Guissine v Secretary to the Department of Transport
[2013] VSC 41
•13 February 2013
| Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2012 06562
| NATHAN GUISSINE | Plaintiff |
| – and – | |
| SECRETARY TO THE DEPARTMENT OF TRANSPORT | Defendant |
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JUDGE: | MUKHTAR AsJ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 February 2013 | |
DATE OF JUDGMENT: | 13 February 2013 | |
CASE MAY BE CITED AS: | Guissine v Secretary to the Department of Transport | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 41 | |
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APPEAL – Tribunal’s refusal to hear application for want of review jurisdiction – Grievance concerning conditions of taxi-cab licence – No right of review under delegated legislation – Limited right of review under enabling Act – No right of review to alter specifications made in exercise of delegated powers – Leave to appeal refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendant | Mr B Reilly | VTD Legal Services |
HIS HONOUR:
On 11 February last, the Court made orders refusing the plaintiff’s application for leave to appeal an order of the Victorian Civil and Administrative Tribunal made on 15 October 2012. The tribunal was constituted by Deputy President Lambrick. As is well known, under s 148 of the Victorian Civil and Administrative Act leave to appeal to the Supreme Court may be granted only on a question of law.
The plaintiff, who is a licensed owner-driver of a taxi cab, had sought to lodge an application in the Tribunal for a matter ― I need to describe it loosely as a “matter” for reasons that will expose ― concerning conditions of a taxi licence that were specified by the Victorian Taxi Directorate under delegated powers from the Transport (Taxi-Cabs) Regulations 2005. A deputy registrar of the Tribunal rejected the filing of the plaintiff’s application under s 71 of the VCAT Act because nothing in the regulations or in the principal Act under which they were made gave the Tribunal any jurisdiction to review the particular matter about which the plaintiff was aggrieved. The Deputy President, on a review under s 71(2) of the VCAT Act, affirmed the deputy registrar’s decision to reject the plaintiff’s attempt to file the application.
I refused leave to appeal on the ground that the challenge to the Tribunal’s decision about its jurisdiction was bound to fail, thus there was no injustice in refusing leave to appeal: see the considerations applicable to the grant of leave in Secretary to Department of Premiere and Cabinet v Hulls.[1] There is in my view no review jurisdiction to VCAT for the plaintiff’s grievance. So much of the plaintiff’s legal documentation in this Court and his submissions in Court was directed, all in good faith I will say, at seeking to amend legislation or to expose perceived injustices and (economic) discriminatory effects in the operation of the regulations. The Court accepted the submissions advanced on behalf of the defendant by its counsel, Mr Reilly, and what follows is an account of the essential facts and the applicable legislation and other legal instruments.
[1](1999) 3 VR 331 (Ct App)
The grant of a taxi-cab licence is governed by Division 5 of Part 6 of the Transport (Compliance and Miscellaneous) Act 1983. The licensing authority is the respondent, the Secretary to the Department of Transport. Under s 143A of the Act, the responsible Minister may, by Order published in the Government Gazette specify the procedures to be followed for the granting of taxi‑cab licences.[2]
[2]See s 143A(1)(c)
On 22 June 2006 there was published in the Gazette an Order made by the Minister for Transport under s 143A of the Act which specified, amongst many other things, that up to 100 metropolitan Peak Service taxi‑cab licences could be issued under that order. [3] As the description suggests, these are licences permitting the taxi cab to be available for hire only in peak periods and certain public events requiring notoriously high demand for taxis. The Minister’s Order also specified certain procedures for to the granting of taxi‑cab licences, including this:
10.All licences issued will be subject to special conditions to ensure efficient and effective provision of taxi services including:
· Peak Services taxi-cabs will only be permitted to operate for hire during the hours of 3.00pm until 7.00am the following morning on any day of the week. Peak Service taxi-cabs will also be authorised to operate at other times specified in licensed conditions during major events such as the Formula One Grand Prix and Melbourne Cup;
· …
· any vehicle present for licensing as a peak time taxi‑cab must be less than 2.5 years old when first licensed as a taxi. The vehicle must not be operated as a taxi if it is more than 6.5 years of age. Age limits are calculated from the manufacturers’ build date as shown on the vehicle compliance plate; and
· …
[3]G 25 p.1283-7.
This case is all about the specified age limit of a taxi. The plaintiff applied for a Peak Service taxi licence in July 2006. Such a licence was granted to him as from the commencement date of 19 January 2007. The licensed vehicle was a Ford manufactured in 2005. The licence expressly stated it was subject to conditions attached to the licence, the Transport (Compliance and Miscellaneous) Act, the Transport (Taxi-Cabs) Regulations 2005 and all other applicable laws. The licence conditions that have been published over time are in evidence. Faithful to the Ministerial Order the conditions all stipulate that the vehicle must not be operated as a taxi-cab for more than six years and six months from the date of manufacture.
The Transport (Compliance and Miscellaneous) Act has a regulation making power in s 162. Amongst the host of matters for which the Governor-in-Council was empowered to make regulations, the Act states under s 162(2)(g) that any regulations made under the section:
may provide that an application may be made to the Tribunal [i.e., VCAT] for review of a decision made by a specified person in the exercise or purported exercise of a power conferred by the regulations.
Pursuant to that regulation making power, the Transport (Taxi-Cabs) Regulations 2005 were made.[4] Section 12 of those regulations states:
[4]S.R. No. 67/2005.
12Taxi-cab specifications
(1)The licensing authority may determine and publish in the Government Gazette specifications for all taxi-cabs, or a class of taxi-cabs, with which a taxi-cab, or a taxi-cab of that class, must comply.
(2)The operator of a taxi-cab must not operate the taxi‑cab, or permit the taxi-cab to be operated, unless the taxi-cab complies with all specifications under subregulation (12) which are applicable to the taxi-cab.
Penalty:20 penalty units.
(3)The licensing authority may exempt a taxi-cab from the complying with any specification under subregulation (1) that would otherwise be applicable to the taxi-cab, if, in the opinion of the licensing authority, the specification is inappropriate to the nature or construction of the taxi-cab or to the circumstances in which the taxi-cab licensed to operate.
In exercise of that delegated authority, there was published in the Government Gazette on 24 May 2007 a “Determination of Specifications for Taxi-Cabs” by a Director of the Victorian Taxi Directorate. It said that, “effective immediately” certain specifications would apply to all taxi‑cabs licensed under the Act. Under the heading “Taxi Age Limits”, clause 29 of the determination specified a maximum vehicle age of 6.5 years for all metropolitan, outer suburban and urban taxis, whether the taxis be licensed for peak service or non peak service.
Mr Guissine’s grievance was stated in the letter to the Victorian Taxi Directorate dated 15 May 2002. In his case, the 6.5 year age limit rule would apply to his car by June 2012. In his letter he argued that as peak service taxis only operate two‑thirds of the time that a full licensed taxi operates (that is 16 hours instead of 24 hours a day), it was unfair for the age limit rule to apply, especially as cost factors were the same. He was also saying there was less wear and tear for a taxi that works on limited hours so they should be treated differently and a rule should be devised for what he termed “exploitational time”. He argued that the current rule should be extended for at least two years for a peak service taxi. He received the following response from the directorate in a letter dated 23 May 2012 (omitting irrelevant parts):
Thank you for your letter of 15 May 2012 concerning the maximum vehicle age limit on metropolitan peak service taxi‑cabs.
Pursuant to section 12(1) of the Transport (Taxi-cabs) Regulations 2005, it has been determined by the licensing authority that the maximum age limit that applies to all metropolitan non‑wheelchair accessible taxis is 6.5 years from the compliance plate date on the vehicle.
The maximum vehicle age limit is set at 6.5 years so to ensure that Melbourne is serviced by a modern fleet of taxis.
Consequently, I am unable to accede to your request to have the vehicle age limit increased to 8.5 years for your metropolitan peak service taxi‑cab.
Although the letter is couched in language that expresses an inability to accede to a request and has been regarded by the plaintiff as a decision, I think it is really a statement of the legal state of affairs that under the regulations there was a maximum age limit for all taxis, so the age limit could not be altered on request. Nothing in the regulations or in the determination enables the licensing authority to relax or extend the age limit. Certainly nothing in those sources or the Act expressly gives a right of review to VCAT for the refusal to extend the time limit. It is only clause 12(3) of the regulations that empowers the licensing authority to exempt a taxi‑cab from complying with any specification under a gazetted specification. Let it be assumed an exemption from complying with a specification can be given after the licence is granted, and suppose that is what, in effect, the plaintiff should be taken as asking the licensing authority to do. Even so, there is nothing in the regulations, or in the declaration, or the principal Act that gives a taxi‑cab licensee the right to review an unwillingness by the licensing authority to exempt a taxi‑cab licensee from complying with specifications. It is to be remembered that s 162(2)(g) of the Act permits regulations to provide for review applications to VCAT for the exercise of any power conferred under the regulations. But the regulations do not do so for this situation.
Within the Act there are provisions which give the Tribunal review jurisdiction for a decision to refuse to grant certain types of commercial passenger vehicle licences (of which taxi cab licences are one kind) or a decision to cancel or suspend or revoke a licence: see s 143C, 153(2) and 157(4). None of those provisions are apposite here. All that exists is s 146C of the Act which states where relevant (with my emphasis):
(1)The holder of a commercial passenger vehicle licence may apply to the Tribunal for review of a decision by the licensing authority –
(a)to suspend the licence … ; or
(b)to cancel the licence … ; or
(c)to alter the conditions attached to the licence or alter the route or area in respect of which it was granted …
I shall return to this section ultimately.
By an application filed in the Tribunal on 3 July 2012 the decision which Mr Guissine has sought to have reviewed was said to be “refusal by Victorian Taxi Directorate to extend taxi age limit according to permitted time of operation”. He put forward the same reasons as previously expressed in his correspondence. His application stated his claim was under s 12(1) of the Transport (Taxi-Cabs) Regulations.
By letter dated 5 July 2012 the Deputy Registrar, Administrative Division of the Tribunal informed Mr Guissine that under s 71 of the VCAT Act, the principal registrar may reject an application that is made by a person not entitled to make it. The letter said:
VCAT only has jurisdiction to deal with matters if the Victorian Parliament confers on it jurisdiction to do so. VCAT does not have jurisdiction to review decisions pursuant to s 12(1) of the Transport (Taxis-Cabs) Regulations 2005.
Mr Guissine sought a review as he was entitled to under s 71(2). In reasons published on 30 October 2012 the Deputy President affirmed as correct that the neither the Act nor the regulations gave the Tribunal jurisdiction to review a decision made under regulation 12(1). But the reasons record another argument relying on s 146C(1)(c) of the Act which permits the licensee to seek review of a decision “to alter the conditions attached to the licence”. The Deputy President determined that provision had no application because there has been no decision made by the licensing authority to alter any conditions attached to the licence at all. Nor, the reasons stated, can that section be used as a means of “reviewing” regulations which apply to all taxi‑cabs.
Mr Guissine’s draft notice of appeal says that he “seeks to amend current legislation”. Elsewhere he says he seeks clarification of section 146C of the Act and an explanation of the validity of the current legislation, all to deal with what he perceives to be the discrepancy in not allowing an extension of the 6.5 year rule to 8.5 years. He asks for an order that the regulations be amended “to include provisions for Victorian peak service taxi‑cabs taking into account obvious differences between unrestricted and peak service taxi‑cabs”.
I am afraid to say this object, and the orders sought, are unattainable here. The plaintiff’s only right to invoke the original or reviewed jurisdiction of the Tribunal is where an enabling law permits him to do so. If his grievance is that the applicable regulations are unfair then of course that is not a matter that is reviewable by appellate process or indeed a matter for the judicial arm of government at all. He must be able to point to a decision and a statutory provision or instrument which then permits him to have that decision reviewed by a Tribunal.
Nothing more need be said about the competence of his application under s 12 of the regulations. Nothing in the regulations gives a right of review.
As for s 146C, it has no application because there has been no decision made by the licensing authority to alter any conditions attached to the licence at all. Although not raised before, I suppose a question could be conceived under s 146C whether a decision by a licensing authority to alter licence conditions could be construed to include a decision to refuse to alter licence conditions. I do not see that construction as being open textually. I also doubt such a purposive or contextual construction. Read in its entirety, s 146C I think is directed at unilateral action by the responsible authority be it suspension, cancellation or alteration in a way disfavourable or disadvantageous to a licensee; hence the review rights. But even if, for the sake of argument, such a point could be regarded as arguable for present purposes, it goes nowhere as was submitted by Mr Reilly. The “decision” or more appositely I think the response given by the directorate to Mr Guissine’s enquiry could do no more than adhere to the unalterable legal position that conditions on the taxi licence are imposed by force of the declaration made under the regulations which specify the 6.5 year age limit rule. Whatever the merits of Mr Guissine’s grievance, it was not open to the directorate under the declaration or by any other means to modify the 6.5 year rule.
It is for those reasons in essence that the Court refused leave. It may be accepted that, as a matter or general characterisation, a question of jurisdiction is a question of law. But it has not been shown that the decision in the Tribunal was attended with sufficient doubt. I think it cannot succeed and therefore I have dismissed the proceedings. I could see no basis for relieving the plaintiff of the burden of paying the Secretary’s costs, who has prepared affidavit material properly exposing all the relevant facts and exposing for the Court the applicable legislative regime. I have granted a 60 day stay on the enforcement of the costs order.
Guissine v Secretary to the Department of Transport [2013] VSC 41
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