Isarasena v Dept Transport
[2009] QMC 7
•8 May 2009
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Isarasena v Dept Transport [2009] QMC 7
PARTIES:
TONY ISARASENA
(appellant)
v
DEPARTMENT OF TRANSPORT
(respondent)
FILE NO/S:
MAG230903/08(5)
DIVISION:
Magistrates Courts
PROCEEDING:
Appeal against Reviewed Decision
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
8 May 2009
DELIVERED AT:
Brisbane
HEARING DATE:
24 February 2009
MAGISTRATE:
Lee G
ORDER:
Leave granted extending time in which to appeal.
The decision under review suspending the appellant’s approvals as a proprietor of an Approved Inspection Station and as an Approved Examiner for contraventions 1 to 11 is set aside and a new decision is substituted that such approvals be suspended for 12 months in respect of contraventions 1 to 9 from the date of the original decision, 24 July 2008.
As the period of suspension from the decision under review remains unchanged the appeal is unsuccessful.
CATCHWORDS:
ADMINISTRATIVE LAW – APPEALS FROM ADMINISTRATIVE AUTHORITIES - merits review of administrative decision to suspend for 12 months the applicant’s approvals to issue road safety certificates for motor vehicles
PRACTICE AND PROCEDURE – APPEAL AGAINST REVIEW DECISION - extension of time – applicant failed to lodge appeal within 28 days
Code of Practice – Vehicle Inspection Guidelines, s 15
Transport Operations (Road Use Management) Act 1995, s 17A, s 17B, s 18(1)(b), s 19(2), s 19(4)(c), s 65(4), s 65(5), Schedule 3
Transport Operations (Road Use Management – Accreditation and Other Provisions) Regulation 2005, r 4, r 8
Transport Operations (Road Use Management – Vehicle Standards and Safety) Regulation 1999, r 25, r 35, r 40A, Chapter 4, Schedule 3A
Transport Planning and Coordination Act 1994, s 35, s 36B
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, cited
Hunter Developments Pty Ltd v Minister for Home Affairs and Environment (1984) FCA 176; FCR 344, cited
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, applied
COUNSEL:
G Coveney for the appellant
B Carter-Nicoll (legal officer) for the respondent
SOLICITORS:
S J Gurnsey and Company Solicitors for the appellant
Respondent appeared on their own behalf
This is an appeal by Tony Isarasena (“the appellant”) pursuant to section 35 of the Transport Planning and Coordination Act 1994 (“the Act”) from a decision of John Renouf, a delegate of the Chief Executive of Queensland Transport dated
26 September 2008 (reviewed decision) which confirmed an earlier decision of Lindsay Locke dated 24 July 2008 (original decision) to suspend for 12 months the following approvals for the appellant:
·As the proprietor of Approved Inspection Station number 7928 (“AIS approval”); and
·As an approved examiner number 6370.
It is not contentious that the proper respondent in these proceedings is the Chief Executive, Department of Transport.
The reviewed decision confirming the original decision to suspend those approvals was made under section 19(2) of the Transport Operations (Road Use Management) Act 1995[1](TORUM) on the ground that the appellant had contravened the conditions of his approvals in a number of respects[2] in that he had not complied with TORUM, the Transport Operations (Road Use Management –Vehicle Standards and Safety) Regulation 1999 (AIS regulations) for AIS approvals and the Transport Operations (Road Use Management – Accreditation and Other Provisions) Regulation 2005[3] (approved examiner regulations) for approved examiner approvals and the Code of Practice – Vehicle Inspection Guidelines which are referred to in regulation 13(e) of the AIS regulations and Schedule 1 of the approved examiner regulations.
[1] Section 19 (Procedure for amending, suspending or cancelling approvals) is in Part 1A TORUM (Approvals);
[2] Subsection 18(1)(b) in Part 1A TORUM provides contravention of conditions as a ground for suspension of approvals;
[3] Regulations presumably made by virtue of section 171 TORUM;
The statutory scheme in applying for and the granting of AIS approvals is the combined effect of sections 17A & 17B of TORUM[4], and regulation 25 (in Part 2 Chapter 3 of the AIS regulations[5]) and Chapter 4 of the AIS regulations (Obtaining approvals). For approved examiner approvals see regulation 4 in Part 2 (Accredited Persons) of the approved examiner regulations. An “accredited person” is an “approved examiner”: see Schedule 9 of the approved examiner regulations.
[4] In Part 1A TORUM (Approvals);
[5] Part 2 (Approved Inspection Stations) in Chapter 3 (Vehicle Safety);
The conditions for AIS approvals include the conditions that the holder must comply with the Code of Practice – Vehicle Inspection Guidelines and not contravene TORUM: see regulation 40A and Schedule 3A of the AIS regulations. The conditions for approval as an approved examiner are for present purposes the same: see regulation 8 and Schedule 1 of the approved examiner regulations.
In this case, pursuant to section 19(4)(c) of TORUM the delegate in the reviewed decision informed the appellant that he could apply for a further review. This is under section 65 of TORUM. Relevantly, subsection 65(4) of TORUM[6] provides that a person aggrieved by the reviewed decision can appeal to “the court” referred to in Schedule 3 of TORUM. Schedule 3 reveals that for decisions suspending approvals under section 19 of TORUM the appropriate court in which to lodge an appeal is the Magistrates Court. Subsection 65(5) of TORUM then imports the provisions of
Part 5 Division 3 of the Act[7] for the appeal and procedure in the appeal to the effect that it is by way of rehearing, that the court has the same powers as the original decision maker, is not bound by the rules of evidence but must apply natural justice principles. The court can confirm the reviewed decision, set aside and substitute the reviewed decision with a fresh decision or set aside the reviewed decision and remit the matter back to the original decision maker with directions[8].
[6] In Chapter 4 (Review of and appeals against decisions);
[7] Part 5 (Review of and appeals against decisions) Division 3 (Appeals against reviewed decisions);
[8] See section 36B of the Act (Powers of appeal court on appeal);
By section 35(1)(a) of the Act[9] a notice of appeal is required to be lodged within 28 days of the appellant being given the reviewed decision. In this case the reviewed decision (dated 26 September 2008) was received by the appellant on 30 September 2008[10] so that the notice of appeal had to be filed by 28 October 2008. It was in fact filed 10 November 2008, 13 days late. Section 35(3) enables a court to extend the time for appealing. A short affidavit of Mr Mark Fisher, solicitor, was filed in support of an application to extend time. The application to extend time is opposed by the respondent. I will defer consideration of the application to extend time to appeal after I have considered the merits of the application itself. The merits are of course a significant factor in considering extension of time applications: see for example the principles outlined in Re: Hunter Valley Developments Pty Limited et. al. v. Minister of Home Affairs and Environment [1984] FCA 176; 3 FCR 344 (5 July 1984) per Wilcox J. which are similar to the principles in the case annotations to rule 7[11] of the Uniform Civil Procedure Rules 1999 in Queensland Civil Practice by McPherson, McQuade and Cairns, Volume 1 and are thought to be of general application.
[9] Entitled “Time for making appeals” in Division 3 of Part 5 of the Act;
[10] Paragraph 2 of Mr Coveney’s written submissions;
[11] Rule 7 (Extending and shortening time);
The appeal hearing proceeded on 24 February 2009 and then I reserved my decision. Mr G. Coveney of counsel appeared for the appellant and Ms B. Carter-Nicoll, legal officer, appeared for Queensland Transport (“the respondent”).
In this appeal I have been provided with only the following documentary material for consideration:
The appellant:
· Amended notice of appeal filed by leave on 24 February 2009;
· Affidavit of Mark Douglas Fisher, solicitor of S.J. Gurnsey & Company Solicitors sworn 17 February 2009 and filed by leave on 24 February 2009;
· Mr Coveney’s written submissions dated 24 February 2009.
The respondent:
· Affidavit of Darryl George Plumb filed 23 February 2009 with 24 exhibits;
· Affidavit of Raymond Lindsay Locke filed 23 February 2009;
· Affidavit of John Leslie Renouf filed 23 February 2009;
· Ms Carter-Nicoll’s written submissions filed 23 February 2009;
· Transcript before Magistrate Mackay on 4 July 2002 in Brisbane regarding sentence proceedings in which the appellant had pleaded guilty to 129 charges under transport statutory provisions (exhibit 1)[12].
[12] Affidavit of Darryl Plumb, attachment 5 to exhibit DGP 2;
Background
The appellant has held an AIS approval since 8 October 1993 and an approval as an approved examiner to write safety certificates since 23 November 1982. One condition of those approvals is that he must comply with the Code of Practice – Vehicle Inspection Guidelines [13].
[13] Affidavit of Darryl Plumb at paragraphs 4 & 5;
On 4 July 2002 the appellant pleaded guilty in the Magistrates Court to 129 charges under a variety of transport statutory provisions. One fine of $400 was imposed with convictions recorded: see exhibit 1.
On 6 October 2004 the appellant was suspended initially for six months which was later reduced upon review to five months. He had issued a safety certificate for a Mitsubishi Station Wagon with major defects affecting the brakes, steering, and extensive body rust[14]. Photographs of that vehicle are in evidence.
[14] Affidavit of Darryl Plumb at paragraph 6 and exhibit DPG 2;
The current matters under consideration commenced when a show cause notice dated 20 May 2008 under the hand of Lindsay Locke was sent to the appellant alleging in quite some detail 11 contraventions of his approvals and inviting submissions why his approvals should not be suspended and also as to the length of suspension[15]. I note earlier in that notice (page 11 of 17) Mr Locke intended issuing a warning in respect of contraventions 3 to 9 which are based on the appellant’s non-compliance with section 15 of the Code of Practice – Vehicle Inspection Guidelines[16]. I will refer to this later.
[15] Affidavit of Darryl Plumb, exhibit DGP 14 at pages 11 & 12 of 17;
[16] This can be found at and then search “Code of Practice Vehicle Inspection Guidelines”;
Contraventions 1 & 2 relate to a safety certificate issued by the appellant on 21 September 2007 (LV-H625145 4) regarding a Toyota Hiace Panel van (270-ITK)[17]. This matter came to light when the owner of that vehicle took it to another place for servicing on 24 September 2007 when another approved examiner discovered multiple defects leading that examiner to the view that it was unsafe to be driven on the road. Defects included defective tyres, disc brake rotors, steering components and extensive body rust. The matter was reported to the Department of Transport and on 24 September 2007 the vehicle was examined by an officer of that department resulting in the issue of a defect notice (D439563 3) requiring rectification work. This is contravention 1.
[17] Affidavit of Darryl Plumb at paragraphs 9, 10 & 11;
Contravention 2 is that the appellant signed the safety certificate referred to above which contained false and misleading information. In my view, the information contained in that certificate should be taken at face value for what is says. It was false and misleading because the appellant signed the first inspection section at 12 Noon on
21 September 2007 with an odometer reading 172,900. He had identified various defects by crossing the appropriate boxes in the first inspection section and by writing the defects in a section at the top of the certificate. However, at the same time, date and odometer reading, he signed the certification section indicating that a final inspection had been completed and he had ticked relevant boxes indicating that the defects had been rectified. In signing the certification section the appellant certified:
Approved Examiner – I have inspected the vehicle indicated on this form and found it had no defect that would affect its safe use on the road and it meets the requirements of the Transport Operations (Road Use Management) Act 1995.
Inspected by – Signature of Examiner DateAnd immediately underneath the appellant further certified:
Proprietor – I have ensured that the requirements of the Transport Operations (Road Use Management) Act 1995 relating to the issue of this certificate have been complied with.
Issued by – Signature of Proprietor DateClearly the defects had not been rectified and he had not complied with requirements relating to the issue of the certificate. The defects were discovered 3 days later by a different approved examiner and then by the departmental officer.
In contrast to contraventions 3 to 9, there is actual evidence that the defects identified by the appellant in contravention 2 had not in fact been rectified despite the certification.
At the hearing no substantive submissions were advanced for the appellant in respect of contraventions 1 & 2 other than a global submission that the 12 months suspension was excessive in the circumstances. Prior to the hearing, contravention 2 was in issue.
The remainder of the contraventions can be split into two groups. Contraventions 3 to 9 are similar in nature to contravention 2 in that the appellant signed and issued safety certificates in the same fashion on various dates[18] for other vehicles. Contraventions 10 & 11 relate to matters back in July 2006.
[18] The dates respectively are 21 April 2008 (Mazda ute), 31 January 2008 (Mazda bus), 27 October 2007 (Mitsubishi), 5 July 2007 (Ford ute), 19 April 2007 (Nissan ute), 19 April 2007 (Mazda sedan), 12 April 2007 (Daewoo);
Contraventions 3 to 9 arise because of the appellant’s non-compliance with section 15 of the Code of Practice – Vehicle Inspection Guidelines. Section 15 is entitled “How to Complete a Safety Certificate and Certificate of Inspection” in the section entitled “Business Rules for Conduct of Approved Inspection Stations”. Step by step procedures are set out in eight paragraphs comprising section 15.1. Paragraphs 2 & 3 apply if no defects are found upon initial inspection. Paragraphs 4 to 7 apply if defects are found on the initial inspection. These certificates were completed by the appellant in like fashion to the certificate in contravention 2. In each of those certificates he identified defects but then proceeded to complete the certification section at the same time, date and odometer reading as the first inspection section. Paragraphs 2 to 7 in section 15(1) and section 15(2) provide[19]:
[19] COI means Certificate of Inspection;
2. If no defects are found during the first inspection, the relevant sections of the Safety Certificate or the COI are then completed. The examiner must ensure the certificate is completed legibly and accurately and sign the inspection result and the certification. Before issuing a safety certificate, an approved examiner must indicate the date of issue of the safety certificate by punching a hole through the appropriate day, month and year on the label part of the certificate.
3. The proprietor or nominee shall then sign and issue the front label, the original, duplicate and triplicate copies of the certificate to the person presenting the vehicle for inspection.
4. If a defect is found during the first inspection, the examiner shall sign the first inspection section and give the inspection report (triplicate copy) to the person presenting the vehicle, outlining what repairs or alterations are required to ensure the vehicle meets inspection requirements.
The certification section is not signed by the examiner and proprietor/nominee
until the vehicle is re-presented and passed within 14 days.5. If the vehicle and the triplicate copy of the Inspection Report are returned to the Approved Inspection Station within 14 days, the examiner can complete are inspection of all items rejected and enter the results of that inspection on the report.
6. If all defects that were required to be rectified have been completed, the
examiner is to sign the certification section and the proprietor shall issue the
certificate as outlined in (2. and 3.) above.7. If the defects indicated on the inspection report have not been completed
satisfactorily, the examiner will return the Inspection Report to the owner
indicating the result of the second inspection and advise that the vehicle still does not meet the inspection requirements for the issue of a Safety Certificate or a COI and the safety certificate is to be cancelled immediately. ………..15.2 UNDER NO CIRCUMSTANCES IS AN APPROVED EXAMINER TO SIGN THE CERTIFICATION ON A SAFETY CERTIFICATE OR A CERTIFICATE OF INSPECTION KNOWING THAT THERE ARE DEFECTS THAT WOULD AFFECT A VEHICLES SAFE USE ON THE ROAD OR THE VEHICLE DOES NOT COMPLY WITH THE REQUIREMENTS FOR THE ISSUE OF THE SAFETY CERTIFICATE OR THE CERTIFICATE OF INSPECTION.
ANY ERROR OR INCORRECT ENTRY ON A CERTIFICATE MUST NOT BE CORRECTED OR ALTERED AND THE CERTIFICATE IS TO HAVE THE WORD ‘CANCELLED’ WRITTEN ACROSS THE FACE OF THE CERTIFICATE.
The difference between contraventions 3 to 9 on the one hand and contravention 2 on the other is that there is no direct evidence whether or not those defects were rectified. I note that Mr Locke said he could not determine the appellant’s state of mind when the appellant signed the certification section and consequently whether or not the appellant had rectified the identified defects. However, upon this merits review to be conducted as a rehearing and on the available evidence before me[20], taking the information on the certificate at face value to the effect that the certification section was completed at the same time as the initial inspection section, I come to the view on balance that those defects were not cured when he signed the certification section. In the absence of any evidence from the appellant to offer some explanation for this to the contrary, the appellant exposes himself to grief by adopting a practice of identifying defects and then signing the initial inspection section and the certification section at the same time. The procedure in section 15 of the Code of Practice – Vehicle Inspection Guidelines is there for a reason. Members of the public rely on the accuracy of these certificates.
[20] Affidavit of Darryl Plumb at paragraphs 12, 13 & 14;
Contraventions 10 & 11 relate to events on 5 July 2006 and 20 July 2006 respectively. The motor vehicle owned and used by the appellant as his mobile AIS was in a defective condition. The tyres had to be replaced (contravention 10). An infringement notice was issued and a fine of $75 was referred to the State Penalties Enforcement Registry (SPER). In contravention 11 the appellant signed a safety certificate for a Holden sedan when it was in a defective condition. A fine of $105 was referred to SPER as well[21].
[21] Affidavit of Darryl Plumb at paragraphs 15 & 16;
SUBMISSIONS
There are 7 grounds of appeal in Mr Coveney’s submissions. The first two grounds specifically relate to contraventions 3 to 9.
Grounds One & Two
First, it is suggested that the appellant was denied procedural fairness and taken by surprise because a 12 month suspension was imposed in relation to contraventions
3 to 9 even though Mr Locke stated in the show cause notice dated 20 May 2008 (at page 11 of 17) that a mere written warning was being considered. On the other hand the respondent submits that the appellant was not taken by surprise in that it was always contemplated that a 12 month suspension would apply to contravention 1 & 2 and that a warning for contraventions 3 to 9 was likely only. I note that the appellant had engaged his solicitors to apply for an extension of time in which to reply to the show cause notice and to make submissions on his behalf: see chronology in the respondent’s submissions.
The warning in the show cause notice followed on from the substance of the second ground of appeal, namely that the appellant was deprived of procedural fairness in that Mr Locke’s decision took a contrary view to that expressed in the show cause notice. This is to the effect that in the show cause notice Mr Locke said he could not draw any conclusion about the appellant’s state of mind when he signed the certificates whereas in his decision he concluded that the appellant knew that the vehicles were defective when he signed the certificates.
On the other hand the respondent submits that Mr Locke was entitled to rely on all undisputed information before him in making a decision. The appellant had every opportunity of adducing evidence on this point but chose not to.
I reject the first two grounds of appeal. Even if there is substance to those submissions to the effect that the appellant had been denied procedural fairness at the time of Mr Locke’s original decision of 24 July 2008, unlike an appeal in the traditional sense, any defects of that nature can be cured in a full merits review before this court, some 6 months later. He cannot now say that he has been taken by surprise when he has had the opportunity to prepare since the original decision. No evidence was adduced by the appellant in this court on these issues. The appellant, who has been legally represented all along, simply now complains of lack of procedural fairness without attempting to adduce any further evidence to deal with his complaints with a view to having the 12 month suspension reduced. I agree with the respondent’s submissions that Mr Locke was entitled to act on the information before him at the time he made his decision. The appellant was given the opportunity of making submissions in the show cause notice, and despite now alleging a lack of procedural fairness, he has chosen not to provide further evidence before this court in an attempt to rectify that. Both grounds of appeal are rejected.
Nevertheless, this court must still come to its own view of the evidence as it stands.
Ground Three
This ground relates to contraventions 7 & 9.
In both, the show cause notice refers to conversations on 8 January 2008 between the appellant and an unnamed transport inspector: at page 7 for contravention 7 and pages 8 & 9 for contravention 9. Reliance is then placed on certain admissions made.
The complaint is that the appellant has been denied natural justice because he was not afforded the opportunity of examining that evidence because the identity of the transport inspector was not specified in the show cause notice. Further, this was not logically probative evidence.
On the other hand the respondent submits that the appellant has full knowledge of the person with whom he spoke because he was present at the interview. Nevertheless, the appellant has admitted independently of this interview that he completed the safety certificates as alleged.
While strictly speaking the appellant has been denied procedural fairness by not having the opportunity of examining this evidence prior to the making of the original decision, there was other evidence upon which Mr Lock as the original decision maker was entitled to rely in concluding that the appellant had committed contraventions 7 & 9. Further, this could have been cured prior to the reviewed decision and indeed before the appeal to this court by requesting particulars.
The affidavit of Daryl Plumb at paragraphs 12 to 14 and exhibit DG 11 contains all seven Safety Certificates said to be issued by the appellant for contraventions 3 to 9. The Safety Certificate the subject of contravention 7 is “LV-H288101 0” dated 19 April 2007. The Safety Certificate the subject of contravention 9 is “LV-H288051 5” dated 12 April 2007. On examining those certificates and comparing them with the others in DG 11 as well as the one the subject of contravention 2, it is clear to me that the signatures on all of them are the same bearing the name “T. Isarasena” with an examiners number “6370” which is the approved examiners number of the appellant. I am satisfied that Mr Locke was entitled to come to the view he did on the body of evidence before him. Further, I am satisfied that the certificates the subject of contraventions 7 & 9 have been signed and therefore issued by the appellant.
I also note in passing that in this merits review appeal to be conducted as a rehearing, there was no attempt by the appellant to adduce any evidence to refute such conversation or to challenge it in any way apart from submissions from the bar table raising this ground of appeal.
Therefore, in substance this ground of appeal fails.
Ground Four
This relates to contraventions 10 & 11 in which the appellant was previously fined.
The complaint is that infringement notices were issued to the appellant on 20 July 2006 some 22 months prior to the show cause notice dated 20 May 2008. Therefore these contraventions are stale, should not have been taken into account in the decision, and the appellant has been doubly punished for this because, in the reviewed decision, the 12 months suspension also applies to these.
The respondent submits that contraventions 10 & 11 can be taken into account in considering sanction. There is no statutory time limit on matters that may be taken into account.
I note at paragraph 4 (page 3) of the reviewed decision, the delegate says:
In relation to contravention 2-9 your solicitor submitted that the penalty was harsh and unconscionable. I do not accept this submission. The penalty of 12 months suspension relates to all the contraventions and although your solicitor made a submission dividing the offences into contravention 1, 2-9 and 10-11 this is not the method of the decision process on suspension. All contraventions, as well as previous suspensions, are taken into account when assessing the appropriate penalty of suspension
That statement has caused confusion and probably invited this ground of appeal. At first it says that the appellant is going to be punished for contraventions 10 & 11 in addition to the other contraventions in these proceedings but later states that contraventions 10 & 11 are simply being taken into account in determining sanction. I think the respondent’s submissions in this court reflect the true position, namely that contraventions 10 & 11 can be taken into account by way of previous history in determining the appropriate sanction for contraventions 1 to 9.
If the decision of the delegate in the reviewed decision was to sanction the appellant in these proceedings for contraventions 10 &11 for which the appellant has already been punished, I would allow this ground of appeal. No authority was cited by the delegate or the respondent in this court for the proposition that a person can be sanctioned in administrative proceedings for acts for which the person has been previously punished. The appellant should not be further punished on contraventions 10 & 11 although they can be taken into account in determining sanction for contraventions 1 to 9. Contraventions 1 to 9 are fresh matters where the appellant has not been previously punished. However, given my view of this matter, this will not affect the final outcome.
Ground Five
The thrust of this ground is that the appellant has again been denied procedural fairness because the allegations of contraventions 2 to 11 have not been adequately particularised in the show cause notice and the pieces of legislation annexed to the show cause notice were unhelpful. The submission continues to the effect that the allegations do not clearly reference the legislative provisions. Comparisons were made to an Indictment in criminal proceedings. This submission was not directed to contravention 1. It also appears in reality that they do not apply to contraventions 10 & 11 as the appellant has already been punished for those. I will direct my attention to contraventions 2 to 9 in this submission.
On the other hand the respondent submits that read as a whole the contraventions in the show cause notice have been sufficiently particularised so as to properly inform the appellant of them. Even if this was not the case, the appellant’s solicitors had the opportunity of raising this prior to the appellant’s response to the notice. Further, an approved examiner should understand the requirements of the Act, regulations and Code of Practice – Vehicle Inspection Guidelines.
On that last point, it is not to the point that an approved examiner has knowledge of legislation. What is to the point is that the legislation which is alleged to have been contravened by the appellant should have been identified to him. The question is whether that has been done here.
The show cause notice comprises 17 pages. The first 12 pages describes in a detailed fashion the factual allegations made. Pages 13 – 17 contain pieces of legislation annexed in an ad hoc fashion without tying them to the specific allegations in the first 12 pages with the exception of contraventions 7 & 9 which rely on section 15 of the Code of Practice – Vehicle Inspection Guidelines.
At page 10 of the show cause notice under the heading “Conclusion” reference is made to “sections 5, 17 and 35” of the AIS regulations.
Section 5 is an offence provision to the effect that a person commits an offence if he or she drives or parks a vehicle in a range of circumstances in paragraphs 5(1)(a) to (g). If it was intended to rely on this, the precise paragraph should have been cited.
Section 17 of the AIS regulations provides that only an approved examiner can sign an inspection certificate in defined circumstances and then creates a range of offences from subsections 17(1A) to (8). Again, if this was the correct provision relied on, the precise subsection should have been cited.
Section 35 of the AIS regulations provides:
35 Making, possessing or using false or misleading
documentsA person must not, for a purpose under this regulation, make,
possess or use a document that contains information the
person knows is false or misleading.Maximum penalty—60 penalty units.
In reading sections 5 & 17 in isolation, I would agree with the appellant’s submissions in this respect. Section 35 is clear enough. Referring to sections 5 & 17 in a general way is insufficient in itself to inform the appellant of any alleged contraventions. Prima facie it appears the respondent relies on them going to the appellant’s contravention of TORUM which is a condition of the appellant’s approvals. These are administrative suspension proceedings and not criminal proceedings. Nevertheless, it would have been more desirable for the specific paragraphs in sections 5 & 17 to have been referred to. However, that is not the end of the matter. It appears that the main ground relied on for contraventions 2 to 9 relate to a failure to comply with section 15 of the Code of Practice – Vehicle Inspection Guidelines.
Regarding contraventions 7 & 9 reference was made to section 15 of the Code of Practice – Vehicle Inspection Guidelines. But allegations in contraventions 7 & 9 are the same as those for contraventions 2 to 6 and 8, namely, the appellant signed the first inspection section of the Safety Certificate, noted defects, signed the final inspection section certifying that a final inspection had been completed as well as the certification section of all these Safety Certificates at the same time, date and odometer reading. I agree with the respondent’s submissions that, when the show cause notice is read as a whole, the appellant was adequately informed of the basis for these allegations, namely contravening section 15 of the Code of Practice – Vehicle Inspection Guidelines. These have been cited earlier in these reasons. In addition I am of the view that the appellant was certainly well informed of the factual basis for the allegations in the contraventions.
For some reason, reference to section 15 of the Code of Practice – Vehicle Inspection Guidelines was not included in contraventions 2 to 6 and 8. Perhaps it was an oversight or a failure to properly proof read the document after computer cut and pasting. But I consider that the appellant and his solicitors were adequately informed of the allegations made against the appellant and the basis for those allegations in these administrative suspension proceedings under TORUM and the Act.
Again I note that the complaint the subject of this ground of appeal was made in relation to the period of time up to when the original decision had been made i.e. 24 July 2008. There was copious opportunity for the appellant to raise this before the reviewed decision was made on 26 September 2008. The review was conducted on 16 September 2008 with the appellant and his solicitor present and many submissions were made none of which included the complaint in ground 5 in this appeal. It appears that at no stage on the evidence before me was a request for further and better particulars made. I am of the view that the appellant and his solicitors were sufficiently appraised in the show cause notice of the nature of the case made against him.
I find that principles of procedural fairness have been adequately complied with. I reject this ground of appeal.
Ground Six
The appellant had provided a medical imaging report dated 12 April 2005. It reports the results of an MRI scan of the lumbar spine, a nuclear medicine “Whole Body Bone Scan” and x-ray of the appellant’s left hip.
In his written submissions Mr Coveney stated that the appellant had provided some evidence that he was physically incapable of performing other types of work such as performing inspections and issuing modification approvals. He still has approval to do this. The submission continued to the effect that the respondent did not seek to challenge this “medical evidence” by seeking a further medical opinion.
The complaint is that the decision maker did not properly consider the above medical report and his financial position in arriving at his conclusion. Although not abandoned, at the hearing this ground was not vigorously pursued.
The medical imaging report does not show that the appellant was incapacitated from any kind of work. It is a medical imaging report reporting on appearances of images. It does not provide any opinion about capacity to work. In any event, it is four years old. It carries no weight in my view and the appeal on medical grounds lacks merit.
As to the appellant’s financial position, Mr Coveney submitted from the bar table that the appellant is struggling financially and has a child with health problems. There has been no evidence placed before me from the appellant himself in this regard. There are no medical certificates in respect of the child.
The respondent filed voluminous affidavit material at short notice to substantiate the basis for resisting the appellant’s appeal. Yet, in this merits review proceeding to be conducted as a rehearing, the appellant has not adduced any evidence in any shape or form.
In his affidavit at paragraph 30 and exhibit DGP 21, Darryl Plumb refers to the appellant’s tax returns for the years ended 2005, 2006 and 2007 provided by the appellant’s solicitors. On their face they appear to have been prepared by a tax agent but are unsigned and undated. They show taxable incomes of $3,170, $3,407 for the years ending 2005 and 2006 and a loss of $9,806 for the year ending 2007. This material was placed before the delegate to consider for the reviewed decision. Again, the appellant has not provided any further evidence as to his actual means in this court. I agree with the delegate that those incomes do not reflect the true earnings of the appellant. They are not only well below the basic wage but also well below the rate of age pension. This is so particularly in the light of the number of Safety Certificate booklets purchased from Queensland Transport by the appellant in the financial year 2006 to 2007: see paragraph 35 Darryl Plumb’s affidavit.
Further, those tax returns do not reflect his current earnings as they are now quite old. The appellant has not provided his tax return for the year ended 2008 if it has been prepared nor has he provided to this court any evidence whatsoever of his earnings since 1 July 2008. The original decision to suspend was not made until 24 July 2008. I note and accept the comments made at paragraphs 35 to 37 of Darryl Plumb’s affidavit.
I am satisfied that the delegate had given sufficient consideration to the appellant’s financial affairs in confirming the original decision to suspend his approvals for 12 months. Further, given the state of the evidence as to the appellant’s financial affairs, I am not persuaded that this significantly affects the outcome of the 12 month suspension according to the reviewed decision. This ground of appeal is rejected.
Ground Seven
In referring to the previous six grounds, the submission is to the effect that in all of the circumstances, the 12 months suspension is manifestly excessive.
Reference was made to an extract from Queensland’s Transport’s “Approved Inspection Station Show Cause Manuel – Procedures for Amending Suspending or Cancelling Approvals”. For both proprietors and approved examiners the range of sanction for a previous contravention within the last 5 years is from 12 months suspension to cancellation: see paragraph 28 and exhibit DG 20 of the Affidavit of Darryl Plumb.
Mr Coveney submitted that these are just guidelines and do not have the force of legislation. In his written submissions he said the appropriate suspension should be 6 months. At the hearing he orally submitted 7 to 9 months.
On the other hand the respondent submits that the appellant has a serious breach within the last five years involving a vehicle found to have major defects. Despite that he repeats this again. With reference to the Manual the respondent says it has taken the more lenient view and only suspended for 12 months instead of cancelling his approvals.
The use made by bodies charged with reviewing administrative decisions to government documents reflecting what might be described as “policy” has been considered in other contexts but which in my view equally apply in this case: see Drake v. Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590 per Bowen CJ & Deane J and Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 per Brennan J. Brennan J. said:
Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which otherwise might appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process.
However, each case should be determined on its merits and a policy, such as the Manual here, should not be rigidly applied so that the review body, in this case this court, should be prepared to depart from it if it thought appropriate. To that extent I agree with Mr Coveney’s submissions.
The Manual, whilst not binding as law, in my view provides a useful guide on the range of sanctions that should be imposed. It certainly should not be applied if it either contradicts or is inconsistent with any legislative provision which is not the case here. After considering whether or not to look outside the Manual and depart from it, I come to the view that the court should be guided by the Manual in this particular case.
Conclusion
I have accepted ground 4 of the appeal if the intention of the delegate in the reviewed decision was to suspend the appellant on contraventions 1 to 11. I think the appellant should only be sanctioned in respect of contraventions 1 to 9 although in doing so, contraventions 10 & 11 can be taken into account as to his contravention history.
I will grant leave to appeal in those circumstances.
However, having regard to all the circumstances I find the appellant’s conduct in contraventions 1 to 9 quite disturbing given that he has a previous history. I agree with the respondent’s submissions that the public heavily rely on Safety Certificates when buying motor vehicles. Perish the thought of an unsuspecting member of the public who relies on an inaccurate certificate driving a defective vehicle on a road and having an accident as a result.
I have looked at photos of vehicles[22] that the appellant has certified as safe displaying extensive amounts of rust and other defects. In my view the appellant’s conduct is very serious and not purely administrative in nature. He is teetering on the verge of having his approvals cancelled completely. He has had his approvals for many years and should know better.
[22] Affidavit of Darryl Plumb;
On this occasion however, I agree that a suspension of 12 months on contraventions
1 to 9 is the appropriate sanction. I would recommend that the appellant undertake a refresher course on all requirements and if possible participate in a continuing education program to reinforce them with him. To date, he obviously hasn’t learnt from previous mistakes. This is despite the appellant saying in a recorded interview with Mr Plumb on 23 February 2005 that “I know exactly what the rules are”[23] and sought to explain his behaviour by saying “you have bad days and you have good days”[24]. Given subsequent contraventions, I’m afraid an attitude like that is just not good enough.
[23] Affidavit of Darryl Plumb, paragraph 7 & exhibit DPG 3 Auscript transcript P6 at line 24;
[24] Auscript transcript P7 at line 12;
That interview was when Mr Plumb was returning the appellant’s approvals near the end of the five month suspension imposed on 6 October 2004. The appellant was warned on 23 February 2005 that if there were any future contraventions the period of suspension will be a “lot longer”[25].
[25] Auscript transcript P7 at lines 30 to 33;
Pursuant to section 36B(3)(b) of the Act I set aside the decision under review and substitute a new decision that, in respect of contraventions 1 to 9, the appellant’s approvals referred to in paragraph 1 of these reasons be suspended for 12 months effective from the date of the original decision. By section 36C of the Act, this decision is taken to be a decision of the original decision maker.
I have made this decision on the basis that the delegate in the reviewed decision imposed a 12 month suspension for contraventions 1 to 11. Otherwise, there is no practical change to the reviewed decision so that the appeal is unsuccessful.
0
2
4