TSC v Rowan
[2014] VSC 359
•1 August 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 01398 of 2014
| TAXI SERVICES COMMISSION | Appellant |
| v | |
| PHILLIP VINCENT ROWAN | Firstnamed Respondent |
| and | |
| GERARD MAHONEY | Secondnamed Respondent |
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JUDGE: | T FORREST J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 June 2014 |
DATE OF JUDGMENT: | 1 August 2014 |
CASE MAY BE CITED AS: | TSC v Rowan & anor |
MEDIUM NEUTRAL CITATION: | [2014] VSC 359 Revised 16 December 2014 |
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ADMINISTRATIVE LAW – Appeal on a question of law – Victorian Civil and Administrative Tribunal – Review jurisdiction of Tribunal – Review of delegated decision to alter conditions applying to commercial passenger vehicles – Whether Tribunal erred when it concluded it had jurisdiction to review decision – Proper construction of relevant division of enabling Act – Uncertainty as to statutory basis for exercise of power – Whether finding that power exercised under one, rather than other, provision open – Appeal dismissed - Transport (Compliance and Miscellaneous) Act 1983, 144(2), 146(1), 146C - Arthur Grigoriou v Victorian Taxi Directorate [2001] VCAT 2294.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr T Hurley | Taxi Services Commission |
| The Respondents in person |
HIS HONOUR:
This is an appeal on two questions of law brought pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘the Tribunal Act’) from a decision of the Victorian Civil and Administrative Tribunal (‘the Tribunal’) dated 12 March 2014 (‘the Tribunal decision’).
The Taxi Services Commission (‘the TSC’), who brings the appeal, is the licensing authority responsible for administering those parts of the Transport (Compliance and Miscellaneous) Act 1983 (Vic) (‘the Transport Act’) that concern commercial passenger vehicles.[1] The respondents are licensees under that Act.
[1]Transport (Compliance and Miscellaneous) Act 1983 (Vic), s 2; the TSC is established by s 115 of the Transport Integration Act 2010 (Vic).
I shall set out a brief background to the proceedings before turning to the impugned decision and the grounds of appeal.
Background
In March 2011 the Victorian Government established the Taxi Industry Inquiry as the first step towards substantial reform of the State’s taxi and hire car industry.[2] An associated measure was the announcement that the TSC would take over from the Victorian Taxi Directorate as industry regulator and operate, from 1 July 2013, as a statutory authority with powers to reform the industry.[3]
[2]Annexure to Exhibit SLH-4 to the Affidavit of Sonia Louise Hancock dated 26 March 2014 – ‘Government Response: Taxi Industry Inquiry Final Recommendations’.
[3]Ibid.
On 9 December 2013, delegates of the TSC made three decisions under the Transport Act with a view to implementing the government’s reform goals. In substance these were:
(1)A decision to classify the types of vehicles that can be attached to a commercial passenger licence (‘the classification decision’);
(2)A determination of the fees to be paid for the grant of a commercial passenger vehicle licence issued after 8 December 2013 (‘the fees decision’); and
(3)A determination of the conditions attached to all Metropolitan Hire and Country Hire licences from 9 December 2013 (‘the conditions decision’).
This appeal concerns the conditions decision.
On 3 January 2014 the respondents lodged applications with the Tribunal for review of the three decisions. At a stay hearing on 10 January 2014, however, it became apparent that the TSC would apply to have the proceedings struck out on the basis that the Tribunal lacked jurisdiction to review the decisions.[4] The thrust of the challenge to jurisdiction was a claim that the decisions had been made under provisions of the Transport Act from which there was no statutory right of review. It is trite law that the Tribunal’s review jurisdiction, where it arises, must be conferred upon it by or under an enabling enactment.[5]
[4]The Victorian Civil and Administrative Tribunal Act 1998, s 75.
[5]Ibid, s 42(1).
The application was adjourned for hearing on 21 February 2014 to allow the parties time to file submissions on this issue.
On 12 March 2014, Deputy President Lambrick acceded to the strike-out application insofar as it concerned the classification and fees decisions. Those decisions had been made under ss 145 and 142(3) of the Transport Act and the Tribunal did not have jurisdiction to review decisions made under those sections. Neither party challenges this conclusion before me.
The Deputy President was, however, confronted with two possible statutory bases for the Third Decision. The respondents, then applicants, submitted the decision had been made under s 146(1) of the Transport Act; the TSC, s 144(2). For present purposes it suffices to observe that a decision under s 146(1) enlivens the Tribunal’s jurisdiction, whereas a decision under s 144(2) does not.
Ultimately, the Deputy President held the decision had been made under s 146(1) of the Act and the strike-out application was dismissed. The reasons for the Tribunal decision were of mixed fact and law and I set them out now in summary form. The Deputy President:
· Rejected the TSC’s submission that the decision could not, as a matter of law, be made under s 146(1) because that section did not permit industry-wide changes;
· Agreed with an earlier Tribunal decision in which s 144(2) had been construed so as to apply at the initial licensing stage and s 146(1) to alterations to conditions during the currency of the licence. It followed from this that the Third Decision could have been made under s 146 1) and could not have been made under s 144(2);
· Accepted that a document setting out the decision, dated 9 December 2013, stated the decision had been made under s 144(2). Equally, the Deputy President accepted that a circular letter, also dated 9 December, explained the decision had been made under s 146(1) and advised licence holders of their right of review under s 146C(2);
· Considered the letter of 9 December to be “detailed, carefully constructed and considered correspondence”; and
· Considered it to be more probable than not that the decision had been made under s 146(1).
· Concluded the Tribunal had jurisdiction to review the decision under the enabling provision, s 146C.
The matter was adjourned for further directions and on 26 March the TSC filed an originating motion in this court seeking leave to appeal the Tribunal Decision.
The Grounds of Appeal
On 29 April 2014 AsJ Zammit granted the TSC leave to bring this appeal on the following questions of law.
(a)did the Tribunal err in construing s 144(2) of the Transport (Compliance and Miscellaneous) Act 1983 (Vic) as not enabling the Appellant to make a further determination of the conditions attaching to the licences for hire car vehicles once the licences had been issued and were current; and
(b)was it open to the Tribunal to find that the Appellant had not made the "determination of conditions attached to all hire car licences under s 144(2) of the Transport (Compliance and Miscellaneous) Act1983 (Vic) on 9 December 2013 under s 144(2), but had made the decision under 146(1).
The grounds are, respectively, answers to these questions in the affirmative and the negative.
The Transport (Compliance and Miscellaneous) Act 1983
I set out the relevant provisions of the Act as they were in force at the time of the decision.[6]
[6]Authorised version No.183 which incorporates amendments as at 1 December 2013.
Part VI of the Transport Act governs the licensing and accreditation of certain drivers and vehicles. Specifically, Division 5 of that Part is directed toward the licensing of commercial passenger vehicles, a broad statutory category that includes “…any motor vehicle… which is used or intended to be used for carrying passengers for hire or reward…” but not including a bus.[7]
[7]Transport (Compliance and Miscellaneous) Act 1983, s 86(1).
As a general rule a commercial passenger vehicle may not operate on a highway unless it is licensed in accordance with the division.[8] ‘Highway’ takes the meaning it has under the Road Safety Act 1986 and refers, broadly, to any road or ‘road related area.’[9] The unlicensed operation of a commercial passenger vehicle is an offence under s 158 of the Transport Act.
[8]Transport (Compliance and Miscellaneous) Act 1983, s 139. The two, limited, exceptions to this rule are irrelevant to this appeal.
[9]Transport (Compliance and Miscellaneous) Act 1983, s 86; Road Safety Act 1986, s 3(1).
The owner, or prospective owner, of a commercial passenger vehicle may apply to the licensing authority (the TSC) for a commercial passenger vehicle licence. These applications are made pursuant to s 139(2) and in accordance with s 140. Sections 141B-143A set out various conditions precedent to the grant of a licence to operate particular classes of commercial passenger vehicles[10] as well as matters to which the licensing authority must have regard when considering these applications. The refusal of an application for a commercial passenger vehicle licence is reviewable by the Tribunal.[11]
[10]Including hire-cars, special purpose vehicles and taxi-cabs.
[11]Transport (Compliance and Miscellaneous) Act 1983, s 143C.
Conditions will attach to every commercial passenger vehicle licence and this appeal is essentially concerned with those provisions of Division 5 of the Transport Act that dictate which conditions may (or must) apply to such licences and how they come to do so. It will be apparent from the above that the principle provisions in this regard are ss 144 and 146.
Section 144(1) sets out a minimum set of implied conditions that apply to every commercial passenger vehicle licence.[12] Subsections (1AA), (1A), (1B), (1C) relate to those implied conditions but are, for present purposes, irrelevant.
[12]Including, for example, ‘that the vehicle is maintained in a fit a serviceable condition.’
Subsection (2), which is the focus of the appeal, permits the licensing authority to attach additional conditions to a commercial passenger vehicle licence. I set out the subsection in some detail:
144 Conditions
…
(2)The licensing authority may in its discretion attach to any commercial passenger vehicle licence all or any of the following conditions, namely –
…
What follows is a list of possible additional conditions including, at sub-s (2)(g), ‘such other conditions appropriate to the service as the licensing authority thinks proper to impose in the public interest.’ The remaining sub-ss (3)-(9) and ss 144A and 145 are, again, irrelevant to the issues that arise for determination on this appeal.
Section 146 is, on any view, a counterpoint to s 144 and permits the cancellation or alteration of licences. It provides,
146 Cancellation or alteration of licences
(1)Subject to this section the licensing authority may at any time during the currency of a commercial passenger vehicle licence–
(a)Upon its own motion and for reasons stated in writing sent to the licence holder; or
(b) Upon the application of the licence holder–
cancel the licence or alter the conditions attached to that licence or alter the route or area in respect of which that licence was granted.
(2)Notwithstanding anything in this section, the charter or touring conditions attached to a commercial passenger vehicle licence shall not be cancelled or altered pursuant to this section except upon the application of the owner in respect of which that licence was granted.
Sections 144 and 146 are preceded by s 143D. Although neither party alleges the Third Decision was or could have been made under that section it is indirectly relevant to this appeal because it is the foundation for one of the appellant’s interpretive arguments. It empowers the licensing authority to attach certain special conditions to taxi-cab licences and, significantly, adopts some of the language of ss 144 and 146:
143D Condition forbidding transfer of taxi-cab licence
(1)In issuing a taxi-cab licence, the licensing authority may attach one or more of the following conditions to the licence–
(a)That the licence cannot be transferred, or cannot be transferred for a specific period;
(b)That the licence cannot be assigned, or cannot be assigned for a specified period.
…
(3)Despite section 146, the licensing authority cannot remove or alter a condition attached to a licence under subsection (1).
Finally, s 146C vests a limited review jurisdiction in the Tribunal. It is not necessary to set that section out at length, save but to say it permits the review of a decision under s 146(1)[13] but does not provide for review of a decision under s 144(2). It was agreed between the parties that this was the effect of the section.
[13]Transport (Compliance and Miscellaneous) Act 1983, s 146C(1)(c)
Did The Tribunal err in its construction of s 144(2)?
As I have said, the Deputy President concluded that the Conditions Decision could not have been made under s 144(2) because the decision had been made in respect of current licences and that section, the Deputy President held, did not permit the licensing authority to attach conditions to licences during their currency.[14] As authority for the latter proposition the Deputy President placed some reliance on an earlier Tribunal decision, Arthur Grigoriou v Victorian Taxi Directorate, in which then Deputy President Davis had considered the construction of Division 5 of the Transport Act.[15] I set out the relevant passages of that decision:
[19]It is clear from the terms of s.144(2) that the attachment of conditions to a commercial passenger vehicle licence is entirely a matter of the licensing authority's discretion. There is no provision in Division 5 (or anywhere else in the Act) for review by this Tribunal of decisions made in the exercise of that discretion.
[20]Once a commercial passenger vehicle licence has issued, the licensing authority retains its discretion, during the currency of the licence, to cancel the licence or alter the conditions attached to the licence, either upon its own motion, or upon the application of the licence holder; that process is governed by s.146. However, Section 146(2) provides that the licensing authority cannot, of its own motion, cancel or alter the "charter or touring conditions" attached to a commercial passenger vehicle licence except upon the application of the person owning the licensed vehicle. Effectively, therefore, there are some circumstances in which there must be an application by the licence holder before the licensing authority's discretion is enlivened.
[21]Section 146C appears on its face to provide for review by this Tribunal of three kinds of decisions: cancellation and suspension of the licence, or the alteration of conditions attached to the licence. In each of these situations, what is reviewable is a decision made by the Directorate either on its own motion, or on the application of the licence holder.
[22]It appears from the scheme of Division 5 of the Act that Parliament's intention was that the exercise of the discretion by the licensing authority of its own motion in changing the status quo should be reviewable by this Tribunal, but that the complete discretion which the licensing authority has at the initial licensing stage to attach conditions to a licence continues for the currency of the licence, and embraces decisions from time to time that such conditions are to continue in existence, even if the face of an application for alteration by the licence holder. Viewed in this way, the unavailability of review in respect of decisions to maintain the status quo (by refusing to alter conditions attached to the licence) is consistent with the complete discretion (and unavailability of review) given to the licensing authority in s.144(2) to attach conditions when granting a licence in the first place.[16]
[14]Rowan v Taxi Services Commission (Review and Regulation) [2014] VCAT 255 at [34]-[36].
[15][2001] VCAT 2294 (‘Grigoriou’).
[16]Grigoriou [2001] VCAT 2294 at [19]-[22].
The TSC now challenges the Tribunal’s construction of s 144(2) and, it follows, submits Grigoriou was wrongly decided.
I consider textual differences between ss 144(2) and 146(1) to support the Grigoriou construction.[17] The first and most obvious of these is the presence of the phrase ‘during the currency of the licence’ in s 146(1) and its notable absence from 144(2). In my view, that phrase clearly distinguishes the power contained in s 146(1) from the power in s 144(2).
[17]Every provision in a statute ‘must be read, not as if it were entirely divorced from its context, but as a part of the whole instrument.’: Metropolitan Gas Co v Federated Gas Employees’ Industrial Union (1924) 35 CLR 449 at 455.
Against the argument that the relevant distinction is between a power of temporally limited application[18] (s 146(1)) and a power of general application (s 144(2)) I observe that s 146(1) only permits the cancellation or alteration of a licence. As a matter of common sense, s 146(1) is already limited in time to application ‘during the currency’ of a licence by the words ‘cancel’ and ‘alter’ because to cancel or alter a licence (or its conditions) there must first be a licence. For this reason, I take the view that the function of the phrase ‘during the currency’ of the licence is not to limit the power exercisable under s 146(1) but to describe its relationship with the power exercisable under s 144(2) and circumscribe the boundaries of the latter.
[18]In the sense that it is limited in time to application during the currency of a licence.
A second textual argument concerns what I consider to be the consistent and deliberate uses of the words ‘attach’ and ‘alter’ in, variously, ss 143D, 144 and 146. By ‘alter the conditions attached to the licence’, s 146(1) permits the licensing authority to alter the terms of an existing condition or, it seems, alter the licence by altering which conditions attach to the licence, for instance by adding or subtracting conditions.[19] As I have said, ‘alter’ contemplates change or a departure from the status quo. In my view, had parliament intended the licensing authority to have the power under s 144(2) to alter the conditions attached to an existing licence (in addition to the power to attach those conditions at the initial licensing stage) they would have said so in terms.
[19]The parties accepted that this was the case. To my mind it is the only sensible interpretation of the word; the provision would be dishonest if it did not permit a condition to be replaced with a novel condition but permitted a condition to be altered such that the effect of an existing condition was replaced with the effect of a novel condition.
The appellant submitted that the presence of the words ‘in issuing a taxi-cab licence’ in s 143D demonstrated that where parliament intended a power to be exercisable only at the initial licensing stage it had used that expression. Although at first blush there is some merit to this argument, it does not bear close scrutiny. One evident function of the words ‘in issuing a taxi-cab licence’ is to limit the class of commercial passenger vehicle licences to which the licensing authority may attach the special conditions set out at sub-ss (a) and (b) – in other words, to taxi-cabs. Although s 143D(1) is temporally limited, if I am correct in my conclusions at [29]-[31] then this is due to the statutory context in which the section appears and not because parliament has used the words ‘in issuing’.[20] Before those words could logically go to the construction of s 144(2) it would have to be clear that by those words Parliament was expressing its intention that s 143D be temporally limited. As I have said, there is another, sensible, explanation for the presence of those words in that section.
[20]Both because s 143D (1) omits the words ‘during the currency of a licence’ and because sub-ss (1) and (3) in my view are deliberate in their use of, alternatively, the words ‘attach’ and ‘alter.’
The most powerful argument in favour of the Grigoriou construction is, in my view, purposive.[21] What purpose could it serve for there to be two provisions under which new conditions might be added to a licence, a right of review in respect of only one of those provisions and no statutory guidance as to whether, and in what circumstances, one or other provision should be engaged?
[21]‘The context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning that the logic with which it is constructed’: Commr for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397 (Dixon CJ); cited with approval in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490 at 509.
Although in a sense rhetorical, the appellant was asked this question at the appeal hearing. The answer, the appellant submitted, was that Parliament’s evident intention by ss 144(2), 146(1) and 146C was to permit the review of decisions made in respect of single licences[22] but to preclude the review of ‘industry-wide’ or ‘global’ changes to licence conditions. The textual foundation for that submission was said to be this: because s 146(1) is expressed in the singular – applying ‘during the currency of a licence’ and permitting the cancellation of ‘the licence’ or alteration of ‘the conditions attached to that licence’ – it did not, the appellant reasoned, permit changes to more than one licence at a time.
[22]The appellant referred to these as ‘bespoke’ alterations.
I am unable to accept this argument. Provided each affected licence is current and each affected licensee is advised in writing of the reasons for the alteration or cancellation I can see nothing in s 146(1) that precludes the exercise of that power in respect of more than one licence. A determination by the licensing authority to exercise the power under s 146(1)(a) in respect of more than one licence will be a determination that alters or cancels the conditions attaching to a licence.
I consider an evident and intelligible purpose to lie behind the Grigoriou construction. A prospective licence holder may or may not be satisfied with the conditions that are attached to a licence at the initial licensing stage. Although there is no right of review in respect of the licensing authority’s discretion to attach conditions under s 144(2), the prospective licence holder may assess the viability of that licence, with those conditions, and make a commercial judgment about whether or not to purchase the licence. Once the licence is issued and the significant licensing fees paid, however, the licensee is vulnerable to alteration or cancellation of the conditions that apply to a licence because there is no right to ‘opt-out’ and recover the considerable licensing fee if those conditions, so altered, are perceived by the licensee to be unfavourable.
Because it recognises the very different positions in which a licensee finds themself at, alternatively, the initial licensing phase and during the currency of a licence, the Grigoriou construction provides a sensible explanation for the availability of review of a decision under s 146(1) but not s 144(2). I contrast this with what would, in my view, be an absurd construction, namely one that permitted the licensing authority to issue a licence on the assumption that it would bear particular conditions and then, in effect, elect whether or not to allow the licensee a right of review when it changed those conditions.[23]
[23]By electing to make the decision under either s 144(2) or s 146(1).
It follows from the above that I consider the Deputy President was correct in her conclusion that s 144(2) did not permit the licensing authority to attach conditions to a licence during its currency and that the first appeal ground must fail. In reaching this conclusion I have considered but been unassisted by a number of arguments, pressed faintly by the TSC, that went to historical versions of the Transport Act and associated decisions.
Was it open to the Tribunal to find that the decision had been made under s 146(1)?
This question of law subsumes two others. The first, which I have already considered, is whether s 146(1) of the Transport Act authorised the making of a decision that applied to more than one commercial passenger vehicle licence. If the answer had been no, the Deputy President’s error would arguably have consisted of the finding that there had been a decision where, as a matter of law, there could not have been a decision at all.[24] As I have said, however, a decision in respect of more than one licence is consistent with the terms of s 146(1).
[24]In the sense that the decision might fall outside the theoretical limits of the decision-maker’s functions or powers and therefore constitute jurisdictional error: Craig v South Australia (1995) 184 CLR 163.
The remaining question is whether it was open on the material before the Deputy President to arrive at the factual finding that the Conditions Decision had not been made under s 144(2) in light of the reference to that section in the document setting out the Conditions Decision.
If the Conditions Decision had been made under s 144(2) the decision would be a purported decision only and, the TSC submits, it would be irrelevant that there was another section under which the same decision might validly have been made.[25] In purporting to make the decision under that section the decision-maker would have acted beyond its jurisdiction and the purported decision would be a nullity.[26] It is said that the fact that the decision-maker may subsequently represent that the decision was made under another provision will not save the purported decision from invalidity because jurisdiction can be neither gained nor lost by estoppel.[27]
[25]That purported exercise of power would constitute a decision for the purposes of review under the Tribunal Act: Victorian Civil and Administrative Tribunal Act 1998, s 4(2)(b).
[26]Written submissions of the appellant at [3.11].
[27]Written submissions of the appellant at [3.14].
Where, however, it is not clear whether the decision was made under one or other provision it will fall to the Tribunal to determine under which section the decision has been made. This is a question of fact.
The TSC argued that the Tribunal accepted that the Conditions Decision was purportedly made under s 144(2) and then, having concluded that such a decision could not lawfully be made under that section, ascribed the exercise of power to s 146(1).[28] This argument, in my view mischaracterises the Tribunal’s reasons for its decision.
[28]Written submissions of the appellant at [3.21].
From the beginning it was unclear whether the decision had been made under s 146(1) or purportedly made under s 144(2). Although at [26] the Deputy President uses the expression ‘the decision purports on its face to be made under section 144(2)’ what I understand her to intend by those words is no more than that the document setting out the effect of the Conditions Decision refers to that section. Elsewhere in the Deputy President’s reasons she consistently uses conditional language (e.g., ‘the delegated decision maker would have made an error if she purported to make a determination […] under section 144(2)’)[29] and refers to the ‘uncertainty surrounding whether the decision-maker made the decision pursuant to section 144(2) or 146(1)’.[30]
[29]Rowan v Taxi Services Commission (Review and Regulation) [2014] VCAT 255 at [34]
[30]Ibid at [29]
This uncertainty arose not because the Deputy President identified one section under which the decision could, lawfully, have been made and another under which it could not, but because two documents, authored by the same delegated decision maker on the same day, referred to two different statutory bases for the same decision.[31]
[31]Ibid.
The TSC conceded that it was possible to imagine circumstances in which a provision was referred to in error.[32] The bottom line, it argued, was that where a merits review body was confronted by a decision-maker who said a decision had been made under one provision of an Act, and the decision was defended as a decision under that provision, this ought be the end of the matter.
[32]Written submissions of the appellant at [3.15].
It is unnecessary to consider whether this submission is correct in principle because the Tribunal simply was not confronted with evidence of this kind. Aside from a robust bar table assertion that the circular letter of 9 December was drafted in error and the document setting out the decision was not, there was no independent evidence that either document correctly expressed the decision-maker’s intention when it made the decision.[33] The TSC did not call the decision-maker as a witness.
[33]At the appeal hearing a number of documents were handed up that indicated some previous decisions had been made in different ways or under different sections. None of these documents were provided to the Tribunal, whose finding of fact is now impugned, and in any event their probative value is questionable.
In discussion during the appeal hearing Counsel for the TSC suggested that if I were against them on this point, the appeal should succeed in the alternative because this factual finding[34] was wrong. I may have misunderstood this submission which was not part of the appellant’s written submissions. If this is part of the TSC’s submissions then it is wrong in principle.
[34]That the decision was made under s 146(1).
An appeal under s 148 of the Tribunal Act is brought on a question of law. Ordinarily, a determination of fact will not give rise to an error of law “unless it is shown that the fact-finding tribunal arrived at a finding that was simply not open to it.”[35] This formulation embraces what is often known as the ‘no evidence’ ground of appeal.[36] This is because the question of whether there is any evidence capable of supporting a finding of fact is a question of law.[37] Put another way, it is only where there is no evidence to support a factual finding that the finding may amount to an error of law.[38]
[35]S v Crimes Compensation Tribunal [1998] 1 VR 83, 90 (Phillips JA).
[36]Victoria v Subramanian (2008) 19 VR 335.
[37]Moorabool Shire Council v Taitapanui (2006) 14 VR 55.
[38]Crown Melbourne Limited v Cosmopolitan Hotel (Vic) Pty Ltd & Anor [2013] VSC 614 at [18]; Roads Corporation v Dacakis [1995] 2 VR 508, 517-8.
There is a clear evidentiary basis for the factual finding that the Conditions Decision was made under s 146(1). Confronted with the document setting out that decision and the circular letter, each of 9 December, it fell to the Deputy President to determine which of the two documents correctly expressed the intention of the decision-maker at the time that she made the decision. The Deputy President reasoned that,
[t]he letter sent by the delegated decision-maker is detailed, carefully constructed and considered correspondence. It refers to the decision as having been made pursuant to section 146(1) of the Act and specifies the reasons for making the decision and articulates the rights of review available when that section is implemented.[39]
[39]Rowan v Taxi Services Commission (Review and Regulation) [2014] VCAT 255 at [32].
Each document tended to prove the statutory foundation for the decision. For the reasons I have just set out, it was the Deputy President’s view that the circular letter was a more reliable indicator in this regard. Once the Deputy President had arrived at this intermediary finding the ultimate finding that the decision was made under s 146(1) was logically open, if not inevitable. That finding was reasonably open on the facts before the Tribunal and it does not fall to me now to express my own view.
It follows from the above that the second appeal ground must fail.
Conclusion
I set out my answers to the two questions of law set out in the TSC’s Notice of Appeal.
On the first question:
Did the Tribunal err in construing Section 144(2) of the Transport (Compliance and Miscellaneous) Act 1983 (Vic) as not enabling the Appellant to make a further determination of the conditions attaching to the licenses for hire car vehicles once the licences had been issued and were current?
The answer is “No”.
On the second question:
Was it open to the Tribunal to find that the Appellant had not made the "determination of conditions attached to all hire car licenses under Section 144(2) of the Transport (Compliance and Miscellaneous) Act 1983 (Vic) on 9 December 2013 under section 144(2), but had made the decision under 146(1)?
The answer is “Yes”.
It follows that I will now dismiss the appeal.
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