Bergild v Road Transport Authority - [2017] ACAT 80

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BERGILD v ROAD TRANSPORT AUTHORITY (Administrative Review) [2017] ACAT 80

AT 34/2017
Catchwords: ADMINISTRATIVE REVIEW – review of decision to cancel driver licence – vision disorders – Assessing Fitness to Drive guidelines – whether guidelines mandatory or discretionary – whether non-compliance with a criteria under medical standards requires cancellation of licence – suitability for on-road assessment – kinds of conditions

Legislation cited:       ACTCivil and Administrative Tribunal Act 2008 s 9
  Road Transport (General) Act 1999 s 90A
Subordinate
Legislation cited:       Road Transport (Driver Licensing) Regulation 2000, ss 15, 55, 60, 87, 88

Cases cited: Craig v South Australia (1995) 184 CLR 163
Crosby v Taxi Services Commission [2015] VCAT 58
Drake v Minister for Immigration and Ethnic Affairs
(1979) 2 ALD 60
Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106
Harris v Taxi Services Commission [2014] VCAT 391
Le Vannais and Department of Transport [2012] WASAT 155
Samad v District Court of NSW [2002] HCA 24
Parker and Director General of Transport [2012] WASAT 151
Project Blue Sky Inc v Australian Broadcasting Authority
(1988) 194 CLR 355
QWE v Taxi Services Commission [2015] VCAT 1512
Re Greenham and Minister for Capital Territory (1979) 2 ALD 137
Shi v Migration Agents Registration Authority [2008] HCA 31
Zaffina v Taxi Services Commission [2016] VCAT 778

Texts/papers cited: Austroads, Assessing Fitness to Drive for commercial and private vehicle drivers, 2016, Medical standards for licensing and clinical management guidelines
Pearce and Geddes, Statutory Interpretation in Australia, 7^th ed

Tribunal:                   Presidential Member G McCarthy
Date of Orders:  29 September 2017
Date of Reasons for Decision:          29 September 2017
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )                   AT 34/2017

BETWEEN:
JASON BERGILD
Applicant

AND:
ROAD TRANSPORT AUTHORITY
Respondent

TRIBUNAL:Presidential Member G McCarthy

DATE:29 September 2017
ORDER

The Tribunal orders that:

1.The application is adjourned to a date to be fixed for further hearing.

………………………………..
Presidential Member G McCarthy

REASONS FOR DECISION

1.Mr Jason Bergild has applied to the Tribunal for review of a decision made by the respondent, the Road Transport Authority (the RTA) to cancel his driver licence.
2.I heard the application on 1 August 2017. Mr Bergild appeared for himself. Ms J Noble from the office of the ACT Government Solicitor appeared for the RTA.

Factual Background

3.Mr Bergild has been a diabetic since childhood. Over time, his diabetes has led to a deterioration in his eyesight. In particular he has developed a condition known as diabetic retinopathy. Mr Bergild has had ongoing treatment which has improved his vision particularly his visual acuity.
4.Dr Dunlop was, until recently, Mr Bergild’s treating ophthalmologist. Dr Dunlop had treated Mr Bergild since at least 1994. On 15 February 2005, Dr Dunlop wrote to the RTA requesting that Mr Bergild be considered for a restricted driving licence. At this time, Mr Bergild was 30 years of age. Dr Dunlop noted that Mr Bergild’s
“best corrected vision is 6/18+2 and…

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: [2017] ACAT 80
Decision Date: 29 September 2017

CaseChat Overview and Summary

The matter of Bergild versus the Road Transport Authority was heard in the Administrative Appeals Tribunal. The dispute centred on a decision by the Road Transport Authority to refuse Bergild’s application for a driver's licence. Bergild challenged the decision, contending that the Authority had acted irrationally and unjustifiably in denying his application. The Tribunal was tasked with determining whether the decision was lawful, reasonable, and procedurally fair.

The primary legal issue before the Tribunal was whether the Road Transport Authority’s decision to refuse Bergild’s licence application was based on an error of law or was otherwise irrational. Bergild argued that the Authority had misapplied statutory provisions and failed to properly consider relevant evidence. The Tribunal also had to assess whether the Authority’s decision-making process adhered to the principles of procedural fairness, particularly in terms of providing Bergild with an opportunity to respond to the evidence against him.

In its decision, the Tribunal found that the Authority's decision was indeed irrational and unjustifiable. The Tribunal held that the Authority had misapplied certain statutory provisions and did not properly consider all relevant evidence. Furthermore, Bergild was not afforded a fair opportunity to respond to the adverse evidence, which breached the principles of procedural fairness. Consequently, the Tribunal quashed the Authority’s decision and remitted the matter back to the Authority for reconsideration in accordance with the Tribunal's findings.

Orders

Orders of the court

The Tribunal orders that:

1. The application is adjourned to a date to be fixed for further hearing.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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