Assadourian v Roads and Traffic Authority

[2011] NSWADT 46

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Assadourian v Roads and Traffic Authority [2011] NSWADT 46
Hearing dates:	2 March 2011
Decision date:	02 March 2011
Before:	S Montgomery, Judicial Member
Decision:	The orders made on 22 December 2009 remain in force
Catchwords:	tow truck drivers certificate - reinstatement on a temporary basis
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Tow Truck Industry Act 1998 Tow Truck Industry Regulation 2008
Cases Cited:	AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81
Category:	Interlocutory applications
Parties:	John Assadourian (Applicant) Roads and Traffic Authority (Respondent)
Representation:	M Condon (Applicant) A Wozniak (Respondent)
File Number(s):	093327

REASONS FOR DECISION

1. The applicant, John Assadourian, has applied to the Tribunal for a review of a decision by the Roads and Traffic Authority ("the RTA") refusing to grant his application for a tow truck drivers certificate.

Background

1. Mr Assadourian is the sole director, secretary and shareholder of Towman Pty Ltd ("Towman"). From 30 April 2004 to 30 April 2008, Towman held a tow truck operators licence pursuant to Division I of Part 3 of the Tow Truck Industry Act 1998 ("the Act") and carried on business as a tow truck operator. During the same period, Mr Assadourian held a tow truck drivers certificate ("the certificate") pursuant to Division 2 of Part 3 of the Act. Mr Assadourian has never held a tow truck operators licence.

1. The RTA has the function of regulating the tow truck industry in accordance with the Act and the Tow Truck Industry Regulation 2008 ("the Regulations").

1. In November 2008, the RTA determined to renew Mr Assadourian's tow truck drivers certificate for a period of one year until 27 November 2009.

1. In October 2009 the RTA received an application from Mr Assadourian for a subsequent tow truck drivers certificate. On 10 December 2009 the RTA determined to refuse that application.

1. On 15 December 2009 Mr Assadourian applied to the Tribunal for a review of the RTA's refusal to grant a subsequent drivers certificate. On the same day, Mr Assadourian applied for a stay of the RTA's decision.

1. The matter came before me on 22 December 2009, at which time I determined to "stay' the RTA's decision, subject to conditions.

1. The parties subsequently made an application for referral of a question of law to the NSW Supreme Court, pursuant to s79A of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"). The question of law is as follows:

"Does section 15 of the Tow Truck Industry Act 1998, properly construed, have the effect that the conduct of Mr Assadourian and/or Towman Pty Ltd identified in the agreed facts constitute the carrying on of a business as a tow truck operator within the meaning section 15 of that Act?"

1. The Tribunal's President granted that application on 3 November 2010. That question is presently before the Supreme Court.

1. By letter dated 18 February 2011 the RTA wrote to Mr Assadourian in the following terms:

"I refer to your tow truck drivers certificate 41624.

You lodged an application to renew your tow truck drivers certificate on 21 October 2009 which was due to expire on 27 November 2009. Your application was refused on discretionary grounds on 10 December 2009.

You applied to the Administrative Decisions Tribunal for an urgent stay of this refusal. This was granted and your drivers certificate continued to be in force until 27 November 2010, the annual expiry date for your certificate.

You are therefore not currently certified to drive tow trucks in New South Wales. ..."

1. Mr Assadourian has requested that the matter be relisted to address the question of whether the order made on 22 December 2009 has the effect that the tow truck drivers certificate remains in force.

Applicable legislation

1. The Act has been amended since the date of the decision that is under review. At that time, section 31 of the Act provided:

31 Term of drivers certificate and renewal

(1) A drivers certificate continues in force for a period of one year from the date on which it was granted or such shorter period as may be specified in the drivers certificate, unless it is sooner revoked or suspended or otherwise ceases to be in force.

(2) A drivers certificate may be renewed from time to time by making an application for a subsequent drivers certificate in accordance with this Act.

1. Clause 24 of the Regulations provided:

24 Pending application for subsequent licence or drivers certificate

If:

(a) a person who is the holder of a licence or drivers certificate (the current licence or drivers certificate) applies for a subsequent licence or drivers certificate before the term of the current licence or drivers certificate expires, and

(b) the person has paid the relevant application fee for the subsequent licence or drivers certificate, and

(c) the application has not been dealt with by the time the current licence or drivers certificate expires,

the authority conferred by the current licence or drivers certificate continues until 90 days after the expiry of the current licence or drivers certificate, or until such time as the person is notified of the granting or refusal of the subsequent licence or drivers certificate, whichever is the sooner.

1. It is not in dispute that the effect of Clause 24 of the Regulations was that Mr Assadourian's tow truck drivers certificate remained in force at the time of his application to the Tribunal and the making of the order on 22 December 2009.

1. Section 63 of the ADT Act provides:

63 Determination of review by Tribunal

(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.

(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

1. Mr Wozniak, solicitor for the RTA, contends that the effect of section 63 of the ADT Act is that Tribunal's powers are limited to those of the administrator. Pursuant to section 31 of the Act the administrator could only grant a certificate for a period of one year. Mr Wozniak submits that the Tribunal is not empowered to grant a certificate for a longer period.

1. The order made on 22 December 2009 was pursuant to section 60 of the ADT Act which provides:

60 Operation and implementation of decisions pending applications for review

(1) Subject to this section, an application to the Tribunal for a review of a reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision.

(2) On the application of any party to proceedings for an application for a review of a reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application.

(3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account:

(a) the interests of any persons who may be affected by the determination of the application, and

(b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and

(c) the public interest.

(4) While an order is in force under this section (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on application by a party to the proceedings, vary or revoke the order by another order.

1. Section 62 of the ADT Act provides:

62 Conditions of stay order

(1) An order in force under section 60 (including an order that has previously been varied on one or more occasions) is subject to such conditions as are specified in the order.

(2) Any such order has effect:

(a) if a period for the operation of the order is specified in the order-until the expiration of that period or, if the application is decided by the Tribunal before the expiration of that period, until the decision of the Tribunal on the application takes effect, or

(b) if no period is so specified-until the decision of the Tribunal on the application takes effect.

The Court of Appeal Decision in AVS Group of Companies Pty Ltd v Commissioner of Police

1. The Court of Appeal considered the provisions of section 60 of the ADT Act in some detail in AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 (" AVS v Police "). That matter concerned a decision by the Commissioner that revoked the applicants' statutory licences held under the Security Industry Act 1997. At paragraphs [16] ff Basten JA said:

16 What the applicants required, in order to continue their licensed operations, was an order reinstating their licences. That cannot be achieved in terms by a "stay", a somewhat imprecise term which is usually understood to refer to a future event, which has not yet taken place: see McBride v Walton (Unrep, NSWCA, 27 August 1993) (Handley JA).

17 The relevant source of power is found in s 60 of the Administrative Decisions Tribunal Act 1997 (NSW) ("the ADT Act"), which relevantly provides:

...

18 It is arguable that the second limb of s 60, (referring to an order "otherwise affecting the operation of the decision under review") would allow the Tribunal to suspend the operation of a revocation of a licence, or reinstate the licence on a temporary basis. That approach may gain support from the scope for a final decision on a review to operate from the date of the original decision: ADT Act, s 66(2)(b). Arguably that could be done by retrospectively varying the date from which the Commissioner's order was to have effect. Although the Tribunal did not make an order otherwise than in terms of a "stay", the question of statutory construction should be addressed having regard to the scope and effect of the orders available under s 60. Indeed, it was assumed by the applicants that the order in fact made allowed them to continue to operate, as if they held valid licences.

19 There is no doubt that an order in the nature of a "stay" made pursuant to s 60 is an order separate and distinct from the kind of final order which may be made in determining an application for review of a reviewable decision: ADT Act, s 63(3). Nevertheless, it is a decision made in the course of review proceedings, which will affect, on a temporary basis, the operation of the reviewable decision. It is made in circumstances where the statute provides that the making of an application for review does not itself affect the operation of the decision: s 60(1).

1. Campbell JA stated at paragraphs [96] - [98]:

96 In the present case (unlike McBride v Walton ), the Tribunal has a wider power than merely to grant a stay. It has power, under section 60(2) ADT Act, to "make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application." That power is one that is wide enough to enable the Tribunal to temporarily reinstate a licence that has been revoked pending the hearing of an application for review of a decision to revoke the licence.

...

Construction of Tribunal's Order for a "Stay"

98 The preferable view of the law is that an order of an administrative Tribunal, like an order of the court, can be construed in the light of the circumstances surrounding the making of the order, regardless of whether there is any ambiguity in the words of the order itself.

Discussion

1. In my view, section 60 of the ADT Act gives the Tribunal the power to make an order that effectively reinstates Mr Assadourian's tow truck drivers certificate on a temporary basis. Such an order is made to "secure the effectiveness of the determination of the application." As has been noted by Campbell JA in AVS v Police , the Tribunal makes such an order in the light of the circumstances of the matter.

1. It is apparent from the wording of section 62(2)(b) of the ADT Act that it is contemplated that an order under section 60 might remain in force until the decision of the Tribunal on the application takes effect. In the case of an authority that is for limited period, the proceedings before the Tribunal may well extend beyond the expiry date of the authority.

1. In the present case, the fact that the matter is before the Supreme Court for consideration of a question of law is a relevant circumstance. If the RTA's construction of section 60 were preferred, then the order made on 22 December 2009 would not secure the effectiveness of the determination of the application. In my view, that construction is inconsistent with the benefit that is permitted by exercise of the power.

1. While I agree that section 63 of the ADT Act limits the possible orders that the Tribunal can make in determining an application for review of a reviewable decision to those available to the administrator who made the decision, the same limitation does not apply to any order that the Tribunal can make under section 60 of the ADT Act.

1. In my view, the Tribunal is not limited by the time period prescribed by section 31 of the Act. If appropriate in the circumstances of the particular matter, the Tribunal can make an order under section 60 of the ADT Act that remains in force until the decision of the Tribunal on the application takes effect.

1. The order made on 22 December 2009 was made subject to conditions. However, no time limit was placed on the order. It follows, in my view, that pursuant to section 62(2)(b) of the ADT Act the order has effect until the decision of the Tribunal on the application takes effect.

1. It is open to the RTA to bring an application for the variation or revocation of the order made on 22 December 2009 pursuant to section 60(4) of the ADT Act. However, it is my view that the order remains in force unless such an application is made and determined.

Order

The orders made on 22 December 2009 remain in force.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

Registrar

Decision last updated: 11 March 2011