Alameddine v Roads and Maritime Services

NCAT Occupational|2017-12-13|Before: Dr J

Solicitors: Smythe Wozniak Lawyers (Respondent) File Number(s): 2017/269291

REASONS FOR DECISION

The applicant applied for review of the decisions of the respondent ("RMS") to refuse his applications for authorisation as a driver of private hire car and as a driver of a taxi-cab under the Passenger Transport Act 1990 (NSW).
Since those decisions were made, the relevant provisions of the Passenger Transport Act have been repealed and the Point to Point Transport (Taxis and Hire Vehicles) Act 2016 (NSW) has commenced.
Drivers are no longer required to hold an authority to drive hire cars, following the commencement of the Point to Point Transport (Taxis and Hire Vehicles) Act. Further, there is a new regime for regulating taxi drivers, and the former authorities to drive taxi-cabs have not been continued.
I have found that the Tribunal no longer has jurisdiction to review either decision of RMS and have dismissed the applicant's application.

Late application

The parties did not deal, at the hearing, with the circumstance that the applicant's application to the Tribunal was out-of-time.
An application for review of a decision to refuse the relevant authorisations was required to be made within 28 days: Passenger Transport Act, s 52(1), Administrative Decisions Review Act 1997 (NSW), s 55(2), Civil and Administrative Tribunal Rules 2014 (NSW), cl 24(3)(b), (4)(a)). The applicant states in his application that he was notified of the decision on 3 June 2017. Assuming this to be correct, the applicant's application to the Tribunal was made about two months late. The applicant explains in his application that he was not aware that the application had to be lodged within 28 days of the date of the decision and that he had misplaced the letter from the internal reviewer.
The Tribunal has power to extend time under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW). It appears that the respondent implicitly consented to an extension of time, as it proceeded to hearing without objecting to the lateness of the application. I will treat the applicant's explanation for the delay in applying to the Tribunal, made in his application form, as a written application for an extension of time (see Civil and Administrative Tribunal Rules, cl 8).
The principles concerning an extension of time are set out in an Appeal Panel decision, Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22, and apply equally to an extension of time in proceedings at first instance, with appropriate adaptation: CFZ v Department of Education [2015] NSWCATAD 231 at [8]; CFA v Department of Family and Community Services [2016] NSWCATAD 32 at [26].
These principles include that "[t]he discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the" party seeking the extension of time and that, generally, factors the Tribunal should consider include the length of the delay, the reason for the delay and the applicant's prospects of success (Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]).
Having formed the view that the Tribunal now does not have jurisdiction to determine the applicant's application, it cannot be said that the applicant "has a fairly arguable case" (Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]). Further, the delay was significant and the reason for the delay was not compelling. I am not satisfied that strict compliance with the rules would work an injustice to the applicant.
For these reasons, I have decided to refuse to extend time for the making of the application. Had I come to a different conclusion as to the Tribunal's jurisdiction, I may have given the parties a further opportunity to make submissions on this issue. However, I note that each party could have made submissions about the delay in their written submissions or at the hearing, and neither chose to do so, notwithstanding the clear acknowledgement in the application form to the Tribunal that the application was out of time. In these circumstances, I do not consider that procedural fairness requires me to give them a further opportunity to be heard about an extension of time.
I will, in any event, set out my reasons for the conclusion that the Tribunal does not have jurisdiction to determine the application.

Change of legislation

Parts 4 (Taxi Cabs) and 4A (Private hire vehicles) of the Passenger Transport Act were repealed by the Point to Point Transport (Taxis and Hire Vehicles) 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 taxis and hire cars.
The Point to Point Transport (Taxis and Hire Vehicles) Act makes it an offence for a person to provide a taxi service or booking service unless the person is authorised to provide that service (s 27(1)). A "taxi service" is, broadly, a passenger service where the transport is by a motor vehicle that plies or stands for hire on a road, or is authorised to do so (s 5(1)). A "passenger service" is the transport, by a motor vehicle (other than a bus), of passengers for a fare (s 4). Providing a "booking service" is to carry on the business of taking bookings for taxis or hire vehicles to provide passenger services and communicating the bookings to drivers for or providers of passenger services (s 7(1)).
Division 2 of Part 3 of the Point to Point Transport (Taxis and Hire Vehicles) Act provides for applications for an authorisation to provide a taxi service, which are to be determined by the Point to Point Transport Commissioner. Providing a taxi service includes driving a taxi.
Providers of booking services for both taxis and hire vehicles must be authorised (Point to Point Transport (Taxis and Hire Vehicles) Act, s 27(1)). However, there is no requirement, under the current legislation, for drivers of hire vehicles to be authorised, nor are there any provisions by which such drivers may be authorised. Rather, such drivers have "safety duties" under Div 2 of Pt 2 of the Point to Point Transport (Taxis and Hire Vehicles) Act, and must comply with the safety standards under Div 3 of Part 2 of that Act and Part 2 of the Point to Point Transport (Taxis and Hire Vehicles) Regulation 2017. Drivers have additional obligations under Part 6 of the Regulation.

Parties' submissions about effect of new legislation

Prior to the hearing, the parties' representatives had not considered, in any detail, the effect of the commencement of the Point to Point Transport (Taxis and Hire Vehicles) Act. Mr Wozniak, for the respondent, contended that the old legislation (the Passenger Transport Act) still applied for the purpose of the review. The applicant's counsel, Mr Gillett, appeared to be unaware of the new legislation. Both parties' representatives were of the view, at least at the beginning of the hearing, that drivers of hire cars were required to hold an authority.
At the hearing, I indicated that I was concerned that the Tribunal may not have jurisdiction to determine the application for review, given the commencement of the Point to Point Transport (Taxis and Hire Vehicles) Act. At the end of the hearing, I made directions that the applicant file and serve submissions on the jurisdictional issue by 8 January 2018 and that the respondent do so by 15 January 2018. At the time of writing these reasons, those dates have passed and no submissions have been received.
I also directed the Registry to write to the parties, on 15 December 2017, indicating that I had formed the preliminary views that the Tribunal does not have jurisdiction to review the decision of RMS and that a person does not need a licence to drive a hire car under the Point to Point Transport (Taxis and Hire Vehicles) Act. The purpose of this correspondence was to give the applicant an opportunity to withdraw his application, should he decide to do so (in light of my preliminary view that he did not need an authority to drive a hire car), and to give both parties the opportunity to address these preliminary views in their submissions. No correspondence or submissions from the parties were received in response to that letter.

Consideration of jurisdictional issue

For the reasons I recently gave in Hossain v Roads and Maritime Services [2018] NSWCATOD 11 at [17] to [27], I do not consider the Tribunal has jurisdiction to review the decision to refuse the applicant's application for an authorisation to drive a taxi-cab, under Div 5 of Pt 4 of the Passenger Transport Act. Driver authorities under that legislation are not continued in force by the new legislation and, for reasons given in the Hossain decision, I consider that there is a legislative intention that applications for review of decisions concerning such authorities come to an end with the commencement of the Point to Point Transport (Taxis and Hire Vehicles) Act.
I also consider that, in circumstances where there is no longer a requirement for drivers of hire vehicles to hold an authority to drive such vehicles, and where there is no provision for the grant of any such authority, the Tribunal does not have jurisdiction to review a decision to refuse an application for an authority to drive a hire car under the Passenger Transport Act. The savings and transitional provisions in the Point to Point Transport (Taxis and Hire Vehicles) Act make provision in respect of an accredited operator of a public passenger service by means of a private hire vehicle under the former legislation (Sch 2, cl 10), but make no provision in respect of holders of authorities to drive private hire vehicles under the former legislation, other than in cl 12 of Sch 2. That clause does not give the previous authorities any continuing effect. The clear implication is that those authorities cease to have effect on the commencement of the Point to Point Transport (Taxis and Hire Vehicles) Act and the Tribunal now has no jurisdiction to review decisions relating to them.
Even if the Tribunal had jurisdiction to conduct the review, it would be futile, given that an authority to drive a private hire vehicle is no longer required.

Orders

For these reasons, I make the following orders: 1. Application for an extension of time to apply to the Tribunal is dismissed. 2. Application 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: 04 April 2023

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (4)