Ybasco v Director-General, Department of Transport No.2
[1999] NSWADT 85
•8 September 1999
CITATION: Ybasco v Director-General, Department of Transport No.2 [1999] NSWADT 85 DIVISION: General APPLICANT: James Ybasco RESPONDENT: Director-General, Department of Transport FILE NUMBER: 993026 HEARING DATES: 07/05/1999 SUBMISSIONS CLOSED: 08/19/1999 DATE OF DECISION: 8 September 1999 BEFORE:
K P O'Connor DCJ - PresidentPRIMARY LEGISLATION: Passenger Transport Act 1990 APPLICATION: Review of decision to suspend taxi-cab authority - Validity of delegation MATTER FOR DECISION: Principal matter REPRESENTATION: Applicant:
Respondent:
EJ Shields QC instructed by J Connolly of Salmon Connolly Doyle Solicitors
P Culbert, solicitor, Department of TransportORDERS: 1. Application dismissed.
1 On 15 December 1998, the Director-General, Department of Transport (‘the administrator’) suspended the applicant’s authority to drive a taxi, an authority issued under the provisions of Part 2 of the Passenger Transport Act 1990 (the Act). That decision was made pursuant to ss 11 and 14 of the Act, following official advice that the applicant had been charged with three counts of each of two offences said to have occurred while in charge of a taxi. The offences alleged were indecent assault and detaining for advantage. On 28 January 1999 the applicant applied to the Tribunal for review of the original decision.
2 The charges were later withdrawn. On receipt of that advice the administrator withdrew the notice of suspension and on 8 March 1999 permitted the applicant to resume driving.
3 The administrator objected to the Tribunal continuing to exercise jurisdiction. An earlier decision of the Tribunal dealt with the question of whether the applicant was entitled to continue with his application even though the decision challenged, the decision to suspend, had ceased to have effect ahead of the date listed for the substantive hearing. The Tribunal decided that the applicant remained entitled to continue with the application for review of the original decision: Director-General, Department of Transport v Ybasco [1999] NSWADT 28.
4 This decision deals with the substance of the application.
5 The matter first came on for directions before the Tribunal in February 1999. At that time and since the applicant has been represented by Mr Shields, QC and through his counsel has disputed the fairness of the laying of the charges. Perhaps some vindication for those submissions is to be found in their withdrawal in March 1999. As noted, on receipt of that advice the administrator immediately restored the applicant’s authority.
6 Pursuant to s 58 of the Administrative Decisions Tribunal Act 1997 (‘the Tribunal Act’), the departmental file was lodged with the Tribunal. The hearing took place on 5 July 1999.
7 At the conclusion of the hearing, the Tribunal gave the parties a further opportunity to file written submissions.
(i) Validity of Delegation
8 In particular, the Tribunal requested the administrator to demonstrate that a valid delegation was held by the officer who had decided to suspend the applicant.
9 The letter advising the applicant that his licence had been suspended was in the name of Henry Apfelbaum, Acting Operations Manager, Customer Service, Department of Transport. The letter, on the official letterhead of the Department, made no reference to the authority under which Mr Apfelbaum purported to exercise the powers vested in the administrator by the Act.
10 At hearing the Tribunal was advised by counsel for the administrator that the source of the power of delegation was to be found in an Act other than the one under which the suspension was effected, that other Act being the Transport Administration Act 1988 (‘the Administration Act’).
11 The relevant provision is s 40 of Part 4 of the Administration Act:
“ 40 Delegation
12 The functions to which the power of delegation attaches are dealt with at Part 4, ss 36-39. The provision relevant to this matter is s 37 which states:
(1) The Director-General may delegate to an authorised person any of the Director-General's functions under this Part, other than this power of delegation.
(2) A delegate may sub-delegate to an authorised person any function delegated by the Director-General if the delegate is authorised in writing to do so by the Director-General.
(3) In this section, authorised person means:
(a) (Repealed)
(b) a member of the staff of the Department of Transport,
(c) a person of a class prescribed by the regulations. ”
“ 37 Functions relating to the licensing and regulation of public passenger vehicles or ferries
13 On 30 July 1999 the administrator provided the Tribunal with a copy of an instrument of delegation. The instrument is declared to have effect from 9 October 1991 though the date of execution was 12 March 1993. It was made by the then Director-General. It takes the form of a general delegation, and has attached a schedule of specific delegations.
The Director-General has such functions with respect to the licensing and regulation of public passenger vehicles or ferries as are conferred or imposed on the Director-General by or under this Act, the Passenger Transport Act 1990 or any other Act.”
14 The delegation is expressed to be in favour of “the persons for the time being holding the positions within the New South Wales Department of Transport as set out in the Schedule of Delegations attached, or the persons assuming the responsibilities of those positions in their absence”.
15 In the schedule a general delegation is given to the Executive Director, Vehicle Transport Policy and Regulation Division of the Department. Under the terms of the delegation that officer is empowered to delegate to any authorised person as set out or referred to in s 40(3) of the Transport Administration Act the powers delegated by the delegation.
16 Also provided to the Tribunal was a Schedule of Sub-Delegations dated 17 November 1997 made by the Executive Director, Transport Services under which two positions were given sub-delegations of the powers, duties, functions and authorities of the Director-General under Part 2 of the Act, the Part of the Act relevant to the exercise of discretion under review in this case.
17 Those positions were Regional Manager, Central Sydney and Operations Manager, Central Sydney. Mr Apfelbaum held the position of Acting Operations Manager.
18 The applicant has objected to the purported sub-delegation to Mr Apfelbaum on a number of grounds.
19 First, the applicant notes that the principal instrument of delegation makes allowance for the delegations specified in the Schedule of Delegations to be performed by the persons “assuming the responsibilities of the positions” set out in the Schedule but no similar provision dealing with substitutes or acting appointments is found in the Schedule of Sub-delegations. The applicant argues therefore that it is not open to a person holding the position of Acting Operations Manager to exercise the authority conferred by sub-delegation only on the Operations Manager.
20 Given the specific reference to the situation of acting position-holders in the principal delegation, it is unfortunate that there is no similar specific reference in the schedule of sub-delegations to this matter. However, I am not satisfied that any defect is in fact revealed.
21 Mr Apfelbaum was the occupant of the position of Operations Manager at the time he made the decision and gave the relevant notice. That he was acting in the position simply indicates that he was not the permanent occupant of the position. A delegation of power in favour of a position should not be interpreted as being confined to the substantive occupant of the position, as distinct from a temporary or acting occupant, unless there are clear words making such a limitation. If it were otherwise the practical conduct of administration would be greatly impeded: whenever the substantive position was unfilled by a permanent occupant or the occupant was on leave, key responsibilities would be unable to be exercised even though an acting arrangement had been made.
22 The second objection to the sub-delegation is that there has been a failure to comply with s 40(2). As noted, that sub-section provides that “[a] delegate may sub-delegate to an authorised person any function delegated by the Director-General if the delegate is authorised in writing to do so by the Director-General.” The applicant submits that no evidence of such an authorisation by the Director-General is produced. The far column of the Schedule of Delegations, each page of which is signed by the Director-General, contains the following words in relation to the responsibilities delegated to the Executive Director, Vehicle Transport Policy and Regulation:
“The Delegate is empowered to sub delegate to any authorised person as set out or referred to in Section 40(3) of the Transport Administration Act 1988 the powers delegated to him by me pursuant to this Delegation.”
23 I am satisfied that the Director-General complied with s 40(2).
24 After considering the material lodged by the administrator on 30 July 1999 and further submissions filed by counsel for the applicant dated 6 August 1999, two doubts remained in relation to the question of whether Mr Apfelbaum held an appropriate delegation. The first doubt related to whether the position of Executive Director, Transport Services is equivalent to that described in the principal delegation as Executive Director, Vehicle Transport Policy and Regulation Division. Secondly, there was no document (such as an internal personnel memorandum) demonstrating that Mr Apfelbaum actually held the position of Acting Operations Manager on the date in question, 15 December 1998.
25 Accordingly I gave further directions to the administrator to produce relevant evidence, with the applicant being provided with an opportunity to make any further submissions in reply. On 19 August 1999 the administrator filed an affidavit sworn by Jennifer Aldred, Regional Manager in which she stated that the position Executive Director, Transport Services is the same position as Executive Director, Vehicle Transport Policy and Regulation Division. She also stated that Mr Apfelbaum is employed in the Central Sydney Region of the Department and as at 15 December 1996 held the position of Acting Operations Manager under her administration; and has held that position at all relevant times in relation to this matter.
26 Accordingly, I am satisfied that the delegation to Mr Apfelbaum was valid and effective.
27 Some Comments on the Role of Tribunal in relation to Challenges to the Underlying Validity of Administrative Decisions: I have indicated in the recent decision, Doyle v Commissioner of Police [1999] NSWADT 84, that the Tribunal should not readily allow itself to be distracted from its primary statutory role of providing a forum for merits review by becoming engaged in examining objections relating to the underlying validity of the administrative conduct giving rise to the decision. Questions of underlying validity are ordinarily more appropriate to be dealt with by way of judicial review. In that case, I ruled that challenges to the validity of subordinate legislation should only be entertained if there were “compelling circumstances” in line with the position adopted by the Commonwealth Administrative Appeals Tribunal. But equally the difficulties that might attend the resolution of a challenge to the validity of subordinate legislation should not arise in relation to the issue of whether a lawful delegation is held by an administrator making a decision subject to review by way of a subordinate. If called upon to do so, administrators should be ready to prove the delegation.
28 I note with concern that the question of the possession by Mr Apfelbaum of an appropriate delegation was first raised by counsel for the applicant at the earlier proceedings relating to the jurisdictional point. It was alluded to as an outstanding issue in the Tribunal’s decision on that point. It was not the subject of any proof at the hearing giving rise to two sets of further directions before the delegation was proved.
(ii) Merits
29 Mr Apfelbaum was not called to give oral evidence. The administrator relied entirely on the following documents to explain the decision.
(1) A written statement from Mr Apfelbaum that he had regard to the following facts -
(3) The notice of suspension dated 15 December 1998.
The applicant was charged by the NSW Police with three counts each of
assault with act of indecency
detain for advantage without causing any injury, and
information from the NSW Police stating that the alleged behaviour occurred while the applicant was exercising his occupation as a taxi-driver.
In the statement he said that he had followed the policy of the Department of Transport set out in a document provided in the form of an attachment to the statement.
(2) That document is an internal memorandum dated 14 February 1994 issued to the General Manager, Regional
“I wish to confirm the Department’s rule that, where a driver is formally charged with a serious criminal offence, which has been committed by the person in the capacity of a public vehicle driver, that person’s Driver Authority is to be immediately suspended.
Operations and Regional Managers by the Executive Director, Road Transport. It states:
A formal charge requires the appearance of the person in court. A serious offence includes theft and crimes of violence, especially sexual assaults. In the capacity of a public vehicle driver obviously includes all charges relating to incidents within a public vehicle, in its vicinity or in association with its operation.
Should the driver be subsequently found guilty of the offence, the Driver Authority will be automatically cancelled.
Regional Managers should note that this policy will be applied without exception.
Recommendations for suspension or cancellation of authorities in line with this memo must be referred to me for approval by the Director-General.”
Prior to provision of this statement the administrator had conducted its case before the Tribunal entirely on the basis of the written file.
“Advice has been received from the NSW Police Service that you have been charged with “Assault with act of indecency” x 3, “Detain for advantage without causing injury to victim” whilst in control of a taxi-cab, and due to appear at Burwood Local Court on 22 December 1998.
This notice is under the letterhead of the New South Wales Department of Transport, Central Sydney Region, and signed by Henry Apfelbaum, A/Operations Manager, Customer Service. The material paragraphs state:
30 At hearing and subsequently the applicant’s counsel complained of the administrator’s failure to make Mr Apfelbaum available for cross-examination. No direction was made by the Tribunal in that regard.
In the circumstances, it is considered that you are not fit and proper to hold a public passenger vehicle authority as defined under Section 11(2)(a) and/or (b)(i) and (ii) of the Passenger Transport Act 1990. Therefore, your public passenger vehicle authority number EU 1694 is suspended forthwith under Section 14 of the Passenger Transport Act.”
The letter then went on to require him to return immediately his authority and to advise him as to penalties for non-return or driving while suspended. Advice was given in relation to rights of appeal, which were then to the Local Court.
31 The Tribunal considers that an administrator is entitled if it wishes to rely entirely on the file record to support its case. Apart from providing details of current departmental policy the additional document, a statement from Mr Apfelbaum, was consistent with the contents of the original letter.
32 In a case where the decision is made in accordance with standard policy there is likely to be little achieved by subjecting the decision-maker to the requirement of personal attendance and cross-examination.
33 The real question is whether the application of the policy in the circumstances represented the “correct and preferable” response to those circumstances.
34 The only circumstances adverse to the applicant on which the administrator relies are the charges and the information that the events giving rise to the charges were said to have occurred in connection with his work as a taxi-driver.
35 The administrator says that even if the information given was wrong it was entitled to act on it. Authorities are issued on the basis that the administrator is satisfied that applicants are “considered to be of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle” (Act s 11(1)). The power of suspension is found in s 14 of the Act which states: “Having regard to the purpose of an authority, the Director-General may at any time vary, suspend or cancel any person’s authority”.
36 The administrator contended that information of the kind it received in this case was sufficient to justify the action it took against the applicant. The applicant’s submission was in effect that if the administrator had looked into the Police case, it would have seen that it was a weak one and would fail. The applicant also pointed to the fact that he was successful in obtaining bail.
37 I dealt at some length in the recent case of Farquharson v Director-General, Department of Transport [1999] NSWADT 53 with the exercise of the discretion to suspend. I recognised there the “good repute” of an individual may be adversely affected by the laying of charges even though at that point no admissions have been made and no evidence adverse to the individual has been produced. The person may be of unblemished character, and understandably say that unless convicted he or she should not be assumed to be otherwise.
38 The administrator may nevertheless consider it necessary to exercise its powers under s 14 in the public interest to suspend a driver upon the laying of charges. In that case I examined the question of what test might be adopted to assess the appropriateness of the exercise of discretion, and formulated it terms of the perceptions of “a reasonable member of the travelling public”.
39 In my view, the reasonable member of the travelling public would regard the offences of which the applicant was charged as sufficient to justify immediate action against his authority to drive taxis. In their own right the charges are on any view serious ones. That position is compounded when regard is had to the information that they are said to relate to conduct that occurred while the applicant was in control of a taxi-cab.
40 A reasonable member of the travelling public would, I consider, be outraged if they were to learn that their driver was on bail in relation to serious charges involving offences against the person said to have occurred whilst he was in control of a taxi-cab.
41 It is understandable that individuals will have a sense of grievance if suspended from their occupation and deprived of the opportunity to pursue their livelihood. As I noted in Farquharson it is not realistic to ask an administrator with responsibilities of the kind that are involved in taxi-driver licensing to go behind the information supplied by Police so as to examine the weight or otherwise of the Police case. If the prosecution case proves to be weak, and (as here) charges are withdrawn, the individual must look for relief to any civil remedies that may apply. It is not practical for administrators to look behind third-party information of the kind that led to the adverse exercise of discretion in this case, though clearly they must satisfy themselves that it is accurate, which includes an opportunity for the individual to challenge its factual accuracy.
42 The application is dismissed.
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