CITATION: Denney -v- Director General, Department of Transport [2001] NSWADT 90 DIVISION: General Division APPLICANT PARTIES: Beverley Dulcie Denney RESPONDENT Director General, Department of Transport FILE NUMBER: 013060 HEARING DATES: 23/3/01 SUBMISSIONS CLOSED: 03/23/2001 DATE OF DECISION: 03/26/2001 BEFORE: Hennessy N (Deputy President) APPLICATION: Passenger Transport Act - bus driver - cancellation of authority - Stay of proceedings MATTER FOR DECISION: Preliminary matter Administrative Appeals Tribunal Act 1975 (Cth) LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990 Dekanic v Tax Agents' Board of New South Wales [1982] 62 FLR 154 Williamson -v- Director General, Department of Transport [2000] NSWADT 165 CASES CITED: N2000/733and Migration Agents Registration Authority [2000] AATA 427 (15 May 2000) Australian (NDT) Services Pty Ltd and Civil Aviation Safety Authority [1999] AATA 796 (25 October 1999) Re Pelling and Secretary, Department of Aviation (1984) 5 ALD 638 APPLICANT REPRESENTATION: R Beech Jones, barrister RESPONDENT A Wozniak ORDERS: 1. The application for a stay is granted, pending further determination of the Tribunal, on condition that Ms Denney comply with all legal and policy requirements applicable to a person with an authority to drive regular passenger buses. Introduction 1 This is an application for a stay of a decision of the Director General, Department of Transport (the administrator) to cancel Ms Denney's bus driver authority. Mr Otto, a delegate of the administrator, cancelled the authority by letter to Ms Denney dated 16 March 2001. Ms Denney is in partnership with her husband, Barry Denney. They own and operate Denney's Bus Service which transports children to and from school in the Goulburn area. Mr Denney has a full time job outside the family business and Ms Denney drives the bus virtually every school day. 2 The stay was heard on 23 March 2001 and the decision reserved. At the end of stay hearing a timetable was set for the filing and service of documents and a hearing date was arranged. The hearing date has now been confirmed as 1 May 2001 at Goulburn. 3 The issue in this case is whether the Tribunal should grant a stay of the administrator's decision until any further order of the Tribunal. The effect of such a stay would be that Ms Denney could resume driving the bus pending the Tribunal's final decision. Tribunal's powers to grant a stay 4 The Tribunal's stay powers are set out in s 60 of the Administrative Decisions Tribunal Act 1997 (ADT Act) in the following terms: Operation and implementation of decisions pending applications for review (1) Subject to this section, an application to the Tribunal for a review of a reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision. (2) 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. (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. (4) While an order is in force under this section (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on application by a party to the proceedings, vary or revoke the order by another order. Evidence 5 No oral evidence was given in this matter. The documentary evidence consisted of a Statement of Beverley Denney dated 22 March 2001 with Annexures A- O. I also had a copy of the administrator's Notice of Decision and the Statement of Reasons. 6 Details of Mr and Ms Denney's history of operating and driving buses in the Goulburn area since 1984 and their financial situation is set out in Ms Denney's statement under the heading "The Services". Ms Denney states, in part, that: If my husband and I are forced to employ a driver, running the service will be economically unviable. For the years 1999 and 2000 our net profit was $64.61 and $2.55 respectively. These net profit figures take into account the bus driver's wages which I was paid being $21,300 in 1999 and $29,245 in 2000. If we pay another driver these wages it will simply not be worthwhile for my husband and I to continue operating the service. 7 Mr Beach-Jones told the Tribunal that Mr Denney is able to get leave from his current employment to drive the bus until the Easter break on 12 April 2001. After that his job would be at risk if he has to continue driving. Applicant's submissions 8 The applicant relied on two main submissions which derived from a decision of Davies J in Dekanic v Tax Agents' Board of New South Wales [1982] 62 FLR 154. That case involved the interpretation of a Commonwealth provision, namely s 41 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). Section 41(2) states that: The Tribunal or a presidential member may, on request being made, as prescribed, by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding ), if the Tribunal or presidential member is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal or presidential member considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review. 9 Mr Beech-Jones' first submission was that Ms Denney had not been afforded procedural fairness in the conduct of the investigation which led to the cancellation of the authority. In particular, Mr Beech-Jones pointed to the administrator's refusal to provide copies of the complaints against Ms Denney and the failure to respond to a letter requesting further particulars of the allegations. In Mr Beech-Jones' submission, the evidence (attached to Ms Denney's statement) shows that the administrator made the decision to cancel Ms Denney's authority without the precise nature of the allegations or the basis for the decision being available to her in writing. Mr Beech-Jones relied on the following passage from Dekanic's case at p 156 to support his submission that this was a relevant factor to be taken into account when determining if a stay application should be granted: I am here dealing with a decision which involved the cancellation of the registration of Mr Dekanic to carry on practice as a tax agent. Under the principles of administrative law as expounded by the High Court of Australia and the Federal Court of Australia, a decision cancelling the registration of a person as a tax agent would not, I think, be a valid decision if the tax agent were not given an opportunity to be heard and to put forward facts and reasons why his registration should not be cancelled. Moreover, to cancel a registration without giving to the tax agent a right to be heard would be inconsistent with Article 14 of the International Covenant on Civil and Political Rights which is set out in Schedule 1 to the Human Rights Commission Act 1981. 10 Mr Beech Jones' second submission was that the words "secure the effectiveness of the hearing" in s 60 of the ADT Act should be interpreted in accordance with the following comments of Davies J in Dekanic at p 157: In circumstances such as these, the granting of a stay may secure the effectiveness of the hearing and determination of the application for review in two ways. Firstly, the granting of a stay may remove pressure from the parties and the Tribunal to hurry towards a decision, it enables sufficient time to be set aside for the preparation of the case and an appropriate date appointed for hearing and it enables the Tribunal to reserve its decision if it sees fit to do so and to give such time to the consideration of its decision as it thinks necessary fully to consider the matter. If a stay were not granted there would be a tendency to rush the hearing and the decision and therefore to reduce the quality thereof. Secondly, the stay may increase the effectiveness of the determination of the review. If a stay were not granted, the decision, if favourable to the applicant, could not compensate the applicant for the dislocation to his practice which would occur prior to the handing down of the decision. The decision could not put him back into the position of a person whose registration had never been cancelled. The decision can be fully effective, if it is favourable to the applicant, only if the operation of the cancellation is stayed until the decision of the Tribunal is given. 11 In the circumstances of this case, Mr Beech-Jones submitted that a stay should be granted so that the hearing would not be rushed, and that sufficient time would be available for the parties to prepare the matter. 12 Mr Beech-Jones also submitted that the decision of the Tribunal could never compensate Ms Denney for the financial loss and hardship she would suffer prior to the substantive matter being decided. The level of financial hardship which Ms Denney would suffer is a factor to be taken into account in determining whether a stay is required to "secure the effectiveness" of the hearing. 13 Mr Beech-Jones submitted that the Tribunal was bound by the decision in Dekanic , or at least that the principles of comity required that the Triubnal follow them unless it took the view that they were wrong. Respondent's submissions 14 Mr Wozniak argued firstly that any breach of procedural fairness requirements was not relevant to the Tribunal's review of a decision on the merits. Similarly they are not relevant to the issue of whether a stay should be granted. 15 Mr Wozniak relied on several recent decisions of the Tribunal in support of the proposition that the Tribunal must first be satisfied that a stay is "appropriate to secure the effectiveness of the determination" before it went on to consider the matters listed in s 60(3) of the ADT Act. (See Williamson -v- Director General, Department of Transport [2000] NSWADT 165.) I interpreted Mr Beech-Jones' silence on this point as agreement with that proposition. Secondly, Mr Wozniak submitted that the words "secure the effectiveness of the hearing" mean that unless there is some irreparable financial or other damage to an applicant which renders the hearing nugatory, a stay should not be granted. Examples would include an applicant being forced out of business prior to the hearing. In that case there would be no point having a hearing because there would be no business to return to. Mr Wozniak submitted that in this case Ms Denney would suffer some financial loss and inconvenience, but that the business could continue to operate prior to the hearing. Reasoning and decision 16 A number of questions arise from the evidence and the party's submissions. These can be summarised as follows: + Is any lack of procedural fairness in relation to the administrator's decision relevant to the Tribunal's decision as to whether a stay should or should not be granted? + To what extent is the fact that a hearing would be "rushed" relevant to the question of whether a stay should be granted? + What is the nature and extent of any financial inconvenience or hardship that would justify the Tribunal in concluding that a stay should be considered to "secure the effectiveness of the determination"? + In the circumstances of this case, if a stay would secure the effectiveness of the determination, should the Tribunal grant a stay taking into account the factors listed in s 60(3) of the ADT Act? Procedural fairness 17 In Dekanic , Davies J raised the issue of a lack of procedural as providing the context in which the stay application in that case was being considered. His Honour did not say that a lack of procedural fairness was a factor which should be weighed in the balance in determining whether a stay should be granted. His Honour said, at p 157, that: In circumstances such as these (where the applicant was not given an opportunity to be heard) the granting of a stay may secure the effectiveness of the hearing and determination of the application for review in two ways. (Words in brackets added.) 18 Davies J then went on to elaborate on the benefits of having sufficient time to prepare for a hearing and the relevance of any financial hardship. In other words, if there is evidence that an applicant has not been afforded procedural fairness, that circumstance may provide the relevant context when considering whether a stay is necessary to secure the effectiveness of the determination. My interpretation of Davies J's reasoning is at odds with the conclusion of the AAT in N2000/733and Migration Agents Registration Authority [2000] AATA 427 (15 May 2000) where it was said at [8] that: In Re Dekanic and Tax Agents' Board of New South Wales (1982) 6 ALD 240, which involved an application under s.41 of the AAT Act for a stay of a decision cancelling a man's registration as a tax agent, Davies J took into account in the applicant's favour the fact that the Board that made the decision under review had not afforded the applicant natural justice. I think that case is authority for the proposition that, on the hearing of a stay application, any failure to afford the applicant natural justice or procedural fairness on the part of the maker of the decision under review ought to be taken into account in favour of the applicant. In order to determine what significance, if any, that principle has in this case, it is necessary to consider the structure of the relevant provisions in the Act. 19 The relevant provision of the Act in this case are those provisions in the ADT Act which require an administrator to provide a Statement of Reasons and conduct an internal review of a decision. (See ADT Act s 49 to 54.) At the request of an applicant, the administrator must provide a written statement of reasons, setting out the findings on material questions of fact, the administrator's understanding of the applicable law and the reasoning process that led to the conclusions. (See s 49 ADT Act). If an adequate statement of reasons is not provided, the Tribunal may order an administrator to provide an adequate statement. (See s 52 of ADT Act.). There are no other statutory obligations on the administrator, either the Passenger Transport Act 1990 or the ADT Act, in relation to procedural fairness. Any other obligations the administrator may have in that regard are common law obligations. 20 In these circumstances, if an applicant maintains the administrator has not applied the principles of procedural fairness in coming to a decision, his or her only recourse would be to the Supreme Court for a judicial review of the decision. If the matter is before the Tribunal the only option is for the Tribunal to direct the administrator to provide an amended statement of reasons. 21 Lack of procedural fairness can, in some circumstances, be addressed by the provision of an amended Statement of Reasons. In this case some, but not all, of the applicant's objections to the investigation process could have been addressed by an amended Statement of Reasons. Consequently, consistently with the decision in Dekanic v Tax Agents' Board of New South Wales [1982] 62 FLR 154, the Tribunal should consider whether a stay is necessary to secure the effectiveness of the determination given the procedures adopted by the administrator as outlined by Ms Denney in her statement. 22 The second issue is whether the hearing in this case would be "rushed" if a stay was not granted. Given that the parties have agreed on a timetable which gives them ample opportunity to prepare the matter for a hearing in less than six weeks from today, I do not consider that the hearing has been "rushed." 23 The next issue for consideration is what level of financial inconvenience or hardship is required before it is appropriate to consider a stay to "secure the effectiveness of the determination?" In Williamson -v- Director General, Department of Transport [2000] NSWADT 165 the Tribunal summarised several decisions interpreting section 41 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). That section is not identical to s 60 of the ADT Act, but it does give the AAT power to stay the operation of a decision if it considers it "appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review." This test is almost identical to the test that this Tribunal must apply pursuant to s 60 of the ADT Act. 24 Two cases interpreting s 41 of the AAT Act which relate to the question of "irreparable harm" are Dekanic v Tax Agents' Board of New South Wales and Re Pelling and Secretary, Department of Aviation (1984) 5 ALD 638. The relevant passage from Dekanic is quoted above at paragraph 10. In Re Pelling Deputy President Thompson was deciding whether to grant a stay of a decision of the Secretary, Department of Aviation, to suspend the applicant's pilot's licence. The AAT commented at p 639, that if implementation of the decision: . . . 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. 25 This approach was endorsed more recently by the AAT in Australian (NDT) Services Pty Ltd and Civil Aviation Safety Authority [1999] AATA 796 (25 October 1999). Senior Member Dwyer rejected a submission by the respondent in those proceedings that it is only "where, absent a stay, the review hearing would be rendered nugatory," that the Tribunal is empowered to grant a stay. Senior Member Dwyer held at [8] that: . . . it cannot be disputed . . . that there is a likelihood of some financial disadvantage to NDT during any period of suspension, and that, so far as this Tribunal is concerned, the loss would be "irreparable" in the sense in which Deputy President Thompson used that term in Re Pelling and Secretary, Department of Aviation (1984) 5 ALD 638 at 639. 26 At the federal level, the irreparable harm has been characterised as needing to be "serious" in Re Pelling whereas in Dekanic the Federal Court was concerned about any financial loss for which an applicant could not be compensated. Because Dekanic is a Federal Court decision, the interpretation in that case should be preferred. 27 Since the decision in Williamson the term "irreparable loss" has been used as a touchstone by me and other Tribunal members for making out a case that a stay is necessary to secure the effectiveness of the determination. The federal decisions quoted above make it clear that "irreparable loss" is meant in the sense that that no recompense for it can be obtained if the application for review is successful. As a threshold issue, the question of whether a stay is necessary to secure the effectiveness of the determination should not be interpreted in a narrow or restrictive manner. As Davies J pointed out in Dekanic , at p 155 and 156, ". . . the jurisdiction of the Tribunal is wide and diverse and it is not practicable to lay down a principle or a set of specific principles applicable to every time of case in respect of which there may be an application for a stay." 28 The question then is whether Ms Denney will suffer an irreparable loss, that is a loss for which she will not be compensated, even if the Tribunal sets aside the administrator's decision. The evidence clearly establishes that she will suffer such a loss and consequently the threshold requirement has been met. 29 The next question is whether, taking into account the factors listed in s 60(3), it is desirable for a stay to be granted. The first matter is the interests of any persons who may be affected by the determination. Those persons are Mr and Ms Denney and the children who travel on the bus. 30 The interests of Mr and Ms Denney involve their reputation in the community as well as their financial interests. The cost of an alternative driver is $495.20 per week. Mr and Ms Denney will still have to meet their overheads including $2,189.20 per month. However they are still the operators of the bus service and are receiving the revenue of $83,366.13 per annum. Consequently the loss to them is that the profit that would have been paid to Ms Denney in wages must go to paying an alternative driver. On my calculations, the cost of an alternative driver ($26,000 per annum) is approximately the same as Mrs Denney has being paying herself in wages ($29,245 last financial year). The net loss over the 6 week period prior to the hearing is approximately $3,000.00. 31 There was no evidence that Ms Denney would not be able to arrange an alternative driver. Consequently I cannot make a finding that Mr Denney's employment with the Southern Area Health Service could be threatened. 32 There was very little evidence relating to the interests of the children who travel on the bus. Mr Wozniak pointed out that 40 complaints had been made about Ms Denney over a 10 year period. There was no evidence of the nature or seriousness of those complaints. Ms Denney stated that three children are a particular problem. 33 The second factor that the Tribunal must take into account is any submissions by the administrator. Those submissions are set out in brief above. Because this matter was listed for an urgent stay on 23 March 2001, only three days after the application was filed, Mr Wozniak did not have access to the Department's files. The only details of the allegations against Ms Denney are those in the Statement of Reasons, namely "written complaints received from complainants regarding your treatment of passengers"; "written statements from the complainants regarding your actions" and "record of interview conducted between yourself and Departmental Officers on 8 and 9 January 2001." 34 The final factor that I must take into account is the public interest. I cannot identify any public interest which would extend beyond the interests of the children who are passengers on the bus. 35 Mr and Ms Denney will suffer irreparable financial hardship if a stay is not granted. There is no evidence that the interests of the children travelling on the bus would be at seriously at risk if Ms Denney continues to drive for the next six weeks. Having taken all these circumstances into account, I have decided to grant a stay of the administrator's decision in this matter, pending any further determination by the Tribunal, on the condition that Ms Denney complies with all legal and policy requirements applicable to a person with an authority to drive regular passenger buses. 36 If the respondent considers that there is relevant evidence available which goes to the interests of the children travelling on the bus or any public interest, an application can be made to revoke or vary this order. Similarly if there is any breach of the condition, then that matter should be brought to my attention. Orders 37 The application for a stay is granted, pending further determination of the Tribunal, on condition that Ms Denney comply with all legal and policy requirements applicable to a person with an authority to drive regular passenger buses. 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