Williamson v Director General, Department of Transport

[2002] NSWADT 36

CITATION:	Williamson -v- Director General, Department of Transport [2002] NSWADT 36
DIVISION:	General Division
PARTIES:	APPLICANTS Cheryl Williamson Peter Williamson RESPONDENT Director General, Department of Transport
FILE NUMBER:	013286; 013287
HEARING DATES:	10/12/2001
SUBMISSIONS CLOSED:	12/10/2001
DATE OF DECISION:	12/10/2001
BEFORE:	O'Connor K - DCJ (President)
APPLICATION:	Stay of proceedings
MATTER FOR DECISION:	Stay of proceedings
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990
CASES CITED:	Williamson v Director General, Department of Transport [2000] NSWADT 165 (17 November 2000); and [2001] NSWADT 3 (24 January 2001) J -v- Director General, Department of Transport [2001] NSWADT 178
REPRESENTATION:	APPLICANT R Hughes, solicitor RESPONDENT A Wozniak, solicitor
ORDERS:	Application refused.

1 The Tribunal has before it applications for the stay of parallel decisions affecting Mr and Mrs Williamson. In both cases the administrator’s internal review decision is dated 22 October 2001. The internal review decisions are both decisions to cancel their respective authorities to drive public passenger vehicles.

2 The applications today are for a stay of those decisions pending a final hearing of the application for review. It has become evident in the course of the submissions today that the relationship between the Department and the Williamsons and their company, Bretabac, has been before the Tribunal on other occasions and there have been decisions in the past by Mr Rice and by Deputy President Hennessy. The decisions in the past related both to the question of stays of decisions of the Department as well as the adequacy of the decisions of the Department as they affected Bretabac: see cases both entitled Williamson v Director General, Department of Transport [2000] NSWADT 165 (17 November 2000); and [2001] NSWADT 3 (24 January 2001).

3 The decisions under review previously were to suspend the Williamsons’ personal authorities. The Tribunal in the second of the two decisions mentioned above decided to affirm the suspensions. A material consideration was that informations for offences laid against them and their company, Bretabac, were yet to be heard. They were heard at the Forster Local Court on 30 April 2001.

4 As I understand the matter the suspensions were not expressed to be time-limited and have continued to operate since 30 April 2001. Since then, the Williamsons have been making representations to the Department basically as to where they stand given the outcome of the proceedings at Forster, which resulted in two convictions affecting them personally and two convictions affecting the company, arising, I am told, from the one event on 4 December 1999.

5 As already noted, the suspensions were never time limited and they have continued to run. The Williamsons have a sense of injustice about that. That is a matter about which I have made some passing observations in another case recently: see J -v- Director General, Department of Transport [2001] NSWADT 178. It does appear on the face of the legislative scheme that a suspension might not be time limited and similarly a suspension may or may not be expressed as affected by the outcome of other legal proceedings. As I understand this case the suspension was not time limited; nor was the suspension made conditional on the outcome of the proceedings in respect of the informations.

6 So in those circumstances it would seem to me that Mr Wozniak's submission is correct: that the Williamsons had it open to them to choose to bring on another application for review in the Tribunal following the conclusion of the proceedings on 30 April but had not done so at the time that the notices of cancellation, now before the Tribunal, were issued.

7 So what we have here before us today is a situation where the old suspensions have been replaced as I perceive it by a decision to cancel the licences. There was an interim period between the offences (seen as pertinent to the suspension) being dealt with at Forster and the notice of cancellation, when those suspensions were not tested in the Tribunal but the decisions continued to operate.

8 The Act requires me to take into account the interests of any persons who may be affected by the determination of the application, any submission made on behalf of the administrator and the public interest; and all of that is conditioned on the prime proposition contained in subsection (2) of the Act that:

‘ … the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review ... ’

which is now the decision to cancel

‘... as it considers appropriate to secure the effectiveness of the determination of the application.’

9 Now, the usual case with which the Tribunal is presented is the one to which I alluded in discussion with Mr Hughes, that of a driver or a very small business where the deprivation of the licence effectively destroys the livelihood of the driver or the income of the small business.

10 One of the difficulties obviously in dealing with stay applications is that they inevitably start to bring into the framework of the stay application the merits or otherwise of the ultimate decision which is to be the subject of the full hearing. So, the Tribunal has got to be guarded in forming any view on those matters.

11 Another set of considerations that Mr Hughes has brought forward today (submissions again about which the Tribunal, I think, must be guarded in a stay application) concern alleged denial of procedural fairness. Those issues are ones that I would think in principle could be raised in a stay application; but we would need, I think, quite substantial evidence before we formed any view as to whether they are relevant to our determination of the application.

12 There may also be a question about how far we should get down that track, given that our charter is more concerned with the correctness of the ultimate decision than it is with issues of procedural fairness. There is a distinction between the merits review role of a Tribunal like this, and the judicial review role of the Supreme Court. So it seems to me in principle that one should give some consideration to procedural fairness objections but it may be that we should be guarded in how far we go in that area.

13 Certainly today I do not think I have got sufficient material before me to form any concluded view about whether or not the Department has failed to observe its usual procedures, which on their face seem to be appropriate expressions of the requirements of procedural fairness.

14 The Williamsons have operated their business now for some time in circumstances where they have not been personally able to drive. I have not got detailed evidence before me on the financial implications of that but I accept, as I understand Mr Rice accepted on the previous occasion issues of this kind were canvassed ([2000] NSWADT 165), that there will have been some detrimental effect on the profitability of the business because of their inability to drive. But it does seem to me to be a marginal rather than fundamental circumstance.

15 The charges that are contained in the notices of cancellation, as I think the Williamsons acknowledge, are extremely serious by dint of the sheer totality of them. Any one of them may not have been grounds for intervention by the Department to the extent that it has intervened, that is by cancellation. But the frequency of the alleged misconduct and the suggestion that there is a consistent pattern constitute very serious allegations. They are matters that I must take into account in terms of the public interest. That is not in any way indicating that we have formed any final view on their justification. The charges have been laid, they are very serious ones and if most of these matters were found proven I think that the Williamsons would accept that it is a grave state of affairs. So, I have to take account of that.

16 I am concerned, obviously, that the matter is not strung out to any undue time. The current directions timetable does allow for the submissions and material upon which the parties rely to be finalised by 15 February 2002. So we are not looking at the matter getting on till late February, early March, which is a matter of concern. If there was to be any significant change in that timetable which could be shown to be due to any delay on the part of the Department well that may, itself, provide grounds for a further application in this matter.

17 As is probably evident from my comments I do not see the competing interests that are presented today by the application as being such as to warrant the grant of a stay. The interests of the Williamsons are no doubt adversely affected, but to a limited degree, within the context of a large business which continues to operate.

18 The allegations that are made - not yet proven - are serious ones. It is not ultimately necessary for a Department to proceed down the informations route. It can exercise its regulatory authority in the way it has chosen to on this occasion and that its decisions to cancel can be tested before this Tribunal.

19 As I have said, the matters alleged are grave ones and it seems to me in all of those circumstances that the balance of the competing interests favour permitting the decisions to cancel to stand, without a stay, until the matter is finally determined.

20 So, that is the decision of the Tribunal; the stay application is refused.