arrived at. The word "anamnesis" is defined in that dictionary to mean, inter alia, the recalling of things past. If one has regard to the evidence led before the Tribunal as to the meaning of medical history no different conclusion would be reached as to the meaning of the expression because the evidence is in accordance with what is to be found in the dictionaries to which I have referred.

The word "established" needs to be taken into account but its presence does not affect the question of whether one psychotic episode is sufficient to enable it to be said that a person in the position of the applicant has within the meaning of the provision in question a medical history of psychosis. It means no more in the context in which it is used than proved or confirmed.

The meaning of the words having been established, the task of construction can commence. Does one past psychotic episode lead to the conclusion that the applicant, within the meaning of the Air Navigation Order in question, has a medical history of psychosis. In my opinion it does. The purpose and object of the provision in question must be taken into account. It is designed to lay down minimum requirements as to the health and fitness of those who seek to fly aircraft. That is recognised as a dangerous activity, dangerous both to the pilot and to others who may suffer as the result of his inability to control an aircraft. The provision is one designed to protect members of the public of whom the applicant himself is one. One would not lightly, therefore, give the provision a construction which would seem to cut down the minimum standard which the draftsman appears to have intended to provide. In that respect I draw attention to the difference which there is between sub-para.(a)(i) and sub-para.(a)(ii) of the relevant paragraph of the Air Navigation Order in question. Sub-paragraph (a)(i) refers to "a psychosis". Sub-paragraph (a)(ii) refers to "any personality disorder severe enough to have repeatedly resulted in overt acts". In practical terms that must mean a personality disorder short of a psychosis. Such a disorder will only disqualify an applicant if it be serious enough "to have repeatedly resulted in overt acts". The word "repeatedly" stands, in my opinion, in contrast to the expression "a psychosis" used in sub-para.(a)(i).

Then to come more directly to the words of sub-para.(a)(i) one asks the question as to why the provision is required to be understood in the way contended for by the applicant. The provision is not directed towards the entirety of an applicant's medical history, but only to that part of it which constitutes a psychosis. As a matter of the ordinary use of language, if a person has had in the past an appendicitis or one bout of pneumonia, is it not correct to say that he has a medical history of appendicitis or pneumonia as the case may be? What one is really saying is that included in the person's medical history is an appendicitis or a bout of pneumonia. Similarly the applicant here has, amongst the other illnesses and conditions which go to make up his medical history, one psychotic episode. For reasons earlier given the provision ought not be construed narrowly or strictly. In the sense in which I think the provision should be understood the applicant has a medical history of psychosis. I would therefore reject the applicant's principal submission. I should add that there is to be found in the material before us evidence to suggest that the problems from which the applicant suffered after the eye operation in 1967 were not the only indicators of mental ill health to which the Tribunal might have had regard. But in the view that I take of the matter the conclusion at which the Tribunal arrived was open upon the basis only of the evidence of what occurred in February 1967.

The applicant made two further submissions but they were not made with the same confidence and enthusiasm as was the case with the submission just disposed of. The first of these was that the Tribunal should have held that the psychosis of which there was a history was an acute toxic psychosis within the meaning of that expression as used in the note at the end of the relevant paragraph of the Air Navigation Order. In the submission of the applicant the finding of the Tribunal that the psychosis was not a toxic one (that is one caused, for example, by drugs or alcohol) was against the evidence and the weight of the evidence. In my opinion that submission raises not a question of law but a question of fact. I refer to Clark v. Flanagan 52 C.L.R. 416, particularly at pp.427-428, and to Power v. Cardow (1932) W.C.R. (NSW) 208 at p.214 and Wilkinson v. Associated General Electric Industries Limited (1934) W.C.R. (NSW) 109 at pp.113-114, both decisions of the Full Court of the Supreme Court of New South Wales. In any event there was ample evidence upon which it was open to the Tribunal to conclude that the psychosis was non-toxic. Its finding in this respect could not possibly be disturbed even assuming it were open to us to interfere upon the basis contended for by the applicant.

The remaining submission to be dealt with was also based upon the proposition that a finding of the Tribunal was against the evidence and the weight of evidence. In terms of the ground relied upon what was said was that the Tribunal's "reasons for deciding that a conditional licence under Section (sic) 57(2) of the Regulations could not properly be issued to the Applicant were against the weight of evidence". Regulation 57(2) of the regulations provides that where an applicant for the grant of a licence fails to meet the medical standards he may be granted a licence subject to the conditions specified in the regulations.

The Tribunal concluded its reasons by saying:
"There remains one other matter and that is whether a conditional licence can issue under subsection (2) of Section 57. The medical evidence clearly establishes that the possibility of a recurrence of a psychotic condition still exists. We are satisfied that should a recurrence occur while the applicant was in charge of an aircraft, air safety could definitely be prejudiced. Although we are impressed with the applicant's reasons for holding a licence we cannot agree that a conditional licence can properly issue."

In my opinion there was ample evidence upon which the Tribunal could properly have reached this conclusion. Furthermore, the submission, like that previously dealt with, does not raise a question of law.

For the reasons given I am of opinion that the appeal should be dismissed. Before concluding I would wish, however, to mention some other matters. Firstly, I think there is a real question as to whether the grounds of appeal raised the first and principal point which was argued by the applicant. It was the submission of counsel for the respondent that the grounds of appeal did not raise it. That is a submission with which I have not dealt because of the view I take about the substance of the matter.

Then there was discussion about the onus and standard of proof. Regulation 57(1) of the regulations made pursuant to the Air Navigation Act provides, inter alia, that an applicant for a licence is not eligible for the grant of such a licence unless he satisfies the Director-General that he meets the medical standards adopted in pursuance of the Chicago Convention referred to in the Act. The Convention was approved by the Act (s.3A). Section 26(1)(b) of the Act authorises the making of regulations for the purpose of carrying out and giving effect to the Convention and, inter alia, "any Annex to the Convention relating to international standards and recommended practices". Section 26(1)(b) is the source of the power to make regulation 57; regulation 57 is the source of the power to notify the relevant Air Navigation Order. It was therefore for the applicant to satisfy the Director-General that he met the relevant medical standard. In other words, it was for him to show that he had no established medical history of a psychosis.

In its decision the Tribunal said:
"If the issue was to be determined on the basis of reasonable doubt then we would have to find that the decision of the delegate of the Secretary could not be affirmed. However on the question of a balance of probabilities we cannot find that we can reject the findings of the treating doctor, Dr. Moriarty, and in this all medical witnesses agreed. We appreciate that, of course, as Dr. Moriarty is deceased, his findings could not be tested but they are sufficiently definite to enable a decision to be made on them. We therefore find that the applicant had suffered from a non-toxic psychosis in February 1967."
At first sight this might seem to be placing upon the Director-General an onus of proof which he does not bear. It may be, however, that, by reason of the presence of the word "established" in the expression "established medical history", the Tribunal was correct in the statement of the onus of proof which it made. I express no view on this matter because no submission was made concerning it by either party and it is not relevant to any ground of appeal which it was open to the applicant to argue.

I am at a loss to understand the Tribunal's reference to a determination of the matter "on the basis of reasonable doubt". This is the language of the criminal law which does not have any place in the present problem. It may be that the Tribunal did not mean to use the expression in this sense; there is no other reference to it in its reasons and it is possible that the expression was used because of the word "established" in the relevant paragraph of the Air Navigation Order. Be that as it may, I am of opinion that the standard of proof is upon a balance of probabilities and is not proof beyond reasonable doubt.

Finally, there was a submission at one stage of the argument by counsel for the applicant that the construction of the Air Navigation Order was circumscribed by the language of one of the Annexes to the Convention itself which it was claimed was quite different in its effect from the Air Navigation Order. In support of his submission counsel relied upon the provisions of s.46(b) of the Acts Interpretation Act 1901. It was submitted that if the Air Navigation Order were not read down in the way contended for, it was beyond power because the intention of s.26(1)(b) of the Air Navigation Act was to do no more than authorise regulations which would implement the Convention. I have considered the words of the relevant Annex to the Convention (Annex 1, Chapter 6, paras. 6.2.3.3 and 6.2.3.3.1), which I do not set out and those of the Air Navigation Order and although there are some differences in the language which is used I do not myself regard the provisions as being materially different. In particular, the Annex in para. 6.2.3.3 provides that the applicant shall have no established medical history which, according to accredited medical conclusion, would render the applicant unable safely to exercise the privileges of the licence applied for. There are then listed a series of conditions the first of which is a psychosis. It is true that the words "which, according to accredited medical conclusion, could render the applicant unable safely to exercise the privileges of the licence" are not to be found in the Air Navigation Order. But in my opinion the Annex is saying no more than that the conditions listed are conditions which would render the applicant unable safely to exercise the privileges of the licence. That is the hypothesis upon which the regulations proceed. Counsel for the applicant did not make any application to amend or add to the grounds of appeal. The matter was not fully argued by counsel for the respondent. The view I have expressed is a tentative one. I would prefer to leave final consideration of the question until it arises in a more direct fashion than has been the case in this application.

For the reasons I have given I am of the opinion that the appeal should be dismissed with costs.