Ceepee Pty Ltd v Roads and Maritime Services [2014] NSWCATAD 196

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ceepee Pty Ltd v Roads and Maritime Services [2014] NSWCATAD 196 Hearing dates: 31 May 2013, 26 August 2013, 12 August 2014 Decision date: 12 November 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery, Senior Member Decision: 1. The decision under review is set aside. 2. The decision is made that the application for an operator's accreditation is granted with the condition that the accreditation be limited to eight cars. Catchwords: Hire car - operator's accreditation -condition of accreditation - financial viability Legislation Cited: Administrative Decisions Tribunal Act 1997 Civil and Administrative Tribunal Act 2013 Passenger Transport Act 1990 Cases Cited: Ceepee Pty Ltd v Roads and Maritime Services [2014] NSWCATAD 74 McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354 Category: Principal judgment Parties: Ceepee Pty Ltd (Applicant) Roads and Maritime Services (Respondent) Representation: Searson Shannon & Co Pty Ltd (Applicant) Smythe Wozniak Legal (Respondent) File Number(s): 133072

reasons for decision 1This matter was commenced in the General Division of the Administrative Decisions Tribunal ("the ADT") pursuant to the Administrative Decision Tribunal Act 1997 ("the ADT Act"). On 1 January 2014, the ADT was abolished and its functions were taken over by the Civil and Administrative Tribunal of New South Wales ('NCAT'). The present decision is therefore a decision of NCAT. However, because the proceedings to which it relates are 'part heard proceedings' as defined in clause 6(1) of Schedule 1 of the Civil and Administrative Tribunal Act 2013, they are to be determined as if that Act had not been enacted (see clause 7(3)(b) of this Schedule). 2This matter relates to an application by the Applicant under the Passenger Transport Act 1990 ("the Act") for a private hire vehicle accreditation. A delegate for the Respondent granted that application but with condition that the accreditation be limited to three cars, whereas the Applicant sought accreditation for eight cars. The matter was initially heard before Senior Member Molony. However after the initial hearing of the matter, the Senior Member became unavailable. The President of NCAT determined to substitute the Senior Member for myself as permitted under section 52 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) and sought the parties' views in accordance with the provisions of section 52. 3The Registrar of the Tribunal wrote to the parties in respect of the section 52 'substitution' issue. Neither party objected to me determining the matter. In the absence of any submission to the contrary, the Tribunal was reconstituted in accordance with section 52 (3) of the NCAT Act. 4I have had the benefit of examining the full transcript of the directions hearings held before the President of the ADT, Judge O'Connor, and of the hearing before Senior Member Molony. I have read those transcripts and I have also listened to the recording of the hearing. I have also considered the material provided by both parties and I have taken that into account even though I may not specifically refer to all the evidence, material and submissions in these reasons. 5The central issue before the Tribunal is the condition placed upon the accreditation granted to the Applicant to operate a private hire vehicle business in Port Macquarie ("the Business"). The Applicant has applied to the Tribunal for review of the decision to impose the condition. The condition limits the number of licences that the Applicant may hold to three. The Applicant had sought accreditation that would have limited the maximum number to eight. 6When conducting a review of an administrative decision, there is no onus of proof on either party: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354 (Woodward J). Rather, the Tribunal "stands in the shoes" of the decision maker. The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: ADT Act, section 73(2). 7The Tribunal may affirm, vary or set aside the Respondent's decision: ADT Act, section 63(3). 8The history of the accreditation and relevant details relating to the general conduct of the Business are set out in my decision in a related matter which can be found at Ceepee Pty Ltd v Roads and Maritime Services [2014] NSWCATAD 74 ("the cancellation matter"). 9The Applicant's directors and shareholders are Peter Cristoforo and Christie Cristoforo ("the directors"). The Applicant acquired the Business from Bretabac Pty Ltd ("Bretabac"). At all relevant times Bretabac was controlled by Ms Cristoforo's parents, Mr Peter Williamson and Ms Cheryl Williamson. 10As was noted in the cancellation matter, it is not in dispute that Mr Williamson agreed to 'stake' the directors in order that they could take over the Business. He financed and provided the necessary support to facilitate the acquisition. Bretabac could no longer operate the Port Macquarie business because it had agreed to the cancellation of its licences from 28 February 2013. The transfer was never intended to be an arm's length transaction. Mr Williamson's accountants and solicitors carried out the necessary arrangements so that the transfer could occur. The directors did not contribute their own funds to the Business but relied on Ms Cristoforo's parents to provide funds for the Business. Funding for the transfer was provided by way of a gift to the directors. 11It is my understanding that the directors have moved to in Port Macquarie to operate the Business and that Ms Cristoforo has undertaken the requisite training to undertake the role of designated employed manager of the Business. 12The issue for determination in this matter is whether a condition should be placed upon the accreditation granted to the Applicant to operate the Business. Underlying that issue is the issue of whether the Applicant is financially viable to operate the Business. 13Issues in relation to the Applicant's fitness and propriety were considered in the cancellation matter. I do not propose to reconsider them in these proceedings. 14I also note that the Respondent raised a number of issues in its written submissions that had not been previously raised in these proceedings. The Applicant has objected to the Tribunal dealing with those issues. The Applicant contends that it had no notice of most of those allegations and therefore could not adduce evidence in relation to them. I agree with that objection. Fairness requires that the Applicant have the opportunity to adduce evidence in relation to the issues raised by the Respondent. In the circumstances it is my view that the Applicant would be unreasonably prejudiced if matters first raised by the Respondent in written submissions after the conclusion of the hearing were to be considered. For that reason I will only consider those issues that were brought to the Applicant's attention prior to the conclusion of the hearing.