Ashe and Decision Maker

[2019] AATA 4480

Ashe and Decision Maker [2019] AATA 4480 (5 November 2019)

Division:GENERAL DIVISION

File Number(s):     2019/6317          

Re:Gregory Ashe

APPLICANT

AndDecision Maker

RESPONDENT

DECISION

Tribunal:Member W Frost

Date of decision:  5 November 2019

Date of written

reasons:                6 November 2019        

Place:Canberra

The Tribunal dismisses the application pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975.

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Member W Frost

Catchwords

PRACTICE AND PROCEDURE – dismissal for lack of jurisdiction – decision not made under enactment – decision not reviewable by the Tribunal - application dismissed

Legislation

Administrative Appeals Tribunal Act 1975 ss 25, 42A(4)

Secondary Materials

Pearce, Dennis, Administrative Appeals Tribunal (LexisNexis Butterworths, 4^th ed, 2015)

REASONS FOR DECISION

Member W Frost

6 November 2019

1. The Applicant, Mr Gregory Ashe, applied to the Administrative Appeals Tribunal on 2 October 2019. On 5 November 2019, the Tribunal dismissed Mr Ashe’s application pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Act), because it was satisfied that the decision was not reviewable by the Tribunal. Mr Ashe requested written reasons for the Tribunal’s decision and those reasons are as follows.

2. In his application to the Tribunal, Mr Ashe did not provide a copy of the decision he wanted reviewed. Mr Ashe described the decision as follows:

   I applied for signage inside the Orange Airport terminal with Adrian from Council staff to show passengers that a Uber pickup point so I could arrange identification of the passenger that has arrived at the airport to ensure a quick collection of the passenger. This would be on the same area as the taxi, rental cars etc.

   I was advised the outcome of the request by staff that after consultation with relevant management the consensus was it could not be approved on this occasion. No legal or administrative reason was given.

   FYI I operate Uber cars in the Central West. [sic]

3. Mr Ashe said the decision was wrong because:

   The council management did not review the legal reasons for the decision and the wider implications of customer service impact on my customers. The public relations cost is quite high as my drivers have to search for the client amongst other arriving passengers which creates confusion and time wasting.

   Taxi operators have their signage inside the terminal and also car rental operators which mean a smooth operation of their customers. [sic]

4. On 8 October 2019, the Tribunal wrote to Mr Ashe confirming receipt of his application, but noting that the application did not identify a decision for review and informing Mr Ashe that it required this information to ensure it had power to review the decision. On the same day, Mr Ashe sent an email to the Tribunal in response, which is set out in full as follows:

   Hi Adrian

   As discussed I would like to request signage inside the terminal for Ride sharing customers adjacent to the taxi, car rental signs

   Regards Gregory Ashe

   Good morning Gregory, I’ve reviewed your request and conferred with relevant managers at Council and the airport. Unfortunately the concensus it that your request can not be approved on this occasion. Best regards, Adrian. [sic]

   ISSUE

5. The issue before the Tribunal is whether the decision provided by Mr Ashe is reviewable by the Tribunal.

   LEGISLATION          

6. Section 25 of the Act relevantly states that:

   (1)   An enactment may provide that applications may be made to the Tribunal:

   (a) for review of decisions made in the exercise of powers conferred by that enactment; or

   (b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.

   …

   (4) The Tribunal has power to review any decision in respect of which application is made to it under any enactment.  

7. Subsection 42A(4) of the Act provides that:

   The Tribunal may dismiss an application without proceeding to review the decision if the Tribunal is satisfied that the decision is not reviewable by the Tribunal.

   CONSIDERATION

8. The Tribunal has no general power or jurisdiction to review decisions. The effect of subsection 25(1) of the Act is that the Tribunal can only review decisions if an enactment, being an Act of Parliament or other legislative instrument, specifically provides the Tribunal with jurisdiction. In determining jurisdiction, the Tribunal must consider whether an enactment confers jurisdiction; whether a ‘decision’ has been taken and whether that decision has been taken under the enactment conferring jurisdiction.[1]

   [1] Pearce, D., Administrative Appeals Tribunal, 4^th edition, LexisNexis Butterworths, 2015, p. 20.

9. The extract of what appeared to be email correspondence between Mr Ashe and an employee of Orange City Council in New South Wales, regarding Mr Ashe’s application for permission to install signage at Orange Regional Airport in relation to his ride sharing business, does not constitute a decision reviewable by the Tribunal. Any decision in this matter was seemingly made by a local government, the Orange City Council, and there is no enactment providing the Tribunal with jurisdiction to review such a decision. Accordingly, the Tribunal does not have jurisdiction to review the purported decision the subject of Mr Ashe’s application.

10. For completeness, the Tribunal notes that it appears, apart from Orange City Council itself, that the only relevant entity that may be in a position to consider Mr Ashe’s matter is the New South Wales Ombudsman.

    DECISION

11. The Tribunal dismisses the application pursuant to subsection 42A(4) of the Act.

I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

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Associate

Dated: 6 November 2019