Ybasco v Director General, Department of Transport

[1999] NSWADT 28

CITATION:	Ybasco v Director General, Department of Transport [1999] NSWADT 28
DIVISION:	General
APPLICANT:	James Ybasco
RESPONDENT:	Director General, Department of Transport
FILE NUMBER:	993026
HEARING DATES:	04/15/1999
SUBMISSIONS CLOSED:	04/15/1999
DATE OF DECISION:	5 May 1999
BEFORE:	K P O'Connor DCJ - President
PRIMARY LEGISLATION:	Passenger Transport Act 1990
APPLICATION:	Review of decision to suspend taxi-cab authority -
MATTER FOR DECISION:	Jurisdiction
REPRESENTATION:	Applicant: E J Shields QC of counsel instructed by Salmon Connolly Doyle Respondent: P Culbert, solicitor
ORDERS:	1. Tribunal has jurisdiction to review the decision.

1 The respondent has challenged the jurisdiction of the Tribunal to continue to deal with the applicant’s application for review of a decision made on 15 December 1998 and rescinded on 8 March 1999.

2 By letter dated 15 December 1998 the Department of Transport notified the applicant that it had suspended his authority to drive a taxi, issued under s.14 of the Passenger Transport Act 1990 (‘the Act’). The letter was signed by Mr Henry Apfelbaum, Acting Operations Manager, Customer Service, Department of Transport. The applicant was advised that he was considered not to be a fit and proper person to hold an authority, having regard to ss.11(2)(a) and/or (b)(i) and (ii) of the Act. The ground for reaching that conclusion was that advice had been received from the Police Service that he had been charged with three counts of indecent assault and one count of detaining for advantage, all occurring whilst in control of a taxi.

3 According to Mr Culbert, the Department’s legal representative, Mr Apfelbaum possessed a relevant delegation of the powers vested in the Director-General of the Department of Transport by s.14 of the Act. Mr Shields QC, counsel for the applicant, has raised the question of the validity of the notice as it contained no express reference to any delegation and noted that any delegation had not been proven. For the purpose of this decision I have assumed the validity of the delegation and of the notice.

4 In December 1998 such a decision was appealable to a Local Court. The Department advised the applicant of his rights of appeal. He lodged a notice of appeal with the Local Court on 5 January 1999. By that date it no longer had jurisdiction, as the right of appeal had been transferred from 1 January 1999 to this Tribunal (Administrative Decisions Legislation Amendment Act 1997, Schedule 5.22, commenced 1 January 1999). The Local Court advised the applicant on 15 January 1999 of the change in jurisdiction. On 28 January 1999 the applicant filed an application for review of the decision with the Tribunal.

5 A directions hearing took place in February 1999 and the matter came on for hearing on 15 April 1999. By letter to the applicant dated 8 March 1999 the respondent advised its decision to lift the suspension from that date, following receipt of official advice that the charges had been withdrawn. The applicant has since resumed work as a taxi-driver.

6 The jurisdiction of the Tribunal is ascertained by referring first to the primary legislation conferring jurisdiction, in this instance the Act, and if necessary by referring then to the Administrative Decisions Tribunal Act1997 (‘the Tribunal Act’).

7 Under s.52(1) of the Act:

“Any person … whose … authority has been … suspended … may apply to the Administrative Decisions Tribunal for a review of the … suspension …”.

8 As noted earlier, this provision commenced on 1 January 1999. The Tribunal is satisfied that the application for review of the decision to suspend filed in the Tribunal on 28 January 1999 was properly made.

9 The Tribunal’s jurisdiction is to review reviewable decisions: Tribunal Act: ss.36,38. It is admitted by the Department that the decision made on 15 December 1999 was a reviewable decision. But Mr Culbert has submitted that the Tribunal no longer possesses jurisdiction as it no longer has a reviewable decision before it.

10 On the other hand Mr Shields QC for the applicant submitted that his client’s application had been properly made, and that his client was entitled to have considered the merits of the original decision to suspend, even though it had now been rescinded.

11 Mr Culbert referred to s.47(2) of the Act in support of his submission that there was no longer any matter before the Tribunal. It provides:

“If the Director-General makes a decision that is able to be reviewed … any such decision has effect from the time the notice is given and continues in effect unless rescinded by the Director-General …”.

12 Mr Culbert also handed up a certificate issued on 31 March 1999 purporting to be made pursuant to s.62 of the Act formally stating that the applicant was authorised to drive a taxi as from 8 March 1999.

13 Referring first to s.47. The term ‘rescinded’ is used, but I do not construe it to mean that the original decision is rendered void ab initio. This would give rise to the odd result that driving without authority during a period of suspension would no longer be unlawful (an offence under s.11(1)). In the context of this Act, the term ‘rescinded’ should be interpreted, at least in relation to the rescission of a decision to suspend, as simply indicating that the decision has been revoked and ceases to have effect forthwith. That interpretation is supported by the reference in s.47(2) to a decision “continuing in effect” unless rescinded.

14 This interpretation is also supported by s.46 of the Tribunal Act, which provides that: “An original decision takes effect on the date on which it is given or such later date as may be specified in the decision”.

15 I am satisfied that the original decision ceased to be operative on 8 March 1999. For the reasons already expressed, I do not take the view that the original decision of 15 December 1998 was somehow expunged by the notice of 8 March 1999. It retains legal effect for the period 15 December 1998 to 8 March 1999, and remains a “reviewable decision” within the meaning of the legislation.

16 There may be circumstances where it remains important to the person affected to have an original decision reviewed, even though it is no longer operative.

17 A person may have taken the risk, high as it may be, to continue to operate in defiance of an adverse decision. Despite the fact that the administrator has terminated the operation of the decision by the time the matter comes on for hearing, the person may have a continuing interest in the question of whether the original decision was the correct and preferable one. Its status may have collateral implications. For example a suspension may have to be declared in future applications for licences. Or a person may simply wish to vindicate their reputation by showing that the original suspension was unjustified, and seek to have it struck from official records.

18 In addition there is no suggestion in the Tribunal Act that the action of a respondent can deprive the Tribunal of jurisdiction once it is seized of a matter. If an application is properly before the Tribunal it must either “determine” it or “dismiss” it: Tribunal Act, ss.63,73.

19 The Tribunal’s research has revealed one decision which might be seen to support the respondent’s submission. In Coyne v Comcare Australia (1995) 37 ALD 553 (Administrative Appeals Tribunal, Commonwealth) the Tribunal found that the department’s reversal of a previous decision had deprived the Tribunal of jurisdiction to review the revoked decision. In that instance the department had reversed a previous decision plainly affected by error; and declared that the new decision replaced the previous decision. In the present case I am dealing with a decision which continues to be regarded by the respondent (and the Tribunal) as having had operative effect for a period.

20 Mr Culbert suggested that the remedies available to the Tribunal were no longer open to be used. I do not agree.

21 It appears to me to be feasible that several of the powers vested in the Tribunal by s.63 could still be utilised - for example, the original decision might be affirmed, varied or set aside: see generally s.63. This analysis is supported, I consider, by s.66 of the Act, which provides (sub-s.(2)) that where a decision varies an administrator’s decision or is made in substitution for it, it is taken to “have had effect as the decision of the administrator on and from the date of the administrator’s actual decision, unless the Tribunal orders otherwise.”

22 On the other hand the Tribunal should exercise care in continuing to deal with a decision in circumstances where the decision has subsequently been revoked or rescinded. It may be that having regard to the circumstances the Tribunal is satisfied that there is no longer a live controversy justifying the exercise of its jurisdiction. It might move to dismiss the application if it considers it to be “frivolous or vexatious”: s.73(5)(h). To similar effect see the observations of Deputy President McNamara in Re Crooks and the Department of Natural Resources (1997) 12 VAR 460 (Administrative Appeals Tribunal, Victoria); and of Senior Member Barbour in Coyne v Comcare Australia (1995) 37 ALD 553 (Administrative Appeals Tribunal, Commonwealth).

23 Accordingly, I consider that the Tribunal has jurisdiction to review the decision made by the respondent on 15 December 1998.