Ovens and Civil Aviation Safety Authority [2011] AATA 739 (21 October 2011)

Last Updated: 24 October 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 739

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/3959

GENERAL ADMINISTRATIVE DIVISION		)
	Re		Roderick Ovens

Applicant

And

Civil Aviation Safety Authority

Respondent

DECISION

Tribunal

Professor RM Creyke, Senior Member

Date 21 October 2011

Place Canberra

Decision

Under section 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the application is dismissed.

.......................[sgd].......................
Professor RM Creyke, Senior Member

CATCHWORDS

CIVIL AVIATION – conditions for private pilot licence – Class 2 medical certificate under Regulation 67.155 of the Civil Aviation Safety Regulations 1998 (Cth)

PRACTICE AND PROCEDURE – remittal from Federal Court – Tribunal to determine if any utility in rehearing application – medical certificate under review expired – interests no longer affected by reviewable decision – dismissed under section 42B of the Administrative Appeals Tribunal Act 1975 (Cth)

Administrative Appeals Tribunal Act 1988 (Cth) ss 27, 42B

Civil Aviation Act 1988 (Cth) s 31

Civil Aviation Safety Regulations 1998 (Cth) regs 67.155, 67. 180, 67.195, 67.205, 67.215

Re McHattan and Collector of Customs (NSW) (1977) 1 ALD 67

Ovens v Civil Aviation Safety Authority [2010] FCA 1354; (2010) 119 ALD 519

Ovens v Civil Aviation Safety Authority [2011] FCAFC 75; (2011) 121 ALD 514

Re Ovens and Civil Aviation Safety Authority [2010] AATA 481

REASONS FOR DECISION

21 October 2011

Professor RM Creyke, Senior Member

1. On 22 July 2009 the Civil Aviation Safety Authority (Authority/CASA) issued Mr Roderick Ovens a Class 2 medical certificate, permitting him to fly only when accompanied by a safety pilot. The Authority confirmed this decision of 7 August 2009. That decision was upheld by the Tribunal on 29 June 2010.
2. The Federal Court (Bennett J) upheld Mr Ovens’s appeal on 7 December 2010 and remitted the matter to the Tribunal ‘to enable the applicant to produce further evidence in relation to the application of the respondent’s “Protocol for Type 1 Diabetic Pilot Applicants” (the CASA Protocol) and to make further submissions in relation to the application of the CASA Protocol, the FAA Protocol or some other protocol’.^[1]
3. A subsequent appeal to the Full Court of the Federal Court was allowed in part on 6 June 2011. The matter was again remitted to the Tribunal with orders which varied the orders of Bennett J. The varied orders left it to the Tribunal to decide whether there was utility in respect of the application.
4. In a telephone directions hearing on 12 August 2011, the Tribunal accordingly called for submissions from the parties on the utility issue. The submission from Mr Ovens was received on 7 October 2011; the submission from CASA was received on 12 October 2011.
5. Having considered the submissions, the Tribunal has decided to dismiss the application under section 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).

Reasons for decision

6. The decision under review was a decision made by the Authority on 7 August 2009 which affirmed a decision of the Authority made on 22 July 2009. The decision was to issue Mr Ovens with a class 2 medical certificate with a condition permitting him to fly an aircraft as an insulin dependent pilot, but only when flying as, or with, a safety pilot. Mr Ovens has a pilots’ licence, but he is required also to hold a current medical certificate in order to exercise his right to fly.
7. The medical certificate was issued under powers exercisable by the Authority under the Civil Aviation Safety Regulations 1998 (CASRs) regs 67.180 and 67.195, as authorised by the Civil Aviation Act 1988 (Cth). Regulation 67.205 sets out the period the certificate is to remain in force. In the case of Mr Ovens, his certificate came into force on 22 July 2009 and was to remain in force for the period set out in the certificate, being 12 months. There was no question as to the lawfulness of the exercise of that power.^[2] That certificate expired on 21 July 2010.
8. The period under which the certificate was capable of remaining in force under the CASRs was for two years from the date of issue.^[3] That period would have expired on 21 July 2011. No application was made to the Tribunal at the initial hearing to extend the period beyond the 12 months, nor is it understood that any such application had been made to the Authority. Accordingly, a question would arise as to whether the Tribunal had jurisdiction to review the length of the initial grant of the certificate had an application to it been made for that purpose. In any event, even if an extension had been applied for and granted, the extended period of two years has also now expired.
9. The submission from the Authority advised that Mr Ovens had applied on 3 May 2010 for the issue of a further medical certificate. That application was granted and Mr Ovens was issued a class 2 medical certificate on 10 May 2010, again subject to the condition that he only fly as or with a safety pilot. The certificate was to remain in force until 22 May 2011. That certificate too has now expired and there is no indication Mr Ovens has applied for this certificate to be extended.
10. The Authority advised the Tribunal that Mr Ovens had undergone a medical examination for a fresh medical certificate and was intending to submit an application to the Authority for a new certificate. At the time of writing it is not known whether that application has been granted, and with or without conditions.
11. The Tribunal’s jurisdiction in this matter is limited to review of a ‘reviewable decision’.^[4] The Civil Aviation Act 1988 (Cth) section 31 provides that a ‘reviewable decision’ includes a decision involving ‘the imposition ... of a condition ... contained in a certificate’.^[5] The decision is reviewable by the Tribunal provided the decision affects the interests of the person in receipt of the decision.^[6] Absent those preconditions, the Tribunal has no jurisdiction.
12. There was no question that Mr Ovens had applied for a ‘certificate’ nor that the certificate was granted with a condition. The issue is whether Mr Ovens’s interests are now capable of being affected by the decision.
13. The Full Court of the Federal Court said of this issue:

Although both parties contended that the appeal was not futile even if the appeal were dismissed and the orders of the Court made on 17 December 2010 remitting the matter to the Tribunal stood, the question remains how remitting a matter by virtue of a procedural error in relation to a licence which appears to have expired and been replaced by a later licence could have utility. The point is that each licence is for a finite period and the grant of each is a separate decision under the Regulations.

The issue having been raised by the Court, the appellant said that if the matter were remitted it would be minded to adopt the respondent’s suggestion which was that the
Tribunal would be in a position to address the issues on the current certificate.

As we see it, so far as concerns the procedural issues the Tribunal would be in a position to deal with those issues on the current certificate in any event if an application were made to it and time were extended for that purpose.

Nevertheless, because the parties have joined in advocating remitter we would remit but vary the present order so as to leave it to the Tribunal to decide whether anything remains for it to decide in relation to the application before it and whether, therefore, there is any utility in respect of the application it has before it, in particular, in the language of present Order 3 “to enable the applicant to produce further evidence in relation to the application of the respondent’s “Protocol for Type 1 Diabetic Pilot Applicants” (the CASA Protocol) and to make further submissions in relation to the application of the CASA Protocol, the FAA Protocol or some other protocol”.^[7]

14. The submission from the Authority apparently resiled from the view it expressed to the Court. In its submission to the Tribunal, the Authority said:

The medical certificate that has been the subject of the reviewable decision has not only expired upon its own terms but has been superseded by the subsequent certificate which has now also expired.

There is no basis upon which the Tribunal could duly exercise the powers granted to it under s 43(1) of the AAT Act, to now revive either certificate by resort to the provisions of regs 67.205 or 67.215 of the CASR since:

(a) Under reg 67.205(3)(b)(ii), the maximum possible term (measured from the date of its issue) of the certificate has now passed;
(b) Even assuming it open to the Tribunal to consider exercising the powers of extension contained in reg 67.215, those powers can only be exercised in respect of a current certificate and are, in the present circumstances, not available.

On that basis, no decision which the Tribunal could make in favour of the applicant in respect of his application for review could now be of any practical benefit to him. It would, therefore be a waste of the time and resources of the Tribunal and the parties for the remitted application to remain on foot.

It is submitted that in all the circumstances (including evolving issues as to whether Mr Ovens is currently able to satisfy the requisite medical standards for the issue of any medical certificate by reason of further medical matters arising since the last certification of Mr Ovens as highlighted by his recent discussions with Dr Navathe) it is open to the Tribunal to conclude that the appropriate course is that the remitted application be dismissed pursuant to s 42B(1) of the AAT Act.

15. The reference to discussions with Dr Navathe refers to information provided to him by Mr Ovens, namely that Mr Ovens has recently undergone a coronary artery bypass and graft, a matter which would also be relevant in deciding whether to grant him a further medical certificate, with or without conditions.
16. In other words, even if the Tribunal were to decide which protocol might be appropriate to apply to Mr Ovens − the thrust of the submission made by Mr Ovens − the Tribunal would be unable to set aside, vary or affirm the decision originally requested, namely, whether Mr Ovens was entitled to a medical certificate with or without a condition as to a safety pilot, since there is no extant ‘reviewable decision’ to that effect on foot.
17. Even allowing for the breadth of ‘interests’ intended to be covered by section 27(1) of the AAT Act^[8] any impact on Mr Ovens’s interests could only be hypothetical and may not be capable of ‘affecting’ him if no further medical certificate is granted to him.
18. In those circumstances, the application is dismissed under section 42(B) of the AAT Act.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member

Signed: ............................[sgd]..................................................

Caitlin Baillie, Associate

Date of Decision 21 October 2011

Counsel for the Applicant Chris McKeown

Counsel for the Respondent Ian Harvey

Solicitor for the Respondent Tanya Canny, Joe Rule

Civil Aviation Safety Authority

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^[1] Ovens v Civil Aviation Safety Authority No. (P)NSD949/2010, 17 December 2010, Order 3.
^[2] Civil Aviation Safety Regulations 1998 (Cth) (CASRs) regs 67.205(1)(b), (2), (3)(b)(ii).
^[3] CASRs reg 67.205(3)(b)(ii).
^[4] Civil Aviation Act 1988 (Cth) s 31(1), (2).
^[5] Id s 31(1)(b).
^[6] Id s 31(3).
^[7] Civil Aviation Authority v Ovens [2011] FCAFC 75; (2011) 121 ALD 514 at 523.
^[8] Re McHattan and Collector of Customs (NSW) (1977) 1 ALD 67 at 69.