Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Tomaszewski v Roads and Maritime Services [2016] NSWCATOD 156 Hearing dates: 16 December 2016 Date of orders: 19 December 2016 Decision date: 19 December 2016 Jurisdiction: Occupational Division Before: Hennessy LCM, Deputy President Decision: 1. The decision of Roads and Maritime Services to cancel Mr Tomaszewski's taxi driver authority is stayed pending further order of the Tribunal on the following conditions: (a) Mr Tomaszewski consults Dr Abraham on 17 January 2017 or some other suitable date in January 2017; (b) at that appointment, Mr Tomaszewski obtain a written answer to the question of whether, in Dr Abraham's opinion, Mr Tomaszewski poses a risk to the safety of the public in holding a taxi driver authority; (c) Mr Tomaszewski provides a copy of that report to Roads and Maritime Services within 24 hours of obtaining it. 2. All parties have liberty to apply to the Tribunal for a variation of these orders. Catchwords: ADMINSITRATIVE LAW – stay of decision to cancel taxi driver authority – status of standards developed for the licencing of commercial drivers – where applicant has an implantable cardioverter defibrillator (ICD) – whether he poses a crash risk - public interest consideration relevant Legislation Cited: Administrative Decisions Review Act 1997 (NSW), s 60, 64 Passenger Transport Regulation 2007 (NSW) Cases Cited: New South Wales Bar Association v Stevens [2003] NSWCA 95 Category: Procedural and other rulings Parties: Stanley Tomaszewski (Applicant) Roads and Maritime Services (Respondent) Representation: Solicitors: Santone Lawyers (Applicant) Smythe Wozniak Lawyers (Respondent) File Number(s): 1620250 Publication restriction: Nil REASONS FOR DECISION 1. Mr Tomaszewski has applied for a stay of a decision by Roads and Maritime Services (RMS) to cancel his taxi driver authority. The decision was based on medical standards developed for commercial licencing purposes: Assessing Fitness to Drive for commercial and private vehicle drivers, March 2012 (the 2012 standards). Mr Tomaszewski has a cardiovascular condition. He had an implantable cardioverter defibrillator (ICD) inserted in May 2011. The 2012 standards developed for commercial licencing purposes state that: A person is not fit to hold an unconditional licence or a conditional licence if the person requires or has had an ICD implanted for ventricular arrhythmias. 1. Mr Tomaszewski says that this standard is not binding on the Tribunal and, in any case, he did not have ventricular arrhythmias when the ICD was inserted. His treating cardiologist, Dr Abraham, has expressed the opinion that Mr Tomaszewski poses a low risk of recurrent serious ventricular arrhythmias, provided that his serum potassium and magnesium levels are adequately maintained. In those circumstances, Mr Tomaszewski submits that it is not contrary to the public interest for him to continue driving until his application for RMS's decision is heard and determined. 2. RMS says that while there is no direct reference to the 2012 standards in the Passenger Transport Regulation 2007 (NSW), they are an Australia wide standard endorsed by the Cardiac Society of Australia and New Zealand. The standards for a cardiovascular condition were updated in 2016 to add the words " ... including those implanted for prophylaxis". 3. The 2016 standards state that people with ICD's "have a risk of sudden incapacity, which poses a crash risk". Dr Abraham's view that he is a low risk is expressed on the basis that Mr Tomaszewski continues to maintain adequate levels of serum potassium and magnesium. According to RMS, there is no guarantee that those levels will be maintained. 4. The Tribunal has power to stay a decision pursuant to s 60 of the Administrative Decisions Review Act 1997 (NSW): 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. 1. RMS conceded that a stay was appropriate to secure the effectiveness of the determination and that Mr Tomaszewski's financial interests would be adversely affected if a stay was refused. The only issue is whether the public interest requires that a stay be refused. I accept that the protection of the public is a matter that should be given significant weight in an application of this kind: New South Wales Bar Association v Stevens [2003] NSWCA 95 at [91]. 2. One purpose of the 2012 standards is to improve road safety by providing guidance to licensing authorities when making licensing decisions: 2012 standards at p 3. The 2016 standard "outlines clear medical requirements for driver capability, based on available evidence and expert medical opinion": 2016 standards at p 19. They also provide for licencing authorities to "draw on independent expert medical advice to inform borderline or otherwise difficult licensing decisions": 2016 standards, at p 19. 3. Neither the 2012 nor the 2016 standards have any legislative basis and are not binding on the Tribunal. Nor am I satisfied that they constitute "government policy" as defined in s 64 of the Administrative Decisions Review Act 1997 (NSW). There was no evidence that the standards have been adopted by Cabinet, the Premier or any other Minister. Nevertheless the standards provide a useful guide to the circumstances where it is not safe for a person to have a commercial licence, including a taxi driver authority. 4. I accept Dr Abraham's evidence that Mr Tomaszewski did not have ventricular arrhythmias in 2011 when the ICD device was inserted. It follows that he did not have the ICD implanted for ventricular arrhythmias and the 2012 standard does not apply to his situation. There was insufficient evidence for me to form a view as to whether the amended 2016 standard applies. Nevertheless, Mr Tomaszewski had eight episodes of ventricular tachycardia in August 2016. According to Dr Abraham, they were caused by low serum potassium levels. This has been treated with medication and Mr Tomaszewski is now a low risk of recurrent serious ventricular arrhythmias provided his serum potassium and magnesium levels are adequately maintained. 5. The application is listed for hearing on 14 February 2017. I am satisfied on the basis of the evidence from Dr Abraham that it is not contrary to the public interest for Mr Tomaszewski to retain a taxi driver authority as long as his serum potassium and magnesium levels are adequately maintained. Mr Tomaszewski has an appointment with Dr Abraham on 17 January 2016. Orders 1. The decision of Roads and Maritime Services to cancel Mr Tomaszewski's taxi driver authority is stayed pending further order of the Tribunal on the following conditions: 1. Mr Tomaszewski consults Dr Abraham on 17 January 2017 or some other suitable date in January 2017; 2. at that appointment, Mr Tomaszewski obtains a written answer to the question of whether, in Dr Abraham's opinion, Mr Tomaszewski poses a risk to the safety of the public in holding a taxi driver authority; 3. Mr Tomaszewski provides a copy of that report to Roads and Maritime Services within 24 hours of obtaining it. 2. All parties have liberty to apply to the Tribunal for a variation of these orders. ********** 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 Amendments 19 January 2017 - typographical error 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: 19 January 2017