Chen v NSW Transport and Infrastrucure

[2009] NSWADT 285

CITATION:	Chen v NSW Transport and Infrastrucure [2009] NSWADT 285
DIVISION:	General Division
PARTIES:	APPLICANT Alice Chen RESPONDENT NSW Transport and Infrastructure
FILE NUMBER:	093174
HEARING DATES:	24 September 2009
SUBMISSIONS CLOSED:	24 September 2009
EXTEMPORE DECISION DATE:	24 September 2009
BEFORE:	Molony P - Judicial Member
CATCHWORDS:	Review of a decision to cancel a public passenger vehicle driver authority.
LEGISLATION CITED:	Passenger Transport Act 1990 Passenger Transport Regulation 2007 Passenger Transport (Taxi-cab Service) Regulation 2001 Road Transport (Driver Licensing) Act 1998 Road Transport (Driver Licensing) Regulation 2008
CASES CITED:	Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 Lamb v Ministry of Transport [2005] NSWADT 82 Mahe v Director General, Department of Transport [2002] NSWADT 266
REPRESENTATION:	APPLICANT In person RESPONDENT A Wozniak, solicitor
ORDERS:	The decision to cancel Mrs Chen’s Public Passenger Vehicle Driver Authority is affirmed.

REASONS FOR DECISION

1 Ms Chen is the holder of a Public Passenger Vehicle Driver Authority authorising her to drive buses.

2 On 25 June 2009 NSW Transport & Infrastructure (NSWT&I) made a decision to cancel that authority as a result of a number of infringements detected by its officers, principally at the airport, over a period of 18 months. Ms Chen sought an internal review of that decision and made submission in support of that review. On 6 July 2009 the decision was confirmed on internal review.

3 Ms Chen sought an urgent stay of that decision and applied to the Tribunal for external review. On 7 July 2009 the President granted a stay of the cancellation and listed the application for hearing on 24 September 2009.

4 In preparation for the hearing both NSWT&I and Mrs Chen filed material in support of their respective positions.

5 At the commencement of the hearing Mr Wozniak who appeared for NSWT&I produced the results of a search conducted that day with the Roads & Traffic Authority with respect to Ms Chen’s drivers licence. That search revealed, among other things, that Mrs Chen, rather than have her driver’s licence suspended for accumulated demerits points, had elected to have good behaviour conditions attached to her licence from 31 August 2009 to 20 August 2010 inclusive.

6 Mr Wozniak submitted that because Ms Chen’s licence is conditional licence, she is not now eligible to apply for a Public Passenger Vehicle Driver Authority. It followed, he submitted, that whatever the merits of the original decision to cancel Ms Chen’s authority, the Tribunal on review was should cancel her authority. In making this submission Mr Wozniak relied on s 12(2) of the Passenger Transport Act 1990 and clause 29 of the Passenger Transport Regulation 2007. He also relied of the decisions of the Tribunal in Mahe v Director General, Department of Transport [2002] NSWADT 266 and Lamb v Ministry of Transport [2005] NSWADT 82 where it was found, with respect to the earlier regulation, that a licence conditioned on good behaviour did not satisfy the requirements of the Regulation with respect to the type of drivers licence required to hold a taxi authority.

7 I spent some considerable time explaining all this to Ms Chen. She was understandably frustrated that the issues she wished to agitate with respect to the initial decision to cancel her authority were being overridden by fact she now held a conditional licence. I endeavoured to explain to Ms Chen that under s 63 of the ADTA the Tribunal is bound to make the correct and preferable decision on the evidence before it at the time of the hearing: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

8 I explained to Ms Chen that no matter what the merits of the initial decision to cancel her authority I considered that I should affirm the decision to cancel her authority, albeit for different reasons, because she holds a conditional licence. As a result I dismissed her application for review.

9 Ms Chen has now requested that I provide written reasons for that decision. Set out below is the reasoning underlying that decision.

10 Section 12 of the Passenger Transport Act provides:

‘(1) Having regard to the purpose of an authority, the Director-General may grant authorities to persons applying for them.
(2) Applicants must meet any criteria set forth in the regulations and must satisfy the Director-General as to any matter the Director-General considers relevant.
(3) Procedures for the purposes of this section may be settled by the Director-General, subject to any provision in that behalf made by the regulations.’

11 The purposes of a Public Passenger Vehicle Driver Authority are set out in section 11(2) which provides:

‘(2) 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 public passenger vehicle, and
(b) that the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates:
(i) in accordance with the conditions under which a public passenger service is operated, and
(ii) in accordance with law and custom.’

12 Section 14 provides that the Director-General may at any time vary, suspend or cancel any person’s authority, ‘having regard to the purposes of the authority.’

13 Clause 29 of the Passenger Transport Regulation 2007 sets out criteria which an applicant for an authority must hold. Relevantly its provides:

(1) For the purposes of sections 12 (2), 33B (2) and 40B (2) of the Act, the criteria that an applicant for an authorisation to drive a public passenger vehicle must meet before the application is granted are the criteria set out in subclauses (2)–(4).
(2) The applicant:
(a) …
(b) must hold a driver licence that is not a learner licence, probationary licence, provisional licence, restricted licence, driver licence receipt or conditional licence (other than a conditional licence the sole condition of which is that the holder must wear corrective lenses at all times while driving), and
(c) must have held an Australian driver licence for a total of at least 12 months in the 2 years immediately preceding the date of the application, and
…
(5) In this clause:
Australian driver licence means:
(a) a driver licence, or
(b) a licence issued under a law in force in a State or internal Territory authorising the holder to drive a motor vehicle on a road or road related area, being a licence that is not a learner licence, probationary licence, provisional licence, restricted licence, driver licence receipt or conditional licence (other than a conditional licence the sole condition of which is that the holder must wear corrective lenses at all times while driving).’

14 Clause 29 is made for the purposes of s 12. The purpose of these requirements is the safety of the travelling public as reflected in the objects of the Act, particularly section 4(e), which specifies that an object of the Act is to ‘encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services.’ It is clear that licence requirements set out in clause 29 of the Regulation are designed to and have the effect of setting minimum competency requirements for authority holders, in terms of the type of drivers’ licence they hold, which must be satisfied in order to obtain an authority to drive a public passenger vehicle.

15 Section 16A of the Road Transport (Driver Licensing) Act 1998 provides that a person who has accumulated more than 12 demerit points in 3 years is ineligible to hold a licence for a specified period, to be determined in accordance with the number of demerit points they have accumulated in that period. Sub-section (8) allows a person who has been given notice of ineligibility to elect, "as an alternative to undergoing the suspension, to be of good behaviour for a period of 12 months on and from the day on which the licence would otherwise be suspended.” If a person who so elects incurs two or more demerit points in the ensuing 12 months, they suffer a suspension for twice the length of the original suspension. Hence, the provision is commonly referred to as a double or nothing provision.

16 I note that clause 9 of the Road Transport (Driver Licensing) Regulation 2008 allows for certain conditions to which a licence may be subject to be shown by codes endorsed on the licence itself, which identify conditions commonly imposed on licences at the time of issue: e.g. wearing corrective lenses, reduced engine capacity, automatic transmission only, and reduced blood alcohol. Clause 9 is in its terms discretionary and does not purport to define or confine the type of conditions which may be placed on a licence.

17 The records produced by the RTA reveal that instead of having her drivers licence suspended for three months from 31 August 2009, Ms Chen elected to be of good behaviour for 12 months commencing on that date. In accordance with the decision in Mahe and Lamb I accepted that this means that her unrestricted licence is conditioned on her good behaviour for 12 months.

18 As a result she does not hold a licence which would enable her obtain an authority were she now to apply for one. Her licence is a conditional licence and does not satisfy the requirements of clause 29(2)(b). In those circumstances, given the objects of the Act and the requirements of clause 29(2)(b), I could not, on review, attest that she had sufficient aptitude to drive a bus in accordance with the conditions under which bus services operate, or in accordance with law or custom. As a result, irrespective of the merits of the infringements which led to the initial decision to cancel her authority, I could not, having regard to the purposes of the authority, do other than agree with the decision to cancel her authority, albeit for different reasons.

19 The offences which led Mrs Chen to face that demerits points suspension were:

- not giving her particulars after a crash
- exceeding the speed limit by more that 15KPH
- negligent driving.

20 Mrs Chen had previously made a double or nothing election when facing a demerits point suspension in January 2008, for not wearing a seat belt, improperly overtaking, and twice exceeding the speed limit by more that 15kph.

21 Mr Wozniak submitted that there is no evidence that Mrs Chen had notified NSWT&I of any of these offences. She did not dispute this. Clause 44 of the provides:

‘(1) The driver of a public passenger vehicle must, in accordance with this clause, furnish the Director-General with written details of the following:
(a) any alleged offence (other than a parking offence) with which the driver is charged by a police officer,
(b) any penalty notice issued to the driver in respect of an alleged offence (other than a parking offence) that relates to the driving of a motor vehicle.
Maximum penalty: 10 penalty units.
(2) If, on the commencement of this clause:
(a) proceedings against a driver of a public passenger vehicle in respect of an offence referred to in subclause (1) (a) are pending, or
(b) a penalty notice of the kind referred to in subclause (1) (b) is in force against a driver of a public passenger vehicle,
the relevant details are to be furnished within 48 hours after that commencement.
(3) …’

22 While not the primary basis of my decision, Mrs Chen’s failure to honour her obligation to notify NSWT&I of her traffic offences over a number of years gave me little confidence in her ability to fulfil the responsibilities of her authority in accordance with law and custom.

23 In Lamb I found that the Applicant did not hold a drivers licence within the meaning of Clause 33 of the Passenger Transport (Taxi-cab Service) Regulation 2001 (the equivalent of clause 29 of the present Passenger Transport Regulation 2007) because his licence was conditional. As a result clause 79(5) (clause 31(5) of the present Regulation is similar but not identical) operated to make his authority ‘ineffective’. Mr Wozniak also relied on that decision to submit that I should affirm the decision to cancel Mrs Chen’s authority.

24 Clause 31(5) provides:

‘A person’s authority to drive public passenger vehicles and driver authority card do not have any effect, either for the purposes of the Act or for the purposes of this Regulation, while the person’s driver licence is cancelled, suspended or expired, or while the person is otherwise disqualified from driving a motor vehicle.’

25 I am not, on reflection, persuaded that clause 39(5) has the effect I attributed to its predecessor in Lamb. I would add that if Mrs Chen had not made a double or nothing election her authority clearly would have been ineffective under this provision.

26 Nonetheless, I remain of the opinion that because she is the holder of a conditional licence Mrs Chen does not satisfy the minimal requirements in terms of having sufficient aptitude to drive a public passenger vehicle in accordance with the conditions under which bus services operate, or in accordance with law or custom. As a result I affirmed the decision to cancel her authority, albeit for different reasons.