David Barnes and Civil Aviation Safety Authority - [2015] AATA 272

[2015] AATA 272

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2014/5933

Re

David Barnes

APPLICANT

And

Civil Aviation Safety Authority

RESPONDENT

DECISION

Tribunal
Egon Fice, Senior Member

Date 29 April 2015

Place Melbourne
The Tribunal does not have jurisdiction to review the decision of the Respondent on 30 October 2014 to issue the Applicant with a class 2 medical certificate for a period of 12 months.

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Egon Fice, Senior Member
Catchwords
AVIATION – Pilots – Qualification for licence – Medical requirements – Administrative Appeals Tribunal – Jurisdiction – Reviewable decisions – Class 2 medical certificate issued for 12 months – no request to vary authorisation – no jurisdiction to review authorisation to issue medical certificate
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss 3, 25
Civil Aviation Legislation Amendment (Flight Crew Licensing and Other Matters) Regulation 2013 (Cth) reg 2
Civil Aviation Act 1988 (Cth) ss 31, 98
Civil Aviation Safety Regulations 1998 (Cth) regs 11.015, 61.410, 67.180, 67.190, 67.205 – 67.215, 201.004
Secondary Materials
Explanatory Statement, Civil Aviation Legislation Amendment (Flight Crew Licensing and Other Matters) Regulation 2013 (Cth)
REASONS FOR DECISION
Egon Fice, Senior Member
29 April 2015

Mr David Barnes is the holder of a private pilot licence (PPL). He is only authorised to exercise the privileges of that licence if he also holds a current class 1 or 2 medical certificate (Civil Aviation Safety Regulations 1998 (CASR) Reg 61.410 (1)). Mr Barnes suffers from Type 2 diabetes. For that reason, special requirements attach to any applications he may make for the issue of a medical certificate.
In an email dated 11 August 2014 Mr Barnes wrote to Dr Navathe, an Aviation Medical Officer with the Civil Aviation Safety Authority (CASA), stating that his Designated Aviation Medical Examiner (DAME), Dr Arthur Pape, recommended he be issued with a class 2, two year medical certificate.
In a letter dated 30 October 2014 Dr David Fitzgerald, an Aviation Medical Officer with CASA, wrote to Mr Barnes informing him that a class 2 medical certificate valid for 12 months had been issued to him.
On 17 November 2014 Mr Barnes lodged an application for review of CASA’s decision to issue him with a class 2 medical certificate valid for 12 months. His complaint was that he was entitled to a class 2 medical certificate which was valid for two years rather than 12 months.
Mr Anthony Carter, a Principal Lawyer with the Legal Branch of CASA, wrote to the Tribunal on 16 January 2015 stating that CASA’s decision of 30 October 2014 was not properly the subject of review as it did not enliven the Tribunal’s jurisdiction.
Following a telephone conference held before a Conference Registrar of the Tribunal on 21 January 2015, Mr Barnes wrote to CASA on 5 February 2015 putting forward a proposal which would resolve the issue. On 23 February 2015 Mr Anthony Carter wrote to Mr Barnes rejecting that proposal. A copy of that letter was provided to the Tribunal.
This matter came before…

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 David Barnes and Civil Aviation Safety Authority

Details

AGLC: David Barnes and Civil Aviation Safety Authority [2015] AATA 272
Case: [2015] AATA 272
Decision Date: 29 April 2015

CaseChat Overview and Summary

David Barnes, a private pilot, sought review of a decision by the Civil Aviation Safety Authority (CASA) to cancel his class 2 medical certificate. The certificate was issued for a period of 12 months, and Barnes argued that CASA's decision to cancel it was unlawful. The dispute centred around the jurisdiction of the Administrative Appeals Tribunal (AAT) to review CASA's decision to issue the medical certificate in the first place. The primary legal issue before the court was whether the AAT had jurisdiction to review the decision of CASA to issue a class 2 medical certificate to Barnes, and whether this decision fell within the scope of a reviewable decision as defined in the Civil Aviation Act 1988 and the Civil Aviation Regulations 1988. The court had to determine if the issuance of the medical certificate constituted a decision that was reviewable by the AAT.

The court examined the definition of 'decision' in section 31 of the Civil Aviation Act, which includes the granting or issuing of a certificate. It further considered the definition of 'authorisation' in regulation 11.015 of the Civil Aviation Regulations, which includes a certificate capable of being granted under the regulations. The court noted that a class 2 medical certificate is indeed an authorisation as it is a certificate that can be granted under the Civil Aviation Safety Regulations. The court also observed that the issuance of the medical certificate was subject to the condition that Barnes held a private pilot licence, which itself contained an authorisation to exercise the privileges of the licence. However, the court concluded that the issuance of the medical certificate was not a decision that could be reviewed by the AAT, as there was no request to vary the authorisation to issue the medical certificate. The court found that the AAT's jurisdiction to review the issuance of the medical certificate was limited to cases where there was a request to vary the authorisation to issue the certificate.

The court held that the AAT did not have jurisdiction to review CASA's decision to issue the class 2 medical certificate to Barnes, as there was no request to vary the authorisation to issue the certificate. The issuance of the medical certificate did not constitute a reviewable decision under the Civil Aviation Act and the Civil Aviation Regulations. The court dismissed Barnes's application for review of CASA's decision to cancel his class 2 medical certificate, finding that the AAT lacked the jurisdiction to review the initial issuance of the certificate. The court's decision clarified the scope of the AAT's jurisdiction in reviewing decisions related to the issuance of medical certificates under the Civil Aviation Act and the Civil Aviation Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 31 of the Civil Aviation Act 1988 (the Civil Aviation Act) deals with the review of decisions. Relevantly, it provides (emphasis in original):(1) In this section:decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.reviewable decision means:(a)a refusal to grant or issue, or a cancellation, suspension or variation of, a certificate, permission, permit or licence granted or issued under this Act or the regulations; or(b)the imposition or variation of a condition, or the cancellation, suspension or variation of an authorisation, contained in such a certificate, permission, permit or licence; or… The word decision is defined in s. 3(3) of the AAT Act as follows:Unless the contrary intention appears, a reference in this Act to a decision includes a reference to:(a)making, suspending, revoking or refusing to make an order or determination;(b)giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;(c)issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;(d)imposing a condition or restriction;(e)making a declaration, demand or requirement;(f)retaining, or refusing to deliver up, an article; or(g)doing or refusing to do any other act or thing. The CASR are plainly regulations made pursuant to s. 98 of the Civil Aviation Act. Reg 201.004 deals with review of decisions. Relevantly, it provides:(1) In this regulation:authorisation: see regulation 11.015.Decisions made by CASA(2) An application may be made to the Administrative Appeals Tribunal for the review of a decision of CASA mentioned in table 201.004.Table 201.004 Reviewable decisions Item A decision…1 under a provision of these Regulations:(a)refusing to grant or issue an authorisation; or(b)cancelling or suspending an authorisation otherwise than on the application of the authorisation-holder; or(c)varying an authorisation otherwise than on the application of the authorisation-holder; or(d)refusing to vary an authorisation Reg 11.015 defines the expression authorisation as:In this Part:authorisation means:(a)a civil aviation authorisation other than:(i) an AOC; or(ii) a delegation; or(iii) the appointment of an authorised person; or(b)an approval or qualification of a document or thing under these Regulations, other than a material, part, process or appliance to which regulation 21.305A applies; or(c)a certificate capable of being granted to a person under these Regulations. There can be no doubt that a class 2 medical certificate falls within the definition of authorisation, being a certificate capable of being granted to a person under the CASR. The power to do so is found in Reg 67.180 of the CASR. It should also be clear that the Items listed in Table 201.004 are consistent with the description of a reviewable decision set out in s. 31 of the Civil Aviation Act. Section 31(1)(b) specifically refers to the variation of an authorisation contained in a certificate. Although it might be said that a medical certificate does not expressly contain an authorisation, the fact that the holder of a private pilot licence is only authorised to exercise the privileges of the licence if the holder also holds a class 1 or 2 medical certificate plainly indicates that the authorisation contained in Reg 61.410 is subject to the issue of the appropriate medical certificate. The two Regulations must be read together. In any event, Reg 11.015 defines a certificate capable of being granted under the CASR to be an authorisation.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/5933
Re	David Barnes
APPLICANT
And	Civil Aviation Safety Authority
RESPONDENT

Tribunal	Egon Fice, Senior Member
Date	29 April 2015
Place	Melbourne