CITATION: Williamson -v- Director General, Department of Transport [2000] NSWADT 165 DIVISION: General Division APPLICANT Cheryl Williamson PARTIES: RESPONDENT Director General, Department of Transport FILE NUMBER: 003349 HEARING DATES: 10 November 2000 SUBMISSIONS CLOSED: 11/10/2000 DATE OF DECISION: 11/17/2000 BEFORE: Rice S - Judicial Member APPLICATION: Passenger Transport Act - taxi driver - suspension of authority - Taxi driver - suspension of authority MATTER FOR DECISION: Interim stay application LEGISLATION CITED : Passenger Transport Act 1990 Australian (NDT) Services Pty Ltd and Civil Aviation Safety Authority [1999] AATA 79 Repatriation Commission and Delkou (1985) 8 ALD 454 Polini v Gray (1879) 12 Ch D 438 Scott Constructions v Mermaid Waters Tavern Pty Ltd (1983) 2 Qd R 243 Kioa v West (1984) 6 ALN N21 CASES CITED: Dart and Director-General of Social Services (1982) 4 ALD 553 Pelling and Secretary, Department of Aviation (1984) 5 ALD 638 Australian (NDT) Services Pty Ltd and Civil Aviation Safety Authority [1999] AATA 796 Roy Frederick Griffiths, Grfi-Air Helicopters Pty Ltd v Civil Aviation Authority (1993) 31 ALD 380 Broadbent v Civil Aviation Safety Authority [1999] FCA 1871 Broadbent v Civil Aviation Safety Authority [2000] FCA 342 W & B -v- Minister for Community Services [1999] NSWADT 90 APPLICANT REPRESENTATION: In person RESPONDENT A Wozniak, solicitor ORDERS: 1. Pursuant to s60(2) of the ADT Act I make no order staying the decision under review; 2. Pursuant to s88(1) of the ADT Act I make no award of costs. Urgent Application 1 Mrs Williamson holds an authority to drive taxi cabs and hire cars pursuant to the NSW Passenger Transport Act ('the PT Act'). 2 By letter dated 2 November 2000 the Department of Transport ('the Department') suspended Mrs Williamson's authority pursuant to sections 14 and 11 of the PT Act. 3 On 7 November 2000 Mrs Williamson applied to this Tribunal both for review, and for a stay, of the Department's decision to suspend her authority. 4 The application for a stay was dealt with on an urgent basis and was listed before me on 10 November 2000. As Mrs Williamson lives in Forster I conducted a telephone hearing of the matter. The Department was represented by solicitor Mr Andrew Wozniak who was present in chambers with me in Moree. Mrs Williamson was accompanied by her husband during the hearing. With the consent of the parties the hearing was recorded by Telstra who provided the telephone hearing facility. 5 At the conclusion of the hearing I adjourned for an hour and then resumed to call Mrs Williamson and advise her of my decision: that I decline to make an order staying the decision under review. I undertook to provide my reasons, which I now do. Evidence 6 Mrs Williamson is party to current proceedings in the Local Court in Forster. In those proceedings the Department is prosecuting Mrs Williamson for alleged breaches of the PT Act. Mrs Williamson applied to this Tribunal for a stay of the suspension of her authority until at least such time as those Local Court proceedings are determined. The Department opposed her application. 7 The Department has not yet lodged its file pursuant to s58(1)(b) of the Administrative Decisions Tribunal Act ('the ADT Act'), and the only material I had before me from the Department was its Statement of Reasons in support of its decision to suspend the authority. During the hearing Mr Wozniak showed me a letter on the Department's file from the Department of Veteran's Affairs. 8 Mrs Williamson did not give sworn evidence. She read a prepared statement, and then answered a series of questions from me. She was then questioned by Mr Wozniak. I allowed Mr Williamson to make submissions on Mrs Williamson's behalf. 9 Mrs Williamson's statement and her answers to my questions described her business, of which she is a joint operator, and the importance to the reputation and profitability of the business of her being able to maintain her authority. Mrs Williamson's having an authority enables her business to provide back-up to other drivers, flexibility, and quick response. Power to order a stay 10 The Tribunal's power to stay the effect of the Department's decision is in section 60(2) of the ADT Act: On the application of any party to proceedings for an application for a review of a reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application. 11 Section 60(3) goes on to say: (3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account: (a) the interests of any persons who may be affected by the determination of the application, and (b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and (c) the public interest. Meaning of section 60 12 I understand the overall effect of section 60 to be this. The Tribunal's power is limited to making orders "appropriate to secure the effectiveness of the determination of the application". Although in considering whether to order a stay the Tribunal must take account of the interests of affected people, submissions by the administrator, and the public interest, the power to order a stay at all does not arise unless the Tribunal considers a stay is "appropriate to secure the effectiveness of the determination of the application". 13 The Commonwealth Administrative Appeals Tribunal has stay powers in similar terms under section 41 of the Administrative Appeals Tribunal Act 1975 (the 'AAT Act'). The AAT in Australian (NDT) Services Pty Ltd and Civil Aviation Safety Authority [1999] AATA 79 at para 13 demonstrated the reasoning process when it found in the circumstances that: if a stay is not granted . . . the hearing will not be fully effective. Thus I do have power to grant a stay if I consider it desirable to do so after taking into account the interests of any persons who may be affected by the review. Meaning of an 'effective' determination 14 The Administrative Appeals Tribunal in Re Repatriation Commission and Delkou (1985) 8 ALD 454 said at para 8: The power . . . to make an order 'staying or otherwise affecting the operation or implementation of the decision or a part of the decision' sought to be reviewed . . . enables the Tribunal to preserve the status quo pending the hearing and determination of the application for review where the 'effectiveness' of the review may be jeopardized if the decision, in the meantime, is carried into operation. Thus the power may be exercised when it is appropriate to do so to ensure that the application for review, if successful, is not rendered nugatory: cf Polini v Gray (1879) 12 Ch D 438 at 446 per Colton LJ; cf J C Scott Constructions v Mermaid Waters Tavern Pty Ltd (1983) 2 Qd R 243. 15 A stay will guard against situations where the Tribunal sets aside the decision under review, only to find that while waiting for the decision the applicant has, because of the effect of the original decision, ceased trading or is unable to restart operations. In such circumstances the Tribunal's decision would, in the terms of s60, not be an effective one. 16 The AAT in Delkou gave further examples at paragraph 9: The Tribunal commonly grants a stay in respect of deportation orders. Otherwise the effectiveness of the review would almost certainly be jeopardized because the applicant would be unable to attend the hearing and to enjoy the benefits of his application for review, if successful: cf Kioa v West (1984) 6 ALN N21. On occasions, the Tribunal has stayed the operation of decisions cancelling social welfare benefits where, deprived of that support, the applicant faces serious hardship . . . the Tribunal has recognised that, in a very practical sense, the review may be rendered nugatory unless the applicant is provided with the means of sustenance pending the hearing: cf Re Dart and Director-General of Social Services (1982) 4 ALD 553. 17 As well, a final determination will not be effective if, but for a stay, the applicant would be likely to suffer "irreparable loss": if (the decision to suspend an authority), before the facts have been established, is likely to cause him or the company serious irreparable harm (irreparable in the sense that no recompense for it can be obtained if the application for review is successful) and so to affect adversely the effectiveness of the hearing and determination of the application under review, it may be appropriate to stay the implementation of the decision pending the hearing and decision of the application. ( Re Pelling and Secretary, Department of Aviation (1984) 5 ALD 638 at 639. See also Australian (NDT) Services Pty Ltd and Civil Aviation Safety Authority [1999] AATA 796 at para 8, and Roy Frederick Griffiths, Grfi-Air Helicopters Pty Ltd v Civil Aviation Authority (1993) 31 ALD 380 at para 41 and 42). 18 The removal of a child because of a care order, or the loss of reasonable employment prospects because of a licence suspension, might, depending on the circumstances, be examples of "irreparable loss" in some of the review matters in this Tribunal's jurisdiction. Other factors 19 If the threshold test is passed, and there is power to grant a stay because the Tribunal considers such an order appropriate to secure the effectiveness of a final determination, the Tribunal then engages in a balancing exercise. The appropriateness of a stay so that a determination is effective may, in the circumstances, be outweighed by the factors in s60(3) of the ADT Act, including the public interest and the effect on people's interests. 20 Thus in each of Grif-Air and Australian (NDT) Services, the AAT found that, although there was power to order a stay because the final determination was likely not to be effective without one, a stay was not in fact ordered because of the greater weight of the public interest in the circumstances. On the other hand, in each of Pelling and Delkou the AAT found that other factors, in the circumstances, did not outweigh the need to ensure that the final determination would be effective. 21 The Federal Court's power to stay AAT decisions, in s 44A(2) of the AAT Act, is in similar terms. In Broadbent v Civil Aviation Safety Authority [1999] FCA 1871 Cooper J was not satisfied that a stay was appropriate to secure the effectiveness of the final determination. He declined to grant a stay on that basis. Cooper J said of the stay application in that case: the appeal to this Court is and remains always available, notwithstanding the presence or absence of a stay. The absence of a stay merely means that the applicant will not be lawfully entitled to engage in flying activities or commercial flying activities until such time as he . . . obtains the benefit of a decision which sees the setting aside of the decisions . . .". 22 On that criterion alone, Cooper J said: "there is nothing in the material which indicates that a basis has been made out for a stay under s 44A(2) of the (AAT) Act" (at para 6). 23 Cooper J's further consideration at para 5 of "the impact cancellation of Dr Broadbent's licences would have upon Pacific Air Freighters" was only at the insistence of the applicant that "there will be damage to third parties if he is not restored to a position whereby he can lawfully fly and operate" (para 8). Cooper J said of this submission: "I am not satisfied that the circumstances of those third parties are immediately relevant to the present proceedings". He said at para 10 "these matters of third party loss appear to me, if they are relevant, to go to issues of balance of convenience and the like." He then said: Before those balancing issues arise, it is necessary : (i) to show a head of power to make the stay and (ii) that there is a proper basis for making the stay in terms of the issues to be dealt with on the appeal, and in securing the effectiveness of the appeal. 24 The decision in Broadbent was subject to leave to appeal (Broadbent v Civil Aviation Safety Authority [2000] FCA 342) which was refused. His Honour's approach to the Court's stay powers was not questioned in the leave application. 25 In Broadbent, Cooper J was dealing with a cancellation, and had to distinguish his reasons from matters involving a suspension. The distinction, however, is particular to civil aviation matters, where a suspension is for a defined period resulting in circumstances which are materially different from those of a cancellation. 26 Mrs Williamson's case before me involves a suspension, but the suspension under the PT Act is not for a defined period. For purposes of considering the appropriateness of a stay, the suspension operates effectively as a cancellation for the foreseeable future. Application of section 60 to this matter 27 The issue in the matter before me is whether it is appropriate, to secure the effectiveness of the determination of the review application, to make an order staying the suspension? I do not think so. 28 Relying on Mrs Williamson's statement, and her answers to questions during the telephone hearing, I find that her business will continue to operate despite the suspension of her licence. If she is successful in her application to set aside the suspension, Mrs Williamson will be able to resume driving taxi-cabs. 29 Mrs Williamson's business may suffer to some degree in the meantime because of her unavailability to provide back-up when drivers are off sick, and to provide quick response to call-outs at short notice. But there is no question of Mrs Williamson suffering irreparable loss unless a stay is ordered. 30 Whether the Tribunal in its final determination affirms or sets aside the decision under review, that determination will be an effective one without a stay having been granted. 31 Accordingly I decline to make an order staying the decision under review. I note that have separately made directions for the expeditious hearing of the application for review of the original decision. Earlier stay decisions in this Tribunal 32 I am aware that the approach I have taken to the meaning of s60 of the ADT Act is not explicitly the approach taken by this Tribunal, differently constituted, in the few previous reported decisions under s60. In those matters the Tribunal has considered the factors in s60(3), assuming perhaps that a stay is appropriate in the circumstances to ensure an effective final determination. 33 I note that consideration under s60(2) of the likely effectiveness of the final decision will often involve consideration of the circumstances of the applicant, as is apparent from the examples in paragraphs 15 to 18 above. Such an exercise is very similar to the one to be undertaken under s60(3)(a) when considering "the interests of any persons who may be affected by the determination of the application". 34 For example the Tribunal's decision in W & B -v- Minister for Community Services [1999] NSWADT 90 to refuse a stay could have been reached through considering what I have identified as the s60(2) threshold, although it was in fact reached through considering s60(3)(a). 35 The difference however is that the s60(2) consideration is a discrete one, which must be satisfied before the Tribunal then goes on to a balancing exercise, weighing up the need to ensure an effective determination and the other factors in s60(3). ORDERS 1. Pursuant to s60(2) of the ADT Act I make no order staying the decision under review. 2. Pursuant to s88(1) of the ADT Act I make no award of costs. 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