Hoballah v Department of Transport & Infrastructure - [2010] NSWADT 294

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CITATION: Hoballah v Department of Transport & Infrastructure [2010] NSWADT 294

DIVISION: General Division

PARTIES:
APPLICANT
Ali Hoballah
RESPONDENT
Department of Transport & Infrastructure

FILE NUMBER: 103168

HEARING DATES: 24 November 2010

SUBMISSIONS CLOSED: 8 December 2010

DATE OF DECISION:
10 December 2010

BEFORE: Molony P - Judicial Member

CATCHWORDS: Passenger Transport Act - Taxi driver - cancellation of authority – conditions of authority

LEGISLATION CITED: Passenger Transport Act 1990
Passenger Transport Regulation 2007
Passenger Transport (Taxi-cab Services) Regulation 2001
Administrative Decisions Tribunal Act 1997
Interpretation Act 1987
Road Transport (Driver Licensing) Act 1998

CASES CITED: Alghunmeen v Department of Transport & Infrastructure [2009] NSWADT 328
Chen v NSW Transport and Infrastructure [2009] NSWADT 285
Lamb v Ministry of Transport [2005] NSWADT
Akram Mikhail v Ministry of Transport — 28 October 2005
Project Blue Sky v. Australian Broadcasting Authority [1998] HCA 28

REPRESENTATION:
APPLICANT
M Ayache
RESPONDENT
A Wozniak, solicitor

ORDERS: This application is adjourned for directions on 14 December 2010

REASONS FOR DECISION

Background

1 Mr Hoballah held of an authority to drive a public passenger vehicle (a taxi-cab) under the Passenger Transport Act 1990 issued by the Director-General of Department of Transport and Infrastructure (the Administrator). On 26 July 2010 the Administrator cancelled that authority under s 33F of the Act.

2 On the next day Mr Hoballah applied for review of that decision by this Tribunal and sought and was granted a stay of the Administrator’s decision to cancel his authority.

3 The hearing of Mr Hoballah’s review application was listed before Judicial Member Montgomery on 11 October 2010. At that time Mr Hoballah’s circumstances had changed in that his driver’s licence, which had previously been a full licence, was now condition on his good behaviour for 12 months from 30 August 2010. This came about as a result of him electing to have good behaviour conditions attached to his licence, rather than face a demerits points suspension of his drivers licence.

4 As I understand it, at the hearing on 11 October 2010 the Administrator argued that, irrespective of the merits of the original cancellation, the Tribunal was in any case bound to cancel Mr Hoballah’s authority on the ground that he no longer satisfied the conditions of his authority. The condition which Mr Hoballah was said to no longer satisfy was that contained in clause 29(2)(b) of the Passenger Transport Regulation 2007. This requires, among other things, that an applicant for an authority to drive a public passenger vehicle must hold a drivers licence that is not “a conditional licence (other than a conditional licence the sole condition of which is that the holder must wear corrective lenses at all times while driving).”

5 In support of this contention the Administrator relied on two published decisions of this Tribunal: Lamb v Ministry of Transport [2005] NSWADT 82 (a decision of mine) and Alghunmeen v Department of Transport & infrastructure [2009] NSWADT 328 (a decision by Judicial Member Grant). The Administrator also relied on an unpublished ex tempore decision of Deputy President Handley in Akram Mikhail v Ministry of Transport — 28 October 2005.

6 As Mr Hoballah’s representative was not in a position to respond to those submissions at that time the hearing was adjourned. The Tribunal also lifted the stay ordered 27 July 2010. While it is not apparent from the Tribunal’s notes of that hearing, the representatives of both parties advised me that the adjournment was so that a preliminary hearing could take place to determine whether Mr Hoballah could continue to hold an authority if he did not satisfy the condition in clause 29(2)(b) of the regulation. Mr Hoballah submitted that clause 29(2)(b) does not apply to a person who is already the holders of an authority to drive a public passenger vehicle, and only applies to applicants for such an authority.

7 The parties formulated the question to be determined thus –

Passenger Transport Regulation 2007 ("the Regulation")

8 Section 4 of the Act defines public passenger vehicle:

public passenger vehicle

9 Section 33 of the Act makes provision for the issue of, and purposes of, authorities to drive a taxi-cab. It provides:

10 Section 33A is concerned with applications for authorisation:

11 Section 33B deals with the grant or refusal of an application:

12 Clause 27 of the Regulation defines public passenger vehicle for the purposes of Part 3 of the Regulation (cl 27 to 33) thus: “public passenger vehicle means a public passenger vehicle other than a ferry.”

13 Clause 4 of the Regulation defines drivers licence thus:

“driver licence

Road Transport (Driver Licensing) Act

14 The Dictionary to the Road Transport (Driver Licensing) Act 1998 contains the flowing definition:

driver licence

15 There is no definition of driver licence in the Act.

16 Clause 29 sets out additional criteria for authorisation to drive a public passenger vehicle. It provides:

Australian driver licence

17 Section 33C makes provisions with respect to the terms of, and renewal of, authorities:

18 Section 33D provides for the conditions of an authority:

19 Aside from clause 29(2) of the Regulation – which the Administrator submits contains conditions on authorities – there are no conditions prescribed in the Regulation. Section 33E does provide statutory conditions regarding network directions:

20 Section 33F is concerned with the cancellation or suspension of an authority:

Having regard to the purpose of authorisation under this Division, the Director-General may at any time vary, suspend or cancel any person’s authority under this Division.

21 Finally, Clause 31(5) of the Regulation is concerned with the impact of a licence cancellation or suspension on an authority. It provides:

(5) A person’s authority to drive public passenger vehicles and driver authority card do not have any effect, either for the purposes of the Act or for the purposes of this Regulation, while the person’s driver licence is cancelled, suspended or expired, or while the person is otherwise disqualified from driving a motor vehicle.

The Decided Cases

22 The first in time is the decision Lamb v Ministry of Transport [2005] NSWADT 82 decided in April 2005. Relevantly, Mr Lamb had elected to have good behaviour conditions placed on his licence rather than face a demerits point suspension on 28 May 2004. His authority was cancelled on 28 July 2004 on the ground that, among other things, he had driven a taxi-cab while his licence was suspended. He sought and was granted a stay of that cancellation on 5 October 2010. Before the Tribunal heard his substantive review application his authority expired. When the matter came before the Tribunal to review the decision to cancel his authority his licence was still subject to good behaviour conditions.

23 At paragraph [24] of my reasons for decision I wrote:

Passenger Transport (Taxi-cab Service) Regulation

24 Clause 33 of the Passenger Transport (Taxi-cab Service) Regulation 2001 is replicated in clause 29 of the present Regulation. Clause 79(5) of the old regulation is similar to but not the same as clause 31(5) of the present Regulation.

25 Mikhail v Ministry of Transport, 28 October 2005 concerned an authority to drive a private hire vehicle and a taxi-cab, both public passenger vehicles. Section 40 to 40E make similar provisions with respect to private hire car drivers, as do sections 33 to 33E with respect to taxi-cab drivers. Clause 29 of the Regulation applies to all authorities to drive a public passenger vehicle.

26 While the holder of a taxi-cab authority Mr Mikhail elected to have good behaviour conditions attached to his licence for 12 months commencing on 29 June 2005. In 22 September 2005 Mr Mikhail’s authority was cancelled for other reasons and he sought external review. Deputy President Handley said:

Passenger Transport Taxicab Services Regulation

assenger Transport Private Hire Vehicle Services Regulation

27 As a consequence the Tribunal found that Mr Mikhail was “not qualified to hold” either authority because his licence was conditional.

28 In Alghunmeen v Department of Transport & infrastructure [2009] NSWADT 328 the Applicant’s taxi-cab authority was cancelled on the basis that he had been driving a taxi-cab while disqualified from driving and that his driving record was unsatisfactory. At hearing on 27 August 2009 the Tribunal was satisfied that the Applicant had not held a driver’s licence from 6 June 2007 until 7 May 2009. Judicial Member Grant said:

30 … The consequence of this is that he does not meet the criteria set out in clause 29(2)(c), that an applicant must have held an Australian driver’s licence for a total of at least 12 months in the two years immediately preceding the date of the application.

31 I accept the Respondent’s submissions that clause 29(2)(c) applies to both new drivers and existing drivers.

32 I am supported in this view by the observations of Judicial Member Moloney [sic] in the decision of Lamb v Ministry of Transport [2005] NSW ADT 82, when ruling on an application to review a decision of the Ministry of Transport to cancel Mr Lamb’s taxi driver authority. Mr Lamb was 79 years old and had been driving taxis for many years when the Director-General of the Ministry of Transport decided to cancel his taxi authority because the Administrator was satisfied that Mr Lamb had been driving taxis while his driver’s licence was suspended and had failed to notify the Ministry of a series of penalty notices he had received for driving offences.

“I would add that even if that were not the case, Mr Lamb would also now be ineligible to apply for a licence under clause 33 of the Regulation, both because he does not now hold an unconditional driver’s licence, and because he has not now, as a result of the suspensions, held a licence for a total of at least 12 months in the 2 years.”

Lamb

Akram Mikhail v Ministry of Transport

29 While not initially referred to by the parties, I think reference should also be made to my decision in Chen v NSW Transport and Infrastructure [2009] NSWADT 285 in which I considered the operation of clause 31(5) of the present Regulation in the light of the decision in Lamb. I wrote, at [18] and at [25-26] :

18. As a result she does not hold a licence which would enable her obtain an authority were she now to apply for one. Her licence is a conditional licence and does not satisfy the requirements of clause 29(2)(b). In those circumstances, given the objects of the Act and the requirements of clause 29(2)(b), I could not, on review, attest that she had sufficient aptitude to drive a bus in accordance with the conditions under which bus services operate, or in accordance with law or custom. As a result, irrespective of the merits of the infringements which led to the initial decision to cancel her authority, I could not, having regard to the purposes of the authority, do other than agree with the decision to cancel her authority, albeit for different reasons.
…
23 In Lamb I found that the Applicant did not hold a drivers licence within the meaning of Clause 33 of the Passenger Transport (Taxi-cab Service) Regulation 2001 (the equivalent of clause 29 of the present Passenger Transport Regulation 2007) because his licence was conditional. As a result clause 79(5) (clause 31(5) of the present Regulation is similar but not identical) operated to make his authority ‘ineffective’. Mr Wozniak also relied on that decision to submit that I should affirm the decision to cancel Mrs Chen’s authority.
…
25 I am not, on reflection, persuaded that clause 39(5) has the effect I attributed to its predecessor in Lamb. I would add that if Mrs Chen had not made a double or nothing election her authority clearly would have been ineffective under this provision.

30 The references in the last quoted paragraph are to the purposes of an authority as set out in the Act, to which the Administrator is to have regard when considering whether to cancel, suspend or vary an authority.

The Submissions

31 In his submission Mr Ayache argued that on its proper construction clause 29 of the Regulation does not apply to existing holders of a public passenger vehicle driver authority, but only to applicants for such an authority. In support of this proposition reference was made to wording of clause 29(1) which provides that “for the purposes of sections 12 (2), 33B (2) and 40B (2)” the criteria which an “applicant” for a public passenger vehicle authority must meet before “the application is granted” are those set out in sub clauses (2) to (4). Sub clause (2) then sets out a number of requirements which “the Applicant” must satisfy including that relating to an unconditional licence in sub clause (2)(b). He also observed that sub clause 2(c) specified that time for which an applicant must have held a licence “in the two years preceding the date of the application.”

32 Mr Ayache drew attention to the fact that clause 29 is made for the purposes of s 33(B)(3) which empowers the Administrator to “grant an application and authorise the applicant to drive a taxi-cab, or may refuse the application.”

33 He submitted that a plain reading of these provisions led to the conclusion that an applicant “means an individual named in an application for an authority to drive a public passenger vehicle”, and that clause 29 does not apply to an individual who already holds an authority to drive a public passenger vehicle. As a result he submitted that clause (29)(2) had no application to existing authority holders. He relied on the ordinary understanding of the word “applicant” to support this.

34 He relied on the passage cited form my decision in Lamb. He submitted it was correctly decided because at the time of the Tribunal’s decision Mr Lamb’s authority had expired, and he was therefore an applicant for an authority, and therefore had to satisfy the requirements of clause 29(2).

35 In contrast he argued that the decision in Mikhail should not be followed as it contained a misstatement of the law in that the Tribunal had said that clause 33 of the old Regulation required that “the person” must hold a drivers licence. This, he submitted is not the case. Clause 33 (now clause 29) required that the applicant hold a licence. I have checked clause 33(2) of the Passenger Transport (Taxi-cab Services) Regulation 2001. It like the present clause 29(2) required that the applicant hold a driver licence.

36 With respect to the decision in Aighunmeen Mr Ayache argued that in finding that “clause 29(2)(c) applies to both new drivers and existing drivers” the Tribunal had relied on Mikhail and Lamb. He submitted that Lamb did not support that view, relying on my statement that, “Mr Lamb would also now be ineligible to apply for a licence under clause 33 of the Regulation both because he does not now hold an unconditional drivers licence and because he has not now, as a result of the suspensions, held a licence for a total of at least 12 months in the 2 years.” He submitted that the Tribunal’s reference to the fact that Mr Lamb was a new driver was incorrect, and did not take cognizance of the fact that Mr Lamb’s authority had expired and that therefore, if seeking an authority, he would be an applicant.

37 I invited both parties to make further submissions as to effect, if any, of the decision in Chen on the issue. The Applicant has correctly noted that the decision does not consider the meaning the term Applicant in the Act or regulation The Applicant submitted that the view I then took with respect to Mrs Chen unable to obtain an authority were she now to apply for one, and the use of that finding to ground a discretionary cancellation, is consistent with the approach urged by the Applicant.

38 The Administrator submitted that clause 29 sets out conditions of an authority for the purposes of Section 33D(1)(b), which provides, inter alia, for the conditions of authorities to be prescribed by the regulations. The written submission continued:

an

39 The Administrator relied on the decisions in Lamb, Mikhail and Aighunmeen to support its contention. The Administrator argued that, were the interpretation urged by the Applicant to be followed, then the “various condition imposed by the Act and regulation” would have “no application when consideration is being given to the suspension, cancellation or variation of an existing licence, authority or accreditation.” The Administrator referred to s 33D (and a number of similar provisions with respect to other licences or authorities) and submitted:

after

40 The Administrator referred to the decision of the High Court in Project Blue Sky v. Australian Broadcasting Authority [19981 HCA 28, particularly the decision of Brennan CJ at [69-78] concerning the need to reconcile conflicting statutory provision if possible. Adopting these principles, the Administrator submitted led to a conclusion that the Applicant’s submissions should be rejected.

41 With respect to the decision in Chen, the Administrator made submissions that were virtually a restatement of its position. With respect to paragraph 14 of Chen in which I had sought to explain the requirements of clause 29 in the light of that statutory objects of the Passenger Transport Act 1990, the Administrator submitted it contained matters which cannot be taken into account “because they are not matters set out in the legislation forming part of the test to make a determination if the Applicant is fit and proper and of good repute.”

42 Mr Wozniak also relied on clause 31(5) to support the contention that Mr Hoballah is no longer eligible to hold, rather than apply for, an authority as the holder of a conditional licence.

Consideration

43 It is clear that the decisions relied on by the parties contain different and conflicting statements as to the effect of clause 29. The present circumstances leave me no alternative but to express a view as to which I will follow. These conflicts may be better resolved at Appeal Panel level.

44 I think it preferable to first consider the provisions of the Act and the Regulation in an effort to discern their meaning.

45 I do not accept the Administrator’s submission that I should not consider the objects of the Passenger Transport Act 1990 when construing provisions of the Act and the Regulations. Section 33 of the Interpretation Act 1987 requires that in construing them a construction which would promote the statutory objects of the Act is to be preferred. Where there a two possible interpretations of a provision, this requires that the construction which best promotes the statutory objects be preferred.

46 In the context of the present case the objects set out in s 4(a) and (e) appear relevant. They are –

…

47 Section 33A(1) provides that a person may apply for an authority to drive a taxi-cab. Sub-section (2) requires that the “applicant” pay a fee. Section 33B says that the Administrator may grant or refuse an application, but sub-section (2) then provides that before an application is granted “the applicant” must satisfy “the criteria set forth in the regulations and must satisfy the Director-General as to any matter the Director-General considers relevant.” Sub-section (3) provides when “the applicant” is to pay the fee. It is evident from a simple reading of these provisions that where they use the word applicant they are referring to a person who is applying for a taxi-cab authority. This is consistent with the plain English meaning of ‘applicant”. The Macquarie Dictionary On Line defines applicant –

applicant

48 The word applicant does not appear elsewhere in Division 5 of Part 3, and is not defined in the Act or the Regulation. There are no apparent reasons, evident from a consideration of those provisions, that the word applicant should be given a wider or different meaning.

49 Clause 29 of the Regulation is expressed to be made for the purpose of, inter alia, s 33B(2). It sets out “the criteria that an applicant for an authorisation to drive a public passenger vehicle must meet before the application is granted.” Sub-clauses (2) and (4) then set out criteria which an applicant for a taxi-cab authority must satisfy. These include requirements that the applicant:

50 Sub clause (5) then contains a definition of Australian drivers licence.

51 There is no dispute that an applicant who holds a driver licence conditioned on good behaviour, as a result of a demerits point suspension, does not hold a driver licence within meaning of clause 29(1)(b). As a result such an applicant cannot satisfy the requirement of clause 29 or s 33B(2).

52 If an applicant for a taxi authority does satisfy all those requirements, then an authority may be issued: s 33. Because s 33(3) provides that the purpose of an authority is to “attest” to the various matters set out in that sub-section, the Administrator, before issuing an authority, must be satisfied as to them. They are–

53 It is to be noted that s 33 does not use the word “applicant” but refers to “the authorised person.”

54 An authority, once issued, is subject to the conditions provided for by s 33D which are imposed on “an authority” There is no definition of the word “authority,” but in the context of Division 5 of Part 4 it plainly refers to a taxi-cab driver authority issued under s 33. While there are conditions imposed by s 33E regarding network affiliations and service standards, there are no conditions prescribed by the Regulation. There is no evidence that in Mr Hoballah’s case the Administrator imposed any additional conditions on his authority.

55 The Administrator submits that the criteria which an applicant is required to meet under clause 29 are also a conditions to which an authority subject. The Administrator has not pointed to any textual indication in the Act or Regulation that this is the case, but rather has relied on arguments as to what will happen to the regulation of the industry if this is not the case. In my view an analysis of the plain wording of the Act and the Regulation points to clause 29 not imposing conditions on authorities.

56 Clause 29(1) says that the clause sets out the criteria that an applicant for an authorisation to drive a public passenger vehicle must meet, for the purposes of s 33B(2) among others. There is no reference in the clause to requirements or conditions that an authority holder must meet: all the requirements specified are placed on an applicant. The word condition does not appear in clause 29: there is no reference to s 33D which provides for conditions to be prescribed by regulation.

57 As clause 29 states that as made, inter alia, for the purposes of s 33B(2) it in necessary to consider what that section says. It provides for regulations concerning the criteria which an “applicant” must satisfy. It does not specify criteria or conditions which an authority holder or an authorised person must satisfy.

58 It is to be noted that the Act does not contain any provision which would allow the Administrator to take specific action with respect to a breach of a condition.

59 The Administrator submits that, if Mr Hoballah’s submissions are accepted, there will be different standards applicable to applicants for taxi-cab authorities and authority holders, in terms of the driver licence they are required to hold. As there is no statutory requirement or condition, imposed by either regulation or by the Administrator, that an authority holder’s licence be relevantly unconditional, this appears to be the case. That alone is not sufficient to disregard the plain meaning of the words of s 33B(2) and clause 29.

60 It would, however, be open to the Administrator, having found that an authority holder’s driver licence is subject to good behaviour conditions, to consider whether that authority should be cancelled or suspended on the basis that the Administrator could no longer attest to the matters specified in s 33(3). This is what I did in Chen.

61 I pointed this possibility out to Mr Ayache during the hearing, and he conceded that it would present his client’s next hurdle. Such a procedure would require the active consideration of the discretion to cancel or suspend, as opposed to the automatic disentitlement which the Administrator argued would occur if clause 29 imposed conditions on authority holders. I observe that the absence of any provision in the Act dealing with the consequences of breaching conditions imposed on an authority leads me to doubt the correctness of the Administrator’s argument. The remedy for breach of a condition is prosecution for an offence, or consideration of a discretionary cancellation, suspension or variation of the authority under s 33F, presuming the breach of condition is relevant to the purposes of an authority specified in s 33(3).

62 As a consequence of all of the above I conclude that requirement contained in Clause 29(2)(b) Passenger Transport Regulation 2007 is not a condition imposed on an authority, but is one of the criteria which an applicant for a taxi-cab authority must satisfy in order to obtain an authority. In reaching that conclusion I decline to follow the Tribunal’s earlier decision in Mikahil and Aighunmeen. I accept Mr Ayache’s submissions with respect to those decisions and consider them at odds with the wording of the Act and Regulation.

63 Finally, it is necessary to consider the Administrator’s submission that clause 31(5) deals expressly with the circumstance in which an authority holder’s driver licence becomes subject to good behaviour conditions, by providing that the authority ceases to have effect on cancellation, suspension or expiry of a holder’s driver licence. This is, in part, the position I took in Lamb which, on reflection, I retreated from in Chen.

64 Clause 31(2) is concerned with the effect on an authority of the cancellation, suspension or expiry of an authority holder’s driver licence. Importantly, the definition of driver licence for the purpose of clause 31(5) is not the same as that in clause 29, but is that found in s 4. That definition does not contain the conditional licence qualifications, which apply to applicants under clause 29. This is a direct result of the clear wording of the Regulation. It does not impose the same qualifications on the type of driver licence held by an authority holder to which clause 31(5) applies, as those which an applicant for an authority has to meet under clause 29(2)(b). I do not accept, given the definition of driver licence in s 4, that it is possible to construe the meaning of driver licence in clause 31(5) so as to impose similar requirements to those which apply to applicants for authorities under clause 31(5).

65 It was agreed by the parties that, having published my decision. I should list this matter for further direction in the General Division directions list on 14 December 2010.

66 As a result this application is adjourned for directions on 14 December 2010.

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Citations

Hoballah v Department of Transport & Infrastructure [2010] NSWADT 294

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CITATION:	Hoballah v Department of Transport & Infrastructure [2010] NSWADT 294
DIVISION:	General Division
PARTIES:	APPLICANT Ali Hoballah RESPONDENT Department of Transport & Infrastructure
FILE NUMBER:	103168
HEARING DATES:	24 November 2010
SUBMISSIONS CLOSED:	8 December 2010
DATE OF DECISION:	10 December 2010
BEFORE:	Molony P - Judicial Member
CATCHWORDS:	Passenger Transport Act - Taxi driver - cancellation of authority – conditions of authority
LEGISLATION CITED:	Passenger Transport Act 1990 Passenger Transport Regulation 2007 Passenger Transport (Taxi-cab Services) Regulation 2001 Administrative Decisions Tribunal Act 1997 Interpretation Act 1987 Road Transport (Driver Licensing) Act 1998
CASES CITED:	Alghunmeen v Department of Transport & Infrastructure [2009] NSWADT 328 Chen v NSW Transport and Infrastructure [2009] NSWADT 285 Lamb v Ministry of Transport [2005] NSWADT Akram Mikhail v Ministry of Transport — 28 October 2005 Project Blue Sky v. Australian Broadcasting Authority [1998] HCA 28
REPRESENTATION:	APPLICANT M Ayache RESPONDENT A Wozniak, solicitor
ORDERS:	This application is adjourned for directions on 14 December 2010