Peric v Chief Executive of Department of Transport and Main Roads

[2011] QCAT 148

CITATION: Peric v Chief Executive of Department of Transport and Main Roads [2011] QCAT 148

PARTIES:	Mr Dragan Peric
v
Chief Executive of Department of Transport and Main Roads

APPLICATION NUMBER:   GAR072-11

MATTER TYPE: General administrative review matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Sandra Deane, Member

DELIVERED ON: 14 April 2011

DELIVERED AT: Brisbane

ORDERS MADE:     [1]     Application for stay is dismissed.

CATCHWORDS : 

Application for stay

Queensland Civil and Administrative Tribunal Act 2009, s 22
Transport Operations (Road Use Management) Act 1995, s 131
Transport Operations (Road Use Management – Driver Licensing) Regulation 2010, s 7, sched 9

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

Background

1. An application was made to the Tribunal on 22 March 2011 by Dragan Peric seeking a review of a decision of the Department of Transport and Main Roads (“the Department”) of 11 March 2011 to cancel his driver’s licence, effective 21 March 2011 to 6 November 2011, under the Transport Operations (Road Use Management) Act 1995 (“the TO(RUM) Act”).

1. Mr Peric also sought a stay of the decision under review.

1. The Department’s decision arises out of the following circumstances:

a)On 6 November 2010 Mr Peric was convicted of an offence by the Local Court of New South Wales and disqualified from driving for a year;

b)On 16 February 2011 the Department issued a show cause notice to Mr Peric inviting him to demonstrate why his Queensland driver’s licence ought not to be cancelled.

Legislation

1. Section 22 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”) provides that the start of a review proceeding does not affect the operation of the decision under review. However this does not apply if the enabling Act provides otherwise.

1. Section 131(1AA) of the TO(RUM) Act provides that a person aggrieved by a cancellation of a licence may apply to the Tribunal for a review of the cancellation.

1. Section 131(1BA) of the TO(RUM) Act provides that on the making of the application for review the cancellation is suspended pending finalisation of the review.

1. Section 7 of the Transport Operation (Road Us Management – Driver Licensing) Regulation 2010 (“the Regulation”) provides that a reference in Part 2 of the Regulation to a licence is to a valid licence.

1. Schedule 9 of the Regulation defines ‘valid’, in relation to a driver licence, to mean that the licensee is not disqualified, by order of an Australian court, from holding or obtaining a driver licence.

Evidence and Submissions

1. Mr Peric submits that:

a)the loss of his licence would cause extreme financial hardship to himself, including bankruptcy;

b)he owns a busy Broadbeach restaurant and employs 21 persons;

c)he lives in Burleigh and travels to Broadbeach early in the morning and finishes work at 2am;

d)public transport is not available and taxis are difficult to book at those times;

e)he holds a liquor licence and is a fit and proper person to hold such a licence;

f)he has incurred substantial outlays in relation to the business;

g)if he cannot attend his business premises the business will close causing his employees to lose their jobs.

[10]  The Department submits that:

a)the Tribunal does not have jurisdiction to determine to stay the decision as by section 131 of the TO(RUM) Act any decision to cancel a driver licence is stayed once an application for review has been made to the Tribunal and there is no need for and no jurisdiction to make an order staying the decision;

b)by operation of the Regulation, from the time Mr Peric was disqualified from driving by the Local Court of New South Wales he ceased to hold a valid driver’s licence in Queensland and has not been authorised to drive in Queensland since 6 November 2010 whether or not the Department took steps to cancel his licence;

c)the TO(RUM) Act does not provide for applications for authorisation to continue to drive by drivers such as Mr Peric who have been disqualified from driving by a court in another jurisdiction;

d)neither the TO(RUM) Act nor the Regulation provide any power to the Department to make a decision to authorise driving on the basis of hardship or any other grounds to a driver who has been disqualified from driving by a court in another jurisdiction;

e)the Tribunal has no power to make any decision that would result in Mr Peric being authorised to drive in Queensland when he is disqualified from driving by order of a court in another jurisdiction and seeks an order pursuant to section 47(b) of the QCAT Act that Mr Peric’s application for review be dismissed.

Discussion and Decision   

[11] I accept the Department’s submission that there is no need to make an order staying the decision in view of section 131(1BA) of the TO(RUM) Act. The enabling Act clearly sets out that the start of a review suspends the decision to cancel the licence pending finalisation of the review.

[12]  I make no finding in relation to whether the suspension of the operation of the Department’s decision to cancel Mr Peric’s licence entitles Mr Peric to drive in Queensland. 

[13]  In order to afford Mr Peric procedural fairness the Department’s application for the review application to be dismissed will be subject to further directions prior to it being determined.

Order

[14]  The application for a stay is dismissed.