Courtney and Civil Aviation Safety Authority - [2021] AATA 2447

Courtney and Civil Aviation Safety Authority [2021] AATA 2447 (18 June 2021)
Division:GENERAL DIVISION
File Number(s): 2019/4869
Re:Thomas Courtney
APPLICANT

AndCivil Aviation Safety Authority
RESPONDENT

REASONS FOR DECISION
Tribunal:Senior Member C. J. Furnell
Dr S Lewinsky, Member

Date:18 June 2021
Date of written reasons: 23 July 2021
Place:Melbourne

The Tribunal dismissed the application for review under s 42B of the Administrative Appeals Tribunal Act 1975 pursuant to a decision made on 18 June 2021. Following are the written reasons for that decision.
...................[SGD].............................
Senior Member C.J. Furnell
Catchwords
CIVIL AVIATION – Interlocutory – Practice and procedure – Refusal to issue a class 2 medical certificate – Dismissal of application on basis that it is frivolous, vexatious, vexatious, misconceived or lacking in substance – No utility in review – Application dismissed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Civil Aviation Act 1988 (Cth)
Civil Aviation Safety Regulations 1998 (Cth)
Cases
Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4) [2010] FCA 3981
Fearnley v Australian Fisheries Management Authority [2006] FCAFC 3
J N Pharm Pty Ltd, Healthy Leverage Pty Ltd and Australian Community Pharmacy Authority [2007] AATA 1963
McCarthy and Building Practitioners Board [2016] AATA 1029
Randazzo and Civil Aviation Safety Authority [2014] AATA 581
Reddish and Civil Aviation Safety Authority [1999] AATA 721
Rundle and Civil Aviation Safety Authority [2002] AATA 349
Shah and Child Support Registrar (Child support) [2020] AATA 2644
Taylor and National Disability Insurance Agency [2021] AATA 1042
Thiruchelvam and Secretary, Department of Agriculture, Water and the Environment [2021] AATA 1739
Williams and Australian Electoral Commission (1995) 38 ALD 366
REASONS FOR DECISION
Senior Member C. J. Furnell
Dr S Lewinsky, Member
23 July 2021

On 19 September 2018, the applicant applied for a class 2 medical certificate (a certificate) under the Civil Aviation Safety Regulations 1998 (CASR).[1]
[1] T38, p.172.
On 19 July 2019, the respondent decided to refuse that application.[2]
[2] T3, p.8.
On 12 August 2019, the applicant sought to have that decision reviewed by the Tribunal.[3]
[3] An application may be made to the Tribunal for review of a decision to refuse to grant a certificate or license made under CASR: Civil Aviation Act 1988, s 31.
The hearing of that review application was deferred due to a combination of the COVID-19 pandemic and the applicant’s desire for the hearing to be conducted “in-person”.
The respondent applied to have the proceeding for review of the certificate refusal decision dismissed under s 42B of the Administrative Appeals Tribunal Act 1975 (the Tribunal’s constituent legislation). Under that section, the Tribunal may dismiss an application for review if satisfied that the application is, amongst other things, frivolous, vexatious or misconceived.
Prior to and at the hearing of its dismissal application, the respondent submitted that the Tribunal ought to be satisfied of these matters in relation to the applicant’s application for review because, “…due to the effluxion of time any decision made by the tribunal would have no tangible effect and be of no utility.”[4] It contended that any certificate “could not now be issued with an expiry date later than 19 September 2020 or more than 2 years from the date of expiry of the old certificate.”[5] The respondent went on to note that it would not be bound by any decision in this proceeding in the context of any future application for a certificate.[6]
[4] Respondent’s letter of 3 June 2021.
[5] Ibid.
[6] Ibid.
For the reasons given at the conclusion of that hearing, we accepted that submission and were satisfied that, in the circumstances, it was appropriate to exercise the consequential discretion to dismiss.
The applicant has requested that he be given a written statement of those reasons and we do so now.
UTILITY OF TRIBUNAL PROCEEDING
The applicant holds a private pilot’s licence.
As a general rule, a person such as the applicant may only exercise the privileges afforded under legislation to the holder of a private pilot’s licence if he or she holds a current class 1 or class 2 medical certificate.[7]
[7] CASR 61.410. The general rule is qualified when, for instance, the relevant person holds a medical exemption for the exercise of the privileges of the person’s licence or, in the case of a recreational aircraft and subject to further qualifications, the person holds a current recreational aviation medical practitioner’s certificate.
After the applicant applied for a certificate, the respondent became obliged to issue one to him if he met the requirements of CASR 67.180(2).[8] On the other hand, the respondent was obliged not to issue a certificate to the applicant if the respondent was satisfied that the applicant did not satisfy the requirements of CASR 67.180.[9]
[8] CASR 67.180(1).
[9] CASR 67.180(7).
The requirements of CASR 67.180 include that the applicant either “meets the relevant medical standard” or the extent to which the applicant “does not meet the standard is not likely to endanger the safety of air navigation”. We note in passing that, for a certificate, the “relevant medical standard” is medical standard 2 set in CASR 67.155.[10]
[10] CASR 67.010.
The respondent decided not to issue a certificate to the applicant. Notice of that decision was given to the applicant on 19 July 2019.[11]
[11] CASR 67.185 requires that such a notice be given.
If the Tribunal was to do what the applicant seeks in this proceeding and set aside the respondent’s decision of 19 July 2019 and to decide, in substitution, to issue a certificate to the applicant, the certificate (which we refer to as the notional certificate) would be of a limited duration.
The notional certificate would have come into force on its “appropriate day.”[12] On the material before us, that day would have been the date of completion of the last relevant examination undergone by the applicant required for the purpose of issue of the certificate.[13] This is because the notional certificate would have been issued pursuant to a decision taking effect on 19 July 2019:[14]
(a)To a person, the applicant, who had previously held a certificate which had expired. The certificate held by the applicant at the time of his application for a new certificate was one which expired on 28 September 2018.[15]
(b)After the applicant had undergone any relevant examinations required for the purpose of issue of the certificate.
[12] CASR 67.205.
[13] See CASR 67.205(1)(a).
[14] See s 43(6) of the Administrative Appeals Tribunal Act 1975.
[15] T39, p.175.
The date of completion of the last relevant examination undergone by the applicant required for the purpose of issue of the certificate was 19 September 2018.[16] Hence, that is the date the notional certificate would have come into force.
[16] T38, p. 172: the applicant undertook the required medical examination on 19 September 2018.
The notional certificate would have expired by no later than two years after it came into force, ie, by no later than 19 September 2020.[17]
[17] CASR 67.205(3)(b)(ii), noting that the applicant would have been 40 years or older when the certificate was issued.
While the duration of the period during which a certificate remains current can, on application, be extended in certain circumstances, none of those circumstances would apply in the case of the notional certificate.
In this regard:
(a)The respondent has capacity to grant extensions of up to one year but this only applies when application for the extension is made while the certificate is current. Hence, were the Tribunal to decide to issue a certificate coming into force on 19 September 2018, it would have expired in 2020 and any application made now for an extension would not be one made in respect of a current certificate.
(b)A designated aviation medical examiner has capacity to grant extensions of up to two months if, when application for the extension is made, the certificate is current[18] or the application is made within three months of expiry of the certificate.[19] Again, were the Tribunal to decide to issue a certificate coming into force on 19 September 2018, it would have expired in 2020 and any application made now for an extension would not be one made in respect of a current certificate or within three months of expiry of the certificate.
[18] CASR 67.210 and 67.220.
[19] CASR 67.225.
We digress to note a matter that might have affected the result in this proceeding but, on the Tribunal’s analysis, does not do so.
A certificate is a time-limited authorisation for the purposes of Part 11 of CASR.[20] As such, when application is made for the issue of a new certificate to replace an existing one, the existing certificate may in some circumstances continue in force until the respondent makes a decision on the application.[21] If that were the case here, that would mean that the applicant’s certificate that was due to expire in 2018 would nevertheless have continued to be a current certificate until July 2019.
[20] CASR 11.015.
[21] CASR 11.140(3)
In this regard, however:
(a)The provision which would allow the applicant’s old certificate to continue in force does not apply in the circumstances. One pre-condition to its application is that application for a new certificate must have been made by the applicant at least 21 days before expiry of his then existing certificate.[22] The applicant’s application for a new certificate was made on 19 September 2018, less than 21 days before his then existing certificate was due to expire on (being 28 September 2018[23]). We note that the applicant commenced the process of obtaining a new certificate on 6 September 2018 but he did not then “make” his application for a new certificate. Such an application is only made when all information required to be provided in relation to it was provided, ie, on 19 September 2018.[24]
(b)Even if that provision did apply in the circumstances, it would make no difference to the day on which the notional certificate would be considered to come into force. It would still be the day of completion of the last medical examination undertaken by the applicant which he was required to undertake for the purpose of the issue of the certificate, being 19 September 2018.[25]
[22] CASR 11.140(1).
[23] T31, p. 152. Expiry was 28 September 2018. A fresh certificate expiring on 28 November 2018 was issued on 19 September 2018 but this presumably occurred shortly after his application on 19 September 2018 given that it was not referred to in the application: T41, p.198.
[24] See CASR 11.030, a regulation which addresses the issue of when an authorisation is taken to be made.
[25] CASR 67.205(1)(b).
The upshot of this analysis is that, were the applicant to succeed at the hearing of his substantive application, the Tribunal could not issue a certificate which had current force. He would remain a person unable to exercise the privileges afforded to those holding a private pilot’s licence.
DISMISSAL?
Under s 42B of the Tribunal’s constituent legislation, an application for review may be dismissed by the Tribunal if satisfied that it is, amongst other things, frivolous, vexatious, misconceived or lacking in substance.
The section gives rise to what has been characterised as a two-step process. The first step involves determining whether the dismissal power provided for in it is enlivened. The second step involves determining whether, if it has, the power should be exercised in the circumstances.[26]
[26] Shah and Child Support Registrar (Child support) [2020] AATA 2644 [39].
Power to dismiss
The dismissal power is enlivened “…if there is no practical benefit to be achieved by proceeding with the application; ie if the Tribunal is unable to make a decision that has any practical utility for the applicant.”[27] In such a case, the relevant proceeding is frivolous, vexatious, misconceived or lacking in substance.
[27] Ibid at [14].
Put simply, a proceeding can become frivolous if there is “… now no utility in the decision sought by the applicant.”[28] Similarly, a proceeding devoid of practical effect is one that is vexatious,[29] or frivolous or vexatious.[30]
[28] Ibid at [58].
[29] See, for example, Williams and Australian Electoral Commission (1995) 38 ALD 366 at [39] and Fearnley v Australian Fisheries Management Authority [2006] FCAFC 3 at [97].
[30] See, for example, Taylor and National Disability Insurance Agency [2021] AATA 1042 at [24]-[25].
A proceeding is of no utility or futile if no decision could be made of any practical benefit to the applicant[31] or if any decision made would be of no useful purpose.[32]
[31] See, for example, J N Pharm Pty Ltd, Healthy Leverage Pty Ltd and Australian Community Pharmacy Authority [2007] AATA 1963.
[32] See, for example, Thiruchelvam and Secretary, Department of Agriculture, Water and the Environment [2021] AATA 1739 at [31].
Is this proceeding now of no utility or devoid of practical effect because the Tribunal could not issue a certificate which had current force (leaving the applicant unable to exercise the privileges afforded to those who hold a private pilot’s licence)?
The applicant submitted that the proceeding has practical effect. The gist of his submission was, however, unclear. The applicant’s primary contention in this regard appeared to be that, if he were to succeed in this application, he could then apply for a fresh medical certificate. When asked why he could not do so now regardless of the decision in this proceeding, the applicant appeared to acknowledge that he could.
The applicant then suggested that a decision in this proceeding might be of utility because he might be able to use it if he were to apply for a licence in “America”. How it may be so used to benefit the applicant in that context was unclear. As presented, the suggestion seemed speculative, reflecting what appeared to be an endeavour to grasp at straws when what appeared to be his primary contention seemed unlikely to succeed.
Lastly, the applicant suggested that a favourable decision in his proceeding would make the respondent much less likely to refuse a certificate were he to apply for one now. As we will elaborate on shortly, however, a decision of the Tribunal to issue a certificate to a person in connection with a previous application for a certificate is not a consideration of relevance to the respondent in considering a current application by the person for a certificate. The suggestion that such a decision would be of practical utility in that context is based on the proposition that the respondent, and the examiners it engages, will take irrelevant considerations into account when deciding whether to issue a certificate. We do not accept that proposition.
Moreover, while not an issue on which we rely in coming to our decision in this matter, we do mention that it might be that these proceedings could be dismissed as an abuse of process, if they were to be continued for the predominant purpose of exerting pressure on the respondent should the applicant again apply for a certificate.[33] In such a case it would seem open to characterise the proceedings as ones being used for a collateral purpose other than that for which they are properly designed and beyond that which the law offers.
[33] See Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4) [2010] FCA 3981 per Yates J and the cases cited with evident approval at [41]-[42].
In large part, the impression the Tribunal had was that the applicant was aggrieved by the respondent’s conduct and wanted it to be made clear, and for his record to reflect, that the respondent had been wrong. Showing the respondent had been wrong, however, does not, in our view, constitute practical utility. Instead, it smacks of what was characterised in Reddish as “mere vindication of the applicant.”[34]
[34] Reddish and Civil Aviation Safety Authority [1999] AATA 721 at [24].
Unsurprisingly, the respondent submitted that a decision in this proceeding would not have utility, relying on its submission that the Tribunal could not issue a certificate which had current force.
We note, however, that in Randazzo,[35] an issue about the utility of a Tribunal decision in a context analogous to the one now before us arose. In that case, the respondent assured the Tribunal that “CASA would take into consideration any decision of the Tribunal when issuing a new certificate for Mr Randazzo.”[36]
[35] Randazzo and Civil Aviation Safety Authority [2014] AATA 581.
[36] Ibid at [16].
When asked about this assurance given in Randazzo, the respondent appeared to contend that regard might be had to the decision in this proceeding in the context of any fresh application for a certificate by the applicant if, medically, nothing had changed since the examination in 2018 that ultimately resulted in the decision to refuse his application for a certificate.
It is difficult to see how this could, in fact, occur. Only fresh medical evidence could establish whether anything had changed, medically, since 2018. If fresh medical evidence was available, however, it is difficult to see why the respondent would need to have regard to the Tribunal’s analysis of relatively “stale” medical evidence.
Indeed, and in any event, contrary to what was suggested in Randazzo and what the respondent appeared to contend when Randazzo was raised in this proceeding, we are not satisfied that a decision to issue a certificate to the applicant which had no current force would be taken into account in the context of a fresh application for a certificate. CASR 67.185 identifies the considerations of relevance in determining whether to issue a certificate. A decision in the past to issue a certificate is not such a consideration.
The circumstances of this matter are analogous to those which the Tribunal confronted in Reddish, a case where the Tribunal dismissed the relevant review applications on the basis that they were frivolous.[37]
[37] Reddish and Civil Aviation Safety Authority [1999] AATA 721.
In Reddish, the applicant had sought review of decisions to suspend his flight instructor ratings. By the time the Tribunal got to review those decisions, the applicant’s instructor ratings had expired. The Tribunal (at [30]) analysed how the decision-making powers of the Tribunal might apply as follows:
A decision under s.43(1)(a) of the AAT Act affirming any of the decisions under review would be of no benefit to the applicant. There is no scope for varying any of the decisions under review since each of them is, by its very nature, what one might call an all-or-nothing decision. If they were set aside, what could this Tribunal do? […] It would be futile to make a substituted decision restoring the applicant's flying instructor rating for aeroplanes for the period 10 September 1997 to 30 November 1997, or his flying instructor rating for helicopters for the period from 10 September 1997 to 11 March 1998. It would be futile for the Tribunal to remit any of the matters before it to the respondent for reconsideration when the most favourable result the applicant could achieve would be to obtain such decisions from the respondent rather than this Tribunal.
The approach reflected in Reddish has been adopted in several Tribunal decisions.[38]
[38] See, for example, Rundle and Civil Aviation Safety Authority [2002] AATA 349 at [22].
As in Reddish, a decision in this matter would be of no practical benefit to the applicant. As concluded earlier, the Tribunal could not issue a certificate which had current force. Irrespective of any decision in this proceeding, the applicant would remain a person unable to exercise the privileges afforded to those holding a private pilot’s licence. Further, a decision made in this proceeding to issue a certificate to the applicant would not be a consideration of relevance were the applicant to make a fresh application for a certificate.

Absent a decision in this proceeding having practical benefit, the proceeding has now become frivolous. As such, the power to dismiss is enlivened. The next issue is whether that power ought to be exercised in the circumstances.
Discretion
As in McCarthy,[39] in considering whether the power to dismiss ought to be exercised, it is appropriate to look to the Tribunal’s objective as outlined in s 2A of its constituent legislation.
[39] McCarthy and Building Practitioners Board [2016] AATA 1029 at [14].
In that section, it is said that, in carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a)is accessible; and
(b)is fair, just, economical, informal and quick; and
(c)is proportionate to the importance and complexity of the matter; and
(d)promotes public trust and confidence in the decision-making of the Tribunal.
It would not be consistent with this objective and, in particular, with those aspects of it directed to providing a mechanism of review which is economical and proportionate, to allow a proceeding to continue a decision in which would be of no practical benefit.
As such, we are satisfied that it is appropriate to exercise the power to dismiss which has been enlivened in this proceeding and we do so.

I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the written reasons for the decision of Senior Member C.J. Furnell and Dr S Lewinsky, Member.

......[SGD]............................................................
Associate
Dated: 23 July 2021

Date of Interlocutory Hearing: 18 June 2021

Applicant: Self-represented

Advocate for the Respondent:

Solicitors for the Respondent

Ms Carol Swain

Litigation, Investigations and Enforcement, Legal and Regulatory Affairs, Civil Aviation and Safety Authority