Spence v Chief Executive, Department of Transport and Main Roads

[2011] QCAT 149

CITATION: Spence v Chief Executive, Department of Transport and Main Roads [2011] QCAT 149

PARTIES:	Glen Raymond Spence
v
Chief Executive, Department of Transport and Main Roads

APPLICATION NUMBER:   GAR088-11

MATTER TYPE: General administrative review matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Sandra G Deane, Member

DELIVERED ON: 21 April 2011

DELIVERED AT: Brisbane

ORDERS MADE:      1.    Application to stay a decision is dismissed.

CATCHWORDS: 

Application for stay

Queensland Civil and Administrative Tribunal Act 2009, s 22
Transport Operations (Road Use Management) Act 1995, s 19
Transport Planning and Co-ordination Act 1994, s 32

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. Mr Spence has applied to the Tribunal for a stay of the decision of the Respondent (the Department) dated 15 March 2011 made pursuant to section 19(6) of the Transport Operations (Road Use Management) Act 1995 (TO(RUM) Act) to immediately suspend Mr Spence’s approval as an approved examiner, Approved Examiner’s number 13391 and approval as an AIS Nominee, Approved Inspection Station number 8403 and pursuant to section 19(1) of the TO(RUM) Act to invite Mr Spence to show cause why the approvals ought not be cancelled (the Decision).

2. Mr Spence has applied to the Department for an internal review of the Decision under section 65 of the TO(RUM) Act and to the Tribunal for a stay under the Transport Planning and Co-ordination Act 1994 (TPC Act).

Legislation

1. Section 22 of the Queensland Civil and Administrative Tribunal Act 2009 provides that the Tribunal can make an order to stay a decision only if it considers it desirable after having regard to the interests of any person whose interests may be affected by the making of, or declining of, a stay order, having regard to any submissions made by the decision-maker and having regard to the public interest.

2. Section 32(1) of the TPC Act provides that if a person applies for review of an original decision the person may immediately apply for a stay to the Tribunal.

3. Section 32(2) of the TPC Act provides that the Tribunal may stay the original decision to secure the effectiveness of the review and any later review by the Tribunal.

4. Section 32(7) of the TPC Act provides that the period of a stay under this section must not extend past the time when the chief executive reviews the original decision and makes the reviewed decision.

5. Accordingly, any stay granted by the Tribunal pursuant to Mr Spence’s application would only be effective until the internal review is determined.  That reviewed decision may be the subject of a separate review application to the Tribunal and a further stay application.

Evidence and Submissions

1. Mr Spence and the Department have made written submissions and Mr Spence has filed an affidavit.

2. Mr Spence submits that:

   a)     in or about late February 2011 the Department made a decision that he was a fit and proper person to hold a licence;

   b)     there have been no changes to the material facts since then;

   c)     he would write approximately 10 safety certificates per day plus he would receive vehicles from the inspections to repair;

   d)     since the suspension he has not earned any income;

   e)     in the event that the stay is not granted he will suffer financially;

   f)   his mechanical repair shop no longer has enough work to support his staff or himself and he will likely be forced to put off staff;

   g)     this business is the only income for him and his family;

   h)     he has been a motor mechanic and vehicle inspector for 15 years and has written thousands of safety certificates;

   i)   he believes that there are ulterior reasons for the Decision;

   j)   the Department has acted unlawfully in purporting to immediately suspend the approvals;

   k)     the Department is required to find it “necessary” as well as in the public interest to immediately suspend the approvals;

   l)   the Department failed to give reasons for why it is “necessary”;

   m)   the Department failed to give him an opportunity to show cause as to why his approvals should not be suspended and cancelled;

   n) the Department failed to comply with section 19(1) and 19(2) of the TO(RUM) Act 1995 and therefore the issuing of the notice is void;

   o)     the Department failed to give him an opportunity to ‘remedy’;

   p)     the Department has not previously informed him that it had a problem with the road safety certificates he has been issuing or given any written warning or any directive to remedy any concerns.    

3. The Department submits that:

   a)     for the reasons set out in the notice dated 15 March 2011 it could adversely affect the safety of members of the public (the purchasers of vehicles and other road users) if in the circumstances detailed Mr Spence continued to be allowed to issue safety certificates until a full hearing has determined the validity of the decision to suspend the approval especially given the number of safety certificates he issues per day;

   b)     the Decision does not stop Mr Spence from otherwise carrying on his mechanical and motor repair business;

   c)     when exercising its decision the Tribunal should consider the potential effect on the public interest of persons and road safety should outweigh any loss of income by Mr Spence in having part of his business activities suspended.

4. The Decision asserts that Mr Spence signed and issued 4 safety certificates when he did not carry out a thorough inspection of the vehicles, he could not have known if the vehicles were defective or not, the certificates contained information that he knew was false and misleading and the vehicles were subsequently found to be defective and unsafe.

Discussion and Decision

1. The Tribunal is required to have regard to how Mr Spence’s interests will be affected in the event that a stay of the decisions is not made.

2. I accept that Mr Spence would be likely to suffer some financial hardship.

3. I note that internal reviews by the Department are usually determined within a relatively short space of time. 

4. The Tribunal is required to have regard to the submissions of the decision-maker and have regard to the public interest.

5. The Department opposes the stay and submits that the public interest and public safety outweighs any personal interests argued by Mr Spence.

6. I find that a stay in this case would tend to undermine the integrity of the statutory scheme to protect the public.  I accept the Department’s submission.

7. Having regard to all of the issues raised by Mr Spence and the submissions made by the Department I am not satisfied that it is desirable to make an order to stay the operation of the Decision.

Order

1. The application to stay a decision is dismissed.