1. The stay application is refused.
2. A directions hearing is scheduled in the preceding at 2:00 pm on Monday 1 December 2014 at 55 King Street Melbourne.

1. Mr Ali seeks review by VCAT of the Taxi Services Commission's (TSC), decision under s 169K(2)(a) of the Transport (Compliance and Miscellaneous) Act 1983 (the Act), to suspend his driver accreditation because he had been charged with Make Threat to Kill, a category 1 offence under the Act. The charge was pending.
2. Mr Ali asked VCAT to stay the TSC's decision, pending the outcome of this proceeding. That would allow him to in the interim resume taxi driving.
3. On 13 November 2014 I heard Mr Ali's stay application and reserved my decision.
4. I have refused his stay application for the following reasons.

1. On 6 May 2013, Mr Ali was first issued with a driver accreditation certificate (DC553116), valid for three years.
2. On 24 September 2014, the TSC received information from Victoria Police via a Criminal History Report (the Report) that there were four pending criminal charges against the Mr Ali, dated 16 September 2014, for Make Threat to Kill (1 count), Unlawful Assault (2 counts), and Recklessly Cause Injury (1 count).
3. 'Make Threat to Kill' is a category 1 offence under section 86 of the Act. A pending charge for a category 1 offence is a mandatory ground for interim suspension under section 169K(2)(a) of the Act.
4. On 24 September 2014, the TSC notified Mr Ali that it had suspended his driver accreditation under s 169K(2)(a) of the Act, which it "must" do so if it satisfied the holder of a driver accreditation:
   1. Has been charged with a category 1 offence; and
   2. The charge has not been finally disposed of.
5. Section 169K(6) says a suspension under subsection 169K (2) remains in force until the charge is finally disposed of or the TSC re-instates the accreditation.
6. Section 169L says if the TSC has suspended a driver accreditation under section 169I or 169K, pending the hearing of a charge for a disqualifying offence, and the person is not found guilty of the offence, the TSC must re-instate the accreditation of the person.
7. Section 169M enables the holder of a driver accreditation to whom section 169L applies to apply to the TSC for compensation for any income lost during a suspension.
8. Turning to Mr Ali's situation, the charges were listed for mention at the Magistrates' Court on 12 December 2014. Mr Ali gave evidence denying the charges, which arose from a family argument. He said his wife had asked the police to drop all charges against him. He provided a Magistrates' Court document which showed his wife's application to have an intervention order against him revoked, was to be heard on 17 November 2014. He was hopeful the intervention order would be revoked and the charges would be dropped.
9. He said since his arrival in Australia 13 years ago he had never been in trouble with the police, and completed a degree in accounting, with the economic downturn had difficulty finding a job and had decided to continue his education. He was undertaking further study while driving taxis, usually six days a week. He had never been the subject of a complaint from a taxi passenger. He had been married for 7 years and had four young children. The suspension was causing him financial hardship.

1. I refused the stay application.
2. As the TSC submitted:

1. s 169O(1) of the Act allows up person who is affected by a reviewable decision to apply to VCAT for review of the decision. Section 169O(6) defines "reviewable decision" to include a decision of TSC to suspend the driver accreditation in question. Therefore, VCAT has jurisdiction; 2. However, once VCAT has jurisdiction it stands in the shoes of the decision maker to review the decision in question. At the final hearing of this proceeding VCAT would be able to make findings as to whether Mr Ali was at the time of the hearing charged with a category 1 offence which has not been disposed of;

1. If VCAT found he was so charged and the charges not been disposed of, as was the case with the TSC, VCAT's only power under s 169K(2)(a) would be to continue the suspension of Mr Ali's accreditation; and

1. If VCAT found he was not so charged or the charge had been disposed of, it could make other orders. However, if that were so, it would be highly likely the TSC would have made further decisions before any VCAT hearing and there would be no need to decide this proceeding.
2. With VCAT having jurisdiction, it had power to grant a stay under s 50(3) of the Victorian Civil and Administrative Tribunal Act. The primary rule is laid down in sub-section (1) that the making of a review application does not affect or suspend the operation of a determination subject to a review application in the Tribunal. Sub-section (3) sets out the power of the Tribunal to stay the order.
3. The guiding principles for the exercise of the discretion are to be found in Bell and Eager v Liquor Licensing Victoria and Swapnil [2000] VCAT 214:

(a) The power to grant a stay is discretionary to be exercised after full consideration of the circumstances and facts of each particular case;

(b) The dominant principle is whether or not the failure to grant a stay would render the application for review before the Tribunal nugatory (of no value);

(c) Whether or not there is a serious question to be tried on review is a matter of some importance;

(d) Whether or not it is in the community interest to grant a stay is properly to be taken into account. This involves the balancing of private interests against the public interest; and

(e) It is relevant for the Tribunal to take into account the period of time which will elapse before the hearing of the application for review.

1. I refused the stay application after applying the above principles which are centrally relevant here:

1. Mr Ali agrees he remained subject to a charge of threat to kill which has not been disposed of. He hopes the charge will soon be lifted. If, contrary to his hopes, when VCAT hears this proceeding he remains subject to the charge, it appears the final hearing will be of little value to him. It is likely VCAT will be required to continue the suspension. Therefore, it cannot be said refusing his stay application will render the final hearing of little value, given it already promises to be of little value; and 2. Given that it is undisputed that Mr Ali is subject to a charge of threat to kill which has not been disposed of, at this time there is not a serious question to be tried;

1. If the situation changes and requires a hearing, VCAT would be able to quickly schedule it.
2. Also, there is no clear statutory provision in the Act that VCAT may lift a suspension under s169K(2)(a) when the TSC may not. The Act contains other provisions which clearly state when VCAT has a greater power with respect to driver accreditation than the power of the TSC. For example, under s 169E of the Act, if the holder of a driver accreditation has been found guilty of category 1 offence, the TSC must cancel that driver's accreditation. Parliament under s 169N(2) conferred on VCAT, not the TSC, the power to cause the driver to be re-accredited following such conviction.

1. This is in the context that if Mr Ali is not found guilty of the category 1 offence then under s 169M the he may apply for compensation for income lost during the suspension. If he is found guilty of the category 1 offence then the TSC will be required to cancel his driver accreditation under section 169E(1) of the Act. He will then be able to apply to VCAT for his accreditation to be reinstated under s 169N(1) of the Act.
2. Therefore, it is unlikely Parliament intended that VCAT employ it's discretion to stay decisions, in order to lift the suspension in question, where the TSC may not.
3. Given Mr Ali faces financial hardship, I have scheduled a directions hearing in this proceeding in a little over two weeks to provide the parties he opportunity to advise VCAT of the situation and if necessary schedule a hearing.