Hewitt v Feinas
[2005] WASCA 3
•14 JANUARY 2005
HEWITT -v- FEINAS [2005] WASCA 3
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 3 | |
| Case No: | SJA:1041/2004 | 26 OCTOBER 2004 | |
| Coram: | ROBERTS-SMITH J | 14/01/05 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | SHANE LEE JOHN HEWITT MICHAEL JOHN FEINAS |
Catchwords: | Appeal Bylaws and Regulations Breach of condition of taxi licence Imposition of condition by Director General of Department Whether statutory power to impose conditions constrained or restricted by lack of regulations prescribing categories of taxi in respect of which they might be imposed Whether condition valid Statutes Interpretation Imposition of conditions on taxi plates Whether have to be imposed in respect of specific taxi plates or may be imposed in respect of types or categories of taxi plates generally Statutes Interpretation Imposition of conditions relating to "vehicle standards" Whether condition requiring taxi sign be covered or removed when taxi not operating one "in relation to" vehicle standards Whether condition valid under alternative source of power |
Legislation: | Taxi Act 1994 (WA), s 20, s 40 Taxi Regulations 1995 (WA), regs 3, 5, 5A, 5B, 6, 19 |
Case References: | Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 Brown v West (1990) 169 CLR 195 Koh, unreported, PE40274/03; 2 February 2004 Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356 Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 Thompson v Goold & Co [1910] AC 409 Workers Compensation Board of Qld v Technical Products Pty Ltd (1988) 165 CLR 642 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
MICHAEL JOHN FEINAS
Respondent
ON APPEAL FROM:
Jurisdiction : COURT OF PETTY SESSIONS
Coram : MR M WHEELER SM
File No : FR 1469 of 2004
Catchwords:
Appeal - Bylaws and Regulations - Breach of condition of taxi licence - Imposition of condition by Director General of Department - Whether statutory power to impose conditions constrained or restricted by lack of regulations prescribing categories of taxi in respect of which they might be imposed - Whether condition valid
(Page 2)
Statutes - Interpretation - Imposition of conditions on taxi plates - Whether have to be imposed in respect of specific taxi plates or may be imposed in respect of types or categories of taxi plates generally
Statutes - Interpretation - Imposition of conditions relating to "vehicle standards" - Whether condition requiring taxi sign be covered or removed when taxi not operating one "in relation to" vehicle standards - Whether condition valid under alternative source of power
Legislation:
Taxi Act 1994 (WA), s 20, s 40
Taxi Regulations 1995 (WA), regs 3, 5, 5A, 5B, 6, 19
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant : Mr T F Percy QC
Respondent : Ms J C Pritchard
Solicitors:
Appellant : Naveen Pillay
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292
Brown v West (1990) 169 CLR 195
Koh, unreported, PE40274/03; 2 February 2004
Newcastle City Council v GIO General Ltd (1997) 191 CLR 85
O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356
(Page 3)
Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184
Thompson v Goold & Co [1910] AC 409
Workers Compensation Board of Qld v Technical Products Pty Ltd (1988) 165 CLR 642
Case(s) also cited:
Nil
(Page 4)
1 ROBERTS-SMITH J: This appeal is from a decision of his Worship Mr M Wheeler SM in the Fremantle Court of Petty Sessions made on 16 April 2004 and concerns a challenge to the validity of conditions expressed to be imposed upon the ownership of taxi licence plates by the Department of Transport ("the Department") for what was referred to as a "peak period taxi".
2 The appellant, who was the defendant before the learned Magistrate, was issued with taxi licence plates ("taxi plates") number 3103 in June 2000. One of the conditions upon which the plates were said to be issued was condition 6.4 of the Department's "Taxi Plate Ownership Conditions" as at 1 February 2000, which stated that:
"At all times other than at the times permitted by condition 1.1, any exterior roof sign on the taxi shall be fully covered or removed."
3 A traffic infringement notice was initially issued against the appellant on 30 December 2003, charging him that on 5 September 2003 he failed to comply with a taxi plate condition contrary to s 20(2) of the Taxi Act 1994 (the Taxi Act").
4 The appellant did not pay on that notice and a summons on complaint subsequently issued.
5 The facts as set out in the statement of facts before the Court of Petty Sessions were as follows:
"The defendant is the owner of taxi plate number 3103. Taxi plate ownership conditions have been imposed on taxi plate number 3103 pursuant to s 20(1) of the Taxi Act 1994. Condition 6.4 states:
At all times other than at the times permitted by condition 1.1 any exterior roof sign on the taxi shall be fully covered or removed.
Condition 1.1 provides that the taxi (which is a peak period taxi)may only operate between the hours of 5 pm on Friday and 6 am on the following Saturday, between the hours of 5 pm on Saturday and 6 am on the following Sunday, at any time between the hours of 6 pm on the 31st December and 6 am on the 1st January or at any such other times as are approved by the Director General and notified in writing to plate owner.
(Page 5)
- Further, pursuant to condition 6.4 any exterior roof sign on the taxi must be fully covered or removed at all times other than the times permitted by condition 1.1.
At 0925 hours on Friday 5 September 2003, Taxi 3103 was parked at the Northlands Shopping Centre, Balcatta, with the taxi roof sign uncovered. Pursuant to condition 1.1, Taxi 3103 was not permitted to operate at that time. Therefore, the taxi roof sign had to be fully covered or removed. The taxi had been driven to the shopping centre by a registered taxi driver, Victor Seotis, and not by the defendant.
An infringement notice in the sum of $250.00 was issued and the defendant has sought to have the matter dealt with by the Court."
6 The appellant does not dispute that his vehicle was parked at the time and date and in the condition as alleged in the statement of facts.
7 The learned Magistrate found the charge proved, convicted the appellant and (having regard to previous convictions) imposed a fine of $500.
8 The appellant filed an application for leave to appeal on 6 May 2004. Barker J gave leave to appeal on 23 July 2004 in respect of the following grounds of appeal:
"1. The Learned Magistrate erred in law and in fact in his interpretation of Section 20 of the Taxi Act 1994 ('the Act') in holding that the Director General of Transport was empowered by S.20 of the Act to impose conditions on Restricted Taxis in the absence of the creation of the class of Restricted Taxis pursuant to S.40 of the Act by prescription.
2. The Learned Magistrate erred in law and in fact in holding that the Taxi Plate Ownership Conditions dated the 16th February 2000 purportedly imposed by the Director General applied to the Applicants [sic] Taxi Plate No 3103 notwithstanding that the said Conditions failed to specify the Taxi Plate number to which the Conditions specifically allegedly applied.
(Page 6)
- 3. The Learned Magistrate erred in law and in fact in his interpretation of S.20(1)(d) of the Act in holding that the requirement to cover the roof sign on a Restricted Taxi as contained in the Taxi Plate Ownership Conditions was properly made under S.20(1 )(d) of the Act.
4. The Learned Magistrate erred in law and in fact in his interpretation of the document entitled 'Taxi Plate Type Restricted Conditions as at 1 February 2000'. His Worship should have held that the Conditions should be read together with the Department of Transport's Tender 35/00 and interpreted the Conditions as (i) requiring that the Applicant's taxi operate for a minimum of 26 hours per week including between the hours of 5.00 p.m. on Friday and 6.00 a.m. on the following Saturday and 5.00 p.m. Saturday and 6.00 a.m. the following Sunday; and (ii) permitting the Applicant's taxi to operate at any time between the hours of 6.00 p.m. on the 31st December and 6.00 a.m. on the 1st January."
9 The appeal was heard before me on 27 October 2004.
10 Ground 4 was abandoned at the hearing.
11 I shall begin by outlining the circumstances and broad legislative framework in which the plates were issued before turning to more detailed reference to legislation and the submissions of the parties.
12 The taxi industry in Western Australia is regulated by and administered under the Taxi Act. The administration of the Taxi Act falls within the responsibility of the Department, the Chief Executive Officer of which is the Director General ("the Director General"). One of the functions of the Director General is to advise the Minister as to the most effective way of ensuring the provision of adequate and efficient taxi services to the public (s 7).
13 The broad scheme of the Taxi Act is that a vehicle may not be operated as a taxi unless it is operated using taxi plates and in accordance with the Act.
14 Taxi plates may be offered by the Department for sale or lease. As to the former, s 16(1) stipulates that:
(Page 7)
- "(1) Taxi plates shall be offered for sale by public tender, with the invitation to tender specifying -
(a) the criteria to be met by the successful tenderer;
(b) the minimum tender, if any, which will be accepted; and
(c) the conditions to be imposed on the operation of a taxi using the plates which are being offered for sale."
16 Part 5 of the RFT was headed "GENERAL Conditions of Contract - ANNEXURE". It stated that the annexure was to form part of and be read in conjunction with Taxi Plate Ownership Conditions (Restricted).
17 Paragraph 5.3, headed "General Conditions Of Contract", commenced with the words:
"The contract shall be subject to the Taxi Plate Ownership Conditions (Restricted), 1 February 2000."
18 Those conditions were attached as an annexure to the RFT. The front page of that document bears the following:
TAXI PLATE OWNERSHIP CONDITIONS
These conditions are imposed pursuant to section 20(1) of the Taxi Act 1994 on the operation of the taxi using the above identified taxi plates.
TAXI UNIT DEPARTMENT OF TRANSPORT
Approved
(Page 8)
Reece Waldock
Executive Director, Metropolitan
Signed Dated
19 Part A of the conditions stated that:
"These conditions apply to all Restricted taxi plates, (also known as Peak Period or Area Restricted Taxis), as defined in Regulation 3 of the Regulations which were issued by the Department's Tender No. 35/00."
20 Part C set out the conditions. Clause 1 related to areas, hours and conditions of operation, cl 2 contained conditions in respect of metered taxi fares, cl 3 covered contract taxi fares, cl 4 is headed "Driver Qualifications", cl 5 is headed "Driver Standards" and cl 6 is headed "Vehicle Standards".
21 Other clauses set out conditions in relation to inspection requirements (cl 7), insurance requirements (cl 8), record keeping (cl 9) and prohibited the transfer, sale or lease of taxi plates (cl 10 and cl 11).
22 Mr Reece Waldock was an Executive Director of the Department. He approved the conditions, exercising a power delegated to him by the Director General pursuant to s 6(2) of the Taxi Act. No issue is taken about that.
23 The appellant submitted his tender to the Department dated 25 February 2000. It is stamped as having been received on 23 March 2000.
24 By his tender, the appellant offered to purchase one set of "Restricted Taxi Plates" from the Director General for $1010.
25 The tender document signed by the appellant contained the following paragraph:
"The Tenderer confirms acceptance of:
i) …
(Page 9)
- ii) the terms and conditions of the Tender Document, including the Conditions of Contract and the Special Conditions of Contract, as applying to the Contractor (plate owner/operator); and
iii) …".
26 By letter dated 16 May 2000 Mr Waldock accepted the appellant's tender, subject to successful completion of all requirements of the tender. The letter stated that if the appellant wished to accept the offer and could complete all the tender requirements, one set of restricted taxi plates would be issued in his name. The contract was to consist of the letter of acceptance, the RFT (including the conditions), the appellant's tender and the $1000 deposit required under the contract. The Department's acceptance of the tender was conditional upon the appellant successfully completing current taxi driver training requirements. The letter stated that one set of restricted taxi plates would be issued and licensed only if and when various requirements had been met, including payment of the fee and the signing by the appellant of the restricted taxi plate ownership conditions dated 1 February 2000.
27 The process was completed on 29 June 2000. On that date the appellant signed the declaration on the conditions document confirming (inter alia) his understanding that a failure to comply with any part of the conditions was an offence under the Taxi Act and acknowledging that he had read the declaration and conditions and received a copy of the restricted taxi plate ownership conditions.
28 Below the appellant's name and signature the date was written and below that against the printed words "Taxi Plate Number" was written the number "3103". The name of a witness and the witness' signature appear below that.
29 The plates issued to the appellant on 29 June 2000 were in fact for number 3103. He was also given a certificate of ownership which read:
"THIS IS TO CERTIFY THAT
Shane Hewitt
___________________________________________________
OWNS TAXI PLATE NUMBER
(Page 10)
PEAK PERIOD TAXI
The right to Taxi Plate Ownership shall not be sold or transferred without the prior approval of the Transport Taxi Unit.
This Taxi Ownership is not financially encumbered.
The taxi plates attached to the Taxi Plate Ownership must be operated in accordance with the conditions of ownership which are contained in a separate document.
Rob Leicester
Taxi Unit Manager
29 June 2000"
Ground 1 - Power of Director General under s 20(1) not enlivened
30 The relevant conditions were expressed to have been imposed under s 20(1) of the Taxi Act. That section reads as follows:
"(1) The Director General may impose conditions on the operation of a taxi using specified taxi plates in relation to -
(a) the area in which, and the hours during which the taxi may be operated and the hours during which the taxi must be operated;
(b) fare schedules;
(c) driver qualifications and standards;
(d) vehicle standards and inspection requirements;
(e) insurance requirements;
(f) record keeping;
(g) complaint resolution;
(h) the transfer of the taxi plates,
(Page 11)
- and such other matters as may be prescribed by regulation." (My emphasis)
31 As senior counsel for the appellant, Mr Percy QC, pointed out, the term "peak period taxi" is not defined in the Taxi Act, nor in the Taxi Regulations 1995 ("the Regulations").
32 This is so notwithstanding the fact that when the Taxi Act was enacted in 1994, it was in a context in which one of the perceived problems with the industry was the lack of sufficient taxis to meet customer demand at peak periods, especially on Friday and Saturday nights.
33 Section 40 of the Taxi Act gives the Governor power to make regulations:
"The Governor may make regulations prescribing all matters that are required or permitted by this Act to be prescribed, or are necessary or convenient to be prescribed for giving effect to the purposes of this Act and in particular …".
34 There is then listed a number of specific matters from (a) to (n).
35 Of note for present purposes is s 40(b):
"prescribing classes of taxis by reference to restrictions on the manner in which or the purposes for which taxis of those classes may be operated".
36 And s 40(g):
"prescribing matters with respect to which conditions may be imposed under section 20(1) or 29(1)".
37 Mr Percy QC submitted that the concept of a restricted taxi or a peak period taxi could have been regulated by regulations made under s 40(b), but that was not done.
38 For the appellant it was submitted that although the Regulations refer to different types of taxi, the only type of taxi actually prescribed for the purposes of s 20 is the "multi-purpose taxi". Then it was said the importance of this is that the Director General has no power to impose conditions under s 20 of the Taxi Act except in relation to categories of taxi which have been regulated or prescribed by the Governor under
(Page 12)
- s 40(g). In short, the submission was that s 20 does not give the Director General a general power to impose conditions on the operation of taxis.
39 There is no relevant definition in s 3(1) of the Taxi Act.
40 Regulation 3 of the Regulations contains the following relevant definitions:
"'multi-purpose taxi' has the meaning given by regulation 5(1); …
'restricted taxi' means a vehicle, other than a metered taxi or a multi-purpose taxi, which is fitted with a meter and which, as a condition of its operation, may only operate during specified times or within specified parts of a control area; …"
41 Regulation 5 is headed "certain classes of taxis and conditions which may be imposed prescribed".
42 Regulation 5(1) states that a multi-purpose taxi is a vehicle which is fitted with a meter in order to operate as a taxi, is intended principally for the transport of persons with a disability and any wheelchairs or other aids required by those persons and the operation of which is subject to conditions referred to in subregs (2), (3) and (4).
43 It is noteworthy that those subregulations each begin with the words "for the purpose of section 20 the Director General may impose conditions on the operation of a multi-purpose taxi …" and then refer to requirements to give priority to persons who have a disability and restrictions to particular taxi despatch service providers and the minimum number of occasions each month on which the taxi is to be hired for the transport of persons who use wheelchairs, respectively.
44 Likewise reg 5A provides that for the purposes of s 20(1), the leasing of the taxi plates from a plate-holder who is the owner of the plates is a matter in relation to which the Director General may impose conditions on the operation of a taxi using specified taxi plates.
45 Regulation 5B (now repealed) began similarly, with the words "For the purposes of section 20(1), the following matters are matters in relation to which the Director General may impose conditions on the operation of a taxi using specified taxi plates" - they being the leasing of the taxi and the taxi plates used on it.
(Page 13)
46 Mr Percy QC submitted that although "restricted taxi" is defined in reg 3, the term is not the subject of any prescription in the substantive regulations. To put it another way, unlike the express description of matters which reg 5(2), (3) and (4) say may be made the subject of conditions prescribed by the Director General for the purposes of s 20(1), there is no equivalent provision in respect of "restricted taxi", with the consequence that the Director General's power to make conditions in respect of "restricted taxis" (which would include those generally described as "peak period taxis") under s 20(1) is not enlivened.
47 It is true that there is no regulation which deals with the class or category of "restricted taxi" in the same way subregs (2), (3) and (4) of reg 5 deal with "multi-purpose taxi".
48 Indeed, the only reference to "restricted taxi" to be found in the Regulations is reg 6(2) which imposes a limit on the number of sets of taxi plates which may be issued for multi-purpose taxis and restricted taxis combined, and in reg 19(3)(c) and (d). The latter also seems to embody a definitional element.
49 Regulation 19 concerns in part the fee payable in respect of the transfer of the ownership, or an interest in the ownership, of taxi plates. The regulation prescribes a fee of 2.5 per cent of the value of the transferor's interest in the plates. Subregulation (3) goes on to prescribe how the value is to be calculated for the different categories of taxi plates. Subregulations (c) and (d) deal with plates for "restricted taxi", and each commences with the words:
"the value of taxi plates, for a restricted taxi (which, as a condition of its operation, may only operate during specified times in a control area) …".
50 Ms Pritchard, for the respondent, submitted that the wording of s 20(1) and s 40 makes it clear the power given to the Director General by the former provision is a "free-standing" power discrete from the making of any regulation under the latter. That is to say, it is not necessary for regulations to be made under s 40 prescribing, for example, particular classes or categories of taxi before the Director General may validly impose conditions under s 20(1).
51 In my opinion, this submission must be accepted.
52 There is no requirement to be discerned from s 20(1) that the Governor must make regulations creating a class of taxi before the
(Page 14)
- Director General can impose conditions under that section "on the operation of a taxi using specified taxi plates" in relation to the matters adumbrated in the section.
53 On a plain reading of s 20(1) and s 40(g), I think it clear beyond question that s 40(g) refers to the power for the Regulations to specify matters additional to those listed as (a) to (h) inclusive, in respect of which the Director General may impose conditions under s 20(1). The latter empowers the Director General to impose conditions in relation to the matters adumbrated "… and such other matters as may be prescribed by regulation". It is to the prescription of "such other matters …" that s 40(g) is directed. That section contemplates an expansion of the power in s 20(1), it does not (and could not) impose a constraint upon the power expressly granted in s 20(1) itself.
54 There are other considerations leading to the same conclusions.
55 The first is that the appellant's submission requires the implication of additional words into the text of s 20(1).
56 In effect, the submission requires that the section be read as meaning "the Director General may impose conditions on the operation of a taxi of a prescribed class using specified taxi plates …".
57 It is a well-established principle of statutory construction that words will not be implied into a legislative provision unless there is a clear necessity to do so in order to give sense or effect to it (per Lord Mersey in Thompson v Goold & Co [1910] AC 409, 420), or to use the more careful expression, to give effect to its underlying purpose or object (see Pearce and Geddes "Statutory Interpretation in Australia", 5th ed, [2.27]).
58 This is not a situation in which the legislative purpose cannot be achieved unless the words suggested are implied in s 20(1) (cf McHugh JA (as he then was) in Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292, 302 and on the High Court in Newcastle City Council v GIO General Ltd (1997) 191 CLR 85, 113 - 117). The section operates entirely sensibly and effectively and gives effect to the purpose and object of the Taxi Act as it stands.
59 The second additional consideration was that were the appellant's submission to be correct, the Director General would presently have no power to impose conditions under s 20(1) in respect of any taxi other than multi-purpose taxis, they being the only category dealt with in the
(Page 15)
- Regulations in the manner described above. This would be a reflection of what would necessarily flow from acceptance of the appellant's proposition, namely that s 20(1) would have no operation whatsoever unless and until the Governor had made regulations under s 40(g). That result would be inconsistent with the wording and purpose of the provision and would fail to give effect to the clear legislative intent.
60 As the decision of the learned Magistrate on this point following a submission of no case to answer was that the fact the Governor had not made regulations under s 40(g) did not mean s 20 was invalid [sic] (AB87), by which I understand his Worship to mean, ineffective, in that until then the Director General could not impose conditions, for the foregoing reasons ground 1 must fail.
Ground 2 - Conditions failed to specify the taxi plates to which they applied
61 In advancing this ground, Mr Percy QC said there was a difference of opinion between Magistrates in the Court of Petty Sessions on the question whether, if there be a valid power in the circumstances for the Director General to impose conditions under s 20(1), it could only be one to attach conditions to specific taxi plates, or whether such conditions could be imposed to taxi plates generally of a specific class. He instanced the decision of his Worship in this case, holding that the Director General may impose conditions on the operation of a taxi using specified taxi plates "which can be a group, can be a type of plate …" (AB88) and a decision of his Worship Mr Bromfield SM in the matter of Koh, unreported, PE40274/03; 2 February 2004 in which his Worship held s 20 requires the Director General to specify to [sic] which particular taxi plates the conditions are imposed (ibid, transcript page 56).
62 I do not propose to canvass the decision in Koh. Suffice to observe the case turned on the evidence led, which was different in significant respects from that led in the instant case. In any event, the point was raised with me only to show there was some difference of judicial opinion about it in the Court of Petty Sessions.
63 Section 20 relates to the imposition of conditions to the operation "… of a taxi using specified taxi plates …". In its terms then, the provision enables the Director General to impose such conditions in respect of the operation of a particular taxi using specified taxi plates. The question, it seems to me, is whether that is the only way in which conditions may be imposed under s 20.
(Page 16)
64 Part II of the Interpretation Act 1984 (WA) contains general interpretation provisions applicable to written laws. That Part contains s 10, which provides that in any written law words in the singular number include the plural and words in the plural number include the singular (s 10(c)). Section 20(1) must therefore be read as including reference to the operation of "taxis using specified taxi plates".
65 By s 3 of the Taxi Act, "taxi plates" are defined as meaning "a set of taxi numberplates issued under s 18". That section refers to the issue of taxi plates in respect of a tender or application.
66 It is the particular taxi plates which are to be specified under s 20(1), not the class, category or type of taxi plates.
67 It follows that the Director General may impose conditions generally or individually on taxis using specified taxi plates - but in either instance the particular taxi plate number or numbers must be specified.
68 The question then becomes whether that was done here.
69 The evidence was that on 16 February 2000 the Executive Director approved conditions dated 1 February 2000. That generic document stated:
"These conditions are imposed pursuant to section 20(1) of the Taxi Act 1994 on the operation of the taxi using the above identified taxi plates."
70 However, no particular taxi plates were identified. All that was "above identified" was the description "taxi plate type: restricted".
71 The wording on the front page of the conditions and in Part A indicates the Department considered the Executive Director's approval in that way was an exercise of the power in s 20(1). But it could not have had that legal effect, because the approval did not specify the "particular" taxi plates to which the conditions applied. If that was all that had been done, the conditions would not have been a valid exercise of the power.
72 That, however, was not all that was done.
73 The RFT stipulated (at cl 5.3) that the contract for the sale of the taxi plates "shall be subject to" the conditions of 1 February 2000. The clear intent was that if and when the taxi plates were sold to the appellant, they would subject to those conditions.
(Page 17)
74 Ms Pritchard submitted that the tender process culminated with the imposition of the conditions at the time the sale of the taxi plates to the successful tenderer was completed, and not before. I accept that submission.
75 The effect of the process was that the Department was able to identify what conditions would be imposed on acceptance of the tender, by reference to those which had been approved by the Executive Director. The appellant was in that way fairly on notice of what conditions would be imposed.
76 It is consistent with the scheme of the Taxi Act that an applicant for the purchase of taxi plates should be informed in advance of the conditions to be imposed. That is because, although persons who owned taxi plates when the Taxi Act came into operation were given a right of review to the Local Court in respect of the imposition of conditions by the Director General (s 20(4)), persons who acquire taxi plates after that date are given no such right. That is obviously because the Taxi Act assumes any person tendering for the purchase of taxi plates after the Taxi Act came into operation, would be aware of the conditions to which they would be subject and could choose to proceed with the tender or not.
77 I am satisfied that whatever belief the Department may have had as to the legal efficacy of the conditions of 1 February 2000 following their approval by the Executive Director on 16 February 2000, they were incorporated into the RFT as conditions to which it was intended the taxi plates would be subject once sold to the successful tenderer, and they were so imposed in respect of those taxi plates upon culmination of the tender process, with the completion of the sale to the appellant on 29 June 2000. That then was the relevant point at which it was necessary for the conditions to be imposed in respect of "specified taxi plates".
78 In this case, the evidence before the learned Magistrate established that the conditions were imposed in respect of taxi plates number 3103, they being the plates sold to the appellant.
79 The conditions attached to the RFT document were proposed to apply to tender 35/00. The contractual documents included the conditions, the appellant's acknowledgment and acceptance of them and specified the taxi plates the subject of the sale (and to which the conditions therefore applied). The learned Magistrate was correct to so find and this ground must accordingly fail.
(Page 18)
Ground 3 - Condition requiring roof sign be covered or removed not one in relation to "Vehicle Standards"
80 The condition appears in cl 6, which is headed "Vehicle Standards", and therefore s 20(1) was apparently relied upon for its validity. The learned Magistrate held it to be a valid exercise of power on that basis.
81 For the appellant it was submitted that a requirement as to when a taxi roof sign must be covered from view or removed is not a "vehicle standard" and the condition was accordingly ultra vires s 20(1)(d). The submission was that the term "vehicle standards" applies essentially to matters of cleanliness and hygiene, repair and mechanical condition of the vehicle.
82 The term "vehicle standards" is not defined in the Taxi Act, nor the Regulations and nor were counsel able to refer to any authority on the meaning of it.
83 In his ruling on the no case submission the learned Magistrate adopted the definition in the Australian Concise Oxford Dictionary, which he quoted as (AB 85):
"A standard is an object or quality or measure serving as a basis of example, or principle, to which others conform, or should conform, or by which the accuracy or quality of others is judged" -
84 and held the term encompassed not only mechanical aspects but also things in presenting and operating a taxi, such as appearance, fit-out and accoutrements. His Worship held that accoutrements would include a sign.
85 The word "standard" in its ordinary meaning embodies the notion of appointed comparison or judgment, or, as his Worship held, of an object or quality to which others conform (see the Macquarie Dictionary, 3rd ed).
86 In this context the standard must be one which pertains to the vehicle. The requirement to cover or remove the sign is one which does pertain to the vehicle.
87 For the respondent it was submitted that the requirement that the sign be covered or removed at particular times is a quality which permits a comparison or judgment to be made about the vehicle's condition or
(Page 19)
- appearance and so falls within what is contemplated by the word "standard". I have some difficulty with this submission.
88 Section 20(1)(d) seems to me to be directed to the standard of a vehicle which is being operated as a taxi, while it is being operated as a taxi. Condition 6.4 imposes a requirement that any exterior roof sign be covered or removed when the vehicle is not being used as a taxi. I do not think that can be said to be a condition going to the standard of a vehicle in relation to its use as a taxi, nor at all.
89 Notwithstanding that something is expressed to believed to be done in reliance upon a particular head of statutory power which does not in fact in law support it, the exercise of power will nonetheless be valid if it falls within another statutory head of power given to the particular person or entity (see Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 (at [40] per Kirby J). In Brown v West (1990) 169 CLR 195 the High Court held (at 203-204) that the validity of a decision is unaffected by a mistake by the decision-maker as to the source of the power to make it.
90 Section 20(1) authorises the Director General to impose conditions "in relation to" the matters adumbrated. The phrase "in relation to" requires a relationship between the condition and the nominated subject matter. The condition must bear upon or concern the subject matter nominated in the following paragraphs of s 20(1) directly or more than merely incidentally (see McHugh J in O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356 at 377 and Worker' Compensation Board of Qld v Technical Products Pty Ltd (1988) 165 CLR 642 per Deane, Dawson and Toohey JJ at 653, discussing the words "in respect of").
91 There is a relationship between condition 6.4 and the hours during which the taxi may be operated.
92 Condition 1.1 sets out the times during which the taxi was permitted to be operational. By requiring the exterior roof sign of the taxi to be covered or removed other than at the times the taxi was permitted to be operating in accordance with condition 1.1, condition 6.4 was directed to ensuring that the taxi operated as such only during the designated times.
93 Condition 6.4 bears a direct relationship to the hours during which the taxi may be operated as such and so fell within the power given to the Director to impose conditions under s 20(1)(a) of the Taxi Act.
(Page 20)
94 The imposition of condition 6.4 was accordingly a valid exercise of power and the learned Magistrate was right to hold it to be a valid exercise of power, although not for the reason he gave.
95 It follows that this ground too must fail and the appeal must therefore be dismissed.
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