Salaberry v Ministry of Transport [2005] NSWADT 302

CITATION: Salaberry v Ministry of Transport [2005] NSWADT 302 DIVISION: General Division APPLICANT PARTIES: Susana Salaberry RESPONDENT Ministry of Transport FILE NUMBER: 053407 HEARING DATES: 23/11/2005 SUBMISSIONS CLOSED: 11/23/2005 DATE OF DECISION: 11/23/2005

BEFORE: O'Connor K - DCJ (President) APPLICATION: Stay of proceedings MATTER FOR DECISION: Preliminary matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990 CASES CITED: APPLICANT REPRESENTATION: In person RESPONDENT A Wozniak, solicitor, Smythe and Mallam ORDERS: Application dismissed

REASONS FOR DECISION - Ex tempore 1 On application for stay of decision to suspend operator accreditation 2 HIS HONOUR: I will deal with your application now. The Tribunal has got an application for the stay of a decision by the Director-General, Department of Transport to suspend the operator accreditation number 30707 held by Mrs S Salaberry who trades as Ausguays Bus and Charter at Green Valley. The power to suspend the accreditation is found in s 10 of the Passenger Transport Act 1990. The requirements for accreditation are set out at s 7. 3 The unusual feature of the case, as Mr Wozniak has noted, is that the suspension has really been imposed at, I suppose, a relatively early stage of the process being undertaken by the department. As I understand it, it has been imposed at the notice-to-show-cause stage and certain reasons have been put in front of the operator as to why this action is required. 4 So at the moment the applicant and her husband find themselves at a relatively early phase of the disciplinary process. I have received the application today mindful of the impact that suspension of the business must have not only on the operator but also the people who work for the operator. There has been mention of six casual bus drivers who get about twenty hours' work a week each. In terms of the jurisdiction of the Tribunal I am happy to exercise the discretion that is given under s 55(2)(c) to dispense with the requirement of internal review. 5 I am a little puzzled as to whether we have got a reviewable decision at all. I think we have because what has really happened here is a decision has been taken to suspend. That decision is supported by reasons. What is unusual is simply that it has been taken at an earlier stage of the process than we usually see. Certainly enforcement action has been taken and the operator is complying with it. 6 The problem I have got with the case, Mrs Salaberry, is the one I have indicated to you already and that is that the number of breaches that are listed in the department's report is very high. I accept what Mr Wozniak says that some of them involve matters that individually are quite serious. Certainly I think it is the case that the sheer number of these breaches is itself a serious matter. 7 You have indicated that you are relatively new to this set of responsibilities. You are both here today and it is obvious that you are both older people who have been in the workforce, I take it, for a long time. Mr Salaberry has got some background in transportation driving heavy vehicles but not, as I understand it, previously driving passengers for reward. 8 You, Mrs Salaberry, tell me that your past experience is as a sales assistant so you come to the role of operator without possibly the level of prior experience that I would suspect is commonly seen in operators. On the other hand, I accept that you have passed whatever credential requirements are imposed to do with doing courses of study and so on and familiarising yourself with the rules. I accept all that. 9 But what I see just on the basis of this material is a picture of poor management at least and some suggestions (really flowing from your husband's comments to the Tribunal today) of a degree of what I would call indifference to the role of the regulator. I accept that you see yourself as safety conscious and you only put buses on the road when they are registered. But there are also maintenance issues raised through this material. Obviously I have to take note that the main type of bus work that you do is for schools which obviously would be seen by the community as an area where a great deal of responsibility needs to be shown. 10 So for those various reasons which are ones that seek to address the criteria that are set out in s 60 of the Administrative Decisions Tribunal Act 1997 I do not think it is appropriate today to accede to your application. In saying that, I should indicate to you that I have not, nor has the Tribunal, formed any final views on these allegations that are made against you. But at this stage all we have is those allegations and we have to accept them as accurate for the time being until it is demonstrated otherwise. 11 So what I am saying to you today is I am not prepared to grant the application for the stay. I am happy to deal with an application in the future if you can come up with an arrangement as to who manages the business which is acceptable to the department. I think both of you have got to face the possibility that someone else independent of either of you should be brought in to run the business who has got the trust of the department. I know that will involve paying wages and all that kind of thing but that is what you have got to think about. … 12 Mr Wozniak is quite happy, I think, to talk to you in a practical way about what can be achieved but the state of affairs that is indicated by this statement of reasons is far more serious than you seem to be recognising, Mr Salaberry. It is not about whether at the end of the day you have had an accident or not. What transport regulation is about at the end of the day is managing the risks which passenger vehicles present to drivers, passengers and to the community, so this is a risk management area. They are really saying in this report you do so many things wrong that you are a high risk and you take up a lot of time of the regulator. The regulator should not be busy checking on people about these things. People should be doing them automatically. … 13 You need to look around and see if you can get someone in for a few months. … 14 The only possible qualification I can make is simply to ask Mr Wozniak to note whether there is any possibility of allowing you to operate for a few days just to discharge whatever contracts you have got on hand. … 15 If the department is agreeable to some window period of seven to fourteen days in which you can deal with your existing business they have got the power to vary the suspension. … 16 You need to get someone in – and this has happened in other cases here – you need to get someone in that they trust who will get your place into good order and you may have to look long term at who your accredited operator is. It may mean that you are going to have to employ someone to do that and you spend your time out on the road, Mr Salaberry, as a driver or whatever. But what we see here if this is true is repeated errors or mistakes or failings over a considerable time involving a number of buses and you have only got six. … 17 I want you to understand clearly now what I am about to say. My decision today is to refuse your application. I have simply indicated to Mr Wozniak that he might like to take up with the department the possibility of giving you a seven to fourteen-day lifting of the suspension but then the suspension would be reimposed. The only basis upon which I think I would reconsider the decision I have made today is if you manage to install an accredited operator that is acceptable to the department and I think then they may just lift the suspension themselves. They can do that. … 18 The department might be prepared to give you a few days in which to deal with current contracts and then I will just list the matter for directions on a date in December, 20 December at 11am. That does not prevent you making a further application for a stay at any time but I am just indicating to you that we have to have some change as against what we have heard today and the change I am looking for is at least an interim accredited operator that is acceptable to the department. … 19 So the application is refused, the matter is listed for directions on 20 December at 11am. In the meantime, you and the department need to talk to each other in a practical way.