Barnes and Civil Aviation Safety Authority - [2016] AATA 256

Barnes and Civil Aviation Safety Authority [2016] AATA 256 (21 April 2016)

Division

GENERAL DIVISION

File Number(s)

2015/3391

Re

David Barnes

APPLICANT

And

Civil Aviation Safety Authority

RESPONDENT

DECISION

Tribunal
Egon Fice, Senior Member

Date 21 April 2016

Place Melbourne
The Applicant has the legal right to seek review of CASA's decision to refuse to extend the period of validity of his Class 2 medical certificate issued on 11 August 2014.
.................[sgd]..............................
Egon Fice, Senior Member
AVIATION –– Pilots –– Civil Aviation Safety Authority –– Class 2 medical certificate –– Risk to the safety of air navigation – Type II diabetes mellitus –– Right of review

Legislation
Civil Aviation Safety Regulations (Cth) 1998
Cases
Re Barnes and Civil Aviation Safety Authority [2015] AATA 272
Re Barnes and Civil Aviation Safety Authority [2012] AATA 756
REASONS FOR DECISION
Egon Fice, Senior Member

The Civil Aviation Safety Authority (CASA) granted to Mr David Barnes a Class 2 medical certificate valid for 12 months on 6 May 2010. Mr Barnes is the holder of a Private Pilot Licence and therefore requires a Class 2 medical certificate in order to exercise the privileges of his licence. His medical examination for the issue of that medical certificate was conducted by Dr RW Johnston, a Designated Aviation Medical Examiner (DAME). Dr Johnson noted in his report that Mr Barnes was a diabetic and his diabetes was treated with oral medication.
Dr Johnston conducted another medical examination of Mr Barnes on 28 October 2010 as Mr Barnes was coming up for a renewal of his medical certificate. Dr Johnston again indicated that Mr Barnes was diabetic and stated that his level of glycosylated haemoglobin was 5.3. CASA also obtained a report from Dr Anthony Hunter regarding Mr Barnes’ diabetes. That report, dated 11 October 2010, recorded Mr Barnes had remarkably stable diabetes with blood glucose levels ranging mostly between 4.0 and 8.0 mmols/L. Mr Barnes had not reported any symptoms suggestive of hypoglycaemia. Dr Hunter described Mr Barnes is doing a good job with his diabetes and that he had achieved excellent glucose control without any symptoms of hypoglycaemia. He considered Mr Barnes fit to fly.
On 30 June 2011 CASA issued Mr Barnes with a new Class 2 medical certificate valid for 12 months from the date of the DAME examination. That certificate was revalidated for a period of two months by Dr Johnston on 25 October 2011 following a medical examination. On that date Mr Barnes lodged another application for renewal of his Class 2 medical certificate.
CASA informed Mr Barnes that he needed to provide further medical reports in support of his application. Mr Barnes responded by email on 2 November 2011, demanding he be issued with a Class 2 medical certificate within three days otherwise he would commence legal proceedings.
Not having had any success with CASA, Mr Barnes lodged an application with the Tribunal on 16 January 2012 seeking review of CASA’s decision to refuse to issue him with a Class 2…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barnes and Civil Aviation Safety Authority

Details

AGLC: Barnes and Civil Aviation Safety Authority [2016] AATA 256
Case: [2016] AATA 256
Decision Date: 21 April 2016

CaseChat Overview and Summary

This matter concerned an application by Mr Barnes for review of a decision by the Civil Aviation Safety Authority (CASA) to refuse to extend the period of validity of his Class 2 medical certificate. The dispute arose from Mr Barnes's medical condition, Type II diabetes mellitus, and its potential impact on the safety of air navigation. The decision was made by Egon Fice, Senior Member.

The primary legal issue before the Tribunal was whether Mr Barnes retained a legal right to seek review of CASA's decision, notwithstanding CASA's argument that such an application would be futile. This involved an interpretation of Regulation 67.205(6) of the Civil Aviation Safety Regulations 1998, which pertains to the issuance of new medical certificates.

The Tribunal reasoned that Regulation 67.205(6) was not applicable to Mr Barnes's situation because it only applies when a new medical certificate is issued to a person who already holds a current medical certificate. In Mr Barnes's case, his original one-year medical certificate had expired before the extension was sought, and a new two-year certificate had been issued subsequently. Therefore, the argument of futility based on that regulation failed. However, the Tribunal noted that while the legal right to seek review was not misconceived, the practical benefit of pursuing the review of the expired certificate was limited, and Mr Barnes would likely be better served by complying with CASA's current medical examination requirements for his new certificate.

The Tribunal concluded that Mr Barnes had the legal right to seek review of CASA's decision to refuse to extend the period of validity of his Class 2 medical certificate. The parties were directed to notify the Tribunal if they wished to proceed with the hearing of the application.

Orders

Orders of the court

The Applicant has the legal right to seek review of CASA's decision to refuse to extend the period of validity of his Class 2 medical certificate issued on 11 August 2014.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

CASA’s alternative argument regarding the futility of Mr Barnes continuing to pursue this application is based on Reg 67.205(6) which I have set out above at [22]. The problem with this argument is that the new medical certificate issued by CASA on 17 February 2016 to Mr Barnes for a period of 2 years (regardless of which certificate one considers to be relevant although, plainly, the second certificate corrected the first which omitted a condition set out in the covering letter) issued at a time when his 1 year medical certificate had expired and the extension of the period for which that medical certificate remained in force had not been granted. Reg 67.205(6) only applies where a new medical certificate is issued to a person who holds a current medical certificate. It does not, therefore, apply in Mr Barnes’ case. While that may pose an interesting question if an extension of time were granted, from a practical perspective, it is most likely irrelevant. That is because it was a condition of the 2 year medical certificate that Mr Barnes provide to CASA on or before 28 February 2017 a number of medical reports. As far as I am aware, Mr Barnes has refused to obtain those reports.CONCLUSION I find that while Mr Barnes’ application to the Tribunal regarding CASA’s refusal to grant an extension of the period for which his 1 year medical certificate remained in force cannot be said to be futile, as the legal right to seek review cannot be said to be misconceived, lacking in substance or having no reasonable prospect of success; the window of opportunity is narrow. In addition to that, Mr Barnes must comply with CASA’s request to comply with its requirements regarding medical examinations so that it can be reasonably satisfied that the safety of air navigation will not be adversely affected. Even if he were to satisfy CASA (and the Tribunal standing in CASA’s shoes for the purpose of review), that the safety of air navigation would not be adversely affected, at best his 1 year medical certificate would expire in August of this year. The benefit would be limited to a couple of months if it were possible to bring on the hearing of this matter quickly. From a practical perspective, it is obvious that Mr Barnes would be better served by complying with the medical examination requirements CASA has indicated apply to the 2 year medical certificate issued in February of this year. However, that is not a decision for this Tribunal to make. The parties should notify the Tribunal as soon as possible if either wishes to proceed with the hearing of the current application.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL DIVISION
File Number(s)	2015/3391
Re	David Barnes
APPLICANT
And	Civil Aviation Safety Authority
RESPONDENT

Tribunal	Egon Fice, Senior Member
Date	21 April 2016
Place	Melbourne