Farquharson v Director General, Department of Transport

[1999] NSWADT 36

CITATION:	Farquharson v Director General, Department of Transport [1999] NSWADT 36
DIVISION:	General
APPLICANT:	Neil Farquharson
RESPONDENT:	Director General, Department of Transport
FILE NUMBER:	993080
HEARING DATES:	05/11/1999
SUBMISSIONS CLOSED:	05/11/1999
DATE OF DECISION:	17 May 1999
BEFORE:	K P O'Connor DCJ - President
PRIMARY LEGISLATION:	Passenger Transport Act 1990
APPLICATION:	Review of decision to suspend taxi-cab authority -
MATTER FOR DECISION:	Interim stay application; Jurisdiction to make stay order
REPRESENTATION:	Applicant: In person Respondent: P Culbert, solictior, NSW Department of Transport
ORDERS:	1. Application dismissed

1 This decision relates to a stay application. It deals primarily with a preliminary objection to the jurisdiction of the Tribunal to deal with that application.

2 By notice dated 22 April 1999 the Director-General of the Department of Transport (‘the administrator’), acting pursuant to s.14 of the Passenger Transport Act 1990 (‘the Act’) suspended the authority to drive a public passenger vehicle (a taxi) held by Neil Farquharson (‘the applicant’). The administrator undertook an internal review of the decision at the request of the applicant, and confirmed it. On 5 May 1999 the applicant lodged an application for review of the decision. On 11 May 1999 the Tribunal heard the applicant’s application for a stay of the decision pending hearing of the application for review. The stay application is made pursuant to s.60 of the Administrative Decisions Tribunal Act 1997 (‘the Tribunal Act’).

3 The administrator’s decision was made pursuant to s.14 of the Act which provides:

“ Variation, suspension or cancellation of authority
14. Having regard to the purpose of an authority, the Director-General may at any time vary, suspend or cancel any person's authority.”

4 The grounds for issuance of an authority are set out in s.11, and for ease of understanding the whole provision is set out below:

“ Authorities


11. (1) A person who drives a public passenger vehicle is guilty of an offence unless the person is the holder of an appropriate authority under this Division.

Maximum penalty: 100 penalty units.

(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.

(3) The regulations may create categories or grades of authority.”

Is the Tribunal’s Stay Power Ousted?
5 Mr Culbert, on behalf of the administrator, has challenged the jurisdiction of the Tribunal to deal with the stay application. His contention is that the Tribunal’s usual jurisdiction is ousted by s.47(2) of the Act.

6 As noted earlier, the Tribunal’s usual jurisdiction is conferred by s.60 of the Tribunal Act:

“ 60 Operation and implementation of decisions pending applications for review
(1) Subject to this section, an application to the Tribunal for a review of a reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision.

(2) On the application of any party to proceedings for an application for a review of a reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application.

(3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account:

(a) the interests of any persons who may be affected by the determination of the application, and

(b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and

(c) the public interest.

(4) While an order is in force under this section (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on application by a party to the proceedings, vary or revoke the order by another order.”

7 The provision upon which the administrator relies is sub-section (2) of section 47 of the Act. The whole of section 47 is set out below:

“Effect of notification of decisions of the Director-General

47. (1) If the Director-General makes a decision that is able to be reviewed under this Part, it is the duty of the Director-General to cause any person entitled to request the review, or to lodge the application with the Administrative Decisions Tribunal for a review:

(a) in the case of a person entitled to lodge an application with the Tribunal to be given notice that is in accordance with section 48 (Notice of decision and review rights to be given by administrators) of the Administrative Decisions Tribunal Act 1997 and a statement of reasons setting out the matters specified by section 49 (3) of that Act, or

(b) in other cases to be notified in writing of the fact of the decision and of the reasons for it.


(2) If the Director-General makes a decision that is able to be reviewed under this Part, any such decision has effect from the time the notice is given and continues in effect unless rescinded by the Director-General or by the Administrative Decisions Tribunal determining an application under Division 3.

(3) A notice given under this section is a sufficient notice for the purposes of section 48 of the Administrative Decisions Tribunal Act 1997.”

8 Sub-section (2) refers to the Tribunal making a determination under Division 3. That Division contains one provision, s.52, which provides:

“ Applications to Administrative Decisions Tribunal
52. (1) Any person whose application under Part 2 has been refused, or whose accreditation or authority has been varied, suspended or cancelled may apply to the Administrative Decisions Tribunal for a review of the refusal, variation, suspension or cancellation.

(2) If, on an application to the Administrative Decisions Tribunal by a driver employed by the State Transit Authority whose authority has been varied, suspended or cancelled, the Administrative Decisions Tribunal is satisfied that another dispute pending before the Transport Appeals Board involves substantially the same issues, it may remit the application for hearing by that Board. In that event, the Transport Appeals Board has jurisdiction to hear and determine the application as if it were the Administrative Decisions Tribunal.

(3) A person aggrieved by a decision of the Director-General:

(a) to refuse to issue or transfer a licence to the person, or

(b) to suspend or cancel the person's licence, or

(c) with respect to the conditions imposed on the person's licence, or any variation or proposed variation of them, may apply to the Administrative Decisions Tribunal for a review of the decision.

(4) A person aggrieved by a decision of the Director-General with respect to a network referred to in section 41, or by the refusal of an application under that section, may apply to the Administrative Decisions Tribunal for a review of the decision.”

9 It will be seen from the above provisions that there is no express reference in either the Tribunal Act or the Act to any limitation that may apply to the exercise of the Tribunal’s usual discretion to stay the operation of a decision under review pending final determination.

10 The administrator’s submission that s.60 of the Tribunal Act is ousted by s.47(2) of the Act is based on the following annotation to the text of s.47(2) found in Robinson (ed), New South Wales Administrative Law (1996) at p15-289:

“Note: There are provisions dealing with the rights [of] applicants concerning notification of the original decision set out in s 47. Section 47(2) appears (without expressly stating so) to remove from the ADT the right to order a stay of the operation of the original decision (which is in s 60 et seq of the ADT Act).”

11 The administrator argues that its decision can not be interfered with in any way until such time as it is “rescinded” by its own further decision or by the Tribunal. It says that such a “rescission” can only occur upon the making of a final determination by the Tribunal to set it aside or vary it.

12 “Rescission”: In an earlier case, Ybasco v Director-General, Department of Transport [1999] ADT 28 (Gen Div 5 May 1999) I dealt with one aspect of the interpretation of s.47(2). The submission on that occasion was that the Tribunal was deprived of jurisdiction to review a decision to suspend an authority where the suspension was lifted and the authority reinstated prior to final determination of the application for review of the original decision. In that case I ruled that the statutory description of the administrator’s power as one of “rescission” did not mean that the exercise of the power in the circumstances had the effect of rendering the original decision void for all purposes. It remained an operative, valid decision for the period of suspension (unless determined otherwise by the Tribunal or by way of judicial review). Accordingly I held that the Tribunal had jurisdiction to review the original decision, even though it was no longer operative.

13 The use of the term “rescission” to describe the exercise of a power to terminate a previous decision appears to be unique to s.47(2) of the Act. There is no provision in the Act which purports to confer, on either the administrator or the Tribunal, a power to “rescind” a decision. The Act at a number of points confers power on the administrator to “revoke” a condition (e.g. s.9B, s.11B, s.41(6)) or an authority (e.g. s.41(7)). The principal provision conferring power in relation to drivers’ authorities, s.14 (cited earlier), empowers the administrator to “cancel” an authority, as well as to “vary” or “suspend” it. The term “rescind” is an unconventional term to use to describe the exercise of an administrator’s powers. As in Ybasco, I interpret “rescind” as used in s.47(2) to refer to an a decision to revoke a previous decision which, unless otherwise stated, is assumed to have effect prospectively.

14 Whereas Ybasco dealt with the impact of an act of “rescission” on the Tribunal’s principal review jurisdiction, the present case deals with the question of whether s.47(2)’s provision that the administrator’s decision “continues in effect …unless rescinded” affects the Tribunal’s jurisdiction to make an interim, stay order.

15 The answer to the question involves the examination of two matters. One, can a decision be said not to continue in effect if its operation is temporarily suspended or varied by a stay order? Two, is the reference to the Tribunal “determining an application” only a reference to the making of a final determination; or does it embrace the orders which the Tribunal can make in respect of pending applications?

16 The approach to these questions should be informed by consideration of the role envisaged for the Tribunal by Parliament. The creation of the Tribunal represents an important development in promoting accountability in government administrative decision-making. Its legislation arms it with a range of procedural tools to encourage the making of the “correct and preferable” decision (Tribunal Act, s.63).

17 The ability to stay the operation of the decision under review in appropriate circumstances forms a significant element of those procedural tools. Significant personal, financial or other material interests of an individual may be affected by a decision to remove a licence. Removal of a licence may affect the individual’s ability to continue in an occupation, with consequent effects on dependents; and impair his or her ability to pay for costs incurred in pursuing the review application.

18 There may be no significant public interest militating against a short-term reinstatement of the licence pending hearing. While the original decision remains correct until set aside or varied, there may be no significant public interest placed at risk by deferring its operation until affirmed on review.

19 Parliament has manifested a concern to ensure the primacy of the Tribunal Act where possible conflicts with other legislation are identified. Section 40(1) of the Tribunal provides:

“The provisions of this Act have effect subject to any contrary provision being made in a relevant enactment (whether expressly or impliedly).”

20 The rule set out in s.40(1) is subject to the following qualification in s.40(2):
“(2) However, a provision of a relevant enactment is not to be interpreted as amending or repealing, or otherwise altering or affecting the effect or operation of, any of the provisions of this Chapter unless the provision of the relevant enactment provides expressly for it to have effect despite a specified provision, or despite any provision, of this Chapter.”

The Chapter referred to covers ss.36-40 of the Tribunal Act.

21 An instance of an express statutory modification of the Tribunal’s stay power is found in the Freedom of Information Act 1989, s.53(5). [1]

22 The current text of s.47(2) is an amended version of the text that appeared in the Act as originally enacted. Until the transfer of jurisdiction to this Tribunal on 1 January 1999, the jurisdiction to review decisions of the Director-General lay with the Local Court. The current text of s.47(2) is in the same terms as the earlier text with the substitution of the words “a Court determining an appeal” for “the Administrative Decisions Tribunal determining an application”. The question that has now arisen did not arise under the old scheme as the Local Court did not have any stay power that might be relevant to this category of appeal.

23 Can a decision be said not to continue in effect if its operation is suspended or varied by a stay order?

The powers of the Tribunal are analogous to those exerciseable by an appeal court in relation to the decision of the lower court. A typical stay order may suspend the operation of the lower court decision but the decision is not deprived of its legal status and effect. It “continues in effect” as a legally binding determination pending final decision of the appeal court. Similarly in the present instance the Director-General’s decision is not nullified by the making of a stay order. It continues to be a valid, binding decision.

24 Does the reference to “determining an application” include the making of orders in respect of pending applications?

I consider that the phrase “determining an application” is not to be confined simply to the making of a final determination. It should be read broadly to embrace the Tribunal’s entire process in connection with the final determination of an application. The broad purpose of the Tribunal’s stay power is dealt with in s.60(2) of the Tribunal Act - “[T]he Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application”.

Conclusion
25 Accordingly I consider that s.47(2) of the Act does not limit, either expressly or impliedly, the usual jurisdiction of the Tribunal to make a stay order. Consequently s.47(2) of the Act does not amount to a “contrary provision” to which the provisions of s.40 of the Tribunal Act might apply.

The Stay Application
26 The applicant was notified of the suspension of his authority on 18 April 1999.

27 The notice was issued following receipt of official advice that the applicant had been charged on 17 April 1999 with two counts of soliciting a person to commit murder. The applicant was granted bail, subject to several conditions, by the Local Court at Cessnock on 28 April 1999.

28 The administrator has provided a short statement of reasons to the applicant. The administrator relies on the seriousness of the charge as raising a question as to the “good repute” and as to whether the applicant continues to be a “fit and proper person to be the driver of a public passenger vehicle” (matters to which the issuance of an authority is declared to attest by s.11(2) of the Act). These reasons and the applicable law will be addressed at the hearing of the review application.

29 The applicant’s submissions in support of a stay were essentially to the following effect. One, he has never been charged in the past with a criminal offence of any kind. Two, he has shown co-operation with the administrator by going to its office in Newcastle as soon as he received the notice and handing in his driver’s authority. Three, the licence supports his sole means of income, the operation of a taxi business involving one vehicle. While his authority to own and operate the taxi has not been withdrawn, his inability to drive the taxi has had an adverse effect on his total income from its operation, which he estimates as being a reduction of 40 per cent. He said that the reduction in income levels threatens the viability of the business; and his ability to meet the legal costs of his defence of the criminal charges. Five, the fact that he has been granted bail (albeit subject to several conditions including residing at his mother’s home in Cessnock, reporting daily to the Police and only travelling within the Hunter Region) represents a positive conclusion as to his character, that should be taken into account. Six, his “good repute” and “character” should not be seen as having altered simply because charges have been laid; he should be given the benefit of the presumption of innocence.

30 Many of these submissions address the substantive decision of the administrator. The administrator’s concerns in opposing the stay also, inevitably, traverse ground which will be considered more fully at the hearing of the review application. Essentially the administrator argues that the Tribunal must have regard to public interest considerations in deciding whether to allow the applicant to go back on the road as a taxi-driver pending the determination of the application. The administrator referred to the need for the public to be able to trust and have confidence in integrity and safety consciousness of taxi-drivers.

31 I do not propose to deal with the submissions in detail as many of them are closely connected with the administrator’s interpretation of its powers, in particular under s.11 of the Act. The Tribunal’s task in considering a stay application is a more limited one and is governed by s.60 of the Act. [2]

32 The Tribunal must balance various aspects of the public interest (as best they can be judged in the confined and urgent environment of a stay application). One is the public interest in maintaining in force an administrator’s decision. [3] The nature of the regulated activity must be considered and the way it impacts on the life of the community. Heed must be given to the objectives of the relevant primary legislation. Weight must also be given to the public interest in relieving individuals from the drastic effects, such as loss of livelihood, that can often flow from an adverse administrative decision pending its re-consideration by the external tribunal. The ability of the external tribunal to dispose of the substantive application quickly is also an important matter relevant to whether a stay should be granted. As has frequently been noted, the discretion is a wide one. [4]

33 In the present instance a charge related to an offence of violence of the utmost gravity (murder) has been laid. The applicant’s ability to earn income from his taxi business has been diminished by the suspension of his authority, but not extinguished. For many years he was a school teacher. Over the last ten years he has managed a hotel, previously run a taxi business and also worked again as a school teacher. This history suggests that he has a wide range of skills and experience to assist him in finding other sources of income. Most importantly the substantive application has been listed for hearing on 28 May 1999. In these circumstances, the balance of the public interest considerations clearly favours refusal of the application for a stay.

34 Application dismissed.

Endnotes:
[1] A Commonwealth instance affecting the stay jurisdiction of the Commonwealth Administrative Appeals Tribunal is found in Insurance Act 1973, s.63(13); as to which see Flick (ed.) Federal Administrative Law (2nd ed. 1984) (‘Flick’) para.1409.

[2] The provision, set out at para.6 above, derives from s.41 of the Administrative Appeals Tribunal Act 1977 (Commonwealth). See generally Flick paras.1403-1409. In Victoria, the Victorian Civil and Administrative Tribunal has a similar power: see generally Kyrou & Pizer (eds.) Victorian Administrative Law (1985) paras.V2430-V2442.

[3] See e.g. Elias Nominees Pty Ltd v Commissioner of Business Franchises [1996] 2VR 226 per Beach J. setting aside a stay order made ex parte by a Master pending judicial review, “To grant a stay of the suspension order completely undermines the authority of the commissioner in that regard and, in my opinion, is quite contrary to the spirit and intent of the legislation.”

[4] See e.g. Re Dekanic and The Tax Agents Board (1982) 6 ALD 240 per Davies J. referring to s.41 of the Administrative Appeals Tribunal Act 1977 on which s.60 of the Tribunal Act is based: “The [stay] jurisdiction is wide and diverse and it is not practicable to lay down a principle or set of specific principles applicable to every type of case in respect of which there may be an application for a stay.”