Assadourian v Roads and Traffic Authority

Applicable legislation 12The Act has been amended since the date of the decision that is under review. At that time, section 31 of the Act provided: 31 Term of drivers certificate and renewal (1) A drivers certificate continues in force for a period of one year from the date on which it was granted or such shorter period as may be specified in the drivers certificate, unless it is sooner revoked or suspended or otherwise ceases to be in force. (2) A drivers certificate may be renewed from time to time by making an application for a subsequent drivers certificate in accordance with this Act. 13Clause 24 of the Regulations provided: 24 Pending application for subsequent licence or drivers certificate If: (a) a person who is the holder of a licence or drivers certificate (the current licence or drivers certificate) applies for a subsequent licence or drivers certificate before the term of the current licence or drivers certificate expires, and (b) the person has paid the relevant application fee for the subsequent licence or drivers certificate, and (c) the application has not been dealt with by the time the current licence or drivers certificate expires, the authority conferred by the current licence or drivers certificate continues until 90 days after the expiry of the current licence or drivers certificate, or until such time as the person is notified of the granting or refusal of the subsequent licence or drivers certificate, whichever is the sooner. 14It is not in dispute that the effect of Clause 24 of the Regulations was that Mr Assadourian's tow truck drivers certificate remained in force at the time of his application to the Tribunal and the making of the order on 22 December 2009. 15Section 63 of the ADT Act provides: 63 Determination of review by Tribunal (1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. (3) In determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 16Mr Wozniak, solicitor for the RTA, contends that the effect of section 63 of the ADT Act is that Tribunal's powers are limited to those of the administrator. Pursuant to section 31 of the Act the administrator could only grant a certificate for a period of one year. Mr Wozniak submits that the Tribunal is not empowered to grant a certificate for a longer period. 17The order made on 22 December 2009 was pursuant to section 60 of the ADT Act which provides: 60 Operation and implementation of decisions pending applications for review (1) Subject to this section, an application to the Tribunal for a review of a 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 a review of a 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. 18Section 62 of the ADT Act provides: 62 Conditions of stay order (1) An order in force under section 60 (including an order that has previously been varied on one or more occasions) is subject to such conditions as are specified in the order. (2) Any such order has effect: (a) if a period for the operation of the order is specified in the order-until the expiration of that period or, if the application is decided by the Tribunal before the expiration of that period, until the decision of the Tribunal on the application takes effect, or (b) if no period is so specified-until the decision of the Tribunal on the application takes effect.

The Court of Appeal Decision in AVS Group of Companies Pty Ltd v Commissioner of Police 19The Court of Appeal considered the provisions of section 60 of the ADT Act in some detail in AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 (" AVS v Police "). That matter concerned a decision by the Commissioner that revoked the applicants' statutory licences held under the Security Industry Act 1997. At paragraphs [16] ff Basten JA said: 16 What the applicants required, in order to continue their licensed operations, was an order reinstating their licences. That cannot be achieved in terms by a "stay", a somewhat imprecise term which is usually understood to refer to a future event, which has not yet taken place: see McBride v Walton (Unrep, NSWCA, 27 August 1993) (Handley JA). 17 The relevant source of power is found in s 60 of the Administrative Decisions Tribunal Act 1997 (NSW) ("the ADT Act"), which relevantly provides: ... 18 It is arguable that the second limb of s 60, (referring to an order "otherwise affecting the operation of the decision under review") would allow the Tribunal to suspend the operation of a revocation of a licence, or reinstate the licence on a temporary basis. That approach may gain support from the scope for a final decision on a review to operate from the date of the original decision: ADT Act, s 66(2)(b). Arguably that could be done by retrospectively varying the date from which the Commissioner's order was to have effect. Although the Tribunal did not make an order otherwise than in terms of a "stay", the question of statutory construction should be addressed having regard to the scope and effect of the orders available under s 60. Indeed, it was assumed by the applicants that the order in fact made allowed them to continue to operate, as if they held valid licences. 19 There is no doubt that an order in the nature of a "stay" made pursuant to s 60 is an order separate and distinct from the kind of final order which may be made in determining an application for review of a reviewable decision: ADT Act, s 63(3). Nevertheless, it is a decision made in the course of review proceedings, which will affect, on a temporary basis, the operation of the reviewable decision. It is made in circumstances where the statute provides that the making of an application for review does not itself affect the operation of the decision: s 60(1). 20Campbell JA stated at paragraphs [96] - [98]: 96 In the present case (unlike McBride v Walton ), the Tribunal has a wider power than merely to grant a stay. It has power, under section 60(2) ADT Act, to "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." That power is one that is wide enough to enable the Tribunal to temporarily reinstate a licence that has been revoked pending the hearing of an application for review of a decision to revoke the licence. ... Construction of Tribunal's Order for a "Stay" 98 The preferable view of the law is that an order of an administrative Tribunal, like an order of the court, can be construed in the light of the circumstances surrounding the making of the order, regardless of whether there is any ambiguity in the words of the order itself.

Discussion 21In my view, section 60 of the ADT Act gives the Tribunal the power to make an order that effectively reinstates Mr Assadourian's tow truck drivers certificate on a temporary basis. Such an order is made to "secure the effectiveness of the determination of the application." As has been noted by Campbell JA in AVS v Police , the Tribunal makes such an order in the light of the circumstances of the matter. 22It is apparent from the wording of section 62(2)(b) of the ADT Act that it is contemplated that an order under section 60 might remain in force until the decision of the Tribunal on the application takes effect. In the case of an authority that is for limited period, the proceedings before the Tribunal may well extend beyond the expiry date of the authority. 23In the present case, the fact that the matter is before the Supreme Court for consideration of a question of law is a relevant circumstance. If the RTA's construction of section 60 were preferred, then the order made on 22 December 2009 would not secure the effectiveness of the determination of the application. In my view, that construction is inconsistent with the benefit that is permitted by exercise of the power. 24While I agree that section 63 of the ADT Act limits the possible orders that the Tribunal can make in determining an application for review of a reviewable decision to those available to the administrator who made the decision, the same limitation does not apply to any order that the Tribunal can make under section 60 of the ADT Act. 25In my view, the Tribunal is not limited by the time period prescribed by section 31 of the Act. If appropriate in the circumstances of the particular matter, the Tribunal can make an order under section 60 of the ADT Act that remains in force until the decision of the Tribunal on the application takes effect. 26The order made on 22 December 2009 was made subject to conditions. However, no time limit was placed on the order. It follows, in my view, that pursuant to section 62(2)(b) of the ADT Act the order has effect until the decision of the Tribunal on the application takes effect. 27It is open to the RTA to bring an application for the variation or revocation of the order made on 22 December 2009 pursuant to section 60(4) of the ADT Act. However, it is my view that the order remains in force unless such an application is made and determined.

Order The orders made on 22 December 2009 remain in force.

I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal. 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: 11 March 2011