MacNeall and Civil Aviation Safety Authority
[2016] AATA 209
•4 April 2016
MacNeall and Civil Aviation Safety Authority [2016] AATA 209 (4 April 2016)
Division
GENERAL DIVISION
File Number(s)
2015/5714
Re
Denis MacNeall
APPLICANT
And
Civil Aviation Safety Authority
RESPONDENT
DECISION
Tribunal Senior Member CR Walsh
Date 4 April 2016 Place Perth The Tribunal dismisses application 2015/5714 pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975.
..(Sgd) CR Walsh......................
Senior Member CR Walsh
CATCHWORDS
PRACTICE & PROCEDURE – s 42B(1) dismissal application on basis that review application is futile or lacking in any further utility – applicant’s conditional Class 2 Civil Aviation Medical Certificate, the subject of the application, expired on 30 December 2015 – consideration of when Civil Aviation Safety Authority medical certificates come into force and how long they can remain in force – application dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 – s 42B(1)
Civil Aviation Act 1988 – s 31
Civil Aviation Safety Regulations 1998 – r 67.205 – r 67.205(1) – r 67.205(2) – r 67.205(3) – r 201.004
CASES
Barnes v Civil Aviation Safety Authority [2015] AATA 272
Barnes v Civil Aviation Safety Authority [2015] AATA 756
Re Canberra Raiders Sports Club and Commissioner of ACT Revenue (1999) 59 ALD 229
Re Filsell and Comcare [2009] AATA 90; (2009) 109 ALD 198
Re Hawkins and Minister for the Arts [2013] AATA 835; (2013) 61 AAR 523
Re Irving and Repatriation Commission (1997) 46 ALD 20
Re Johnson and Veteran’s Review Board [2004] AATA 242; (2004) 80 ALD 659
Re Kirk and Repatriation Commission [2007] AATA 1364; (2007) 95 ALD 506
Re McIntyre and Comcare (1997) 48 ALD 437
Re Nugent and Minister for Urban Services (2000) 61 ALD 570Re Rundle and Civil Aviation Authority [2002] AATA 349; (2002) 68 ALD 234
REASONS FOR DECISION
Senior Member CR Walsh
4 April 2016
INTRODUCTION
On 23 February 2016, the Civil Aviation Safety Authority (CASA) applied to the Tribunal for the dismissal of this application (2015/5714) pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act) on the basis that it lacks any further utility as Mr MacNeall’s Class 2 Civil Aviation Medical Certificate, the subject of the application, expired on 30 December 2015[1].
[1] CASA’s submissions in relation to this dismissal application were received by the Tribunal on 8 March 2016 and Mr MacNeall’s submissions in reply were received by the Tribunal on 17 March 2016. On 29 March 2016, the Tribunal held a telephone directions hearing with both parties to discuss this dismissal application and a related application.
CONSIDERATION
Section 42B(1) of the AAT Act states:
Power of Tribunal if a proceeding is frivolous, vexatious etc.
(1)The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) has no reasonable prospect of success; or
(c) is otherwise an abuse of the process of the Tribunal.
In Re Filsell and Comcare [2009] AAT 90; (2009) 109 ALD 198, DP Jarvis set out the principles that should be followed in regard to s 42B applications under the previous version of the section[2]. At [33], DP Jarvis stated:
(c)The power of the tribunal to dismiss proceedings under s 42B is a power that should be used cautiously……..
(d)However, if proceedings have no reasonable prospect at all of success, they should be dismissed under s 42B, since it would be futile for the proceedings to continue, and inappropriate to use the time and resources of this tribunal, and to put the respondent to the expense that would be involved in the matter proceeding to a hearing.
[2] Section 42B was amended with effect 1 July 2015.
While futility is not a nominated ground for dismissal, the Tribunal has consistently dismissed proceedings under the former version of s 42B of the AAT Act in circumstances where it has found the proceedings to be futile or lacking in any further utility: see Re McIntryre and Comcare (1997) 48 ALD 437; Re Irving and Repatriation Commission (1997) 46 ALD 20; Re Canberra Raiders Sports Club and Commissioner for ACT Revenue (1999) 59 ALD 229; Re Nugent and Minister for Urban Services (2000) 61 ALD 570; Re Rundle and Civil Aviation Authority [2002] AATA 349; (2002) 68 ALD 234; Re Johnson and Veterans’ Review Board [2004] AATA 242; (2004) 80 ALD 659; Re Kirk and Repatriation Commission [2007] AATA 1364; (2007) 95 ALD 506 and Re Hawkins and Minister for the Arts [2013] AATA 835; (2013) 61 AAR 523.
On 1 September 2015, CASA wrote to Mr MacNeall advising him of its decision to issue him with a conditional:
…….Class 2 medical certificate valid for 12 months from the date of your medical has been issued. This will be sent to you under separate cover.
CASA’s letter to Mr MacNeall, dated 1 September 2015, further stated:
Special Operational Restriction
Your Medical Certificate will have the following condition/s:
Class 2 valid with safety pilot only valid for 12 months.
Your certificate also carries the requirement that you adhere to the conditions on the document attached overleaf.
On 3 September 2015, CASA issued Mr MacNeall with a Class 2 Civil Aviation Medical Certificate (Class 2 Medical Certificate) which recorded the following:
Class 2 Expires end: 30 December 2015
Restrictions: 4. For CASA audit
9. Holder to fly with safety pilot only
14.Reading Correction to be available whilst exercising the privileges of this licence
Mr MacNeall’s position, as set out in his written submissions (received by the Tribunal on 17 March 2016), is as follows:
Addressing CASA Claims
1. My class 2 medical has no utility.
This is irrelevant as I am appealing the decision made in September 2015. However, please see item 2.
2. The decision to renew my class 2 medical from 4Sep15 to 30Dec15 (less than 4 months) was in accordance with CASR’s.
Following my medical examination by the Designated Medical Examiner (DAME), CASA called for several additional tests adding many months to their final decisions.
Accordingly, the following regulation applies. (not CASR 67.205(1)) as quoted by the respondent)
CASR 67.205 (2) A medical certificate comes into force:
(a)if the holder has undergone any relevant examinations required for the purpose of the issue of the certificate and complies with the relevant medical standard in all respects—on the certificate’s appropriate day; or
(b) in any other case—on the day when the certificate is issued.
That is 4Sep15.
3. CASA is justified in renewing my class 2 medical for 1 year from the previous class 2 expiry.
This relates in part to para 2. above but still needs addressing as it is germane to the expiry of my class 2 medical.
The respondent’s submission of 8Mar16 contends that CASR 67.205 (3)… “a period of not more than 2 years” (see respondent letter para 7). to mean that CASA has discretion to determine the period of renewal (see respondent letter para 8).
However, CASA must also be cognizant of Table 67.155 Criteria for medical standard 2 that details medical conditions that must not be “Safety Relevant”.
CASR 67.015 Meaning of safety-relevant
“For the purposes of this Part, a medically significant condition is safety-relevant if it reduces, or is likely to reduce, the ability of someone who has it to exercise a privilege conferred or to be conferred, or perform a duty imposed or to be imposed, by a licence that he or she holds or has applied for”.
…………
My contention is that legally my class 2 medical should have been renewed from 4Sep15 to 3Sep17; and even if CASA argues that they were justified in a 1 year period, then the renewal should have been from 4Sep15 to 3Sep16. i.e. It should still be current!
In contrast, CASA’s position is that Mr MacNeall’s Class 2 Medical Certificate came into force on 30 December 2014, upon the expiration of his previous Class 2 Medical Certificate, and was valid for 12 months, expiring on 30 December 2015. According to CASA, since Mr MacNeall’s Class 2 Medical Certificate has expired, this review application is futile and lacks any further utility and should be dismissed.
Ultimately, this dismissal application turns on the correct interpretation of r 67.205 of the Civil Aviation Safety Regulations 1998 (CASR).
Regulation 67.205 of the CASR, titled “Medical certificates – period in force”, states:
Medical certificates--period in force
(1) In this regulation:
" appropriate day " means:
(a) for a medical certificate issued to a person who:
(i)has never held a medical certificate, or a person who has previously held a medical certificate that has expired; and
(ii)has undergone any relevant examinations required for the purpose of the issue of the certificate;
the day when the last relevant examination is completed; and
(b) for a new medical certificate issued to a person:
(i)who holds a medical certificate that is in force (the current certificate ); and
(ii)who has undergone any relevant examinations required for the purpose of the issue of the new certificate; and
(iii)whose last relevant examination is completed more than 28 days before his or her current certificate is due to expire;
the day when the examination is completed; and
(c) for a new medical certificate issued to a person:
(i)who holds a medical certificate that is in force (the current certificate ); and
(ii)who has undergone any relevant examinations required for the purpose of the issue of the new certificate; and
(iii)whose last relevant examination is completed 28 or fewer days before his or her current certificate is due to expire;
the day when the current certificate is due to expire.
………
(2) A medical certificate comes into force:
(a)if the holder has undergone any relevant examinations required for the purpose of the issue of the certificate and complies with the relevant medical standard in all respects--on the certificate's appropriate day; or
(b) in any other case--on the day when the certificate is issued.
(3)Subject to subregulation (6) and regulations 67.215 and 67.220, a medical certificate issued by CASA to a person who has undergone any relevant examinations required for the purpose of the issue of the certificate remains in force for the period set out in the certificate, being a period of not more than:
(a)in the case of a class 1 medical certificate--1 year after the day when the certificate comes into force; and
(b) in the case of a class 2 medical certificate:
(i)if the person is less than 40 years old when the certificate is issued to him or her--4 years after the day when the certificate comes into force; or
(ii)if the person is 40 years old or older when the certificate is issued to him or her--2 years after the day when the certificate comes into force; and
(c)in the case of a class 3 medical certificate--2 years after the day when the certificate comes into force.
(4)Subject to subregulation (6) and regulations 67.215 and 67.220, a medical certificate issued by CASA to a person who has not been required to undergo any relevant examinations for the purpose of the issue of the certificate remains in force for the period (which must not be longer than 2 months) set out in the certificate.
(5)Subject to subregulation (6), a medical certificate issued by a DAME remains in force for the period (which must not be longer than 2 months) set out in the certificate.
(6)If a new medical certificate is issued to a person who holds a current medical certificate, and the new certificate comes into force before the current certificate is due to expire, the current certificate ceases to be in force at the last moment of the day before the day when the new certificate comes into force. [Emphasis added]
Mr MacNeall’s previous Class 2 Medical Certificate was due to expire on 30 December 2014.
On 3 December 2014, Mr MacNeall lodged an “Application for Aviation Medical Certificate – Declaration” (which form was completed and signed by Mr MacNeall and Ms Mary Cadden, the “Examiner”) with CASA in support of his application for a new Class 2 Medical Certificate.
As Mr MacNeall’s “last relevant examination” was completed on 3 December 2014, being “28 or fewer days” before his previous Class 2 Medical Certificate was due to expire, on 30 December 2014, the “appropriate day”, for the purposes of r 67.205(1) of the CASR is 30 December 2012: see r 67.205(1)(c) and r 67.205(2)(a) of the CASR above. It follows that Mr MacNeall’s new Class 2 Medical Certificate came into force, for the purposes of r 67.205(2)(a) of the CASR on 30 December 2014 (being the “appropriate day”, within the meaning of r 67.205(1)(c) of the CASR and for the purposes of r 67.205(2)(a) of the CASR).
Mr MacNeall also contends that CASA incorrectly issued him with a Class 2 Medical Certificate which was only valid for one year (12 months), when it should have been issued to him for two years.
As submitted by CASA, r 67.205(3) of the CASR makes it abundantly clear that it remains at the discretion of CASA to determine the period for which a medical certificate is to remain in force: refer to paragraph 11 above and Barnes v Civil Aviation SafetyAuthority [2015] AATA 756, wherein the Tribunal stated:
46.….the issue of the medical certificate for 12 months rather than two years was a lawful exercise of CASA’s powers under the CASR. Regulation 67.205(3)(b)(ii) provides that a Class 2 medical certificate issued to a person 40 years old or older may remain in force for a period not exceeding two years. Clearly, that sets the maximum period of time for which a Class 2 medical certificate may remain in force. There is nothing in CASR which prevents CASA from reducing that maximum period where, in its discretion, it believes necessary.
For the above reasons, the Tribunal finds that this application lacks any further utility as Mr MacNeall’s Class 2 Medical Certificate which came into force on 30 December 2014 in accordance with r 67.205(2) of the CASR (being the “appropriate day” for the purposes of r 67.205(1)(c) of the CASAR) and which remained in force for a period of 12 months from that date (in accordance with r 67.205(3)(b)(ii) of the CASAR), expired on 30 December 2015. The Tribunal has no power to revive an expired medical certificate, particularly in circumstances in which the original term of the certificate is not a matter over which the Tribunal has jurisdiction.
In his written submissions (received on 17 March 2016), Mr MacNeall further states:
Barnes v CASA
In the quoted case of Barnes v CASA the appellant had type 2 diabetes (see respondent letter para 9) and was thus irrelevant to this situation. I contend that I have no safety relevant conditions and should not be subject to any reduced period of medical certificate validity. Additionally, in 2014 a class 2 medical certificate was issued to me for more than 1 year.
The conclusion by AAT senior member Egon Fice included the following:
“34. Accordingly, I find that the Tribunal does not have jurisdiction to review the decision to issue Mr Barnes with a class 2 medical certificate for a period of 12 months. Were Mr Barnes minded to seek a variation of the medical certificate which was issued and CASA refused to vary the period for which his medical certificate remained in force, that decision would be reviewable by the Tribunal.”
Could the AAT please inform me of the meaning of the underscored. [Emphasis added]
The above submissions of Mr MacNeall refer to another Tribunal decision, similarly named, being Barnes v Civil Aviation Safety Authority [2015] AATA 272 (Barnes [2015] AATA 272). What Senior Member Fice means in paragraph 34 of his reasons for decision in Barnes [2015] AATA 272 (as set out immediately above), is made clear from a reading of the preceding paragraph of Senior Member Fice’s reasons for decision, as follows:
33.The Tribunal’s decision is governed by s. 25 of the AAT Act. It provides that an enactment may provide for applications to be made to the Tribunal for review of decisions made in the exercise of powers conferred by that enactment. In fact s. 25 goes on in subsection (3) to explain that an enactment may be expressed to apply to all decisions of a person or to a class of such decisions and may specify conditions subject to which applications may be made. In this case, the class of decisions which may be reviewed are those set out in s. 31 of the Civil Aviation Act and Table 201.004 of the CASR. Although Table 201.004 includes a decision refusing to vary an authorization, that is not the decision which Mr Barnes seeks to have reviewed by the Tribunal.
Neither s 31 of the Civil Aviation Act 1988 nor r 201.004 of the CASR confers jurisdiction on the Tribunal in a way that enables it to review a decision to issue a medical certificate for a period of time which is within the maximum allowable period set out in the CASR. The reason for this is that, a decision in these terms does not refuse the issue of the relevant authorisation, vary it or impose a condition upon it and, as such, is not a decision which is reviewable by the Tribunal.
DECISION
For the above reasons, the Tribunal dismisses application 2015/5714 (being the application relating to Mr MacNeall’s class 2 medical certificate) pursuant to s 42B(1) of the AAT Act.
I certify that the preceding 21 (twenty one) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh ...(Sgd) T Freeman)..........
Administrative Assistant
Dated 4 April 2016
Date of hearing Heard on the Papers on 4 April 2016 Applicant In person Respondent’s Representative Ms C Swain
Civil Aviation Safety Authority, Legal Services Group
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