Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Cooksey v RMS [2019] NSWCATOD 74 Hearing dates: 18 March 2019 Date of orders: 17 May 2019 Decision date: 17 May 2019 Jurisdiction: Occupational Division Before: A Scahill, Senior Member Decision: The Tribunal does not have jurisdiction to review the decision of the Respondent. Application dismissed. Catchwords: MERITS REVIEW – cancellation of authority to drive a taxi-cab–repeal of provisions of Passenger Transport Act 1990 – new legislation - Point to Point Transport (Taxis and Hire Vehicles) Act 2016 – application to Tribunal - jurisdiction of Tribunal Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Interpretation Act 1987 (NSW) Passenger Transport Act 1990 (NSW) Passenger Transport (General) Regulation 2017 Point to Point Transport (Taxis and Hire Vehicles) Act 2016 (NSW) Point to Point Transport (Taxis and Hire Vehicles) Regulation 2017 (NSW) Cases Cited: Alameddine v Roads and Maritime Services [2018] NSWCATAD 22 Hoque v Roads and Maritime Services [2018] NSWCATOD 156 Hossain v Roads and Maritime Services [2018] NSWCATOD 11 Category: Principal judgment Parties: Robert Cooksey (Applicant) Roads and Maritime Services (Respondent) Representation: Solicitors: Mr A Wozniak (Respondent) File Number(s): 2019/00022436 Publication restriction: N/A REASONS FOR DECISION INTRODUCTION 1. In January 2019 Mr Cooksey, the Applicant, applied to the Tribunal seeking to review a determination by the Respondent that his authority to drive taxis be cancelled under the provisions of sections 33 and 33F of the Passenger Transport Act 1990. A determination that his authority be suspended had been made on 5 May 2016 after Mr Cooksey was involved in a motor vehicle incident on 14 September 2015. 2. On 20 May 2016 Mr Cooksey sent an application for internal review of the decision to the Respondent. It is not clear what happened to that application for review. 3. On 27 July 2017 the Respondent wrote to Mr Cooksey saying it had cancelled his driver authority under the Passenger Transport Act 1990 as he was not medically fit to safely drive a public passenger vehicle. The issue 1. This decision deals with the question of whether the Tribunal has jurisdiction to deal with the application for review lodged in the Tribunal in January 2019. In November 2017 the Passenger Transport Act 1990 was repealed. It was replaced in part by the Point to Point Act. 2. This question arises because Mr Cooksey lodged his application for review of the decision in the Tribunal after the Passenger Transport Act 1990, under which the decision was made had been replaced. Reasons for Cancellation of authority to drive taxis 1. The Respondent's letter of 27 July 2017 stated that in view of information received from the NSW Police Force, named medical practitioners and Roads and Maritime Services (RMS) Medical advisers concerning a motor vehicle incident on 14 September 2015, the RMS considered that Mr Cooksey was not medically fit to safely drive a public passenger vehicle. The letter relied upon the provisions of sections 33 and 33F relating to taxicab authorities in the Passenger Transport Act 1990. The letter stated that Mr Cooksey's cancellation commenced on 5 May 2016. 2. The reason for the cancellation was that the decision maker was unable to attest to the Applicant being a fit and proper person until a satisfactory medical report was provided to RMS. 3. Mr Cooksey told the Tribunal that he had sought legal advice about his review rights – but there had been significant delays in this. 4. Mr Cooksey lodged his application for review of this decision with the Tribunal on 19 January 2019. The Tribunal's Hearing 1. The application for review came before the Tribunal on 18 March 2019. 2. At that hearing the Respondent submitted that the Tribunal had no jurisdiction to hear the matter. This was because the decision to cancel the driver authority had been made under the Passenger Transport Act 1990. This Act had in part been replaced by the Point to Point 2016. This Act commenced on 1 November 2017. Mr Cooksey's application for review of the decision to cancel his driver authority had not been lodged with the Tribunal until 19 January 2019. Further, there was no power for the Tribunal to review the decision under the Point to Point Act . 3. The Respondent also contended that as the decision against which Mr Cooksey was seeking review was made on 27 July 2017, the application for review in the Tribunal was lodged out of time on 19 January 2019. Timetable for filing of submissions 1. At the end of the hearing the Tribunal set a timetable for the filing of further submissions from both parties as to the Tribunal's jurisdiction to consider the matter. The Respondent's further submissions 1. The Respondent referred to two decisions of Dr J Lucy in the Tribunal where the Tribunal had found that it did not have jurisdiction to deal with the proceedings in the particular circumstances. See Alameddine v Roads and Maritime Services [2018] NSWCATAD 22 (Alameddine) and Hossain v Roads and Maritime Services [2018] NSWCATOD 11 (Hossain). 2. The Respondent also referred to the decision of Senior Member Mrs Isenberg in a matter of Hoque in which Mrs Isenberg found that the Tribunal did, in the particular circumstances, have jurisdiction to review the decision. See Hoque v Roads and Maritime Services [2018] NSWCATOD 156 (Hoque). 3. The Respondent further distinguished Mr Cooksey's situation from these decisions. In Hossain the application had been filed with NCAT on 11 September 2017. In Alameddine the application was filed with NCAT on 5 September 2017. In Hoque the application was filed with NCAT in September 2017. These applications were all filed in the Tribunal prior to the repeal of relevant provisions of the Passenger Transport Act 1990 and the commencement of the Point to Point legislation. 4. The Point to Point legislation came into effect on 1 November 2017. Accordingly, all of the above applications were lodged when the appeal provisions in the Passenger Transport Act 1990 were in force. By contrast Mr Cooksey's application had been lodged in NCAT on 21 January 2019, some considerable time after the appeal provisions in the Passenger Transport Act 1990 were repealed. The Respondent submitted that there was no jurisdiction for the Tribunal to hear the matter. The Applicant's submissions 1. Mr Cooksey filed written submissions in response. The Applicant conceded that the Respondent was arguing that there was a significant difference between his own situation and those of Messieurs Hossain, Alameddine and Hoque in that he had filed his application after the Point to Point legislation came into effect. 2. However, Mr Cooksey argued that the effect of denying his standing to pursue an appeal was a denial of natural justice. Moreover, the effect of the change in legislation was such that it now precluded him from making an application for a Point to Point licence as the RMS had deemed him unfit medically to hold a licence for a period of 10 years. Mr Cooksey stated that he understood that NCAT could no longer uphold an appeal on the basis that there is no longer an avenue for the granting of a commercial taxi licence. However, the fact that he might be declined jurisdiction allowed the RMS to "unfairly prejudice him against defining that he was medically fit to hold a licence". 3. Mr Cooksey submitted that he should be allowed to pursue his appeal on the basis that if he succeeded and proved that he was medically fit to hold a licence under the old transport legislation, that he would no longer be prejudiced from seeking a Point to Point permission to drive taxis. Tribunal's consideration of jurisdiction 1. The source of the Tribunal's jurisdiction to review certain decisions is set out below. 2. The Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) which established the Tribunal (s 7), states at s 30: (1) The Administrative Decisions Review Act 1997 provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator. Note. See section 9 of the Administrative Decisions Review Act 1997. … 1. The Administrative Decisions Review Act 1997 (NSW) (ADR Act) states at s 9: (1) The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator: (a) in the exercise of functions conferred or imposed by or under the legislation, or (b) in the exercise of any other functions of the administrator identified by the legislation. … 1. Section 52(1) of the Passenger Transport Act 1990 provides that: Any person whose……. accreditation or authority has been varied, suspended or cancelled may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the refusal, variation, suspension or cancellation. 1. Section 63 of the ADR Act requires the Tribunal, in determining an application to review a relevant decision, to decide what the correct and preferable decision is having regard to the material then before it (including material not previously available to or considered by the administrator) and any applicable written or unwritten law, and authorises the Tribunal to affirm, vary or set aside each relevant decision. 2. The whole of Part 4 (Taxi Cabs) of the Passenger Transport Act (including s 33F) was repealed by the Point to Point Act, which came into effect on 1 November 2017. The Point to Point Transport (Taxis and Hire Vehicles) Act introduced a new regime for the regulation of taxi drivers. Section 27(1) of the Point to Point Act provides that it is an offence to provide a taxi service unless authorised to do so. Division 2 of Part 3 of that Act provides for applications for an authorisation to provide a taxi service, which are to be determined by the Point to Point Transport Commissioner. Factual basis 1. The Tribunal adopts the following facts as a basis for its consideration. 2. The decision to cancel Mr Cooksey's drivers authority was made and advised to him in July 2017 while the Passenger Transport Act 1990 was in force. Mr Cooksey filed the current Application in the Tribunal on 19 January 2019 and the hearing started on 18 March 2019. Certain provisions of the 1990 Act were repealed and the the Point to Point Act commenced in November 2017. 3. There were conflicting statements to the Tribunal about whether the action of the RMS in May 2016 had been to suspend or cancel Mr Cooksey's driver authority. This distinction was not significant in the Tribunal's decision. The RMS had clearly cancelled Mr Cooksey's authority in July 2017. Relevance of the Tribunal's findings in the matters of Hossain, Alameddine and Hoque 1. The Tribunal considered the relevance of the decisions in the matters of Hossain, Alameddine and Hoque. Decision of Tribunal in Hossain v Roads and Maritime Services [2018] NSWCATOD 11 1. In the matter of Hossain, the Tribunal found it had no jurisdiction to review the decision of the Respondent to suspend Mr Hossain's authority to drive a taxi-cab made under the Passenger Transport Act 1990. Unlike Mr Cooksey, Mr Hossain applied to the Tribunal for review of the decision prior to the repeal of the relevant provisions of the Passenger Transport Act 1990 and the commencement of the Point to Point Act. The Tribunal found in that matter that authorities to drive taxi-cabs under the Passenger Transport Act 1990 did not have continuing effect under the new legislation and, relevantly, that the Tribunal no longer had jurisdiction to review the decision to suspend the Applicant's driving authority. 2. The basis of the decision in Hossain was that after the Tribunal had considered the savings and transitional provisions it found that there was no provision expressly continuing in force or giving continuing effect to a driver authority under the Passenger Transport Act 1990. The regulations could contain provisions of a savings and transitional nature, but the Tribunal found that they did not do so (Point to Point Act, Sch 2, cl 1). Decision of the Tribunal in Alameddine v Roads and Maritime Services [2018] NSWCATAD 22 1. In the matter of Alameddine the Tribunal reiterated its approach in Hossain at [17] to [27], that the Tribunal did not have jurisdiction to review the decision to refuse the Applicant's application for an authorisation to drive a taxi-cab, under Division 5 of Part 4 of the Passenger Transport Act. Driver authorities under that legislation were not continued in force by the new legislation and, there was a legislative intention that applications for review of decisions concerning such authorities came to an end with the commencement of the Point to Point Act. Decision of the Tribunal in Hoque v Roads and Maritime Services [2018] NSWCATOD 156 1. In the matter of Hoque by contrast, the Tribunal found it did have jurisdiction to consider Mr Hoque's application for review. In that matter pursuant to s 60 (2) of the ADR Act the Tribunal had, prior to 1 November 2017, granted a stay of the cancellation of Mr Hoque's driver authority. Pending further order of the Tribunal, the stay orders remained in effect until the decision of the Tribunal on the applications took effect. See section 62 (2) (b) of the ADR Act. 2. This meant that immediately before 1 November 2017, Mr Hoque held a driver authority and clauses 8 and 12 of Sch 2 applied. 3. The tribunal took the view in these circumstances that no relevant contrary intention, as referred to in s 5(2) of the Interpretation Act, applied and pursuant to s 30 of that Act the repeal of Part 4 of the 1990 Act did not affect the previous operation of the 1990 Act nor any relevant right, privilege, legal proceeding or remedy. 4. The Tribunal considered that none of the extrinsic material referred to in section 34 of the Interpretation Act and brought to the attention of the Tribunal, indicated any intention of Parliament to preclude any person who immediately before 1 November 2017 was the holder of a driver authority from continuing to drive a taxi-cab from 1 November 2017. The Tribunal found it had jurisdiction to consider Mr Hoque's application for review. 5. Clearly the matters of Hossain and Alameddine do not assist Mr Cooksey to establish the Tribunal's jurisdiction to consider his application for review. 6. This Tribunal also distinguishes the circumstances in Mr Cooksey's case from those of Mr Hoque. Mr Cooksey did not hold a driver authority prior to the commencement of the Point to Point legislation in November 2017. His application to the Tribunal was not made prior to the commencement of the Point to Point legislation. 7. The Tribunal notes that unlike Mr Alameddine and Mr Hossain, Mr Cooksey did not apply to the Tribunal for review while the Passenger Transport Act 1990 was in force. 8. Mr Cooksey did not make application for review in the Tribunal within the statutory review period of 28 days. He was advised of the decision in July 2017 but did not lodge an application for review until January 2019. The Tribunal may extend the period for lodgement of a review application. Mr Cooksey told the Tribunal he had sought advice from a solicitor about his review rights. However, neither Mr Cooksey nor his legal advisor took action to lodge an application for review. No other arguments were put to the Tribunal as to why this period should be extended. The Tribunal is satisfied that the application for review was not lodged within the required period of time and that it should not extend the period of time for lodgement under section 41 of the CAT Act. 9. When Mr Cooksey lodged his application in the Tribunal, the Passenger Transport Act 1990 under which the decision to cancel Mr Cooksey's authority had been made and which provided review rights, was no longer in force. It was not put to the Tribunal that there was any jurisdiction for the Tribunal to review the decision to cancel Mr Cooksey's authority under the Point to Point Act. 10. For these reasons the Tribunal finds that Mr Cooksey is not entitled to a right of review under the Passenger Transport Act 1990 of the decision to cancel his driver authority in July 2017. There is no jurisdiction for the Tribunal to exercise in this regard. Orders 1. The application for review is dismissed. 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: 17 May 2019