| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : TAXI ACT 1994 (WA) CITATION : KULIGOWSKI and DIRECTOR GENERAL OF TRANSPORT [2011] WASAT 126 MEMBER : MR C RAYMOND (SENIOR MEMBER) HEARD : 11 MARCH 2011 AND BASED ON WRITTEN SUBMISSIONS FILED UP TO 6 APRIL 2011 DELIVERED : 11 AUGUST 2011 FILE NO/S : CC 28 of 2011 BETWEEN : MAREK KULIGOWSKI Applicant
AND
DIRECTOR GENERAL OF TRANSPORT
Respondent
Catchwords: State Administrative Tribunal Act 2004 (WA), s 47 - Application to dismiss on grounds application without substance - Whether estoppel based on alleged representation can apply - Whether application obviously untenable, manifestly groundless, or cannot succeed Legislation: State Administrative Tribunal Act 2004 (WA), s 47
Taxi Act 1994 (WA), s 20, s 20(1), s 20(2), s 20(4), s 22(1), s 22(2)
Taxi Regulations 1995 (WA)
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Result: Application struck out Category: B
Representation: Counsel:
Applicant : Mr A Dzieciol (Agent)
Respondent : Mr J Gladstone
Solicitors:
Applicant : N/A
Respondent : N/A
Case(s) referred to in decision(s):
Alpha Wealth Financial Services Pty Ltd v Frankland River Olive Company Ltd [2008] WASCA 119
Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141
AttorneyGeneral (NSW) v Quin (1990) 170 CLR
General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125
Metropolitan Transit Authority (Vic) v Waverley Transit Pty Ltd [1991] 1 VR 181
Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 The applicant applied to the Tribunal under s 22(2) of the Taxi Act 1994 (WA) to review a decision made by the respondent to vary the taxi plate operating conditions applicable to the applicant's taxi plate lease. 2 The applicant's case was based on establishing that an estoppel operated such as to prevent the respondent from applying the varied conditions and from asserting that a particular road was not included within the restricted area within which the applicant was entitled to operate his taxi. 3 The Tribunal examined the law relating to the operation of an estoppel against the government or public authorities, and in particular, in the circumstance in which a contractual relationship existed between the parties. The Tribunal found on the facts that the representation relied upon was insufficient to prevent the respondent from varying the taxi operating conditions, in a manner which made it plain that the particular road was not included within the restricted area. The Tribunal also found that the applicant's case could not succeed insofar as it attempted to establish that the alleged representation related only to the implementation of the respondent's policy. The discretion exercised by the respondent in determining that the holders of restricted taxi plates could be operated only within a particular restricted area was a matter of policy. The representation relied on reflected a mistake, not as to the process of applying for taxi plates, but in relation to the policy. In any event, as the representation did not relate to any future variation of the operating conditions, the estoppel did not operate to prevent a variation of the conditions with which the applicant had undertaken to comply as a term of the lease. 4 Consequently, applying the principles established in Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141 the Tribunal concluded that the proceedings should be dismissed as lacking in substance.
Nature of the proceedings 5 The applicant applies to the Tribunal under s 22(2) of the Taxi Act 1994 (WA) (the Act) seeking to review a decision made by the respondent, the Director General of Transport (Director General) to vary (Page 4)
the taxi plate operating conditions applicable to the applicant's taxi plate lease. The decision was communicated by the Director General to the applicant by letter dated 15 December 2010 (the decision under review). In these reasons for decision all references to sections are to sections of the Act unless expressly stated otherwise. 6 The grounds stated in the application are terse, stating simply 'unfair conditions in the new contract'. However, the correspondence attached to the application, and in particular a letter dated 27 December 2010, disclose two bases of objection to the variation of the conditions. The first is that the applicant relies on advice provided at the time that he applied for the taxi plate lease which was to the effect that a particular road was within the restricted area of operation to which the taxi plate lease is subject whereas the varied conditions reflect that not to be the case. A second basis of objection was referred to in that letter but has not been raised again at any stage in the proceedings and that referred to a condition which allowed the collection of passengers outside the restricted area after certain hours which was not previously allowed. The letter of objection seems to raise this issue simply on the basis that the relaxation of the restriction is stated not to be practical. 7 Section 20(1) provides that the Director General may impose conditions on the operation of a taxi using specified taxi plates in relation to a number of specific matters, which include, relevantly, the area in which and the hours during which a taxi may be operated. Section 20(4) provides that where a plate holder is aggrieved by the imposition of a condition, that plate holder may apply to the State Administrative Tribunal for a review of the Director General's decision to impose such a condition. 8 Subsection 20(2) provides that a person, relevantly, who is a plate holder, shall comply with, or ensure compliance with conditions imposed under subsection 20(1) and that, where the plate holder is not the operator, the operator shall comply with, or ensure compliance with specified conditions imposed under subsection 20(1), which includes a condition relating to the area of operation of the taxi. Further, in all cases, it is a criminal offence to fail to comply with such conditions for which a penalty of up to $5,000 may be imposed. 9 It is to be noted that the long title of the Act reflects that it is, relevantly, an Act to provide for the effective administration of the taxi industry. (Page 5)
The application to strike out 10 At the first directions hearing on 27 January 2011, and on the understanding that the matter in issue was whether or not the stated road could be excluded from the restricted area of operation to which the licence applied, the Director General requested that a special appointment be held for the hearing of an application of whether or not the proceeding should be dismissed as being without substance 'by reason that the decision under review is said by the respondent not to have impacted on or varied in any way the issue of whether or not Valentine Road is within the permitted area of operation by the applicant'. The parties filed written submissions in relation to the strike out application. 11 The thrust of the Director General's submissions are that the decision under review had expanded the restricted area to which the applicant's taxi plate lease is subject and, therefore, the applicant could not be an aggrieved person within the meaning of s 20(4) of the Act. Consequently, it is submitted that the Tribunal has no jurisdiction to grant the application. The submissions filed on behalf of the applicant set out plainly the basis on which it is asserted that the decision should be reviewed. In essence, it is that the applicant relied on a representation made by the Acting Senior Compliance Officer of the respondent to the effect that Valentine Road was included in the restricted area applicable to the applicant's then proposed taxi plate lease prior to entry into the agreement of lease. Reliance is also placed on written advice dated 7 July 2008, from the same officer, to the same effect. It is then submitted that in reliance on the representation, with the knowledge and acquiescence of the respondent, the applicant operated his taxi on the basis that Valentine Road was within the restricted area and that it would be unconscionable for the Director General to now contend otherwise, such that the Director General should be estopped from denying that Valentine Road is within the restricted area (both in the original conditions and the conditions varied on 15 December 2010). 12 At the special appointment on 11 March 2011, I was informed by the applicant's agent that if the applicant had known that Valentine Road was not included within the area to which the taxi plate lease applies, the applicant would not have proceeded with the lease application. It appears that Valentine Road is in close proximity to the Perth domestic airport and is used as a pickup and dropoff point, in particular, for flyin and flyout workers travelling on flights to and from the Perth domestic airport. It is therefore an important source of business for taxi drivers. (Page 6)
13 The applicant had made a substantial investment in obtaining a suitable motor vehicle and having it fitted out for operation as a taxi and it was asserted that this expense would not have been incurred but for the representation that Valentine Road was included within the restricted area. 14 As the submissions filed on behalf of the Director General were filed in advance of those filed on behalf of the applicant, and had not dealt fully with the estoppel issue, and as other aspects of the application of any estoppel emerged during the hearing of the special appointment, both parties were given leave to file further written submissions addressing specifically the effect of the alleged estoppel and whether any such estoppel could fetter the discretion of the Director General under s 22(1) to vary the taxi plate operating conditions. The effect of the applicant raising the alleged estoppel upon which he relies is that the basis of the strike out application shifted to address that issue. 15 Those submissions were subsequently filed. 16 I shall deal with those submissions to the extent necessary in the Tribunal's consideration which follows.
Consideration 17 The applicant relies strongly on the views expressed in AttorneyGeneral (NSW) v Quin (1990) 170 CLR (Quin) at [18] where Mason CJ held that the general principle that an estoppel could not be enforced to fetter a statutory discretion did not: … deny the availability of estoppel against the Executive, arising from conduct amounting to a representation, when holding the Executive to its representation does not significantly hinder the exercise of the relevant discretion in the public interest. And, as the public interest necessarily comprehends an element of justice to the individual, one cannot exclude the possibility that the courts might in some situations grant relief on the basis that a refusal to hold the Executive to a representation by means of estoppel will occasion greater harm to the public interest by causing grave injustice to the individual who acted on the representation than any detriment to that interest that will arise from holding the Executive to its representation and thus narrowing the exercise of the discretion. 18 Reliance is also placed on Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 (Kurtovic). In Kurtovic Gummow J suggested that an estoppel might be raised in relation to a public authority's operational decisionmaking as opposed to decisions made on policy issues (at [215]). (Page 7)
19 The submission developed by the applicant is that the Director General has a discretion in relation to the number of taxi plates that it issues to give effect to its policy objectives and that the applicant does not seek to question or in any way fetter the Director General's discretion in that regard. It is submitted that once the Director General has determined how many taxi plates it will issue, and under what conditions, the process of calling for expressions of interest for and the issuing of the additional plates is a matter of implementation of that policy. The Director General joins issue very squarely with the above submission, asserting that the conditions imposed are to enable the Director General, in the public interest, to exercise an unfettered discretion to determine the geographic areas of operation of certain taxis in order to ensure that public transport is available to all members of the public. 20 The Director General admits that the written representation was made by letter dated 7 July 2008, but asserts that subsequent correspondence made clear that the advice was wrong and that, in any event, that representation could not be relied upon as having induced the applicant to act to his detriment. That is clearly correct, but the letter is also relevant to whether the parties adopted a common assumption being a necessary element to found an estoppel. The Director General admits that the person named by the applicant held the position of Acting Senior Compliance Officer, Passenger Services in July 2007, but does not admit that any representation was made. 21 For the purposes of an application for summary dismissal of a proceeding it is necessary to approach the matter on the assumption that the facts asserted by the applicant will be made out at a final hearing. The principle to be then applied is analogous to that explained by Berwick CJ in General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125 which requires that, in order to strike out a proceeding, it should be demonstrated that it is so obviously untenable that it cannot possibly succeed or is manifestly groundless, or that it discloses a case which the Court is satisfied cannot succeed: see the application of these principles by Judge Chaney (as he then was), in Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141. 22 The terms of the taxi plate lease entered into between the parties is set out in a written agreement dated 2 July 2007. (Page 8)
23 It is a term of the lease that it is made subject to the provisions of the Act and the Taxi Regulations 1995 (WA) (Regulations) which are stated to apply to the lease as if fully set out therein as terms and conditions of the lease, provided that to the extent of any conflict or inconsistency between a provision of the lease and a provision of the Act, or the Regulations, the provisions of the lease shall prevail (cl 1). The lease expressly provides that the applicant (Lessee) shall at all times observe, perform and comply with all laws, acts, statutes, legislation, rules, regulations and local laws applicable to the taxi plates or the use and possession thereof. In particular it is provided that the applicant shall at all times comply with or ensure compliance with all conditions imposed by the Director General for the time being and from time to time on the operation of any taxi using taxi plates under s 20 of the Act, including any variation under s 20(1) of the Act. A copy of the conditions as at the date of the lease are as contained in Item 8 of the Schedule thereto (cl 8). Item 8 of the Schedule refers to the taxi operating conditions. The taxi plate operating conditions applicable are described as restricted (area) Kalamunda/Mundaring/Swan (NorthEast). A copy of the conditions as at 20 December 2006 were signed by the applicant on 2 July 2007, immediately under a statement to the effect that the applicant had read and understood the conditions. 24 Clause 1.6 of the taxi plate operating conditions as at 20 December 2006, provided that a taxi must not commence a hiring in that part of the prescribed control area that is not the restricted area. The restricted area is defined as the area contained within the boundaries of the Shires of Kalamunda and Mundaring and the City of Swan as bounded by particular named roads or road reserves. It is common cause that the restricted area as described in the taxi plate operating conditions does not include Valentine Road. 25 The taxi plate operating conditions as varied in December 2010 changed the definition of the restricted area to mean the area contained within the boundaries of the Shires of Kalamunda and Mundaring and the City of Swan, 'but EXCLUDES the Perth Airport Estate'. The Perth Airport Estate is also then defined and it is common cause that the effect of this definition is such that it is clear that Valentine Road is included within the Perth Airport Estate and is therefore excluded from the restricted area. 26 The changes in the definition of the restricted area had the effect of increasing the size of the restricted area. It was this which led to the Director General's original contention that the applicant could not be (Page 9)
aggrieved by a decision which increased the area in which he is entitled to operate his taxi. As stated above, the emphasis shifted from this basis of attack, as a result of the estoppel asserted by the applicant and upon which the applicant relies as the basis for his contention that the decision under review should be set aside. 27 The applicant asserts that no map was provided to him at the time of entry into the base by which the restricted area could easily be identified. The documents comprising the expression of interest forms provided to the applicant to enable him to express an interest in the leasing of the taxi plates specifically provided under s 4.4 that Passenger Services, (a section of the Department of Transport), was able to provide limited assistance to help with completion of the application for a taxi plate lease and explained that a booking of a 20 minute session with a licensing officer could be made for that purpose. 28 The applicant is from a nonEnglish speaking background. The applicant sought the assistance of the Acting Senior Compliance Officer of Passenger Services and specifically enquired whether Valentine Road was included in the restricted area. He asserts that he was advised that Valentine Road was included. As already related above, the same Compliance Officer confirmed this view in a letter dated 7 July 2008. 29 The prospects of the applicant establishing the alleged representation appear strong and it can hardly be contended that this aspect of the case is unsustainable. I also accept that the following necessary elements of an estoppel by convention are arguable. These are the elements as identified by Buss JA in Alpha Wealth Financial Services Pty Ltd v Frankland River Olive Company Ltd [2008] WASCA 119 at [157 164]. It is arguable that: 1) The parties have proceeded on the basis of an underlying assumption of fact, law, or both, of sufficient certainty to be enforceable (the assumption); 2) Each party has, to the knowledge of the other, expressly or by implication accepted the assumption as being true for the purposes of the transaction; 3) Such acceptance was intended to affect their legal relations in the sense that it was intended to govern the legal position between them; (Page 10)
4) The proponent was entitled to act and has, as the other party knew or intended, acted in reliance upon the assumption being regarded as true and binding. (This is evidenced by the applicant's continued conduct from July 2007 until approximately September 2010 in queuing for passengers in Valentine Road, that is until the Director General's Compliance Officers began to take taxi drivers, subject to the same restriction as the applicant, to task for doing so. It is further evidenced by the letter from the Compliance Officer in July 2008); 5) The proponent would suffer detriment if the other party were allowed to resile or depart from the assumption; 6) In ordinary circumstances and subject to the further discussion below concerning the application of estoppel in public law, it would be unconscionable to allow the other party to resile or depart from the assumption; and 7) That the common assumption relates to the effect of the lease agreement concluded between the parties. 30 It is necessary to consider in what circumstances an estoppel might operate against the government, particularly in circumstances where the government has entered into a contractual relationship with the other party. The authorities show that there are circumstances in which an estoppel may be enforced against the government as discussed in Quin above. The applicable principles are usefully discussed in N Seddon, Government Contracts, Federal State and Local (4th ed, 2009) at [5.25] and following. As there stated, the tension between an alleged estoppel and the government's obligation to pursue the public interest may be a matter of degree. This is well illustrated in Kurtovic where Gummow J adopted the general statement of principle from Halsbury's Laws of England, (4th ed) Vol 44 at [949] to the effect: Estoppel cannot operate to prevent or hinder the performance of a positive statutory duty, or the exercise of a statutory discretion which is intended to be performed or exercised for the benefit of the public or a section of the public. 31 During the discussion of estoppel in public law, Gummow J, at [216], referred by way of example to Metropolitan Transit Authority (Vic) v Waverley Transit Pty Ltd [1991] 1 VR 181 (Waverley)which well illustrates how difficult it is to determine when an estoppel may be (Page 11)
enforced against a public authority. In that case, both the trial judge and the Full Court of the Supreme Court of Victoria held that the Metropolitan Transit Authority should be estopped from acting to the contrary of a representation that a contract and licence to run a bus route would be renewed and would not be put out to tender. 32 Gummow J concluded that, in his view, this was not a proper case for the operation of estoppel, having regard to the transport authority's public responsibility to regulate suburban bus services. 33 The difficulty in determining whether or not an estoppel should operate in such circumstances is of assistance to the applicant as suggesting that an arguable case exists. The applicant's argument, at its highest, is that to enforce the estoppel, following the statement above in Quin, avoids the occasioning of a greater harm to the public interest because of the grave injustice which the applicant would otherwise suffer than any detriment which might arise from holding the Director General to its representation. 34 There is, however, in my view, an inherent flaw in the applicant's attempt to extend this argument to the facts of the case. That might not be so were the lease to have contemplated that the operating conditions attaching to the taxi plate would never be varied, and if there was no power to vary the operating conditions under the Act. The lease expressly contemplated that there might be variations to the operating conditions and the applicant undertook to comply with any such variation. The applicant does not endeavour merely to enforce the estoppel up to 15 December 2010 when the conditions were varied (and any relief so limited would have no effect) but seeks to apply the estoppel also to preclude reliance on the conditions as varied (paragraph 10 of the submissions filed on 1 March 2011). 35 Firstly, the representation alleged went no further than to assert that Valentine Road was in the restricted area. It was not represented that the restricted area would never be varied, and the effect of the variations to the restricted area as defined and to the definition of the Perth Airport Estate makes plain that Valentine Road is not within the restricted area to which the lease applies. 36 Secondly, and, in any event, although there has been recognition as outlined above, that estoppel may operate against a public body, it may do so only in limited circumstances. Subject to those circumstances the general principle is as stated by Mason CJ in Quin at [17]: (Page 12)
… The executive cannot by representation or promise disable itself from, or hinder itself in, performing a statutory duty or exercising a statutory discretion to be performed or exercised in the public interest, by binding itself not to perform the duty or exercise the discretion in a particular way in advance of the actual performance of the duty or exercise of the power[.] 37 The applicant concedes by his own submissions that the exercise of the discretion to determine under what conditions taxi plates should operate is to be exercised in the public interest and expressly disavows that he seeks to fetter the exercise of that discretion. 38 At best, therefore, the estoppel asserted by the applicant could offer protection to him up to the variation of the taxi operating conditions in December 2010, but not beyond. In that regard, the applicant's submission that once the Director General had determined how many taxi plates it could issue, and under what conditions, the process of calling for expressions of interest for, and the issuing of, the additional taxi plates is no more than a matter of implementation, has a superficial attraction, but the distinction relied upon is deceptive. In exercising his discretionary powers to administer the taxi industry, the Director General has determined that restricted taxi plate holders be permitted to operate taxis within particular areas. It is self-evident, as submitted on behalf of the Director General, that any decision of that nature is made to ensure that public transport is available to all members of the public and to improve services in the restricted areas. No other conceivable purpose was mooted. Thus the representation relied on did not go to the process to be followed which might give rise to a stronger argument, as in Waverley, but reflected an error as to the officer's understanding of the geographic extent of the restricted area. That error is not capable of changing the policy decision defining the area of operation. I consider that even this aspect of the applicant's case cannot succeed. 39 Thus, an estoppel up to December 2010 could not be established. But, if I am wrong in that conclusion, for the reasons already stated, any estoppel which might have been available in respect of the period up to December 2010 could not have been maintained thereafter.
Conclusion 40 For the above reasons, I conclude that the application for review, reliant as it is upon the estoppel asserted by the applicant, cannot possibly succeed. As there has been no suggestion that there is any other basis on which the case could be made out, and no other means of doing so is (Page 13)
apparent, the case should be struck out pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA) as being lacking in substance.
Order 41 Accordingly, an order will be issued in the following terms: 1. The proceedings are dismissed pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA) as being lacking in substance. |