Director General, Department of Transport -v- Z (GD) [2002] NSWADTAP 17

Appeal Panel

CITATION: Director General, Department of Transport -v- Z (GD) [2002] NSWADTAP 17 APPELLANT PARTIES: Director General, Department of Transport RESPONDENT Z FILE NUMBER: 029018 HEARING DATES: 06/05/2002 SUBMISSIONS CLOSED: 05/06/2002 DATE OF DECISION: 05/06/2002

Z -v- Director General, Department of Transport [2002] NSWADT 67 DECISION UNDER APPEAL: BEFORE: O'Connor K - DCJ (President); Higgins S - Judicial Member; Mapperson K - Member CATCHWORDS: interim order MATTER FOR DECISION: Preliminary matter FILE NUMBER UNDER APPEAL: 013153 DATE OF DECISION UNDER APPEAL: 04/30/2002 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990 CASES CITED: Z -v- Director-General, Department of Transport [2002] NSWADT 67 APPELLANT REPRESENTATION: D Jordan, barrister RESPONDENT In person ORDERS: Application to stay decision under appeal granted until determination of the appeal or further order.

DELIVERED EX TEMPORE NON PUBLICATION ORDER IN RESPECT OF NAME OF RESPONDENT 1 There is an application before the Tribunal today for a stay of the decision that was made by Judicial Member Rice on 30 April 2002 in this matter: Z -v- Director-General, Department of Transport [2002] NSWADT 67. The decision was to set aside the decision of the Director-General to cancel Mr Z's authority and in substitution a decision was made that his authorities to drive route buses and private cars were to remain cancelled but that his authority to drive long distance and tourist buses is not cancelled. 2 The appeal that is made by the Director-General, filed on 2 May 2002, is set out in the notice of appeal. It gives two grounds for appeal which Mr Jordan elaborated on in his submissions today. The approach that the Appeal Panel has taken to applications for stay of decisions under s 116 of the Administrative Decisions Tribunal Act 1997 ('the Tribunal Act') is really to apply the principles that are reflected in s 60 of the Tribunal Act. 3 The usual approach is to ask whether there are reasonably arguable grounds as to there being errors of law identified in the notice of appeal and by the submissions on the stay application; and then, having formed a view on that matter, also to look at any issues of actual prejudice to the respondent to the appeal if the stay is granted. 4 The Director-General submits that the Tribunal has misapplied the requirements of s 11 of the Passenger Transport Act 1990 ('the Act') being the requirements that bear on the Director-General when exercising his administrative discretion whether to grant a licence or similarly whether to cancel a licence or authority. 5 One, the Director-General questioned whether the decision properly applied the requirements under s 11 of the Act to the effect that an authority 'attest that the authorised person is considered to be of good repute'; and, two, whether the separate requirement that the authorised person is 'in all other respects a fit and proper person to be the driver of a public passenger vehicle' was properly applied in this case. 6 The submissions then referred to several aspects of the decision which, it was argued, reflected a failure properly to apply the test. In essence, the argument was that relevant considerations were not given adequate weight or not taken into account at all and that some irrelevant considerations were taken into account or given undue weight. 7 Mr Z in reply has argued that no errors of law have been identified and that what the appeal amounts to is (the not unfamiliar phenomenon in this Tribunal of) an attempt to get another hearing on the merits without identifying any errors of law because the party adversely affected by the decision is unhappy with it. The Tribunal Act does not permit general merits appeals of that kind. It is an Act, see ss 112 and 113, which requires the appellant to identify errors of law before there is any further consideration of the merits of the decision. We are not at that point in the proceedings at this stage. We are dealing today with a stay application. We are not here today to deal with the ultimate question whether any alleged errors of law are made out. The question today is simply whether we are satisfied that the errors of law that are said to exist in the decision are arguable; and minds can sometimes differ on what is arguable. 8 The view that the Appeal Panel has formed is that there are a number of matters identified by Mr Jordan which do found arguable questions of law. It is an error of law to misapply a legal test to the facts. The tests that the Director-General is obliged to apply are set out in s 11 of the Act and today Mr Jordan has drawn our attention to a number of matters which could arguably involve a misapplication of the law. The immediate and most significant of these matters, in our eyes, is the most recent convictions imposed in June 2001. These were dealt with in the decision; but in a way that we consider raises questions as to whether an error of law occurred. These convictions were for offences under the Act as a result of Mr Z continuing to drive long distance buses after his authority had been cancelled. We are satisfied that arguable errors of law have been identified and that the appeal should proceed. 9 The second issue is what prejudice arises for Mr Z if the stay application is granted. While it is apparent that Mr Z is keen to return to the road as a long distance bus driver, he has been off the road now for the best part of two years, if not longer. The prejudice that Mr Z will suffer in the short term in terms of that vocation is not great. 10 I will make directions today to have this matter disposed of hopefully once for all quickly. 11 It is obviously a matter of concern to me as President that the matter has been in the hands of the Tribunal so long at this stage; and it is in everyone's interests, the Department and Mr Z's, that we bring some finality to the matter. 12 Therefore our decision is to grant the stay application until the determination of the appeal. 13 There is a matter that Mr Z has raised upon which I should comment. That is the legal effect of the decision that was made on April 30 2002. 14 Mr Z has complained that when he attended the Department's Parramatta office after receiving the Tribunal's decision to recover his authority card, the Department failed to provide it. He also complained that the Department had required him to fill in another form and supply a medical report, which he has done, but he still (6 days later) has not got his card back. 15 Mr Z complains in effect that the Department has not complied with the terms of the Tribunal's Order. It is a matter that I must acknowledge the Tribunal Act does not clearly deal with. The time allowed for an appeal is twenty-eight days. It would be odd if a decision maker whose decision is set aside but wishes to contest it, were to be placed in the position of having to respond to the order ahead of getting a prompt stay hearing on before the Appeal Panel. The appeal in this case was filed two days after the decision, and an application for a stay was made to the Appeal Panel. The Appeal Panel has been convened at the earliest opportunity (5 days later). 16 It may be that the Tribunal itself will have to look at putting a delay time into its decision of 7 or 14 days to get over this awkwardness which is not good on either side. It is not good for citizens to see that decisions that fall in their favour are not implemented immediately and similarly for the reputation of government departments who are faced with a decision which they wish to contest. Mostly the departments do not contest adverse decisions but in the cases where they do contest them, obviously some reasonable time has got to be available both for them and for the Tribunal to bring on any stay application. 17 I am not saying that by way of seeking to justify any conduct in which the Department may have engaged over the last few days. Mr Jordan has given an explanation of what conduct the Department has engaged in and I am not here to assess that. But I felt I should respond directly to that problem which I think is a difficult one in any situation where there in fact are appeal periods built into the Tribunal Act. As it happens as you know Mr Z you have used the appeal period in the past. Not that you needed to apply for a stay but this problem does come up on the other side of the equation from time to time. 18 I know the decision will be somewhat disappointing to you Mr Z but I think in the interests of justice we should grant the stay application; and I think now move quickly to make directions to bring the matter to some kind of conclusion as quickly as possible. 19 Directions made. Order Application to stay decision under appeal granted until determination of the appeal or further order.