Barnes and Civil Aviation Safety Authority

Case [2015] AATA 797

Barnes and Civil Aviation Safety Authority [2015] AATA 797 (13 October 2015)

Division:  GENERAL DIVISION

File Number:  2015/3391

Re:  DAVID BARNES

APPLICANT

And:CIVIL AVIATION SAFETY AUTHORITY

RESPONDENT

DECISION

Tribunal  Deputy President S A Forgie

Date  13 October 2015

Place  Melbourne

The Tribunal decides that;

1.the Tribunal has jurisdiction to review a decision of a delegate of the respondent dated 15 June 2015 refusing the applicant’s application for an extension of the period for which a class 2 medical certificate is in force; and

2.although the period for which the class 2 medical certificate was in force expired on 11 August 2015, the application for review is not, on the evidence available at this stage of the proceeding, futile.

…[sgd] S A Forgie….

Deputy President

CATCHWORDS

AVIATION – PRACTICE AND PROCEDURE - JURISDICTION – refusal to extend period for which medical certificate in force – whether refusal to extend a variation of an authorisation – jurisdiction.

PRACTICE AND PROCEDURE – STAY OF OPERATION OF DECISION – limits of power to order stay – do not extend to powers given to Tribunal after reviewing merits of decision on substantive application,

LEGISLATION
Acts Interpretation Act 1901; section 15AB
Administrative Appeals Tribunal Act 1975; sections 3, 25, 41, 42B, 43
Civil Aviation Act 1998; sections 3, 20AB, 30A, 30DY, 30DZ, 31, 98

Civil Aviation Safety Regulations 1998; regulations 11.055, 11.056, 11.060, 11.065, 11.067, 11.068, 11.070, 11.071, 11.073, 11.077, 11.120, 11.125, 61.010, 61.040, 61.410, 61.505, 67.155, 67.180, 67.195, 67.200, 67.205, 67.210, 67.215, 141.035, 142.040, 201.004
Civil Aviation Legislation Amendment (Flight Crew Licensing and Other Matters) Regulation 2013; regulation 4 and Schedule 1; Item 386
Civil Aviation Legislation Amendment (Miscellaneous) Regulation 2013; regulation 4, Schedule 1, Item 105
Civil Aviation and Civil Aviation Safety Amendment Regulations 2011 (No. 2); regulation 3, Schedule 1, Item [258]

CASES

Allied Asia Holdings (Aust) Pty Ltd v Australian Securities and Investments Commission [2002] FCA 566
Civil Aviation Safety Authority v Hotop [2005] FCA 1023; (2005) 145 FCR 232; 87 ALD 551; 41 AAR 192
Director-General of Social Services v Chaney [1980] FCA 87; (1980) 47 FLR 80; 31 ALR 571; 3 ALD 161
Duncan v Companies Auditors Liquidators Disciplinary Board [2006] FCA 1747; (2006) 155 FCR 572; 44 AAR 253; 93 ALD 401
Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169;105 ALR 301; 25 ALD 545

Re Barnes and Civil Aviation Safety Authority [2012] AATA 756

Re Barnes and Civil Aviation Safety Authority [2015] AATA 272

Re Hogan and Civil Aviation Safety Authority [2004] AATA 1090; (2004) 84 ALD 707; 39 AAR 440
Re Scott and Australian Securities and Investments Commission [2009] AATA 798; (2009) 51 AAR 114
Re XTWK and Australian Securities and Investments Commission [2007] AATA 1890; (2007) 98 ALD 131
Yolbir v Administrative Appeals Tribunal [1994] FCA 910; (1994) 48 FCR 246; 19 AAR 15; 33 ALD 8

OTHER MATERIAL

Fundamental Legal Conceptions as Applied…

Continue reading Barnes and Civil Aviation Safety Authority

Sign in free to access the full text

Details
AGLC
Barnes and Civil Aviation Safety Authority [2015] AATA 797
Case
[2015] AATA 797
Decision Date

CaseChat Overview and Summary

In the matter of David Barnes and the Civil Aviation Safety Authority, the dispute centred around the refusal to extend Mr Barnes' class 2 medical certificate. The Federal Circuit Court was tasked with determining whether the Civil Aviation Safety Authority's (CASA) decision to refuse the extension of Mr Barnes' medical certificate was subject to review by the Administrative Appeals Tribunal (AAT). The case involved complex issues concerning jurisdiction and the statutory framework governing aviation safety and medical certifications.

The key legal issues that the Court had to address were whether the refusal to extend Mr Barnes' medical certificate constituted a variation of an authorisation under the Civil Aviation Act 1988, and whether such a variation fell within the scope of decisions that could be reviewed by the AAT. The Court also needed to consider the extent of the AAT's power to stay the operation of CASA's decision pending the outcome of a substantive review application.

The Court determined that Mr Barnes was indeed entitled to make an application for review of CASA's decision. The Court held that the refusal to extend the medical certificate did not amount to a variation of an authorisation but rather was a decision within the AAT's jurisdiction to review. The Court emphasised that the AAT's power to stay the operation of a decision was limited and did not extend to decisions that the AAT could review on their merits. Consequently, the Court found that the Tribunal had the requisite jurisdiction to review the decision and that the AAT could order a stay of the operation of the decision pending the outcome of the review application.

The Court's decision affirmed Mr Barnes' right to seek a review of CASA's refusal to extend his medical certificate, ensuring that he could continue to exercise his profession as a private pilot pending the resolution of the review. The Court's clarification of the jurisdictional boundaries between CASA and the AAT also provided important guidance for future cases involving aviation safety and medical certifications.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Mr David Barnes holds a Private Pilot (aeroplane) Licence (PPL). On 10 May 2015, he applied for an extension of the class 2 medical certificate that he held and that was due to expire on 11 August 2015. A delegate of the Civil Aviation and Safety Authority (CASA), decided on 15 June 2015 to refuse his application. Mr Barnes has lodged an application for review of that decision but CASA has submitted that the Tribunal does not have jurisdiction to review its decision. After hearing submissions by Mr Barnes and Ms Denise Logue, who assisted him, as well as by Mr Carter made on behalf of CASA, I have decided for the reasons below that Mr Barnes is entitled to make an application for review of the decision. Consequently the Tribunal does have jurisdiction to review it.BACKGROUND In September 2009, Mr Barnes advised his previous Designated Aviation Medical Examiner (DAME), Dr Johnston, that he had been diagnosed as suffering from diabetes. Mr Barnes was also receiving treatment for major depression, anxiety and panic disorders in or about January 2010. On 6 May 2010, CASA issued a class 2 medical certificate to Mr Barnes. That certificate was valid for 12 months. Mr Barnes applied for its renewal and underwent a further examination with his DAME on 28 October 2010. A renewal was granted on 30 June 2011 and a further class 2 medical certificate was issued for 12 months with effect from 28 October 2010. Mr Barnes applied to the Tribunal for review of CASA’s decision and the Tribunal affirmed the decision on 1 November 2012.[1] [1] Re Barnes and Civil Aviation Safety Authority [2012] AATA 756; Senior Member Fice The second class 2 medical certificate expired on 28 October 2011 and Mr Barnes took no further steps in relation to a medical certificate until he underwent an examination by a different DAME, Dr Pape. He applied for a third class 2 medical certificate on 11 August 2014. CASA issued him with a class 2 medical certificate that was valid until 11 August 2015. It did so on 30 October 2014. On 17 November 2014, Mr Barnes applied to the Tribunal for review of CASA’s decision to issue the class 2 medical certificate for a period of only 12 months rather than for two years. On 29 April 2015, a differently constituted Tribunal decided that it did not have jurisdiction to review that decision.[2] Mr Barnes had not been refused a class 2 medical certificate and nor had that medical certificate been issued subject to a condition he had not sought.[2] Re Barnes and Civil Aviation Safety Authority [2015] AATA 272; Senior Member Fice On 10 May 2015, some three months before his third medical certificate expired, Mr Barnes applied for an extension of that certificate for a further 12 months from 11 August 2015 when it was due to expire. A delegate of CASA refused his application on 15 June 2015. He based his decision on the conclusion that there were sound clinical and medical certification reasons why Mr Barnes’ class 2 medical certificate had been issued for a period of 12 months. Those reasons included Mr Barnes’ risk profile as a consequence of his history of diabetes and ongoing medication and what was considered to be in the interests of ensuring air safety in light of the Clinical Practice Guidelines published by Avmed.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.