Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Martinez v Roads and Maritime Services [2014] NSWCATOD 99 Hearing dates: 23 July 2014 Decision date: 23 July 2014 Jurisdiction: Occupational Division Before: J McAteer, Senior Member Decision: 1. Due to evidence of a breach of the conditions entered into on the Applicant's undertaking on 1 July 2014, I lift the stay granted on 1 July 2014 until further order of the Tribunal. Catchwords: Lifting of Stay - Breach of Undertaking - Conditions Legislation Cited: Civil and Administrative Tribunal Act 2013 Administrative Decisions Review Act 1997 Category: Interlocutory applications Parties: Luciano Martinez Roads and Maritime Services Representation: L Martinex (Applicant in person) File Number(s): 1330346 reasons for decision Background 1This matter came before me for hearing on 23 July 2014. The substantive application is an application by Mr Martinez for a review of a decision by the Respondent to cancel his taxi-cab driver authority. These reasons relate to the lifting of a stay. 2The matter first came before the Administrative Decisions Tribunal (the ADT) on 26 November 2013 where the matter was set down for hearing on 28 January 2014 with a half day estimate. A stay was granted on the decision under review until further order by the Tribunal. Both parties were present. 3On 28 January 2014 the matter came before a Senior Member of the NSW Civil and Administrative Tribunal (the Tribunal) whereby Mr Wozniak appeared for the Respondent and by consent sought a full day hearing. It appears that as a result the 28 January 2014 date was vacated and the matter was set down for hearing on 2 April 2014 for a full day hearing. 4On 2 April 2014 the matter cane before the Tribunal for hearing. Mr Wozniak appeared for the Respondent and there was no appearance for the Applicant. The Senior Member made an order dismissing the application to the Tribunal for failure to appear pursuant to section 55 (1) (c) of the Civil and Administrative Tribunal Act 2013. As a consequence of that decision, the decision of the Roads and Maritime Services to cancel the drivers authority was no longer stayed and the drivers authority remained cancelled. 5The matter was listed on the Applicant's application for leave to reopen the application before the Tribunal. That application came before a Senior Member on 15 April 2014. Both the Applicant and the Respondent's representative were present. An order was made to reinstate the application and a stay was granted on the decision to cancel the drivers authority. A number of directions were made concerning the future conduct of the proceedings and the matter was fixed for hearing on 12 June 2014 at 10:00am with a half day estimate. 6On 12 June 2014 the matter again came before the Tribunal for hearing. There was no appearance for the Applicant. Various attempts were made by the Registry to contact the Applicant on two separate mobile telephone numbers without success in the 30 minutes following the non- appearance of the Applicant. At 10:30am the Senior Member dismissed the matter due to there being no appearance of the Applicant pursuant to section 55 (1) (c) of the Civil and Administrative Tribunal Act 2013. 7On 24 June 2014 the Applicant again applied for leave to reopen his application for a review of the decision to cancel his drivers authority. The Applicant appeared and the Respondent was represented. The application to reopen the matter was granted and an order was made that the Applicant pay the amount of $500.00 towards the Respondent's costs of attending the hearing on 12 June 2014 and 24 June 2014. The matter was adjourned for hearing on 23 July 2014 at 2:00pm for a half day duration. 8Later on 24 June 2014 it appears that the Applicant filed an application for a stay. That matter was listed for hearing of the stay application on 1 July 2014 at 9:30am. 9On 1 July 2014 the matter came before the Tribunal for the stay application. The Senior Member granted the stay on the basis that Mr Martinez made an undertaking to comply with the relevant regulations in the interim, eg: logging on and to make payments to Roads and Maritime Services for $500.00 costs awarded. 10On 23 July 2014 the matter came before me for hearing with the half day estimate. At the conclusion of the Respondent's evidence in chief, and the Applicant's evidence in chief, and part way through the Respondent's cross examination of the Applicant, it became evident that the matter would be part heard. The interim application 11At that time the Respondent made an application that the stay be lifted. Consideration 12Evidence had been adduced that the Applicant had in fact breached the undertaking made on 1 July 2014 which was in effect a condition of the stay. The Applicant admitted that he had driven taxi cabs and had not logged on since making the undertaking to the Tribunal on 1 July 2014. A submission was made by the Respondent that the Applicant had in fact not logged on at the commencement or logged off at the conclusion of any shift since approximately 10 October 2013. The Applicant's evidence under cross examination did not conflict with that submission. 13Prior to adjourning the matter I then considered the application to lift the stay. I was satisfied that Mr Martinez understood the meaning and import of the undertakings that he made to the Tribunal on 1 July 2014. I was also satisfied after hearing from the parties that Mr Martinez understood the conditions of the stay. The applicable law 14Section 60 of the Administrative Decisions Review Act 1997 provides: 60 Operation and implementation of decisions pending applications for administrative review (1) Subject to this section, an application to the Tribunal for an administrative review under this Act of an administratively 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 an administrative review under this Act of an administratively 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. 15Section 61 of the Administrative Decisions Review Act 1997 provides: 61 Restrictions on ordering stay of proceedings (1) The Tribunal may not: (a) make an order under section 60 unless the administrator who made the decision to which such an order would relate has been given a reasonable opportunity to make submissions in relation to the matter, or (b) make an order varying or revoking an order in force under section 60 (including an order as varied) unless the following persons have been given a reasonable opportunity to make submissions in relation to the matter: (i) the administrator who made the decision to which such an order would relate, (ii) the person who requested the making of the order, (iii) if the order has previously been varied by an order or orders under section 60-the person or persons who requested the making of the only, or the later or latest, such order. (2) This section does not prevent the Tribunal from making an order under section 60 without giving to any person referred to in that section a reasonable opportunity to make submissions in relation to a matter if the Tribunal is satisfied that, because of the urgency of the case or otherwise, it is not practicable to give the person such an opportunity. (3) If an order under this section is made without giving such an opportunity to the administrator who made the decision to which the application relates, the order does not take effect until a notice setting out the terms of the order is served on the administrator. 16Section 62 of the Administrative Decisions Review Act 1997 provides: 62 Conditions of stay order (1) An order in force under section 60 (including an order that has previously been varied on one or more occasions) is subject to such conditions as are specified in the order. (2) Any such order has effect: (a) if a period for the operation of the order is specified in the order-until the expiration of that period or, if the application is decided by the Tribunal before the expiration of that period, until the decision of the Tribunal on the application takes effect, or (b) if no period is so specified-until the decision of the Tribunal on the application takes effect. Further consideration 17Mr Martinez indicated that he would pay the money previously ordered in respect of costs, which was one of the conditions to which he undertook in respect of the granting of the stay on 1 July 2014. The Respondent did not press this aspect of the apparent breach of the undertaking. 18As it was clear on the evidence before me that the Applicant had breached the conditions of the stay, and noting that those conditions were sought by the Respondent on the last occasion following previous stays and dismissals of the application and further applications to reinstate the stay, I made the following order ex-tempore. Order 19In the matter of Martinez v RMS in respect of the stay granted on 1 July, due to evidence received during the hearing today, that the conditions of the stay have not been complied with and that evidence on the face of it is uncontroversial, I lift the stay granted on 1 July 2014 due to evidence of a breach of condition 1, an undertaking to comply with the regulation of logging on and off for driving shifts. 20The matter is adjourned part heard to 18 September 2014 before me at 10:00am. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 September 2014