El-Khawli v Roads and Traffic Authority
[2011] NSWADT 253
•07 November 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: El-Khawli v Roads and Traffic Authority [2011] NSWADT 253 Hearing dates: 21 June 2011 (Submissions closed 1 July 2011) Decision date: 07 November 2011 Jurisdiction: General Division Before: C Huntsman, Judicial member Decision: The decision is affirmed
Catchwords: Mandatory refusal of application for drivers certificate; whether licence disqualified on separate occasions; notice of disqualification Legislation Cited: Tow Truck Industry Act 1998;
clause 18 of the Tow Truck Industry Regulation 2008Cases Cited: The Queen v White [1967 - 68] 122 CLR at 467: Category: Principal judgment Parties: George El-Khawli (Applicant)
Road and Traffic Authority (Respondent)Representation: Counsel
Miles Condon (Applicant)
David Rayment (Respondent)
Solicitors
Sage Solicitors (Applicant)
Smythe Wozniak Legal (Respondent)
File Number(s): 113101
REasons for decision
Background
By letter dated 18 February 2011, posted 22 February 2011, the Roads and Traffic Authority (the respondent) refused the application for a Tow Truck Drivers Certificate, made by Mr El-Khawli, the applicant. The applicant applied for internal review of the decision and on 11 April 2011 the application was refused. On 13 April 2011 the applicant applied for review of the decision by the tribunal.
The statement of reasons for the internal review decision records that the respondent decided, pursuant to section 26 of the Tow Truck Industry Act 1998 (the Act) and clause 18 of the Tow Truck Industry Regulation 2008 (the Regulation) that the respondent must refuse the application for a drivers certificate on mandatory grounds. The internal review decision, statement of reasons, details that at the time the decision was made, in February 2011, the following evidence was relied upon: that on 25 June 2008 the applicant's tow truck drivers certificate was disqualified for five years ("the disqualification decision"); and, the applicant's driver's license was disqualified on two occasions within the past three years. The two occasions cited by the respondent were the two convictions before Waverley Local Court on 27 May 2008: (i) drive whilst disqualified - disqualified for one year from 27 May 2008 plus a good behaviour bond for two years; and (ii) negligent driving - disqualified for six months from 27 May 2008.
The respondent notes, in the statement of reasons, that the applicant submits that the two offences arose out of the same set of circumstances and cannot be categorised as two separate occasions of loss of license. The respondent, in the statement of reasons, states that the applicant was charged with, and convicted of, two separate offences and the court treated these as separate and distinct offences, setting different disqualification periods for each. The respondent states that the fact that the court allowed these disqualification periods to run concurrently does not alter the fact that the court ordered two separate disqualifications arising from two distinct offences. The respondent notes that, in addition, the applicant is still within the five-year disqualification period for his tow truck drivers license, and states thatthe applicant remains disqualified from holding a tow truck driver certificate until June 2013.
In his application for review, the applicant states that he has not been disqualified, suspended or cancelled from holding a driver's license on more than one occasion during the period of three years before the application for a driver certificate was made, and therefore the mandatory grounds for refusing to grant the drivers certificate are not applicable. The applicant further states that the decision by the respondent to disqualify the applicant from holding a drivers certificate for five years from 25 June 2008 is ultra vires, and the respondent could not make such a decision. He further states that he is a fit and proper person to hold a tow truck drivers certificate.
It was agreed by the parties in the current proceedings that the applicant had previously made applications to the tribunal which had been dismissed by consent of the parties. In particular, on 25 January 2011, an application for review of a decision of the respondent was dismissed by the tribunal by consent (file number 103177) (that application states that review is sought of :"Tow Truck Authority Disqualification until 2013"). The file in that matter is before the tribunal in the present matter, and documents in the file include a decision of the respondent of 24 September 2009 refusing an application by the applicant for a tow truck drivers certificate. It is also recorded by the parties that there had been previous proceedings at the tribunal by the applicant, which had also been dismissed by consent (file 103063). It is noted that the reasons for refusing the applicant's application for a Tow Truck Drivers Certificate in the current matter are similar to those recorded by the respondent in the reasons for the decision of 24 September 2009.
The current application before the tribunal is for review of the decision of the respondent (the internal review decision of April 2011), whereby the respondent refused the applicant's application of January 2011 for a Tow Truck Drivers Certificate.
At the close of the hearing on 21 June 2011 the parties indicated that they wished to provide further written submissions on the issue of whether there had been service of the notice of disqualification in June 2008, and the impact of this issue on the current proceedings. I made directions to enable such submissions to be filed and served and indicated that I may proceed to reserve the decision after reading the submissions or may list the matter for further directions. After reading the submissions I decided to reserve the decision and these written reasons constitute the tribunal's order and reasons for decision.
Evidence at the hearing
At the hearing detailed written and oral submissions were made by the representatives of both parties. The respondent also relied on the respondent's file, and further material filed. The applicant provided detailed written submissions and also an affidavit by the applicant dated 20 June 2011. The applicant's affidavit was prepared the day before the hearing.
The applicant states in his affidavit, amongst other matters, as follows: he acknowledges being disqualified from driving on 12 December 2007, and being charged on 30 January 2008 with the offences of negligent driving, drive at a speed dangerous, and Drive Whilst disqualified. He states the offence of drive at speed dangerous was withdrawn by the police and he pleaded guilty to the remaining two offences. He states he was convicted of the two offences on 27 May 2008 and disqualified on one offence for one year, and on the other offence for six months. He states that on 28 May 2008 he was charged with four offences and pleaded not guilty to the charges. He states that on 7 September 2009 the charges were dismissed. The applicant, on 7 September 2009, after dismissal of the above charges, contacted the respondent to make an enquiry about his application for a drivers certificate. He states he was advised at that time that he was disqualified, he requested a copy of the documentation, and received a copy of a letter entitled "notice of decision" dated 25 June 2008, being the notice of the disqualification. He states that prior to 7 September 2009 he was not aware of the notice of disqualification and says he was not served with the notice. He notes the notice of disqualification is marked as being sent by the respondent by registered mail on 30 June 2008. He received correspondence from the respondent on 25 June 2008 enclosing two penalty notices. He said he made a commercial decision to pay the fines rather than challenge them but maintains he was not guilty. He says that during the telephone conversation with the respondent about the penalty notices, on 3 July 2008, he was not advised during the telephone phone conversation that he had been sent a notice of disqualification. The applicant then details the chronology of applying to the tribunal for review of the respondent's decision, and subsequent withdrawal of those applications, and the making of a new application for a total truck driver certificate, the application which is the subject of the current proceedings. He states he has frequently travelled overseas for work since about September 2007.
The Respondent has provided a chronology which is reproduced in these reasons (the word 'Authority' refers to the respondent) -
12 December 2007- District Court, -Applicant disqualified from driving for 3 months. (file reference respondent's documents 69 of 103177);
30 January 2008 - Applicant charged with: Drive While Disqualified; Drive Speed Dangerous; and Negligent Driving.(respondents document 15);
28 March 2008 - Authority issued Applicant driver's certificate 42054 subject to the condition that he notify the RTA of the outcome of charges of 30 January 2011 within 48 hours of the decision. (respondent's document 47 of 103177);
27 May 2008Local Court: Applicant convicted of Drive Whilst Disqualified and sentenced to 12 months disqualification order from 27 May 2008 and $1,500 offence imposed; and Applicant convicted of Negligent Driving (6 months disqualification order imposed from 27 May 2008). Drive Speed Dangerous withdrawn and dismissed. Respondent's Document 12;
27 May 2008ff - Breaches of TTIA: Breach of s73: Applicant did not return his Driver's Certificate to the Authority following the Court's decision to disqualify. (Respondent's documents 47 of ADT file 103177, 59 of ADT file 103177); Breach of s58: Applicant did not notify the Authority of the result in the Local Court within 48 hours of the Court's decision.
28 May 2008 - Applicant charged with: Intimidate Police x 2 - Crimes Act 1900; Assault Police - Crimes Act 1900; and Use offensive language. (respondent's document 38 to 41 of ADT file 103177);
[The Tribunal also notes that on 25 June 2088 the respondent automatically revoked the applicant's drivers certificate, noting that the applicant's drivers licence was disqualified].
25 June 2008 - Authority disqualified Applicant from holding a driver's certificate for five years (until 25 June 2013) on grounds that included: Charges of 30 January 2008 and resulting convictions of 27 May 2008; Charges of 28 May 2008; Applicant's traffic history with 16 offences; Applicant's breach of s58 of the Act; and Applicant's breach of s73 of the Act.(respondent's documents15 to 18, 32ff and 60ff of ADT file103177);
26 June 2008 - Authority issued Penalty Notice against Applicant for contravention of condition of driver's certificate by failing to notify RTA of outcome of charges of 30 January 2008 within 48 hours - penalty notice paid on 14 November 2008. (respondent's documents 48 and 72 of ADT file 103177);
26 June 2008 - Authority issued Penalty Notice against Applicant for failure to return tow truck driver's certificate upon conviction - penalty notice paid on 14 November 2008. (respondent's document 48 and 72 of ADT file 103177);
7 September 2009Charges of 28 May 2008 dismissed by Huber LCM. (applicant's documents - Para 4, affidavit of Applicant);
8 September 2009 - Applicant applied to Authority for a Tow Truck Driver's Certificate. (respondent's documents 29 of ADT file 103177);
24 September 2009 - Authority refused Application on mandatory grounds.(respondent's documents - 53 of ADT file 103177);
15 March 2010- Applicant's first application to the Tribunal (File Number 103063).(3 of ADT file 103177);
5 August 2010 - Applicant's second application to the Tribunal against the Authority's decision to disqualify him for 5 years (File Number 103177);
25 January 2011 - Applicant's applications to Tribunal dismissed by consent.
25 January 2011 - Applicant applied to Authority for a Tow Truck Driver's Certificate (applicant's documents, page 11 of Applicant's affidavit);
18 February 2011 - Authority sent Notice of Refusal on Mandatory Grounds (respondent's documents, page 9);
18 March 2011 -Applicant filed applied for internal review of Authority's decision not to grant certificate. (respondent's documents, page 8);
11 April 2011- Authority's decision not to grant certificate on internal review application.(respondent's documents, page 4);
14 April 2011- Applicant's third (and present) application to ADT filed.
The applicant and the respondent provided detailed legal submissions on the proper construction of the statutory provisions. In summary, the applicant submitted that the mandatory provisions (for refusing a certificate) did not apply in the applicant's case; that he was not disqualified from holding a drivers license on two occasions and therefore the mandatory ground provided for in clause 18 of the Regulation, does not apply in the applicant's case; that section 42(7) of the Act did not permit the taking of disciplinary action against the applicant as a former licensee or certificate holder, and as such the former disqualification decision was not valid. The applicant further submitted that the disqualification decision was not operative due to the lack of notice of the decision to the applicant. On this basis the applicant submits that the application for a drivers certificate should not be refused on the mandatory ground that the applicant is disqualified, as the applicant submits that the disqualification decision is not valid/operative. The applicant also maintains that the Tribunal should find that the disqualification decision of June 2008 was ultra vires and therefore the respondent could not make such a decision. The respondent relies on the purpose of the legislation set out in section 7 of the Act and argues that upon proper construction of the statutory provisions, it is mandatory that the applicant's licence be refused.
The respondent states that the respondent does not accept that the applicant was not given notice of the disqualification decision in June 2008, however the respondent submits that even if the tribunal accepts the applicant's version are set out in his affidavit, the disqualification decision was notified to the applicant as at September 2009 and the decision to disqualify the applicant remains operative. The respondent notes that the issue of not receiving, or not being served with notice of the Disqualification decision, was first raised by the applicant in an affidavit of 20 June 2011, provided to the respondent the day before the hearing. The respondent notes that if the respondent's construction of the statutory requirements, as to service and notice to the applicant, is not accepted by the tribunal, then the respondent would seek the opportunity to cross-examine the applicant in relation to this evidence. The respondent maintains that the disqualification decision was validly made and is operative, and further that the decision of June 2008, being the disqualification decision, is not the subject of the current review proceedings. Before further detailing the parties' submissions, I consider it useful to set out the legislative provisions.
Legislative Provisions
The legislative provisions, comprising the statutory framework regulating the issuing of drivers certificates, and disciplinary action against those who have been issued certificates, are set out in the Tow Truck Industry Act 1998 (the Act) and Tow Truck Industry Regulation 2008 (the Regulation). Relevant provisions of the Administrative Decisions Tribunal Act 1997 (ADT Act) and the Interpretation Act 1987 are also set out below. Section 7 of the Act provides for the functions of the respondent under the legislation:
7 Functions of RTA under this Act
The RTA has the following functions under this Act:
(a) to regulate the tow truck industry in accordance with this Act and the regulations,
(b) to make reports and recommendations to the Minister with respect to the licensing of tow truck operators and drivers, and the design, construction and equipment of tow trucks,
(c) to inform the public about the tow truck industry,
(d) to promote and undertake research into the tow truck industry,
(e) whenever it considers it necessary to do so, or is requested by the Minister to do so, to make reports or recommendations with respect to the operation of this Act or the tow truck industry.
Section 25 of the Act provides for an application for a drivers certificate, and section 26 provides for restrictions on the granting of a certificate, including discretionary grounds, and mandatory grounds, for refusal:
26 Restrictions on granting drivers certificate
(1) The RTA:
(a) must refuse to grant an application for a drivers certificate on mandatory grounds, and
(b) may refuse to grant an application for a drivers certificate on discretionary grounds.
(2) The mandatory grounds for refusing to grant an application for a drivers certificate are as follows:
(a) that the applicant is under the age of 18 years,
(b) that the applicant has, within the period of 10 years before the application for the drivers certificate was made:
(i) been convicted, or
(ii) been found guilty (but with no conviction being recorded),
by a court in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law and whether or not committed before the commencement of this section,
(c) that the applicant does not hold a full driver licence or does not, if the applicant resides in another State or Territory, hold a licence issued under the law in force in that State or Territory which, in the opinion of the RTA, is the equivalent of a full driver licence,
(d) that the applicant is disqualified from holding a drivers certificate,
(e) that the applicant is a controlled member of a declared organisation within the meaning of the Crimes (Criminal Organisations Control) Act 2009, Controlled members are prohibited from applying for drivers certificates--see section 27 of the Crimes (Criminal Organisations Control) Act 2009.
(f) that the RTA has reasonable grounds to believe from information provided by the Commissioner of Police in relation to the applicant that the applicant:
(i) is a member of, or
(ii) is a close associate of, or
(iii) regularly associates with, one or more members of,
a declared organisation within the meaning of the Crimes (Criminal Organisations Control) Act 2009, and the nature and circumstances of the applicant's relationship with the organisation or its members are such that it could reasonably be inferred that improper conduct that would further the criminal activities of the declared organisation is likely to occur if the applicant is granted a drivers certificate.
(3) The discretionary grounds for refusing to grant an application for a drivers certificate are as follows:
(a) that the applicant is not, in the opinion of the RTA, a fit and proper person to hold a drivers certificate or is otherwise not competent to carry on the kind of towing work to which the proposed drivers certificate relates,
(b) that the applicant does not hold the qualifications and experience prescribed by the regulations in respect of the class of drivers certificate sought by the applicant,
(c) that the applicant has not satisfactorily completed such training courses as may be approved for the purposes of this section,
(d) that the granting of the drivers certificate would, in the opinion of the RTA, be contrary to the public interest.
(3A) The RTA is not, under this or any other Act or law, required to give any reasons for refusing to grant an application for a drivers certificate because of subsection (2) (f) to the extent that the giving of those reasons would disclose any criminal intelligence.
(4) The regulations may provide additional mandatory or discretionary grounds for refusing the granting of an application for a drivers certificate.
(5) A reference in subsection (2) (c) to a "full driver licence" is a reference to a driver licence other than a provisional licence, restricted licence or learner licence as referred to in the Road Transport (Driver Licensing) Act 1998.
Section 26(4) of the Act (above) provides that the regulations may provide additional mandatory or discretionary grounds for refusing to grant a drivers certificate. Clause 18 of the Regulation relevantly provides:
TOW TRUCK INDUSTRY REGULATION 2008 -
Additional grounds for refusing application for drivers certificate
18 Additional grounds for refusing application for drivers certificate
(1) For the purposes of section 26 (4) of the Act, the grounds on which an application for a drivers certificate must be refused include any case in which:
(a) the applicant has been disqualified from holding a driver licence, or
(b) the applicant's driver licence has been suspended or cancelled (other than for fine default under the Fines Act1996 ),
on more than one occasion during the period of 3 years immediately before the application for the driver certificate was made.
(2) For the purposes of subclause (1), it does not matter that any of the periods of disqualification, suspension or cancellation occurred during only part of the 3-year period.
The Act also provides for disciplinary action against those who are, or have been, a licensee or a certified driver:
Division 4 - Disciplinary action by RTA
41 Disciplinary action
(1) This Division enables the RTA, in its administrative capacity, to take disciplinary action against a licensee or certified driver.
(2) In accordance with this Division, the RTA may do any of the following:
(a) in the case of a licence or drivers certificate granted for a term of 1 year or less--suspend the licence or drivers certificate for a specified period,
(a1) in the case of a licence or drivers certificate granted for a term of 3 years--suspend the licence or drivers certificate for a specified period and, when the suspension ends, reduce the period for which the licence or drivers certificate is in force so that it will cease to be in force on the next anniversary of its issue (and refund fees accordingly),
(b) permanently revoke a licence or drivers certificate,
(c) disqualify a licensee or certified driver from holding a licence or drivers certificate for a specified period,
(d) impose a fine not exceeding $500 on a licensee or certified driver,
(e) give a direction under section 84 to a licensee or certified driver,
(f) caution or reprimand a licensee or certified driver.
(2A) Despite subsection (2), the RTA must cancel a licence or drivers certificate if disciplinary action is taken on the grounds referred to in section 42 (2).
(3) In deciding whether to take disciplinary action under this Division, the RTA may:
(a) conduct an inquiry under section 80, or
(b) invite the licensee or certified driver concerned to show cause, by way of a written submission, as to why the RTA should not take any such action.
(4) However, the RTA is not required to conduct any such inquiry, or to invite the licensee or certified driver concerned to show cause, if the RTA is of the opinion that it is in the public interest that the RTA take immediate disciplinary action under this Division.
(5) If any written submissions are made by a licensee or certified driver in accordance with subsection (3) (b), the RTA must, before taking disciplinary action under this Division, take those submissions into consideration.
(6) The RTA is not prevented from taking disciplinary action under this Division merely because the licensee or certified driver concerned is subject to criminal or civil proceedings that relate to the same matters or incident to which the disciplinary action relates.
(7) A reference in this Division to a licensee or certified driver includes a reference to a former licensee, or former certified driver, respectively.
42 Grounds for taking disciplinary action
(1) The RTA may take disciplinary action under this Division against a licensee or certified driver for any of the following reasons:
(a) any reason for which the licensee or certified driver would not have been granted a licence or drivers certificate initially,
(b) the licensee or certified driver has been charged with an indictable offence,
(c) the licensee or certified driver supplied information that was (to the licensee's or driver's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence or drivers certificate,
(d) the licensee or certified driver has contravened any provision of this Act or the regulations, whether or not the licensee or driver has been convicted of an offence for the contravention,
(e) the licensee or certified driver has contravened any condition to which the licence or drivers certificate is subject,
(f) the RTA is of the opinion that the licensee or certified driver is no longer a fit and proper person to hold a licence or drivers certificate, respectively,
(g) the licensee failed to specify the name of each close associate of the licensee in the application for the licence,
(h) the licensee has, in the opinion of the RTA, been engaged in any fraudulent or dishonest conduct or activity in connection with the licensee's business as a tow truck operator,
(i) the licensee has, in the case of a natural person, become bankrupt, applied to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounded with his or her creditors or made an assignment of his or her remuneration for their benefit,
(j) the licensee is, in the case of a corporation, in the course of being wound up, or is under official management, or is a corporation for which a receiver or manager has been appointed, or has entered into a compromise or scheme of arrangement with its creditors,
(k) the licensee has, for a continuous period of one month or more, ceased to carry on business as a tow truck operator,
(l) any other reason prescribed by the regulations.
(2) The RTA must take disciplinary action under this Division against a licensee or certified driver if the RTA has reasonable grounds to believe from information held in relation to the licensee or certified driver:
(a) that the licensee or certified driver is a member of, a close associate of, or regularly associates with one or more members of, a declared organisation within the meaning of the Crimes (Criminal Organisations Control) Act 2009, and
(b) that the nature and circumstances of the licensee's or certified driver's relationship with the organisation or its members are such that it could reasonably be inferred that improper conduct that furthers the criminal activities of the declared organisation is occurring or is likely to occur if the licensee or certified driver continues to hold the licence or drivers certificate, respectively.
The Act provides for notice to be provided by the Respondent of disciplinary action, as set out is section 43:
43 Procedure for implementing disciplinary action
(1) If the RTA decides:
(a) to suspend or revoke a licence or a drivers certificate, or
(b) to disqualify a licensee or certified driver from holding a licence or drivers certificate for a specified period, or
(c) to impose a fine on a licensee or certified driver,
the RTA is required to serve on the licensee or certified driver a notice informing the person of its decision.
(2) The notice must include the reasons for the RTA's decision.
(2A) The RTA is not, under this or any other Act or law, required to give any reasons for cancelling a licence or drivers certificate under section 41 (2A) to the extent that the giving of those reasons would disclose any criminal intelligence.
(3) The suspension or revocation of a licence or drivers certificate, or any period of disqualification, takes effect when the notice is served or on a later date specified in the notice.
(4) A notice that suspends a licence or drivers certificate must specify the period of suspension.
(5) A notice that disqualifies a licensee or certified driver from holding a licence or drivers certificate must specify the period of disqualification.
(6) The RTA may, by serving a further notice on a licensee or certified driver, cancel a notice under this section before the notice takes effect.
The parties have made submissions in relation to service of the notice of disqualification, and those submissions involve consideration of section 76 of the Interpretation Act 1987:
76 Service by post
(1) If an Act or instrument authorises or requires any document to be served by post (whether the word "serve", "give" or "send" or any other word is used), service of the document:
(a) may be effected by properly addressing, prepaying and posting a letter containing the document, and
(b) in Australia or in an external Territory-is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected on the fourth working day after the letter was posted, and
(c) in another place-is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected at the time when the letter would have been delivered in the ordinary course of post.
(2) In this section:
"working day" means a day that is not:
(a) a Saturday or Sunday, or
(b) a public holiday or a bank holiday in the place to which the letter was addressed.
The parties have made submissions in relation to the decision under review which requires a consideration of the legislation enabling the review, being the Act (s45) and the Administrative Decisions Tribunal Act 1997 (the ADT Act): Section 45 of the Act provides for review by the tribunal of the decision:
45 Application to Administrative Decisions Tribunal for review
(1) A person may apply to the Administrative Decisions Tribunal for a review of any of the following decisions:
(a) the refusal or failure by the RTA to grant a licence or drivers certificate to the person,
(a1) the granting of a licence or drivers certificate to the person that is of a shorter duration than that for which the person applied,
(b) a condition imposed by the RTA in relation to a licence or drivers certificate granted to the person,
(c) the suspension or revocation of a licence or drivers certificate granted to the person,
(d) the disqualification of the person from holding a licence or drivers certificate,
(e) the imposition of a fine on the person,
(f) the giving of a direction under section 84 to the person.
(1A) In determining an application for a review of a decision to refuse to grant an application for a licence or a drivers certificate on the grounds referred to in section 18 (2) (e) or 26 (2) (f), respectively, or to cancel a licence or drivers certificate under section 41 (2A), the Administrative Decisions Tribunal (and any Appeal Panel in determining any appeal against such a review under the Administrative Decisions Tribunal Act 1997):
(a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose any criminal intelligence, and
(b) in order to prevent the disclosure of any criminal intelligence, is to receive evidence and hear argument in the absence of the public, the applicant for review and the applicant's representative and of any other interested party,
unless the Commissioner of Police approves otherwise.
(2) For the purposes of this section, an application for the grant of a licence or drivers certificate is taken to have been refused if the licence or drivers certificate is not granted within 90 days after the application is made in accordance with this Act.
The ADT Act also provides guidance as to what is a decision under review.
ADMINISTRATIVE DECISIONS TRIBUNAL ACT 1997 - SECT 6
What is a decision?
6 What is a decision?
(1) General meaning A "decision" includes any of the following:
(a) making, suspending, revoking or refusing to make an order or determination,
(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission,
(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument,
(d) imposing a condition or restriction,
(e) making a declaration, demand or requirement,
(f) retaining, or refusing to deliver up, an article,
(g) doing or refusing to do any other act or thing.
(2) Decision made under an enactment For the purposes of this Act, a decision is made under an enactment if it is made in the exercise (or purported exercise) of a function conferred or imposed by or under the enactment.
(3) Decisions made without power For the purposes of this Act (and without limiting subsection (2)), a decision that purports to be made under an enactment is taken to be a decision made under the enactment even if the decision was beyond the power of the decision-maker to make it.
(4) Failure to make decision on basis that beyond power For the purposes of this Act (and without limiting subsection (2)), a refusal of a decision-maker to make a decision under an enactment because the decision-maker considers that the decision concerned cannot lawfully be made under the enactment is taken to be a decision made under the enactment to refuse to make the decision requested.
(5) Failure to make a timely decision taken to be failure to make a decision For the purposes of this Act, a failure by a decision-maker to make a decision within the period specified by the enactment concerned for making the decision is taken to be a decision by the decision-maker at the end of the period to refuse to make the decision.
8 What is a reviewable decision?
(1) A "reviewable decision" is a decision of an administrator that the Tribunal has jurisdiction under an enactment to review.
(2) For the avoidance of doubt (and without limiting subsection (1) or section 6):
(a) the conduct of an administrator (or a refusal by an administrator to engage in conduct) is a reviewable decision if the Tribunal has jurisdiction under an enactment to review the conduct or refusal, and
(b) in its application to any such conduct or refusal by an administrator, any reference in this Act (however expressed) to an administrator making a reviewable decision includes a reference to an administrator engaging or refusing to engage in the conduct.
The ADT Act also provides for the tribunal's powers/functions on review of a decision:
Administrative Decisions Tribunal Act
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.
65 Power to remit matters to administrator for further consideration
(1) At any stage of proceedings to determine an application for a review of a reviewable decision, the Tribunal may remit the decision to the administrator who made it for reconsideration of the decision by the administrator.
(2) If a decision is so remitted to an administrator, the administrator may reconsider the decision and may:
(a) affirm the decision, or
(b) vary the decision, or
(c) set aside the decision and make a new decision in substitution for the decision set aside.
(3) If the administrator varies the decision:
(a) the application is taken to be an application for review of the decision as varied, and
(b) the person who made the application may either:
(i) proceed with the application for review of the decision as varied, or
(ii) withdraw the application.
(4) If the administrator sets the decision aside and makes a new decision in substitution for the decision set aside:
(a) the application is taken to be an application for review of the new decision, and
(b) the person who made the application may either:
(i) proceed with the application for review of the new decision, or
(ii) withdraw the application.
Discussion of evidence/submissions and the tribunal's findings
I will deal with the main issues canvassed by the submissions and detail my findings. In deciding these issues I have considered all of the evidence and submissions, including the applicant's affidavit, and material filed by the respondent.
The decision under review
I find that the decision under review is the decision of the respondent, made on internal review in April 2011, to refuse the application for a drivers certificate. The application for review lodged with the tribunal by the applicant in this matter, clearly identifies this decision as the decision under review. Section 45 of the Act (set out above) notes the separate categories of decisions in respect of which review (by the Tribunal) can be sought, and section 45(1)(a) refers to a refusal to grant a drivers certificate as a reviewable decision. Section 8 of the ADT Act sets out a "reviewable decision" as a decision which the tribunal has jurisdiction under an enactment to review (in this case such jurisdiction is found in section 45(1)(a) of the Act). The decision under review is not the decision of 2008 disqualifying the applicant: the application for review does not state that it seeks review of this decision.Section 45(1)(d) of the Act refers to a disqualification decision as a class of decision which can be reviewed, and lists a disqualification decision as a separate decision to a decision to refuse to grant a drivers certificate. As such, section 45 of the Act indicates that the two decisions are separate and distinct decisions for which a review can be sought. There is no application before the tribunal for review of the 2008 disqualification decision in the current proceedings. The current application clearly seeks review of the decision of April 2011 to refuse the application for a drivers certificate. The review application does refer to the disqualification decision as being ultra vires and I will deal further with this issue below. Considering the application for review in the present matter, in the context of section 45 of the Act and section 8 of the ADT Act, I am satisfied that the decision under review in the present matter is that the decision of April 2011 by the respondent to refuse the applicant's application for a drivers certificate.
Do the mandatory provisions of section 26 of the Act apply to the applicant's situation?
To determine this central issue I will detail my findings on the evidence and legal provisions.
In submissions by the parties the tribunal was referred to caselaw and also to the second reading speech for the Tow Truck Industry Bill of 14 October 1998 and the Bill itself. The tribunal was also referred to various provisions of the Road Transport (General) Act 2005, in support of the applicant's submissions. The tribunal was referred to the case of Preston v Commissioner for Fair Trading, Supreme Court of New South Wales, Court of Appeal, [2011]NSWCA 40; and a decision of the High Court, Queen v White 122 CLR at 467; and the decision of R v Shetty [2005]QCA 225. I have carefully considered the submissions and the material filed in support, and the authorities referred to.
As noted above, clause 18 of the Regulation and section 26 of the Act provide that an application for a drivers certificate must be refused where the applicant has been previously disqualified from driving on two occasions in the preceding three years. I was referred to the decision of the High Court in The Queen v White [1967 - 68] 122 CLR at 467 (White's case), as authority for interpreting the use of the words "occasions" in clause 18 of the Regulation. I find that the decision of the High Court is authority for the proposition that where the legislation refers to "occasions", each offence or charge is a separate "occasion" and this is so whether the charges/offences arose from the same incident or were dealt with before the Court at the same time or in the same proceedings. Clause 18 of the Regulation provides that if the applicant's licence has been disqualified on at least two occasions within the three years prior to the time of application for a drivers certificate, then the application must be refused. As at the time of application in January 2011, the applicant had been disqualified on two occasions (the two separate offences before the court on 27 May 2008 being dealt with as separate counts and attracting separate penalties, are two occasions: per High Court in White's case).
The Tribunal must make the correct and preferable decision on the material before it. The Tribunal "stands in the shoes of the original decision maker" and exercises the same decision making functions under applicable legislation. Given that I have accepted that the applicant has been disqualified by the court from driving on two occasions, and thereby had his licence disqualified on two occasions in the preceding three years, clause 18 of the Regulation and section 26(4) of the Act provide that it is mandatory for the application for a drivers certificate to be refused: this is clearly indicated by the use of the words "must" in clause 18, read in conjunction with s26(4) of the Act. The legislation provides that once the two occasions of disqualification of the applicant's drivers' license are established in fact, and it is established that the two occasions occurred in the preceding three years, then the application for a drivers certificate must be refused. Accordingly, the application for a drivers' certificate must be refused. Accordingly, I find that the correct and preferable decision, according to the law and the evidence, is that the application for a drivers certificate be refused (pursuant to clause 18 of the Regulation and section 26 of the Act).
Given my finding that the application for a drivers certificate must be refused pursuant to clause 18 of the Regulation, read with section 26 of the Act, then I did not need to decide all the issues relating to refusal of the applicant's application for a drivers certificate on the ground that he was previously disqualified for five years. However, I provide my findings on this issue. I find that the application must be refused because of the previous disqualification- this is clear from the words of the statute: section 26 clearly states that the application must be refused where the applicant is disqualified - as such it is the fact of the disqualification which leads to mandatory refusal, section 26 does not provide for consideration of the circumstances of the disqualification. I am satisfied that refusal of the application for a drivers certificate is mandatory under section 26 of the Act, because, at the time of the application, the applicant was disqualified from holding a certificate for five years (by the previous disqualification decision). The disqualification decision has not been impugned in a court, or by a tribunal on review; it has not been set aside by a court of competent jurisdiction; and the disqualification decision therefore stands at the time of the current review. On the date of the decision of April 2011, which is a decision refusing the application for a drivers certificate, the previous disqualification decision was operative. At the time of the current review by the Tribunal the decision remains operative. That being so, then section 26 of the Act provides that, as the applicant is disqualified from holding a drivers certificate, his application must be refused.
In making the above findings I have considered the applicant's submissions that the disqualification decision did not come into effect due to lack of notice to the applicant. In relation to service of the notice of disqualification I make the following findings. For the purposes of these proceedings the tribunal has noted that both parties concede that the applicant received notice of the disqualification decision in September 2009, as set out in his affidavit. The respondent maintains that the applicant also received notice prior to this when the notice was sent by the respondent by registered post in 2008. The respondent reserves the right to adduce further evidence, and to test the applicant's evidence in relation to service, in further proceedings. I consider that it is not appropriate, given my findings on the evidence and legislative provisions, to adjourn to allow such further evidence to be adduced as to notice. For the purpose of the current proceedings I find that notice was received by the applicant as at September 2009 (if not before then) and the decision to disqualify the applicant became operative under the legislation at that time. I have considered all of the submissions provided by the applicant and the respondent about the effect of notice being given in September 2009. I am persuaded, having regard to the Act as a whole, and section 7 of the Act, and considering the intention of Parliament to regulate the tow truck industry, including providing for protection for members of the public, as indicated in the Second Reading Speech, that a decision imposing a disqualification period of five years was not intended to be rendered inoperative by late service of the notice of that disqualification. The parties have made submissions as to an implied requirement for reasonable notice, and I have considered these submissions. I am persuaded by the submissions of the respondent that, in the particular circumstances of the applicant's case, in the context of the applicable legislation, and the aims of the legislation, and the benefit provided by regulation of the industry to members of the public, that any requirement for reasonable notice, in this particular case, can extend to notice being provided to the applicant in September 2009. I so find having regard to the fact that the applicant was in any event subject to mandatory provisions which would prevent him being issued with a drivers certificate - due to having been disqualified from holding a drivers license on two occasions in the preceding three years and, as such, the applicant was unable to obtain a drivers certificate as at the date of notice of the disqualification decision, which the applicant accepts as being September 2009. I find that the disqualification decision was not rendered inoperative by late notice, if in fact notice was not received, as is asserted by the applicant, until September 2009. As noted above, I am persuaded by the respondent's written submissions on this point.
Given my findings about notice, and the disqualification decision being operative from at least September 2009, then I find that at the time of the current application for a drivers certificate, the applicant was disqualified from holding a drivers certificate. As such, section 26 of the Act provides that the applicant's application for a drivers certificate must be refused. That being so, then I find, on the facts and evidence in this matter, according to law, that the correct and preferable decision, on the decision under review, is that the applicant's application for a drivers certificate be refused. Accordingly I find the correct and preferable decision according to the law and evidence, is that the decision under review be affirmed.
The applicant, in submitting that the disqualification decision is ultra vires, has in effect submitted that the tribunal should examine the merits of the original disqualification decision. As discussed above, the review application before the tribunal is an application to review the decision of April 2011 refusing the application for a certificate, and is not an application for review of the disqualification decision. The Tribunal is not in the current proceedings conducting a review of the original disqualification decision. As detailed above, I am not satisfied that in the current review proceedings, reviewing a decision of April 2011 to refuse the application for a drivers certificate, the merits of a previous disqualification decision can be examined. The previous disqualification decision is an issue of fact in the current proceedings. The decision has not been set aside by a court of competent jurisdiction. The disqualification continues to operate, and as such the application by the applicant for a certificate must be refused. However, for completeness, I will provide my views on these issues.
I note that the applicant states, among other matters, that the original disqualification decision is ultra vires having regard to the fact that criminal convictions which formed part of the reasons for decision for the original disqualification decision have been overturned on appeal. I have considered these issues and I agree with the respondent's written submissions that the original disqualification decision turned on a number of issues, and not just the criminal convictions. This is revealed by the written reasons for decision for the original disqualification decision. Further submissions were made that the decision to disqualify could not be made because the applicant was not at the time a licensee or certified driver, having been automatically revoked, and submissions were made as to the interpretation of s42(7) of the Act. (Section 42(7) provides: (7) A reference in this Division to a licensee or certified driver includes a reference to a former licensee, or former certified driver, respectively). I am satisfied that the words in section 42(7) should be given their clearly stated meaning, and I find there is nothing in the Act as a whole, or in the Second Reading Speech, which would indicate that a different meaning should be given. There is no ambiguity in the words used, they clearly state that for the purposes of the division of the Act (Division 4 "Disciplinary action by RTA") a reference to a licensee or certified driver includes a former licensee or certified driver. The words clearly express the intention of the legislation that the disciplinary provisions apply to former certified drivers/licensees. I am satisfied that section 42(7) does operate to permit disciplinary proceedings by the respondent against former licensees or former certified drivers, and so authorised disciplinary proceedings against the applicant in the current case. As such I do not accept the applicant's argument that the disqualification decision was ultra vires as I do not accept the applicant's construction of section 42(7). I also agree with the respondent's submissions as to the construction of s42(7). However, as noted above, I am not reviewing the original disqualification decision in these proceedings, but state for completeness that I was not persuaded by the applicant's submissions that the original disqualification decision was ultra vires.
For all of the above reasons I find the correct and preferable decision is to affirm the decision under review, and so order.
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Decision last updated: 07 November 2011
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