Franklin v A&S Bricklaying Service

[2010] QCAT 69

CITATION: Lowen v Chief Executive, Department of Transport & Main Roads [2010] QCAT 69

PARTIES:   Peter Graham Lowen

V

Chief Executive, Department of Transport and Main Roads

APPLICATION NUMBER:            GAR067-10

MATTER TYPE:   Occupational Regulation Matters

HEARING DATE:   22 March 2010

HEARD AT:   Brisbane

DECISION OF:   C Endicott, Senior Member

DELIVERED ON:   22 March 2010

DELIVERED AT:   Brisbane

ORDERS MADE:   Stay application dismissed

CATCHWORDS: Application for stay – section 22 of Queensland Civil and Administrative Tribunal Act 2009

APPEARANCES and REPRESENTATION (if any):

The hearing took place on the papers in the absence of parties.

REASONS FOR DECISION

HISTORY OF THE APPLICATION

1. An application was made to the Queensland Civil and Administrative Tribunal on 15 March 2010 by Peter Lowen (the applicant) seeking a review of a decision of the delegate of the Chief Executive of the Department of Transport and Main Roads (the respondent) made on 26 February 2010 to suspend the applicant’s driver authorisation. The applicant also sought a stay of the decision under review. 

ISSUES AND THE LEGISLATION

1. The Queensland Civil and Administrative Tribunal Act 2009 contains provisions for the Tribunal in its discretion to stay the operation of a decision being reviewed by the Tribunal. Section 22 of the 2009 Act provides that the Tribunal can make an order to stay a decision only if it considers it desirable after having regard to the interests of any person whose interests may be affected by the making of, or declining of, a stay order, having regard to any submissions made to the Tribunal by the decision maker and having regard to the public interest.

2. The respondent is required by the Transport Operations (Passenger Transport) Act 1994 to ensure that public passenger transport promotes the safety of passengers and encourages efficient, competitive and commercial behaviour in the provision of public passenger transport.  

SUBMISSIONS

4. The applicant made written submissions in support of his application for a stay of the decision to suspend his driver authorisation.   He has been charged with the dangerous operation of a vehicle.  He denies that he is guilty of the charge and he intends to defend the charge vigorously.
5. The applicant submits that he will be unable to earn an income while his driver authorisation is suspended.  He has no other work apart from being a taxi driver.  He supports his partner who is very ill with a serious medical condition. He works at nights so he can be with his partner during the day to supervise her medication. 
6. His income pays for his partner’s medication which costs $100.00 or more per week.  His income is used to pay the mortgage payments on their home of $325.00 per week.  He has no savings.  He pays for daily living expenses from his income as a taxi driver.  If his income ceases, he submits that he fears that they will lose their home at a time when his partner is very ill. 
7. The applicant also submits that his current employer may have to put on another driver during the period of suspension.  If that should occur, the applicant does not know if he will lose his employment. 
8. The applicant submits that his record as a taxi driver is of a very high standard and there have been no bad marks against him as a driver. 
9. The respondent made written submissions on the issue of a stay order.  The respondent opposes the making of a stay order.  The respondent submitted that the purpose of having a system of driver authorisation as contained in the Transport Operations (Passenger Transport) Act 1994 is to maximise public confidence in public passenger services and to provide for the safety of passengers and the public. The Act requires drivers to conduct themselves responsibly with the public and to be responsible for the act of driving.
10. The respondent provided some brief details of the factual case relied on by the police in charging the applicant. That case alleges that the applicant drove off while the police were trying to question him about a matter. The version of the event given by the applicant in his submissions conceded he drove off while someone was attempting to grab him through his window.  The respondent submitted that either version indicated a dangerous or irresponsible act on the part of the applicant and a blatant disregard for the safety of the public. 
11. The respondent submitted that the actions of the applicant did not instil or maximise public confidence.  It was submitted that permitting the applicant to hold a driver authorisation while a charge of dangerous operation of a vehicle is pending would adversely affect public confidence in the public passenger transport system. 
12. It was submitted that holding a driver authorisation is a privilege and is not granted as of right.  It was submitted that the adverse financial consequences borne by the applicant do not override the public interest and public safety.       

CONCLUSION

13. The Tribunal has had regard to the submissions made by the applicant as to how the applicant’s interests will be affected in the event that a stay of the decision is not made.  It is accepted that he will not be able to earn income as a taxi driver during the period of suspension.  His capacity to contribute to the financial support of his partner will be adversely affected until such time as he can replace the lost income with earnings from another job or with benefits from Centrelink. The Tribunal accepts that due to her illness Mr Lowen’s partner is dependent on him for financial support.      
14. The Tribunal accepts the submissions made by the respondent that the holding of a driver authorisation is a privilege and that holders of that authorisation must act in such a manner that the safety of the public is maximised and public confidence in the public passenger transport system is maintained.      
15. The question to be determined is how the Tribunal should respond to the disparate interests of the applicant and the respondent in this application for a stay at a time when the outcome of the charge laid against the applicant is not known. 
16. The Tribunal is guided by the stated purposes for having a system of authorisation for drivers in the Transport Operations (Passenger Transport) Act 1994.  Those purposes include ensuring that suitable persons drive public passenger vehicles, that drivers conduct themselves responsibly and are held accountable for complying with appropriate standards. 
17. Regulations made under that Act follow through with those stated purposes and provide for the suspension of a driver’s authorisation if the driver has been charged with a disqualifying offence.  The Tribunal is satisfied that the charge laid against the applicant is one of the stated disqualifying offences in the legislation and lawfully gives rise to the applicant’s suspension.      
18. The Tribunal considers that it is in the public interest that the respondent is able to discharge the statutory duty of ensuring the safety of passengers and the public with all reasonable diligence.  It is also in the public interest that the functions of the respondent, while subject to review by this Tribunal, are not unnecessarily impeded in ways that would tend to undermine the integrity of the legislative scheme for the safe transport of public passengers. 
19. That legislative system provides for a means of holding drivers accountable for their actions, including suspending authorisation to drive during periods of time when the safe operation of a driver’s vehicle is being called into question.   The Tribunal is of the view that in this case it would not be in the public interest to permit a driver to continue conveying public passengers while a charge of dangerous operation of a vehicle is outstanding.      
20. The Tribunal is not satisfied that it is desirable in this case to make an order to stay the operation of the decision under review.  While not granting a stay would adversely affect the interests of the applicant and his partner, the Tribunal is of the view that granting a stay would tend to undermine the integrity of the scheme for the safe operation of conveying public passengers and the public interest in this case should not be overridden by the interests of the applicant. 
21. The application for a stay of the decision of the respondent is dismissed.