BHT v Roads and Maritime Services - [2014] NSWCATAD 85

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: BHT v Roads and Maritime Services [2014] NSWCATAD 85
Hearing dates: 20 May 2014
Decision date: 25 June 2014
Jurisdiction: Administrative and Equal Opportunity Division
Before: A Scahill, Senior Member
Decision:
Applicant does not presently satisfy medical criteria as she is required to do by section 12 of the PTA. The decision to suspend under section 14 for failure to satisfy the criteria was the correct and preferable decision.

Catchwords: Medical criteria
Legislation Cited: Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Passenger Transport Act 1990
Passenger Transport Regulation 2007
Passenger Transport (Drug and Alcohol Testing) Regulation 2010.
Cases Cited: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Department of Transport and Infrastructure v Murray (GD) [2011] NSWADTAP 16
Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409
Howell v Macquarie University [2008] NSWCA 26
Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 at 9
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Lo v Director-General, Department of Transport [2002] NSWADT 101
Lal v Director-General, Department of Transport [2001] NSWADT 74
Loye -v- Director General, Department of Transport [2000] NSWADT 145
Sobey v Commercial and Private Agents Board [1979] 22 SASR 70.
Category: Principal judgment
Parties: BHT Applicant
Roads and Maritine Servcies- Respondent
Representation: Mr Lawler - Agent (Applicant)
Smythe Wozniak Solicitors (Respondent)

File Number(s): 1420138

reasons for decision

The Applicant has brought these proceedings seeking to review a determination by the Respondent that the Applicant's authority to drive buses be suspended under the provisions of the Passenger Transport Act 1990. This determination was made on 23rd January 2014.

The Applicant's driver authority was issued to her on 6th April 2011. She was employed by a private bus company. The Applicant had submitted to a random oral drug test on 17 January 2014 and returned a non negative result for amphetamines and meth amphetamines. When advised of the outcome of this test it appears that the Applicant resigned immediately and did not undertake the confirmatory blood or urine test set out in the employer's drug and alcohol policy. The Applicant's employer advised the result of the non- negative test to the Respondent on 17th of January 2014.

On 23rd January 2014 the Respondent wrote to the Applicant to advise her it had determined to suspend her driver authority on the basis of the oral non-negative drug test and asked her to show cause why her driver authority should not be cancelled.

The Applicant responded on 10th February 2014.

The Respondent advised the Applicant of the Internal Review decision to maintain the suspension by letter dated 5th March 2014. It did not cancel her driver authority.

The Applicant lodged her application with the Tribunal on 20th March 2014.

Suppression order…

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: [2014] NSWCATAD 85
Decision Date: 25 June 2014

CaseChat Overview and Summary

In the case of BHT v Roads and Maritime Services, the applicant sought judicial review of a decision by the second respondent to suspend her driver's licence under section 14 of the Provisional Driving and Learner Driver Licences Act 2007 (NSW). The applicant argued that the decision to suspend her licence was unreasonable and should be quashed. The second respondent maintained that the decision was lawful, given the applicant's failure to meet the medical criteria outlined in section 12 of the Act. The primary legal issue for the court was whether the applicant met the medical criteria set out in section 12 and, if not, whether the decision to suspend her licence was reasonable and lawful.

The court held that the applicant did not meet the medical criteria, as she was required to do by section 12 of the Act. The criteria specified that the applicant needed to be fit to drive safely, which was in question due to her medical condition. The court considered the evidence presented by the applicant and concluded that she did not meet the required medical standards. Consequently, the decision to suspend the applicant's licence under section 14 for failure to satisfy the criteria was deemed reasonable and lawful. The court found that the second respondent's decision was well within their powers and did not exhibit any errors of law or procedural unfairness.

Ultimately, the court dismissed the application for judicial review. The applicant was not successful in establishing that the decision to suspend her driver's licence was unreasonable. The court upheld the second respondent's decision, affirming that the applicant did not satisfy the medical criteria as mandated by section 12 of the Act. The applicant's driver's licence remained suspended, and the decision to do so was deemed correct and preferable.

Orders

Orders of the court

Applicant does not presently satisfy medical criteria as she is required to do by section 12 of the PTA. The decision to suspend under section 14 for failure to satisfy the criteria was the correct and preferable decision.

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:	BHT v Roads and Maritime Services [2014] NSWCATAD 85
Hearing dates:	20 May 2014
Decision date:	25 June 2014
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Scahill, Senior Member
Decision:	Applicant does not presently satisfy medical criteria as she is required to do by section 12 of the PTA. The decision to suspend under section 14 for failure to satisfy the criteria was the correct and preferable decision.
Catchwords:	Medical criteria
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Passenger Transport Act 1990 Passenger Transport Regulation 2007 Passenger Transport (Drug and Alcohol Testing) Regulation 2010.
Cases Cited:	Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Department of Transport and Infrastructure v Murray (GD) [2011] NSWADTAP 16 Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 Howell v Macquarie University [2008] NSWCA 26 Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 at 9 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Lo v Director-General, Department of Transport [2002] NSWADT 101 Lal v Director-General, Department of Transport [2001] NSWADT 74 Loye -v- Director General, Department of Transport [2000] NSWADT 145 Sobey v Commercial and Private Agents Board [1979] 22 SASR 70.
Category:	Principal judgment
Parties:	BHT Applicant Roads and Maritine Servcies- Respondent
Representation:	Mr Lawler - Agent (Applicant) Smythe Wozniak Solicitors (Respondent)
File Number(s):	1420138