Assadourian v Roads and Traffic Authority [2011] NSWADT 46

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Assadourian v Roads and Traffic Authority [2011] NSWADT 46 Hearing dates: 2 March 2011 Decision date: 02 March 2011 Before: S Montgomery, Judicial Member Decision: The orders made on 22 December 2009 remain in force Catchwords: tow truck drivers certificate - reinstatement on a temporary basis Legislation Cited: Administrative Decisions Tribunal Act 1997 Tow Truck Industry Act 1998 Tow Truck Industry Regulation 2008 Cases Cited: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 Category: Interlocutory applications Parties: John Assadourian (Applicant) Roads and Traffic Authority (Respondent) Representation: M Condon (Applicant) A Wozniak (Respondent) File Number(s): 093327

REASONS FOR DECISION 1The applicant, John Assadourian, has applied to the Tribunal for a review of a decision by the Roads and Traffic Authority ("the RTA") refusing to grant his application for a tow truck drivers certificate.

Background 2Mr Assadourian is the sole director, secretary and shareholder of Towman Pty Ltd ("Towman"). From 30 April 2004 to 30 April 2008, Towman held a tow truck operators licence pursuant to Division I of Part 3 of the Tow Truck Industry Act 1998 ("the Act") and carried on business as a tow truck operator. During the same period, Mr Assadourian held a tow truck drivers certificate ("the certificate") pursuant to Division 2 of Part 3 of the Act. Mr Assadourian has never held a tow truck operators licence. 3The RTA has the function of regulating the tow truck industry in accordance with the Act and the Tow Truck Industry Regulation 2008 ("the Regulations"). 4In November 2008, the RTA determined to renew Mr Assadourian's tow truck drivers certificate for a period of one year until 27 November 2009. 5In October 2009 the RTA received an application from Mr Assadourian for a subsequent tow truck drivers certificate. On 10 December 2009 the RTA determined to refuse that application. 6On 15 December 2009 Mr Assadourian applied to the Tribunal for a review of the RTA's refusal to grant a subsequent drivers certificate. On the same day, Mr Assadourian applied for a stay of the RTA's decision. 7The matter came before me on 22 December 2009, at which time I determined to "stay' the RTA's decision, subject to conditions. 8The parties subsequently made an application for referral of a question of law to the NSW Supreme Court, pursuant to s79A of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"). The question of law is as follows: "Does section 15 of the Tow Truck Industry Act 1998, properly construed, have the effect that the conduct of Mr Assadourian and/or Towman Pty Ltd identified in the agreed facts constitute the carrying on of a business as a tow truck operator within the meaning section 15 of that Act?" 9The Tribunal's President granted that application on 3 November 2010. That question is presently before the Supreme Court. 10By letter dated 18 February 2011 the RTA wrote to Mr Assadourian in the following terms: "I refer to your tow truck drivers certificate 41624. You lodged an application to renew your tow truck drivers certificate on 21 October 2009 which was due to expire on 27 November 2009. Your application was refused on discretionary grounds on 10 December 2009. You applied to the Administrative Decisions Tribunal for an urgent stay of this refusal. This was granted and your drivers certificate continued to be in force until 27 November 2010, the annual expiry date for your certificate. You are therefore not currently certified to drive tow trucks in New South Wales. ..." 11Mr Assadourian has requested that the matter be relisted to address the question of whether the order made on 22 December 2009 has the effect that the tow truck drivers certificate remains in force.