POLITI and DEPARTMENT OF PLANNING AND INFRASTRUCTURE
[2005] WASAT 160
•8 JULY 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: TRANSPORT CO-ORDINATION ACT 1966 (WA)
CITATION: POLITI and DEPARTMENT OF PLANNING AND INFRASTRUCTURE [2005] WASAT 160
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: 14 JUNE 2005
DELIVERED : 8 JULY 2005
FILE NO/S: CC 2253 of 2005
BETWEEN: ANTONIO POLITI
Applicant
AND
DEPARTMENT OF PLANNING AND INFRASTRUCTURE
Respondent
Catchwords:
Review - SAT jurisdiction - Decision to revoke, suspend or refuse a licence
Legislation:
State Administrative Tribunal Act 2004 (WA)
Transport Coordination Act 1966 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Mr N Chin
Respondent: Ms R Panetta
Solicitors:
Applicant: Agent
Respondent: State Solicitor's Office
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Issue
The applicant sought a review under section 57(3) of the Transport Co‑ordination Act 1966 (WA) ("Act") of:
(i)the decision of the Minister to "revoke" the Small Charter Vehicle Licence ("SCV") for a category D modified luxury stretched limousine; and
(ii)to determine that the "date of manufacture" of the vehicle in question is referable only to the date of manufacture of the licensed vehicle and not the "date of original manufacture" of the Ford Fairlane.
However before the merit of the application could be considered the parties were requested to make submissions regarding the jurisdiction of the State Administrative Tribunal ("SAT") to deal with the application. The reason for addressing the jurisdictional question at a preliminary stage is that the decision to refuse a licence pursuant to s 24 of the Act is not reviewable by SAT. Clarity was therefore required whether the application falls within the ambit of s 24 or s 57 of the Act.
The applicant contended that the refusal of the Minister to issue a licence could be construed as a revocation or suspension of a licence under s 57(3) of the Act and is therefore reviewable by SAT. The applicant argued that the refusal amounts to a revocation or suspension "by implication".
The respondent contended that the refusal to issue a licence arises from s 24 of the Act and is therefore not reviewable by SAT.
Application lodged with State Administrative Tribunal
The application was lodged with SAT on 5 April 2005. In exercising its review function the SAT deals with a matter in accordance with s 17 of the State Administrative Tribunal Act 2004 (WA) ("SAT Act") and the enabling Act.
The President of the SAT nominated me under s 11(1) of the SAT Act to constitute the Tribunal for purposes of determining this matter.
Section 57(3) of the Act enables an aggrieved person to seek a review from SAT of a reviewable decision. A "reviewable decision" is defined as the decision of the Minister to revoke or suspend a licence. Section 24 of the Act does not provide for a review by SAT of the decision not to issue a licence.
Jurisdictional issue
It was agreed that first question to be dealt with was that of jurisdiction and if it was indeed the case, attention would turn to the substance of the application.
Applicant's submissions
The applicant made written and oral submissions in response to the jurisdictional question. The applicant contended in summary that –
(a)the applicant sold the vehicle due to financial hardship and ill health and then bought it back again when his situation improved. He never intended for his omnibus licence to lapse but merely for it to be held in "cold storage" for later re-issuing. There was therefore no need for the applicant to apply for a new licence as he only wanted his previous licence to be re‑issued;
(b)the respondent's refusal to re‑issue the licence for the same vehicle amounts by implication to a revocation within the meaning of s 57(1) of the Act and is therefore reviewable under s 57(3) of the Act;
(c)the applicant did not sell his business but only the vehicle. He had intended at all material times to re‑acquire the vehicle whenever the opportunity availed itself. The omnibus licence did not "fall out" (lapse) due to negligence on the part of the applicant or Mr Brisca (to whom the vehicle was sold);
(d)the licence issued to Mr Brisca by the Minister was without the consent and knowledge of the applicant; and
(e)the confiscated property of Mr Brisca was not protected and was allowed to deteriorate in value. Mr Brisca cannot be faulted as the circumstances that caused him to allow the licence to expire were beyond his control.
Respondent's submissions
The respondent made written and oral submissions in response to the jurisdictional question. The applicant contended in summary that –
(a)the decision not to issue an omnibus licence does not involve a reviewable decision under s 57(3) of the Act. The Act defines a "reviewable decision" as a decision that involves the revocation or withdrawal of a licence. The application can therefore not proceed pursuant to s 57(3) of the Act;
(b)the applicant sold his vehicle to a Mr Brisca in 2003 and wrote to the Department in a letter faxed on 20 January 2003 to inform them that he was transferring the "SCV plate to Absolute Luxury Limousines Pty Ltd". On 23 January 2003 and 22 March 2003 records of the Department were amended to show the change of ownership and the grant of an omnibus licence to Absolute Luxury Limousines. On 21 January 2003 the applicant applied for a refund of the unexpired portion of the omnibus licence and received an amount of $44.01;
(c)the omnibus licence is issued to the owner of a suitable vehicle (s 24(1)) and could not have been held in person by the applicant after the vehicle had been sold;
(d)the application for a new omnibus licence, albeit for the previously owned vehicle, must be treated in accordance with s 24 of the Act;
(e)the discretion of the Minister to refuse to issue the licence is exercised under s 24 of the Act and is not subject to review by SAT. The application lodged by the applicant did not comply with the requirements of s 25 of the Act. The applicant merely wrote a letter dated 20 May 2004 in which he asked to be given "authority to licence the vehicle" but no other formal application that complies with the provisions of s 25 had been received; and
(f)the refusal by the Minister to issue the licence falls outside the jurisdiction of SAT and the application must therefore be dismissed.
Consideration
The Tribunal's jurisdiction to review the decision of the Minster originates from s 13 of the SAT Act. The applicant must show that the SAT has jurisdiction to deal with the application on grounds that the enabling Act enables a review application to be made to the SAT or that the SAT has original jurisdiction to deal with the matter.
The SAT has original jurisdiction if the matter that the enabling Act gives the Tribunal jurisdiction over does not involve a review of a decision: s 15(1) SAT Act.
The SAT has review jurisdiction if the matter that the enabling Act gives the Tribunal jurisdiction over involved a review of a decision – hence reference to a "reviewable decision": s 17 SAT Act.
For the decision of the Minister to be reviewable it must fall within the framework of s 57(3) of the Act. Section 24 and s 26 of the Act which deal with refusal to licence do not clothe the SAT with a review function nor does it fall within the SAT's original jurisdiction.
The decision of the Minister under s 57(3) of the Act relates to the revocation or suspension of a licence. A licence can only be revoked or suspended if it has been issued and is held by the applicant. That appears not to be the case. The applicant arranged for the transfer of the licence and vehicle to another person whereafter he sought and received a refund for the remainder of the term of the licence. To suggest that a decision not to issue a new licence is "per implication" a revocation or suspension of a licence is at best fictional.
There is no evidence that the Minister was requested by the applicant to "suspend" the licence on a temporary basis due to financial hardship or if there had been such a request, that the Minister had agreed thereto. The applicant's argument that the refusal to re-licence the vehicle "constitutes acts which are tantamount to the Respondent's revocation of my Omnibus Licence" is therefore rejected.
I do not accept that the omnibus licence was "revoked" or "suspended" by the Minster pursuant to s 57 of the Act.
The decision by the Minister not to issue an omnibus licence pursuant to s 24 of the Act is not a reviewable decision and therefore falls outside the jurisdiction of the SAT.
Finding
The Tribunal finds that pursuant to s 17 of the SAT Act, the SAT does not have jurisdiction to consider the application on the basis that the licence was not revoked or suspended as required by s 57(3) of the Act and that the refusal to issue must be treated in accordance with s 24 of the Act.
Order
The application is dismissed for lack of jurisdiction.
I certify that this and the preceding [19] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR B DE VILLIERS, MEMBER
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