Ybasco v Director-General, Department of Transport No.2 [1999] NSWADT 85

CITATION: Ybasco v Director-General, Department of Transport No.2 [1999] NSWADT 85

DIVISION: General

APPLICANT: James Ybasco

RESPONDENT: Director-General, Department of Transport

FILE NUMBER: 993026

HEARING DATES: 07/05/1999

SUBMISSIONS CLOSED: 08/19/1999

DATE OF DECISION: 8 September 1999

K P O'Connor DCJ - President BEFORE:

PRIMARY LEGISLATION: Passenger Transport Act 1990

APPLICATION: Review of decision to suspend taxi-cab authority - Validity of delegation

MATTER FOR DECISION: Principal matter

Applicant: EJ Shields QC instructed by J Connolly of Salmon Connolly Doyle Solicitors REPRESENTATION: Respondent: P Culbert, solicitor, Department of Transport

ORDERS: 1. Application dismissed.

1 On 15 December 1998, the Director-General, Department of Transport ('the administrator') suspended the applicant's authority to drive a taxi, an authority issued under the provisions of Part 2 of the Passenger Transport Act 1990 (the Act). That decision was made pursuant to ss 11 and 14 of the Act, following official advice that the applicant had been charged with three counts of each of two offences said to have occurred while in charge of a taxi. The offences alleged were indecent assault and detaining for advantage. On 28 January 1999 the applicant applied to the Tribunal for review of the original decision. 2 The charges were later withdrawn. On receipt of that advice the administrator withdrew the notice of suspension and on 8 March 1999 permitted the applicant to resume driving. 3 The administrator objected to the Tribunal continuing to exercise jurisdiction. An earlier decision of the Tribunal dealt with the question of whether the applicant was entitled to continue with his application even though the decision challenged, the decision to suspend, had ceased to have effect ahead of the date listed for the substantive hearing. The Tribunal decided that the applicant remained entitled to continue with the application for review of the original decision: Director-General, Department of Transport v Ybasco [1999] NSWADT 28. 4 This decision deals with the substance of the application. 5 The matter first came on for directions before the Tribunal in February 1999. At that time and since the applicant has been represented by Mr Shields, QC and through his counsel has disputed the fairness of the laying of the charges. Perhaps some vindication for those submissions is to be found in their withdrawal in March 1999. As noted, on receipt of that advice the administrator immediately restored the applicant's authority. 6 Pursuant to s 58 of the Administrative Decisions Tribunal Act 1997 ('the Tribunal Act'), the departmental file was lodged with the Tribunal. The hearing took place on 5 July 1999. 7 At the conclusion of the hearing, the Tribunal gave the parties a further opportunity to file written submissions. (i) Validity of Delegation 8 In particular, the Tribunal requested the administrator to demonstrate that a valid delegation was held by the officer who had decided to suspend the applicant. 9 The letter advising the applicant that his licence had been suspended was in the name of Henry Apfelbaum, Acting Operations Manager, Customer Service, Department of Transport. The letter, on the official letterhead of the Department, made no reference to the authority under which Mr Apfelbaum purported to exercise the powers vested in the administrator by the Act. 10 At hearing the Tribunal was advised by counsel for the administrator that the source of the power of delegation was to be found in an Act other than the one under which the suspension was effected, that other Act being the Transport Administration Act 1988 ('the Administration Act'). 11 The relevant provision is s 40 of Part 4 of the Administration Act: " 40 Delegation (1) The Director-General may delegate to an authorised person any of the Director-General's functions under this Part, other than this power of delegation. (2) A delegate may sub-delegate to an authorised person any function delegated by the Director-General if the delegate is authorised in writing to do so by the Director-General. (3) In this section, authorised person means: (a) (Repealed) (b) a member of the staff of the Department of Transport, (c) a person of a class prescribed by the regulations. " 12 The functions to which the power of delegation attaches are dealt with at Part 4, ss 36-39. The provision relevant to this matter is s 37 which states: " 37 Functions relating to the licensing and regulation of public passenger vehicles or ferries The Director-General has such functions with respect to the licensing and regulation of public passenger vehicles or ferries as are conferred or imposed on the Director-General by or under this Act, the Passenger Transport Act 1990 or any other Act." 13 On 30 July 1999 the administrator provided the Tribunal with a copy of an instrument of delegation. The instrument is declared to have effect from 9 October 1991 though the date of execution was 12 March 1993. It was made by the then Director-General. It takes the form of a general delegation, and has attached a schedule of specific delegations. 14 The delegation is expressed to be in favour of "the persons for the time being holding the positions within the New South Wales Department of Transport as set out in the Schedule of Delegations attached, or the persons assuming the responsibilities of those positions in their absence". 15 In the schedule a general delegation is given to the Executive Director, Vehicle Transport Policy and Regulation Division of the Department. Under the terms of the delegation that officer is empowered to delegate to any authorised person as set out or referred to in s 40(3) of the Transport Administration Act the powers delegated by the delegation. 16 Also provided to the Tribunal was a Schedule of Sub-Delegations dated 17 November 1997 made by the Executive Director, Transport Services under which two positions were given sub-delegations of the powers, duties, functions and authorities of the Director-General under Part 2 of the Act, the Part of the Act relevant to the exercise of discretion under review in this case. 17 Those positions were Regional Manager, Central Sydney and Operations Manager, Central Sydney. Mr Apfelbaum held the position of Acting Operations Manager. 18 The applicant has objected to the purported sub-delegation to Mr Apfelbaum on a number of grounds. 19 First, the applicant notes that the principal instrument of delegation makes allowance for the delegations specified in the Schedule of Delegations to be performed by the persons "assuming the responsibilities of the positions" set out in the Schedule but no similar provision dealing with substitutes or acting appointments is found in the Schedule of Sub-delegations. The applicant argues therefore that it is not open to a person holding the position of Acting Operations Manager to exercise the authority conferred by sub-delegation only on the Operations Manager. 20 Given the specific reference to the situation of acting position-holders in the principal delegation, it is unfortunate that there is no similar specific reference in the schedule of sub-delegations to this matter. However, I am not satisfied that any defect is in fact revealed. 21 Mr Apfelbaum was the occupant of the position of Operations Manager at the time he made the decision and gave the relevant notice. That he was acting in the position simply indicates that he was not the permanent occupant of the position. A delegation of power in favour of a position should not be interpreted as being confined to the substantive occupant of the position, as distinct from a temporary or acting occupant, unless there are clear words making such a limitation. If it were otherwise the practical conduct of administration would be greatly impeded: whenever the substantive position was unfilled by a permanent occupant or the occupant was on leave, key responsibilities would be unable to be exercised even though an acting arrangement had been made. 22 The second objection to the sub-delegation is that there has been a failure to comply with s 40(2). As noted, that sub-section provides that "[a] delegate may sub-delegate to an authorised person any function delegated by the Director-General if the delegate is authorised in writing to do so by the Director-General." The applicant submits that no evidence of such an authorisation by the Director-General is produced. The far column of the Schedule of Delegations, each page of which is signed by the Director-General, contains the following words in relation to the responsibilities delegated to the Executive Director, Vehicle Transport Policy and Regulation: "The Delegate is empowered to sub delegate to any authorised person as set out or referred to in Section 40(3) of the Transport Administration Act 1988 the powers delegated to him by me pursuant to this Delegation." 23 I am satisfied that the Director-General complied with s 40(2). 24 After considering the material lodged by the administrator on 30 July 1999 and further submissions filed by counsel for the applicant dated 6 August 1999, two doubts remained in relation to the question of whether Mr Apfelbaum held an appropriate delegation. The first doubt related to whether the position of Executive Director, Transport Services is equivalent to that described in the principal delegation as Executive Director, Vehicle Transport Policy and Regulation Division. Secondly, there was no document (such as an internal personnel memorandum) demonstrating that Mr Apfelbaum actually held the position of Acting Operations Manager on the date in question, 15 December 1998. 25 Accordingly I gave further directions to the administrator to produce relevant evidence, with the applicant being provided with an opportunity to make any further submissions in reply. On 19 August 1999 the administrator filed an affidavit sworn by Jennifer Aldred, Regional Manager in which she stated that the position Executive Director, Transport Services is the same position as Executive Director, Vehicle Transport Policy and Regulation Division. She also stated that Mr Apfelbaum is employed in the Central Sydney Region of the Department and as at 15 December 1996 held the position of Acting Operations Manager under her administration; and has held that position at all relevant times in relation to this matter. 26 Accordingly, I am satisfied that the delegation to Mr Apfelbaum was valid and effective. 27 Some Comments on the Role of Tribunal in relation to Challenges to the Underlying Validity of Administrative Decisions: I have indicated in the recent decision, Doyle v Commissioner of Police [1999] NSWADT 84, that the Tribunal should not readily allow itself to be distracted from its primary statutory role of providing a forum for merits review by becoming engaged in examining objections relating to the underlying validity of the administrative conduct giving rise to the decision. Questions of underlying validity are ordinarily more appropriate to be dealt with by way of judicial review. In that case, I ruled that challenges to the validity of subordinate legislation should only be entertained if there were "compelling circumstances" in line with the position adopted by the Commonwealth Administrative Appeals Tribunal. But equally the difficulties that might attend the resolution of a challenge to the validity of subordinate legislation should not arise in relation to the issue of whether a lawful delegation is held by an administrator making a decision subject to review by way of a subordinate. If called upon to do so, administrators should be ready to prove the delegation. 28 I note with concern that the question of the possession by Mr Apfelbaum of an appropriate delegation was first raised by counsel for the applicant at the earlier proceedings relating to the jurisdictional point. It was alluded to as an outstanding issue in the Tribunal's decision on that point. It was not the subject of any proof at the hearing giving rise to two sets of further directions before the delegation was proved. (ii) Merits 29 Mr Apfelbaum was not called to give oral evidence. The administrator relied entirely on the following documents to explain the decision. (1) A written statement from Mr Apfelbaum that he had regard to the following facts - The applicant was charged by the NSW Police with three counts each of assault with act of indecency detain for advantage without causing any injury, and information from the NSW Police stating that the alleged behaviour occurred while the applicant was exercising his occupation as a taxi-driver. In the statement he said that he had followed the policy of the Department of Transport set out in a document provided in the form of an attachment to the statement.