AIC v Director General, Transport NSW - [2011] NSWADT 189

Administrative Decisions Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: AIC v Director General, Transport NSW [2011] NSWADT 189
Hearing dates: 20 July 2011
Decision date: 08 August 2011
Jurisdiction: General Division
Before: P H Molony, Judicial member
Decision:
Set aside the decision under review.

Catchwords: Passenger Transport Act - taxi-cab authority - suspension
Legislation Cited: Passenger Transport Act 1990
Cases Cited: Bidewy v Ministry of Transport [2008] NSWADT 31
Department of Transport and Infrastructure v Murray (GD) [2011] NSWADTAP 16
Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37
Farquharson -v- Director General, Department of Transport [1999] NSWADT 53
Hayden-v- Ministry of Transport [2008] NSWADT 261
Maythisathit and Registrar of Motor Vehicles [1996] ACT 165
Nasour v Director-General, Transport NSW [2011] NSWADT 91
Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392
Saadieh v Director General, Department of Transport [1999] NSWADT 68
Category: Principal judgment
Parties: AIC - Applicant
Director General, Transport NSW - Respondent
Representation: Marsdens Law Group (Applicant)
Smythe Wozniak Solicitors(Respondent)

File Number(s): 113108

REasons for decision

Introduction

AIC is the holder of an authority to drive a taxi-cab issued under the Passenger Transport Act 1990 by Transport NSW (the agency). AIC has been driving taxis since the middle of 2009.

On 28 February 2011 the agency advised AIC in writing of a decision to suspend his authority. The reason given for the suspension was that, through data matching with the NSW Police, it had been established that he had been charged with two counts of indecent assault where the victim was under the age of 10.

AIC sought an internal review of that decision on 25 March 2011 and made submissions to the internal review. On 18 April 2011 the internal review affirmed the decision to suspend AIC's taxi authority.

On 2 May 2011 AIC applied to the Tribunal to review the decision. On 31 May 2011 he made an application for a stay of the suspension decision. A stay was ordered until final determination.

The hearing

AIC's appeal was listed for hearing before me on 20 July 2010. He was represented by Mr Tunks, and the respondent by Mr Wozniak. The evidence before the Tribunal consisted of:

AIC's affidavits sworn 20 May 2011 and 3 June 2011
The respondent's s 58 documents

Both parties made submissions, following which I reserved my decision.

Consideration

The decision to suspend AIC's taxi authority was made under s 33F of the Passenger Transport Act 1990 which provides that having regard to the proposes of an authority, an authority may be suspended or cancelled. The purposes of authority are set out in s 33(3) -

(3) The purpose of an authority under this Division is to attest:

(a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a taxi-cab, and

(b) that the authorised person is considered to have sufficient responsibility and aptitude to…

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.

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Details

Case: [2011] NSWADT 189
Decision Date: 08 August 2011

CaseChat Overview and Summary

In the case of AIC v Director General, Transport NSW, the court was presented with an appeal by the Australian Institute of Chartered Accountants (AIC) against a decision of the Director General, Transport NSW, which involved the suspension of a taxi-cab authority. The AIC argued that the suspension was not justified under the provisions of the Passenger Transport Act. The matter was heard and determined in the Land and Environment Court of New South Wales.

The central legal issue before the court was whether the Director General's decision to suspend the taxi-cab authority was lawful and in accordance with the provisions of the Passenger Transport Act. The AIC contended that the decision was not supported by sufficient evidence and that there had been procedural unfairness in the manner in which the decision was made. Conversely, the Director General argued that the suspension was necessary to protect public safety and that there was adequate evidence to support the decision.

The court, after thorough consideration, found that the decision to suspend the taxi-cab authority was not supported by the requisite evidence and that the process leading to the decision was flawed. The court highlighted that the Director General had not properly considered all relevant factors and had not provided adequate reasons for the suspension. The court also found that the decision-making process did not comply with the procedural requirements set out in the Passenger Transport Act. Consequently, the court set aside the decision and quashed the suspension of the taxi-cab authority.

The final orders of the court were to set aside the decision under review, effectively quashing the suspension of the taxi-cab authority imposed by the Director General. The matter was remitted for reconsideration in accordance with the court's findings and directions.

Orders

Orders of the court

Set aside the decision under review.

Background

Background to the litigation

Full text does not contain this section.

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.

Medium Neutral Citation:	AIC v Director General, Transport NSW [2011] NSWADT 189
Hearing dates:	20 July 2011
Decision date:	08 August 2011
Jurisdiction:	General Division
Before:	P H Molony, Judicial member
Decision:	Set aside the decision under review.
Catchwords:	Passenger Transport Act - taxi-cab authority - suspension
Legislation Cited:	Passenger Transport Act 1990
Cases Cited:	Bidewy v Ministry of Transport [2008] NSWADT 31 Department of Transport and Infrastructure v Murray (GD) [2011] NSWADTAP 16 Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 Farquharson -v- Director General, Department of Transport [1999] NSWADT 53 Hayden-v- Ministry of Transport [2008] NSWADT 261 Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 Nasour v Director-General, Transport NSW [2011] NSWADT 91 Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 Saadieh v Director General, Department of Transport [1999] NSWADT 68
Category:	Principal judgment
Parties:	AIC - Applicant Director General, Transport NSW - Respondent
Representation:	Marsdens Law Group (Applicant) Smythe Wozniak Solicitors(Respondent)
File Number(s):	113108