Director General, Transport for NSW v Assi (GD) - [2011] NSWADTAP 68

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Director General, Transport for NSW v Assi (GD) [2011] NSWADTAP 68
Hearing dates: 14 December 2011
Decision date: 14 December 2011
Before: Judge K P O'Connor, President
S Higgins, Deputy President
Z Antonios, Non-judicial Member
Decision:
1. Decision under appeal set aside.
2. Decision of administrator affirmed.

Catchwords: PASSENGER TRANSPORT - Taxi Driver Authority - Suspension - Set Aside - Appeal by administrator - Nature of Power - Interpretation - Public Protection - Passenger Safety - Suspension Restored - Passenger Transport Act 1990, s 33, s 33F
Legislation Cited: Passenger Transport Act 1990
Cases Cited: AIC v Director General, Transport NSW [2011] NSWADT 189
Assi v Department of Transport and Infrastructure [2011] NSWADT 192
Assi v Director General, Transport NSW [2012] NSWADT 7
Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65
Category: Principal judgment
Parties: Director General, Transport for NSW (Appellant)
Joubran Assi (Respondent)
Representation: Counsel
M Robinson SC (Appellant)
A Clachers, Smythe Wozniak Legal (Appellant)
J Barakat, Barakat Lawyers (Respondent)

File Number(s): 119040
Decision under appeal

Citation:

Assi v Department of Transport and Infrastructure [2011] NSWADT 192

Date of Decision:

2011-08-11 00:00:00

Before:

General Division

File Number(s):

103256

REASONS FOR DECISION

This is an appeal against a decision of the General Division of the Tribunal brought by the Director General, Transport for NSW (the administrator). The Tribunal set aside the administrator's decision to suspend the taxi driver authority then held by Mr Assi. See Assi v Department of Transport and Infrastructure [2011] NSWADT 192 (11 August 2011). The Appeal Panel heard the administrator's appeal on 14 December 2011, extended to the merits, restored the administrator's decision, with the effect that the decision to suspend was affirmed.

At the time, the Appeal Panel gave short oral reasons, and undertook to provide written reasons as soon as possible. The commitment has been inadvertently overlooked, and these reasons are now provided.

Background

Mr Assi has held an authority for over 20 years, for virtually all of his adult working life. The original suspension issued on 7 October 2010. It followed the charging of Mr Assi with three counts of sexual intercourse with a person under the age of 10 said to have occurred in 1992 when she was about nine years old. Mr Assi immediately applied to the Tribunal for a stay of the decision which was granted until further order.

As noted above, the Tribunal's decision was released on 11 August 2011. As it happened, the day before - on 10 August 2011 - the administrator issued a notice of cancellation to Mr Assi based on other grounds, primarily his adverse complaints history.

Mr Assi applied to the Tribunal for review of that decision, and again obtained a stay of the order. The Tribunal affirmed the cancellation by decision delivered 19 January 2012: see Assi v Director General, Transport NSW [2012] NSWADT 7 (19 January 2012) (not appealed) (the Assi Cancellation case). The cancellation took effect, and, thus,…

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.

Keep reading for free

Create a free CaseChat account to read Director General, Transport for NSW v Assi (GD) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] NSWADTAP 68
Decision Date: 14 December 2011

CaseChat Overview and Summary

The matter between the Director General, Transport for New South Wales, and Assi was heard in the Administrative Appeals Tribunal. The central issue was the legality of the Director General's decision to suspend Assi's taxi driver authority under the Passenger Transport Act 1990. Assi challenged the suspension, arguing it was not justified or legally sound, and sought its quashing. The Director General appealed the Tribunal's decision to set aside the suspension, contending that the Tribunal had erred in its interpretation of the Act and the scope of its powers.

The Tribunal meticulously examined the relevant statutory provisions and the context in which the suspension was imposed. It highlighted the importance of public protection and passenger safety, which are foundational principles under the Act. The Tribunal found that the Director General's decision to suspend Assi's authority was within the bounds of the statutory power granted under section 33F of the Act. This section empowers the Director General to suspend a taxi driver's authority if there are reasonable grounds to believe that the driver poses a risk to public safety. The Tribunal concluded that the Director General's decision was lawful and appropriately exercised, and thus set aside the earlier Tribunal decision that had quashed the suspension.

The Tribunal's decision was that the Director General's authority to suspend Assi's taxi driver authority was correctly exercised, and the initial suspension was affirmed. The Tribunal found that the Director General had properly interpreted and applied the statutory provisions. Consequently, the Tribunal set aside the earlier decision that had quashed the suspension and affirmed the Director General's decision. This outcome ensures that the Director General's power to protect public safety remains robust and effective.

Orders

Orders of the court

1. Decision under appeal set aside.

2. Decision of administrator affirmed.

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:	Director General, Transport for NSW v Assi (GD) [2011] NSWADTAP 68
Hearing dates:	14 December 2011
Decision date:	14 December 2011
Before:	Judge K P O'Connor, President S Higgins, Deputy President Z Antonios, Non-judicial Member
Decision:	1. Decision under appeal set aside. 2. Decision of administrator affirmed.
Catchwords:	PASSENGER TRANSPORT - Taxi Driver Authority - Suspension - Set Aside - Appeal by administrator - Nature of Power - Interpretation - Public Protection - Passenger Safety - Suspension Restored - Passenger Transport Act 1990, s 33, s 33F
Legislation Cited:	Passenger Transport Act 1990
Cases Cited:	AIC v Director General, Transport NSW [2011] NSWADT 189 Assi v Department of Transport and Infrastructure [2011] NSWADT 192 Assi v Director General, Transport NSW [2012] NSWADT 7 Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65
Category:	Principal judgment
Parties:	Director General, Transport for NSW (Appellant) Joubran Assi (Respondent)
Representation:	Counsel M Robinson SC (Appellant) A Clachers, Smythe Wozniak Legal (Appellant) J Barakat, Barakat Lawyers (Respondent)
File Number(s):	119040
Decision under appeal	Citation: Assi v Department of Transport and Infrastructure [2011] NSWADT 192 Date of Decision: 2011-08-11 00:00:00 Before: General Division File Number(s): 103256