The Australian Lawyers Alliance have made their submission to the ASRR publicly available...
Submission of the Australian Lawyers Alliance
Of significance to the CVD/Avmed matter is the following excerpt from the Submission:
3. MODEL LITIGANT CONSIDERATIONS – EXPERT EVIDENCE IN THE AAT
A matter which has bolstered aviation operators’ lack of confidence in administrative decision making, which criticism has been relayed to the ALA, together with our own examination of decisions on CASA decisions reaching the AAT, results in the identification of a further issue which should be considered by the Panel.
The AAT recently set aside the decision of CASA to cancel the medical certificates of a Queensland commercial pilot who was alleged to have no longer met medical standards after suffering an attack while out with friends in March 2013: Daniel Bolton and Civil Aviation Safety Authority [2013] AATA 941 (23 December 2013).
In this decision what is remarkable is that this conclusion could have been jeopardised by seemingly minor procedural omissions by the representatives of the parties who were prosecuting the action.
The Tribunal was critical of both parties for failing to provide expert medical opinions which satisfied the AAT’s Guidelines for Persons Giving Expert and Opinion Evidence (Guidelines). The Guidelines ensure that independent experts are made aware that their role is to assist the Tribunal rather than advocate for the party which asked for their expert comment. Under the Guidelines:
a. has an overriding duty to provide impartial assistance to the AAT on matters relevant to the person’s area of knowledge or experience;
b. is not an advocate for a party to a proceeding.
Furthermore, written reports prepared for proceedings before the Tribunal must include a declaration:
I acknowledge that I have an overriding duty to provide impartial assistance to the Tribunal. No matters of significance have been withheld from the Tribunal.
While CASA’s medical expert, Dr Pooshan Navathe (also CASA’s Principal Medical Officer) did provide a statement which satisfied the Guidelines, the Tribunal explicitly stated that it would not have regard to his opinions as he was also the decision maker with respect to the cancellation of Mr Bolton’s medical certificates. Therefore, he was not truly independent. The Tribunal considered it highly irregular that Dr Navathe briefed CASA’s other expert (a consultant neurologist) by telephone, and never clearly showed what information was conveyed.
Deputy President Hack’s admonishments aside, the case demonstrates the need for both represented litigants and regulatory agencies to ensure all relevant evidential and procedural matters are properly dealt with in AAT proceedings. Should the medical evidence have been different then the choice of expert witness for CASA would not just have been more embarrassing, but potentially resulted in an unsafe pilot being returned to the sky, as the Tribunal was not prepared to accept its evidence.
The ALA does not wish to pontificate in relation to the performance of our
professional colleagues’ functions within CASA in the context of AAT matters, but does wish to identify to the Panel that confidence in the air safety regulator will be enhanced if oversights as noted in Bolton, are remembered when preparing cases for the AAT by both applicant’s solicitors and CASA.
Cheers Sarcs..
