Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Tabbaa v NSW Taxi Council [2020] NSWCATOD 164 Hearing dates: On the papers Date of orders: 7 February 2020 Decision date: 07 February 2020 Jurisdiction: Occupational Division Before: K Ransome, Senior Member Decision: (1) The application is dismissed. Catchwords: ADMINISTRATIVE REVIEW – taxi driver – no legislative requirement that driver be authorised – respondent not an administrator - no administratively reviewable decision Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Passenger Transport Act 1990 Point to Point Transport (Taxis and Hire Vehicles) Act 2017 Cases Cited: Alameddine v Roads and Maritime Services [2018] NSWCATAD 22 Hossain v Roads and Maritime Services [2018] NSWCATOD 11 Texts Cited: None cited Category: Principal judgment Parties: Mouhammad Riad Tabbaa (Applicant) NSW Taxi Council (Respondent) Representation: Counsel: Solicitors: Piggot Stinson Lawyers (Respondent) Applicant (Self Represented) File Number(s): 2019/00247607 Publication restriction: Nil REASONS FOR DECISION 1. On 1 August 2019, the applicant, Mouhammad Road Tabbaa, wrote to the NSW Taxi Council inquiring about his eligibility to become a taxi driver. Mr Tabbaa enclosed a copy of a criminal history check certificate which disclosed that he was due to appear in court on 13 June 2019 on a criminal charge of "Stalk/intimidate intend fear physical etc harm (personal) – T2". On 2 August 2019 the NSW Taxi Council advised Mr Tabbaa that it was unable to process his application to become an authorised taxi driver. He was advised that he may be able to re-apply if he receives a not guilty verdict in respect of the charge. 2. Mr Tabbaa applied to the Tribunal for review of the decision of 2 August 2019 that his application was unable to be processed. He states that a pending charge is not a valid reason for the NSW Taxi Council to engage in discriminatory/inequitable practices such as refusing to provide him with training and a driver identification card. The issues 1. The respondent has sought orders dismissing Mr Tabbaa's application on the basis that the Tribunal has no jurisdiction to determine the matters raised by him. The respondent also asked that the matter be determined without a hearing on the basis of the submissions filed in order to avoid further expense. Mr Tabbaa, although invited to, did not provide any submissions on whether the matter should be dealt with on the papers. 2. Being satisfied pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (the CAT Act) that the issues can be adequately determined in the absence of the parties by considering the material provided by them, and after taking into account any submissions of the parties, I determined that a hearing can be dispensed with and the matter dealt with on the papers. The primary question in the proceedings is whether the Tribunal has jurisdiction to deal with the application made by Mr Tabbaa. Tribunal's jurisdiction 1. Section 28 of the CAT Act provides that the Tribunal "has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation". The Administrative Decisions Review Act 1997 provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator (see s 30 of the CAT Act). Section 55 of that Act makes plain that the Tribunal only has jurisdiction to review "an administratively reviewable decision". 2. An administratively reviewable decision is defined in s 7 of the Administrative Decisions Review Act to be "a decision of an administrator over which the Tribunal has administrative review jurisdiction". Section 9 provides that the Tribunal has administrative review jurisdiction over a decision of an administrator "if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision". 3. At issue therefore is whether there is a decision which has been made under an Act of the NSW Parliament which provides that an application may be made to the Tribunal for a review of that decision. Mr Tabbaa refers to the Point to Point Transport (Taxis and Hire Vehicles) Act 2017 (the Point to Point Act) and the Passenger Transport Act 1990. He has not, however, made any submissions on the applicability of those Acts to his circumstances. The respondent contends that neither Act gives the Tribunal jurisdiction to review the decision made by the NSW Taxi Council. 4. Prior to 1 November 2017 taxi and hire car drivers in NSW were regulated under the Passenger Transport Act. That Act provided for authorities to drive a taxi or hire car to be issued to persons by the Roads and Maritime Services (RMS). Persons wishing to be taxi drivers or hire car drivers could apply to the Tribunal to seek review of decisions made by RMS to refuse to issue them with a driver authority or to cancel a driver authority. The Point to Point Act came into effect on 1 November 2017 and repealed the Parts of the Passenger Transport Act that provided for taxi and private hire car driver authorities (Part 4 and Part 4A). 5. The Point to Point Act created the statutory office of the Point to Point Transport Commissioner (the Commissioner) as the regulator of taxis and hire car vehicles in NSW. On 31 October 2017 RMS ceased to be the regulator of taxis and private hire cars and all taxi and private hire vehicle driver authorities issued by RMS ceased to have effect (Hossain v Roads and Maritime Services [2018] NSWCATOD 11; Alameddine v Roads and Maritime Services [2018] NSWCATAD 22). 6. Under the Point to Point Act taxi and hire car drivers are not required to be authorised by any government agency. A driver is, however, required to meet certain safety standards as set out in the Point to Point Transport (Taxis and Hire Vehicles) Regulation 2017 (the Regulation). Clause 24 of the Regulation provides that a person must not drive a taxi or hire vehicle that is being used to provide a passenger service if the person has been found guilty of a disqualifying offence for a driver. The offence with which Mr Tabbaa has been charged is a disqualifying offence. If Mr Tabbaa is in fact found guilty of the offence, he will be disqualified from driving a taxi or hire car in NSW. 7. While the Point to Point Act does not provide any authorisation process for individual drivers, the Act does impose important safety obligations on providers of passenger transport services, such as providers of taxi services. The respondent advises that many taxi service providers in NSW are members of the NSW Taxi Council, a private entity. These taxi service providers have determined that an effective way to discharge their legislative obligations to ensure that certain safety obligations are met, is to have their own private driver credential process whereby prospective drivers are vetted against certain agreed safety standards and are trained on safety matters before being issued with a document called a "driver identification card". The taxi service providers have contracted with the NSW Taxi Council to vet and train prospective taxi drivers and to issue the driver identification card to those drivers who complete the training. It is this training and driver identification card that Mr Tabbaa sought to be provided with by the respondent. 8. I note that s 145 of the Point to Point Act does provide for administrative review by the Tribunal of certain decisions made under that Act. Those decisions, however, relate to taxi licences and do not include decisions about driver eligibility. The process undertaken by the NSW Taxi Council in relation to drivers has no legislative basis and the NSW Taxi Council is not an administrator under the Point to Point Act as that role is performed by the Commissioner. 9. The decision by the NSW Tax Council to refuse to provide training and a driver identity card to Mr Tabbaa is not a decision that was made pursuant to any enabling legislation and was not made by an administrator of any enabling legislation. The decision therefore is not a decision over which the Tribunal has administrative review jurisdiction. 10. The Tribunal therefore does not have jurisdiction to deal with the application and it must be dismissed pursuant to s 55(1)(b) of the CAT Act on the basis that it is frivolous or vexatious or otherwise misconceived or lacking in substance. Order 1. The application is dismissed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. 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