Lopatinsky v Ministry of Transport [2005] NSWADT 249

CITATION: Lopatinsky v Ministry of Transport [2005] NSWADT 249 DIVISION: General Division APPLICANT PARTIES: Michael Lopatinsky RESPONDENT Ministry of Transport FILE NUMBER: 053324 HEARING DATES: 27/09/05 SUBMISSIONS CLOSED: 09/27/2005 DATE OF DECISION: 09/27/2005

BEFORE: O'Connor K - DCJ (President) APPLICATION: Passenger Transport Act - taxi driver - grant of authority - Taxi driver - grant of authority MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990 Upton, Harold and Chief Inspector of Dangerous Goods [2000] ACTAAT 35 CASES CITED: Stouraitis v TAC [2001] VCAT 1700 Commisso v Transport Accident Commission 29 March 2001, unreported (VCAT) REPRESENTATION: H MacRae, solicitor S O'Dwyer, solicitor ORDERS: The decision under review (being refusal to grant application for renewal) be set aside; and in substitution the decision be; 1. That the authority be renewed subject to the same terms and conditions as were attached to the stay order made 13 July 2005 in proceedings number 053234; 2. That the authority be cancelled immediately if the Tribunal in proceedings 053234 decides to affirm the respondent's decision that is under review in those proceedings.

DELIVERED EX TEMPORE REASONS FOR DECISION 1 PRESIDENT: The Tribunal has before it an application for review of a 'decision', application filed five days ago, 22 September 2005. The review applicant is, in turn, an applicant for renewal of a taxi driver authority under the Passenger Transport Act 1990 (the Act). 2 The applicant, according to the agreed facts, applied for renewal on 9 September 2005 and the fee accompanying the renewal was accepted. It was due to expire on 25 September 2005. At that point the applicant looked forward to the matter being processed in the usual way. What the usual processing time is for applications of this kind is not a matter in evidence before the tribunal at this stage. I am proceeding on the basis that a usual time would be in the range of say 21 to 28 days. 3 The review application now before the Tribunal was filed 13 days after lodgement of the application for renewal. The Ministry of Transport had not at that stage notified any decision of refusal of the application. There is a live question as to whether the application for review is competent and the issue arises on two bases: one, has the agency made a decision refusing an application, and secondly, if there is a refusal, should it first be the subject of internal review before coming here. 4 The jurisdiction of the tribunal is set out in s 52 of the Act which says that 'any person whose application has been refused may apply to the Administrative Decisions Tribunal for a review of the refusal'. This is said to be an application of that kind. 5 The one further fact that I understand to be agreed arises from contacts made by the applicant's solicitor with the Ministry. The Ministry advised that it has placed the application made on behalf of the applicant on 9 September for renewal of his taxi driving authority 'in abeyance' pending outcome of proceedings bearing matter number 053234 in the tribunal. During today's proceedings we had an adjournment for lunch; and during that recess Mr O'Dwyer for the respondent obtained some further information and instructions about the case. The Ministry confirmed that it has placed the matter 'in abeyance' pending the outcome of proceedings in matter number 053234. 6 Matter number 053234 is an application for review lodged by the applicant in connection with his last authority, the one that has now expired on 25 September 2005. The Ministry took action against the last authority, cancelling it on the basis that it considered the applicant no longer to be a fit and proper person to be entrusted with an authority to drive taxis. That cancellation was stayed by the Tribunal (the stay being granted on 13 July). The hearing in relation to that decision is to proceed on 26 October 2005. So for the period 13 July to the date of expiry of the authority, 25 September, the applicant has been able to drive under the protection of that stay; but obviously the protection of the stay lapsed two days ago because the underlying authority has lapsed. 7 That is the background to these proceedings. 'Decision' 8 The applicant is here today pressing an application for review of what he says is in effect a decision to refuse his renewal application even though there is no decision cast in those terms by the administrator. There is a question of fact obviously for the tribunal to address as to whether the circumstances, as I have explained them, are ones that should properly be characterised as a refusal. There was no case law cited to me on this type of question in the original submissions this morning; but I managed over the lunch recess to find some material that appears to bear on the question. 9 One is Upton, Harold and Chief Inspector of Dangerous Goods [2000] ACTAAT 35 (13 October 2000), the citation of which I have already provided to counsel, another is Stouraitis v Transport Accident Commission [2001] VCAT 1700 (15 June 2001). There are probably more around if we start looking. 10 It is not unusual from what I can gather, looking briefly at the internet, for the question of 'what constitutes a refusal' to arise in the law, but most typically it arises in civil law and has to do with things like first option to refuse under contract. It is not so frequently a question under administrative law I think for the good reason that agencies usually say that they are refusing when that's what they intend, rather than use other language. 11 The interesting aspect of the case of Upton is that there was a long delay in responding to the application and the administrative tribunal in that case did find that a refusal had arisen. 12 The position here is that a decision has been taken quite clearly, a decision to put the application for renewal on hold for some time to come. That decision I think, viewed objectively, is in fact a decision to refuse. It could hardly be seen as anything else. It is a decision not to act upon an application for some considerable period into the future, in circumstances where the applicant has held authorities routinely in the past and depends for his livelihood on the continued possession of such an authority. 13 The words that are used in the Victorian case of Stouraitis seem to have some resonance here. There is a reference made there to an unreported decision of Judge Strong, who was a Vice-President of VCAT in recent times. His Honour said 'that a failure to make a decision', and here I think he means a decision failing formally to refuse, 'could in certain circumstances constitute a refusal to make a decision' which is I suppose not quite like a decision to refuse but nevertheless a similar idea. His Honour stated that 'the failure must be so serious as to be tantamount to a refusal and there must be something in the nature of an abdication by the commissioner of its duties under the act'. (See Stouraitis at [23] referring to Commisso v Transport Accident Commission 29 March 2001, unreported (VCAT).) Those words of his Honour correspond very closely to some of the submissions that Mr MacRae made before the recess for the applicant urging the Tribunal to find his client's application competent despite any decision to refuse the authority, expressed as such. 14 Here what we have is a major piece of state legislation, the importance of which I do not deny in any way in terms of its significance for the safety of passengers and the nature of the work that taxi drivers are called to do, where the administrator has deliberately decided not to deal with the application of a licensed person for renewal. 15 What we have here is an abdication of responsibility – I think in no uncertain terms – by the Ministry. Instead of formally refusing and giving a reason for that, it has used the language of deferral (and 'in abeyance') to avoid its responsibilities. This seems to be to be conduct tantamount to a refusal; and should be treated as such. There is a deemed refusal. 16 I find, therefore, that the Tribunal has jurisdiction to entertain the application for review, unusual as the circumstances are in which it has come forward. 'Internal Review' 17 [The Tribunal then indicated that it was satisfied that this was a case where the requirement for internal review should be dispensed with, exercising the power given to the Tribunal by s 55(2)(c) of the Administrative Decisions Tribunal Act 1997.] 18 [The Tribunal then heard submissions on the orders to be made. The parties acknowledged that the present application did not rely on any material different from that before the Tribunal in the application in matter no 053234. In those circumstances it was considered appropriate to make an order which linked the outcome of this application directly to the outcome of that application. The Tribunal made the following orders.] 19 PRESIDENT: The decision under review (being refusal to grant application for renewal) be set aside; and in substitution the decision be: 1. That the authority be renewed subject to the same terms and conditions as were attached to the stay order made 13 July 2005 in proceedings number 053234. 2. That the authority be cancelled immediately if the Tribunal in proceedings 053234 decides to affirm the respondent's decision that is under review in those proceedings.