Eldridge v Department of Transport and Main Roads

[2018] QCAT 434

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Eldridge v Department of Transport and Main Roads [2018] QCAT 434

PARTIES:

JAMES EDWARD ELDRIDGE
(applicant)

v

DEPARTMENT OF TRANSPORT AND MAIN ROADS

(respondent)

APPLICATION NO/S:

GAR383-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

Date of order 1, 28 November 2018
Date of order 2, 14 December 2018

Reasons delivered 14 December 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane  

DECISION OF:

Member Kanowski

ORDERS:

1.   The application to stay a decision is refused.

2.   The application to reconsider the decision to refuse the application to stay a decision is refused.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where tow truck driver certificate refused – whether utility in staying the decision

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 22
Tow Truck Act 1973 (Qld), s 14A, s 18, s 29

REPRESENTATION:

Applicant:

Self-represented

Respondent:

C Lowe

APPEARANCES:

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).

REASONS FOR DECISION

Introduction

1. Mr Eldridge has a proceeding in QCAT aimed at getting back his tow truck driver certificate.

2. Documents before QCAT indicate the following:

   (a)on 2 August 2018 Mr Eldridge pleaded guilty in the Magistrates Court to a driving offence;

   (b)the penalties imposed by the Court included disqualification from holding a driver licence for two months;

   (c)on 10 August 2018 the Department of Transport and Main Roads (‘Department’) notified Mr Eldridge that his tow truck driver certificate was cancelled;

   (d)on 5 October 2018 Mr Eldridge applied to the Department for a new certificate;

   (e)on 22 October 2018 the Department refused that application;

   (f)Mr Eldridge then applied for an internal review;

   (g)on 29 October 2018 the Department, on internal review, confirmed the decision;

   (h)on 7 November 2018 Mr Eldridge applied to QCAT for a review of the decision made by the Department on 29 October 2018;

   (i)on 7 November 2018 Mr Eldridge also applied to QCAT for a stay of the Department’s decision;

   (j)on 23 November 2018 the Department filed a response in QCAT containing submissions opposing the stay application;

   (k)on 28 November 2018 QCAT refused the stay application;

   (l)on 6 December 2018 Mr Eldridge asked for reasons for QCAT’s decision; and

   (m)on 6 December 2018 Mr Eldridge filed an application for miscellaneous matters seeking, amongst other things, a reconsideration of the decision on the stay application.

   To which decision does the stay order relate?

3. It is apparent from the terms of section 22 of the QCAT Act that a stay order can relate only to the decision which QCAT has been asked to review.

4. In Mr Eldridge’s case, it is clear from his application to review a decision that he has asked QCAT to review the decision made on 29 October 2018. This was the internal review decision about the refusal of the application lodged on 5 October 2018 for a new certificate. Accordingly, the stay application and the stay order can relate only to that decision.

5. The Department’s submissions on the stay application proceeded on the basis that the stay application related to the decision to cancel the previous certificate. This may be because the application to stay a decision was not specific on the date of the decision in question. It may also be because it would make more sense for a stay application to relate to a cancellation decision than a refusal decision. Nonetheless, the submissions did not relate to the decision in question.

   Why was the stay application refused?

6. Tow truck driver certificates are issued under the Tow Truck Act 1973 (Qld) (‘Tow Truck Act’). A person can apply for a certificate.[1] The Department may grant or refuse the application.[2]

   [1]Tow Truck Act, s 14(1).

   [2]Ibid, s 14A(1).

7. A stay order prevents a decision from operating. If QCAT were to stay the Department’s decision, this would simply leave the application to the Department for a certificate undecided, in effect. A stay order would not operate to grant a certificate to Mr Eldridge.

8. Granting a stay would therefore be futile.

9. Stay orders can be effective in some other situations, such as where the decision to be reviewed is the cancellation or suspension of a licence. A stay order in such a case leaves the licence in force until the decision has been reviewed. In Mr Eldridge’s case, however, a stay order could not be made in respect of the decision to cancel his previous certificate (even if that decision was the subject of the application to review a decision). That decision occurred automatically under section 18(2)(b) of the Tow Truck Act. It is not a reviewable decision under Schedule 1 of the Tow Truck Act. It is therefore not a decision which Mr Eldridge could have reviewed in QCAT under section 29 of the Tow Truck Act. It follows that a stay order could not be made in respect of the cancellation decision.

   Application for reconsideration

10. Mr Eldridge has applied for QCAT to reconsider the decision to refuse the stay application.

11. There is, however, no power in the QCAT Act for a reconsideration (as distinct from an appeal or a fresh stay application). Accordingly, Mr Eldridge’s request for a reconsideration is refused.

    Conclusion

12. The stay application has been refused because granting a stay would be futile. The application for reconsideration has been refused because there is no power to reconsider.

13. The Tribunal understands that Mr Eldridge is in a very difficult financial position while unable to work as a tow truck driver, and that he is keen to return to work immediately if possible. The Tribunal has listed the application to review a decision for hearing at the earliest available date, which is 23 January 2019.