Ministry of Transport v Liu (GD)

[2007] NSWADTAP 7

Appeal Panel - Internal

CITATION:	Ministry of Transport v Liu (GD) [2007] NSWADTAP 7
PARTIES:	APPELLANT Ministry of Transport RESPONDENT Leslie Liu
FILE NUMBER:	079003
HEARING DATES:	2/02/2007
SUBMISSIONS CLOSED:	2 February 2007
DATE OF DECISION:	6 February 2007
BEFORE:	Hennessy N - Magistrate (Deputy President); Pearson L - Judicial Member; Blake C - Non Judicial Member
CATCHWORDS:	leave to extend to the merits - relevant/irrelevant considerations - stay of proceedings
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	063446
DATE OF DECISION UNDER APPEAL:	01/18/2007
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Evidence Act 1995 Passenger Transport (Taxi-Cab Services) Regulation 2001
CASES CITED:	Kaldas v Tow Truck Authority of NSW [2006] NSWADT 337 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 CLR 25 Sleiman v Tow Truck Authority of NSW [2004] NSWADT 239 Williamson v Director General, Department of Transport [2000] NSWADT 165
REPRESENTATION:	APPELLANT A Wozniak, solicitor RESPONDENT In person
ORDERS:	1. The Tribunal’s decision to stay the Ministry’s decision to cancel Mr Lui’s taxi driver authority on certain conditions is set aside.; 2. In substitution for that decision, a decision is made to refuse to grant Mr Lui a stay of the Ministry’s decision to cancel his taxi driver authority.; 3. The matter is listed for further directions on 27 March 2007 at 10 am.

Introduction

1 Mr Lui has been a taxi driver for about 6 years. On 17 October 2006 the Ministry of Transport cancelled his taxi authority because he had been charged with indecently assaulting a female passenger. On 29 December 2006 Mr Lui applied for a stay of that decision so that he could continue to drive a taxi until the criminal charges were heard. The Tribunal refused that application. On 15 January 2007 the Local Court heard the criminal charges and reserved its decision until 23 March 2007. Given that he would be unable to drive for another 2 months, Mr Lui re-applied to the Tribunal for a stay. On 18 January 2007 the Tribunal stayed the Ministry’s decision to cancel his taxi authority until 23 March 2006 “on condition that Mr Lui does not come to the attention of the Ministry, and if he does the interim order lapses on Mr Lui being advised by the Ministry.” The Ministry of Transport has appealed that decision. The Ministry is entitled to appeal a decision of the Tribunal on a question of law, but must first obtain leave to appeal against the merits of the Tribunal’s decision: Administrative Decisions Tribunal Act 1997 (ADT Act), s 113.

2 On 25 January 2007, the Appeal Panel, constituted by one presidential member, granted the Ministry leave to appeal against the decision to grant a stay: ADT Act, s 113(2A). The Appeal Panel also stayed the Tribunal’s decision pending determination of the Ministry’s appeal: ADT Act, s 116. The effect of that decision was that Mr Lui was unable to drive a taxi pending the determination of the appeal.

Tribunal’s decision

3 The Tribunal gave oral reasons for its decision to stay the Ministry’s decision to cancel Mr Lui’s taxi authority. Mr Lui told the Tribunal that the offence had allegedly occurred two years ago and that he should not be penalised by losing his taxi authority. He said he had not driven a taxi since October 2006 and that he had no other source of income. Mr Wozniak, on behalf of the Ministry, submitted that the charge was a very serious one and he had not notified the Ministry of the charge, otherwise he may have been off the road for longer. In coming to a decision, the Tribunal Member understood from Mr Lui that his defence was that of mistaken identity. The Tribunal member also took into account that it would be two months at least before Mr Lui knew the outcome of the criminal proceedings.

Appeal Panel’s decision

4 Section 60 of the ADT Act gives the Tribunal power to grant a stay of a decision to cancel a taxi driver authority. That section provides that:

(1) Subject to this section, an application to the Tribunal for a review of a reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision.

(2) On the application of any party to proceedings for an application for a review of a reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application.

(3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account:

(a) the interests of any persons who may be affected by the determination of the application, and

(b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and

(c) the public interest.

(4) While an order is in force under this section (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on application by a party to the proceedings, vary or revoke the order by another order.

5 There are two steps in the process of deciding whether or not to grant a stay. The first is to determine whether a stay is appropriate to “secure the effectiveness of the determination of the application”: Williamson v Director General, Department of Transport [2000] NSWADT 165 at [14] to [18]. If so, the second step is for the Tribunal to determine whether or not to grant a stay after taking into account the factors listed in s 60(3). There was no issue in this case that the first step in the process had been satisfied. Mr Lui would suffer “irreparable loss”, that is a loss of income, if he were not permitted to drive a taxi prior to the matter being determined.

6 The second step involves the Tribunal taking into account all relevant factors including the interests of the persons who may be affected by the determination, any submissions by the administrator and the public interest. One factor that the Tribunal took account, in fact the only factor mentioned specifically, was that Mr Lui’s defence was one of mistaken identity. The implication of the reference to Mr Lui’s defence is that the Tribunal took into account the likelihood of Mr Lui being convicted as a relevant factor when coming to its decision.

7 It is a fundamental principle of law that in exercising discretionary power a decision maker must only take into account relevant considerations. Obversely, a decision maker must not take into account irrelevant considerations. The leading Australian case in this area is Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 C L R 25 at 39 per Mason J. The relevant principles are that:

(a) the decision maker will only have made an error of law if he or she takes into account a consideration that he or she is forbidden from taking into account and that materially affected the decision;

(b) the factors that a decision-maker is forbidden from considering are to be determined by construing the statute conferring the discretion;

(c) if the statute expressly states the considerations to be taken into account, the appeal body must decide whether those factors are exhaustive or inclusive.

8 The factors listed in s 60(3) are not exhaustive. The Tribunal may take into account any other relevant matter. However, the public interest is one of the factors that the Tribunal must take into account when determining whether to grant a stay. When determining where the public interest lies, it is relevant to consider the nature and seriousness of the charges, whether they relate to the activity for which the person is licensed; and whether public safety may be at risk if the person continues to drive a taxi. It is not relevant for the Tribunal to take into account the likelihood of the person being convicted of the offence. Whether or not the person is guilty is a matter for the courts to decide. It would be inappropriate for the Tribunal to form any view about the prospects of the person being found guilty given that the Tribunal does not have all the evidence or submissions before it in relation to the criminal matter. The Tribunal has made this point in relation to applications for stays by tow truck operators: Kaldas v Tow Truck Authority of NSW [2006] NSWADT 337 at [13]; Sleiman v Tow Truck Authority of NSW [2004] NSWADT 239 at [8].

9 In our view, by taking into account the nature of Mr Lui’s defence, the Tribunal took into account a matter that it was forbidden from taking into account, namely the likelihood of conviction. That matter materially affected the Tribunal’s decision. Having found that the Tribunal made an error of law, we may either determine the merits of the Mr Lui’s stay application ourselves or remit that matter to the Tribunal to be heard and decided again. In order to avoid further unnecessary delay, we have decided to determine the merits of the stay application ourselves.

Application for stay

10 Introduction. We are satisfied that a stay is appropriate to “secure the effectiveness of the determination of the application”. Even if the Ministry’s decision to cancel Mr Lui’s taxi-authority is eventually set aside, he will not be compensated for the loss of income if a stay is not granted. We must now take into account Mr Lui’s interests, any submissions by Mr Wozniak and the public interest.

11 Mr Lui’s interests. Mr Lui told the Appeal Panel that he was recently married and that he supports his wife and his wife’s 15 year old son. He has lived in Australia for 18 years and is an Australian citizen. Apart from working in a restaurant about 10 years ago, he says that the only other job that he has had is driving a taxi. He has a mortgage to pay, but also says that he may be entitled to Centrelink benefits if he remains unemployed.

12 Submissions by the administrator. Mr Wozniak submitted that the charge is a serious one that relates to Mr Lui’s activities as a taxi driver. He appreciates that Mr Lui will suffer financial hardship if he is not able to work but says that the public interest demands that he not drive a taxi until the criminal charges have been resolved. It will be less than 2 months until the outcome of the criminal proceedings are known, and that is a relatively short period of time.

13 Public interest. It is relevant when taking into account the public interest, to examine the nature and seriousness of the charges, whether they relate to the activity for which the person is licensed; and whether public safety may be at risk if the person continues to operate. The charge is indecently assaulting a female passenger. The allegation was that Mr Lui fondled her breasts, rubbed his hand between her legs and over her groin and rubbed her vagina outside her clothes. Mr Lui admitted that this charge was “quite serious”. It relates to a woman who was a passenger in a taxi that Mr Lui was driving. In our view the allegation is sufficiently serious to conclude that it is not in the public interest for Mr Lui to continue driving a taxi. The fact that Mr Lui has been and will continue to suffer financially is a relevant matter. But it does not persuade us to grant a stay in circumstances where a decision will be given in less than two months.

14 Other matters. Mr Lui admits that he did not notify the Ministry of Transport of the charge, as required by Clause 36 of the Passenger Transport (Taxi-Cab Services) Regulation2001. He says that he assumed the Ministry knew of the charge because officers from the Ministry interviewed him about the complaint before he was charged. Mr Lui said that he did not know that he was obliged to tell the Ministry that he had been charged with an offence. The Appeal Panel will issue Mr Lui with a certificate pursuant to s 128 of the Evidence Act 1992 in relation to this evidence. Mr Lui also had 17 other complaints against him at the time his licence was cancelled. In reaching our conclusion, we have not taken into account these complaints or the fact that Mr Lui did not notify the Ministry of the charge.

15 Conditions on stay. The Tribunal may impose conditions on a stay order. The Tribunal imposed a condition that Mr Liu does not come to the attention of the Ministry and that, if he does, the interim order lapses on Mr Liu being advised by the Ministry. In our view, the Tribunal did not have jurisdiction to impose that condition because it purports to give the Ministry power to revoke a stay decision made by the Tribunal. The ADT Act gives the Tribunal power to make, vary or revoke a stay decision in certain circumstances: s 60 and s 61. The ADT Act does not give the Tribunal power to delegate that function.

Orders

1. The Tribunal’s decision to stay the Ministry’s decision to cancel Mr Lui’s taxi driver authority on certain conditions is set aside.

2. In substitution for that decision, a decision is made to refuse to grant Mr Lui a stay of the Ministry’s decision to cancel his taxi driver authority.

3. The matter is listed for further directions on 27 March 2007 at 10 am.