Austwide Institute of Training Pty Ltd v Dalman [2009] VSCA 25

1 This is an appeal from a decision of a judge in the Trial Division made on application for judicial review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005.

2 The appellant, Austwide Institute of Training Pty Ltd ('Austwide'), is a training provider who was at the relevant time registered by the Victorian Qualifications Authority ('VQA') under the Victorian Qualifications Authority Act 2000 ('VQA Act') as a Registered Training Organisation ('RTO'). The appellant was authorised to deliver and issue recognised qualifications for a number of courses accredited by way of the VQA Act, including the 'Course in Taxi Driving - 21387VIC' ('Drivers' course').

3 On 1 July 2007, the VQA Act was repealed by the Education and Training Reform Act 2006 which established a new regime for education and training in Victoria. The appellant continued to be registered as a training organisation under this new regime. In the present case, it is unnecessary to consider the provisions of the latter Act as all relevant events occurred prior to 1 July 2007.

4 The respondent, Jeffrey Dalman, was at the relevant time the Acting Director of the Victorian Taxi Directorate ('VTD'). The VTD is an administrative unit of the Department of Transport (formerly the Department of Infrastructure) of the Victorian Government and is responsible for regulation of the taxi and hire vehicle industries. The Transport Act 1983 ('Transport Act') provides that the Director of Public Transport is the 'licensing authority' under the Act and is responsible for, inter alia, the licensing of taxi drivers. The Director of Public Transport delegated some of his licensing powers to Mr Dalman. It is in this capacity that Mr Dalman was enjoined. In this judgment, unless it is necessary to refer to Mr Dalman personally, I will refer to the respondent as the VTD.

5 In June 2006, the Managing Director of the appellant company, Mr Zain Shah,[1] contacted Mr Brian Hamill in the Licensing and Certification area of the VTD stating that he was interested in delivering a Drivers' course and asking what was required to do so. Shortly thereafter, Mr Hamill sent an email to Mr Shah attaching a document entitled, 'Information for Taxi Driver Training Providers' ('Information Document'). The document states that the VTD requires evidence that an applicant for a driver's certificate to drive a taxi has undertaken the Drivers' course and has been assessed as having the competencies required under the course. Before the VTD will accept course graduates from a training provider, the provider must satisfy the VTD that it is an RTO, has the course included in its scope of registration, and that it has the necessary taxi industry expertise and related equipment required to conduct the course. The RTO is to do this by providing certain documents to the VTD, including

[t]raining course materials that demonstrate taxi driver applicants will be trained in a manner consistent with the requirements of course accreditation and industry expectations and practices.

6 The Information Document also specifies that an RTO must also demonstrate

[p]ossession of the necessary taxi industry related equipment needed to conduct the course, which includes (as a minimum):

• Taxi meter/s;
• Electronic transaction (eftpos) terminal/s (interfaced with meter/s);
• Taxi mobile data terminal/s (depot job dispatch terminal/s); and
• Vehicle/s (fitted out with above equipment) to be used for taxi driver training.

[t]he VTD will conduct periodic audits of RTOs involved in the delivery of the taxi driver training programs. These audits will comprise random sampling of the knowledge and skills attained by graduates and on-site audits at RTO facilities.

[t]he VTD reserves the right to respond to and investigate industry or consumer concerns about driver training standards specific to an individual RTO. In that case, the VTD would take a proactive role in the collection, collation and presentation of evidence of allegations to the RTO involved and would actively seek a cooperative resolution. However, if the evidence suggested frequent or serious divergence from acceptable training standards or procedures, the VTD may refuse to accept the course graduates from that RTO and would refer the allegations to other appropriate authorities for action.

8 Mr Hamill deposed on affidavit that in either July or August 2006, the appellant submitted four folders of proposed training materials for the appellant's provision of the Drivers' course. The materials indicated that the appellant's Drivers' course was approved by the VQA. Notwithstanding this, Mr Hamill had serious concerns that students would not achieve the necessary competencies in the course delivered by the appellant. To this end, Mr Hamill wrote to Mr Shah on 1 September 2006 to notify him that the VTD would not, at that stage, accept course graduates from Austwide.

9 On 9 February 2007, the appellant submitted an application with revised training materials. In April 2007, a further set of materials was submitted following revision as a result of discussions with the VTD. The application included two further documents. The first was a letter dated 12 December 2006 on Yellow Cabs letterhead which relevantly stated:

13CABS [also known as Yellow Cabs] and Austwide Institute of Training now have an agreement whereby Austwide Institute will incorporate 13CABS PIN training into their DC Course in exchange for the use of 13CABS dispatch equipment. This agreement allows all Austwide Training Institute students to have access to a live set of in-cab dispatch equipment.

10 The second document was a letter dated 29 January 2007 on Austwide letterhead. That letter stated:

I Zain-Syed (CEO) [sic] of the AIOT certified [sic] that I have spoken to Cab charge office in NSW. Ph: ... with Mr ... about the Training equipments [sic] e.g. Taxi meter, Eftpos machine etc will be provided to AIOT after the approval from VTD. If you have any query regarding this please don't hesitate to contact me.

11 Mr Hamill deposed that it was his understanding that in the past, Cabcharge had provided taximeters and EFTPOS equipment to an RTO once the VTD had indicated it would accept graduates of the Drivers' course offered by that RTO.

12 By letter dated 26 April 2007, the VTD conditionally approved the application. Two conditions were stipulated as follows:

Demonstration of suitable accommodation for conducting the training course. A site visit is scheduled for 2.30 on 30 April 2007 at level 1, Suite 37-38, 27 Albert Street, Footscray.

Your organisation providing to the VTD a Statement of Compliance certifying that the information on the [Information Document] ... has been read and understood and that it will comply with the administrative requirements in the delivery of the course.

13 By letter dated 1 May 2007, Mr Shah provided the Statement of Compliance required under the second condition. On that same day, officers of the VTD carried out a site visit to the appellant's training venue in Footscray. The following day Mr Hamill wrote to Mr Shah confirming receipt of the Statement of Compliance, stating that the inspection of 1 May 2007 was satisfactory and advising that Austwide's application to deliver the Drivers' course was approved. The letter went on to confirm that

the VTD will recognise drivers trained and assessed by your organisation as meeting the standards required for the issue of a driver's certificate endorsed to drive metropolitan taxis and hire cars.

14 Following approval of the application, the VTD added Austwide's name and contact details to a list of RTOs recognised by it to deliver the Drivers' course to prospective applicants for a driver's certificate. This list was placed on the VTD's website and incorporated into the documents provided to prospective applicants.

15 On 6 June 2007, Mr Hamill received a telephone call from Karen Downie of Yellow Cabs. Ms Downie advised that the agreement between Yellow Cabs and Austwide discussed in her letter of 12 December had not gone ahead. Mr Hamill deposed that Ms Downie advised him that, as she understood the situation, Austwide did not have taximeter or EFTPOS machines in its classroom because Cabcharge had refused to supply them due to concerns about the agreement with Yellowcabs not proceeding. Mr Hamill also deposed that on either 6 or 7 June 2007, he met with Mr Dalman and Mr Greg Williamson, a VTD officer. Mr Hamill advised them of the information he had received from Ms Downie. Mr Dalman told him and Mr Williamson to visit the appellant's training premises to determine whether or not there was operational equipment in the classroom.

16 On 7 June 2007, Mr Hamill and Mr Williamson attended Austwide's training venue. The officers did not give prior notification to Austwide of their intention to conduct a site visit. Mr Hamill and Mr Williamson found that the relevant equipment was not in the classroom. Mr Shah explained that students were being trained in the use of the computer dispatch system in a single taxi. Mr Hamill also deposed that, on inspecting the training room it 'looked very over-crowded'.

17 By letter dated 8 June 2007, the VTD advised the appellant that it would not accept course graduates trained and assessed by them from the date of the letter until the appellant could demonstrate that it had the necessary equipment operational in the training class room and provide an undertaking that it would provide adequate space to train the students. In particular, the letter noted that the appellant did not currently have taxi meter/s, electronic transaction (eftpos) terminal/s interfaced with meter/s and taxi data terminal/s as required by the Information Document. Also of concern was the overcrowding of students in the training room with a lack of space and inadequate number of desks and tables to accommodate the proposed 17 students. The letter stated that these two factors resulted in the VTD not being satisfied that course graduates would achieve the required competency standard in the use of the taxi equipment. The VTD then proceeded to remove Austwide's name and contact details from its list of RTO's recognised by it to deliver the Drivers' course.

18 The appellant contended that the VTD had acted ultra vires in conducting inspections of the appellant's premises, directing the appellant as to the facilities required and the manner in which to conduct the Drivers' course, and removing the appellant's name from its hardcopy and web-based list of training providers. The appellant argued that the VQA, as the regulator of training providers, was the proper statutory authority to carry out these functions.

19 At the relevant time, the statutory scheme comprised the Transport Act and the Transport (Taxi-Cabs) Regulations 2005 ('Regulations').[2] Together, the Transport Act and Regulations provided a framework for, inter alia, the regulation of the conduct of the taxi cab industry in Victoria and, more specifically, the licensing of taxi drivers.

20 The starting point in determining whether the respondent acted outside the power conferred is the statutory instrument itself and an examination of the scope of the power conferred by it. It would be incorrect to approach the issue by determining the scope of the powers of the VQA and then determining whether the respondent has usurped those powers as counsel for the appellant suggested.

21 Under the regime that existed prior to 1 July 2007, a person who proposed to drive a taxi in Victoria was required to apply for a 'driver's certificate'. Section 156(1) of the Transport Act stated:

A person who proposes to drive a commercial passenger vehicle[3] or a commercial passenger vehicle of any specified class which pursuant to regulations made under section 162 is permitted to be driven only by the holder of a driver's certificate may apply in the form approved by the licensing authority to the licensing authority for the granting of a driver's certificate to him.

22 The licensing authority, defined as the Director of Public Transport,[4] had discretion to approve, conditionally approve or refuse applications for driver's certificates.[5] Section 156(2) stated:

The licensing authority may subject to the regulations made under section 162 -

(a) grant the application for a driver's certificate subject to any conditions it considers appropriate; or

(b) refuse to grant the application for a driver's certificate.

23 Section 162(1) relevantly authorised the Governor in Council to make regulations for or with respect to

(g) prohibiting the driving of a commercial passenger vehicle of any specified class (including motor vehicles operating under a special licence under section 155) by a person not being the holder of a certificate authorizing him to drive the vehicle and prescribing -

(i) a period during which any such certificate shall be in force;

(ii) the issue of probationary and temporary certificates;

(iii) the qualifications to be required of, and the tests to be passed by, applicants for such certificates.

(h) the conditions to which licences, permits and certificates are subject;

(i) applications for licences, permits or certificates and the revocation or suspension thereof;

(ia) specifying, in relation to the granting of taxicab licences[6] under section 143A -

(i) the classes of people and the qualifications of people eligible to apply for licences; and

(ii) the procedures to be followed for the granting of licences;

...

(nb) the accreditation of taxi-cab licensees and taxi-cab drivers;

...

(p) generally, all such matters and things as are authorized or permitted to be prescribed or are necessary or expedient to be prescribed for carrying this Division into effect.

Regulations made under the Transport Act

24 The objectives of the Regulations, described in reg 1 were, relevantly:

to prescribe measures intended to enhance passenger and driver safety and the reliability and quality of taxi-cab services, including requirements for or in relation to -

(a) driver certification, conduct and presentation.

25 Nathan J in Fahkri v Ellis[7] noted in relation to the purpose of the Transport Act and Regulations at that time that

[t]he Transport Act and the regulations made thereunder were enacted for the purposes, inter alia, of ensuring the orderly conduct of the taxi industry and the safety of the public. There is a public interest in taxi-cabs being driven by persons who are efficient, effective and safe.

26 Although the Transport Act itself does not contain a general objectives provision, based on the purpose of the Regulations and the statutory scheme, his Honour's observations continue to be relevant to the Transport Act and Regulations in the context of the present case.

27 Section 156(4) made it an offence for a person to drive 'a commercial passenger vehicle ... without being the holder of a driver's certificate granted to him pursuant to subsection (2)'. The penalty for doing so was 8 penalty units. Regulation 4(1) stipulated that a taxi was permitted to be driven only by a person who held a driver's certificate.

28 Administrative requirements in relation to driver's certificates were listed in reg 6. Regulation 6(1)(d) stated:

The licensing authority may require an applicant for a driver's certificate to -

...

(d) pass any test and hold any qualification specified by the licensing authority that relates to his or her competence to drive a taxi-cab.

29 It is under the power conferred by this provision that the respondent purported to act.

30 On 6 August 2007, the appellant commenced an action for judicial review under Order 56 Supreme Court (General Civil Procedure) Rules 2005 in the Supreme Court. The originating motion contained many grounds of review essentially centred around two points: first, whether the VTD's actions were ultra vires, and secondly, whether the VTD's actions constituted a breach of the rules of natural justice.

31 On 28 September 2007, the learned trial judge dismissed the proceeding holding that the VTD's decision that graduates from the Drivers' course conducted by Austwide do not hold a qualification specified by the delegate was taken within power. His Honour rejected the submission that the power conferred by reg 6(1)(d) was limited to tests and qualifications relating to the physical act of competently driving a taxi. His Honour held that the regulation embraced all aspects of providing taxi services to members of the public, including the ability to operate devices associated with the provision of those services. His Honour accepted that the term 'hold any qualification' meant 'holding of a qualification of the kind specified, in this case the qualification resulting from the successful completion of a taxi drivers course conducted by an RTO'.[8] However, the discretion conferred under reg 6(1)(d) must be exercised having regard to the statutory purposes. Accordingly, the learned trial judge held that the respondent was entitled to decide that graduates from the Drivers' course conducted by the appellant did not have the necessary competence to provide taxi services to members of the public.

32 On 12 October 2007, the appellant filed a Notice of Appeal asserting many and lengthy grounds of appeal. Essentially, the grounds fall into two categories. First, that the learned trial judge erred in interpreting the statutory regime so as to hold that the respondent acted within the power conferred. Secondly, that the learned trial judge erred in holding that no written or oral submissions were directed towards the issue of breach of the rules of natural justice and that the point was abandoned. I will deal with the two categories in turn.

Interpretation of the statutory scheme and its interaction with the Victorian Qualifications Authority Act

33 The appellant argued that on a proper construction of the provision, the power conferred by reg 6(1)(d) should be read down. The particular words relied upon were the heading of reg 6, 'administrative requirements for certificates', the phrases 'may require an applicant for a driver's certificate to' and 'hold any qualification specified'. It was contended that these words indicate that the administrative requirement of an applicant holding a qualification specified by the respondent is directed to the nature of the qualification held, rather than the identity of the training organisation permitted to provide the training. Therefore, having specified the test that the applicant must pass and the qualification required (the Drivers' course offered by an RTO), the respondent was not then permitted to specify the identity of the training provider. Such action, contended the appellant, would amount to an assumption of the jurisdiction of the VQA and an attempt to widen the purposes of the Transport Act, or go outside its field of operation, contrary to the principle in Shanahan v Scott.[9]

34 The appellant also contended that the phrase 'competence to drive a taxi cab' in the context of the regulation relates to competence to be in control of the taxi, as opposed to competence in the operation of technology located in a taxi. This stems from the definition of 'drive' in the Regulations which states, 'in relation to a taxi-cab, includes to be in control of a taxi-cab.'[10] This point amounts to a restatement, albeit in slightly different terms, of a point made at trial. I find nothing persuasive in the submissions on appeal to challenge the findings of the learned trial judge, or to identify an error of law on his Honour's part in this regard.[11]

35 I turn now to construe the relevant statutory provision, bearing in mind the principles of statutory construction. They are contained in the provisions of the Interpretation of Legislation Act 1984 and apply to the Regulations as a subordinate instrument.[12] In interpreting the Regulations, the Court must endeavour to provide a construction that would promote the purpose or object underlying the Regulations, whether or not expressly stated, over a construction that would not promote the purpose or object.[13] The language of the provision must be construed in the context of the instrument as a whole and with regard to its scope and purpose.[14] All words of the provision have meaning and effect, none are superfluous or insignificant, and the Court must strive to give meaning to every word.[15] This includes headings into which the Regulations are divided for they form part of the Regulations themselves.[16]

36 Within the context of the Regulations, and in particular Part 2, reg 6(1)(d) is part of a scheme creating a mechanism for the VTD to regulate all aspects of the operation of the taxi industry. Regulation 6 as a whole provides the VTD with the power to impose administrative requirements on an applicant for a driver's certificate. Specifically, reg 6(1)(d) relates to the power to demand requirements in relation to an applicant's competence to drive a taxi. This power must be interpreted as being intended to contribute to the achievement of the purpose and objectives of the Transport Act and Regulations. That is, a power to specify the tests to be passed and qualifications to be held by an applicant to enable the VTD to ensure the safety, reliability and quality of taxi services. The discretion to specify which tests and qualifications must be held is necessarily broad if it is to achieve the objective of regulating the taxi industry and taxi drivers to ensure that only suitable persons operate taxis.

37 The words of reg 6(1)(d) also support a broad interpretation of the power. In particular, use of the expression 'any' implies that the VTD was intended to hold a broad discretion to specify whichever tests and qualifications were necessary to ensure that driver's certificates were only issued to competent applicants, thus furthering the objectives of the Regulations. Similarly, use of the conjunctive 'and' indicates that the VTD was able to specify both tests and qualifications required of a successful applicant for a driver's certificate. The use of words which require a broad interpretation of the provision is a contra indication to the appellant's submission that the power conferred is limited by the terms of the VQA Act, or by the effect of the interaction of that Act with the Transport Act and Regulations.

38 To examine more closely the potential relevance of the VQA Act to the statutory scheme of the Transport Act and Regulations, it is necessary to briefly describe the relevant provisions of the VQA Act. The VQA Act establishes the VQA,[17] the objectives of which include to 'develop and monitor standards for education and training normally undertaken in, or designed to be undertaken in the years after year 10.'[18] The functions of the VQA are, inter alia, to accredit and register courses, to recognise and register qualifications, to approve providers of accredited courses and persons who may issue recognised qualifications, to keep a register of those providers and persons, and to develop policies for these matters including policies in relation to quality assurance for qualifications issued in accordance with the VQA Act.[19]

39 The VQA Act does not cover the field with respect to the recognition of training or training providers in Victoria. Rather, it establishes a scheme by which training courses and providers may be recognised, accredited and registered by the VQA. Such recognition by the VQA does not exclude unrecognised training providers from providing training, except in so far as it creates offences for, inter alia, falsely claiming to be an RTO,[20] or falsely claiming to provide a course registered by the VQA as accredited on the State or National Register.[21]

40 The Drivers' course was a course accredited by the VQA and offered by the appellant who was a training provider registered by the VQA as an RTO. As such, oversight of the appellant's activities as an RTO offering a VQA accredited course fell squarely within the ambit of the VQA. However, the exercise of the respondent's powers under reg 6(1)(d) would potentially also affect the appellant.

41 The respondent had the power to specify the tests and qualifications required of applicants for driver's certificates. Although the appellant was not an entity that fell directly within the 'taxi industry', and was not, therefore, directly affected by the provisions of the Transport Act and Regulations, it was an entity in the business of providing training. One of the training courses it provided was the Drivers' course and this course was specified as required of applicants by the VTD.

42 For students of the appellant, the utility of the accreditation of the Drivers' course was in its meeting the requirements specified by the respondent under the power conferred by reg 6(1)(d). This placed the appellant in a position to be affected by the operation of the Transport Act and the Regulations through the respondent exercising its powers under them. In offering the Drivers' course, the appellant placed itself in a position to be affected by the Transport Act and Regulations and the administration of them by the VTD. This is despite the fact that the power conferred by reg 6(1)(d) was directed to the requirements to be demanded of applicants for driver's certificates.

43 The only means through which the VQA Act may be relevant to the operation of the Transport Act is through the specification of qualifications in reg 6(1)(d), and more specifically, the specification by the respondent of a qualification that is accredited by the VQA. However, the provision does not require that the qualification be a qualification falling within the auspices of the VQA. This is so despite the use of the word 'qualification' in the provision.

44 'Qualification' is defined in the VQA Act as 'the recognition, by the award or issue of a certificate or otherwise, that a student has achieved particular learning outcomes or competencies.'[22] 'Recognised qualification' is also defined. It means a qualification that is registered on the State Register of Accredited Courses and Recognised Qualifications maintained by the VQA. [23] However, these definitions are not relevant to the qualification that may be specified by the respondent under reg 6(1)(d). It is not permissible to simply transpose the meaning of 'qualification' in the VQA Act to the Regulations made under the Transport Act, or take the use of the word qualification in the Regulations to indicate that the qualification that may be specified is of the kind referred to in the VQA Act.

45 This is so because the Transport Act and the Regulations made under it and the VQA Act are two quite separate statutory regimes, enacted in relation to entirely different subject matters and with very different purposes and objectives. The Regulations made under the Transport Act relevantly relate to ensuring the orderly conduct of the taxi industry and the safety of the public. In contrast, the purpose of the VQA Act is to establish the VQA and 'transfer certain accreditation and registration functions of other educational authorities to the new Authority [the VQA].'[24] Taken together with the objectives of the VQA itself, the VQA Act relates to the development and monitoring of standards for education and training normally undertaken in the years after year 10.

46 Therefore, the Transport Act and Regulations cannot be considered in pari materia with the VQA Act. It follows that, whilst 'qualification' is not defined in either the Transport Act or Regulations, the definition provided in the VQA Act is of no assistance in defining the word in reg 6(1)(d). [25] Neither the VQA Act, nor the Transport Act and Regulations are capable of being construed so as to limit the respondent's discretion to specify any test and any qualification to those qualifications regulated by the VQA.

47 The qualification that may be specified by the respondent need not be a qualification of the type contemplated under the scheme administered by the VQA. If the respondent desired to specify a course that was not accredited by the VQA or offered by an RTO, it would be open to the respondent to do so. Similarly, the language of the regulation does not contain a limitation on the respondent in terms of specifying that applicants must hold a qualification of a specified kind obtained from one of a specified list of training providers.

48 The Regulations and VQA Act are only related in this instance by way of the respondent having the power to specify the tests and qualifications required of applicants for driver's certificates and then having selected a test which happened to be accredited by the VQA. Had the respondent selected a qualification not accredited by the appellant, the VQA Act would have no bearing on the present facts.

49 The learned trial judge's statement regarding the interpretation of 'hold any qualification' as relating to 'the fact that the applicant has obtained a specified kind of qualification, such as [but not necessarily] from an RTO'[26] was correct. His Honour's finding that reg 6(1)(d) 'confers a discretion upon the licensing authority to specify that "graduates" from a particular RTO do not hold the relevant qualification'[27] was correct. If it were otherwise, the respondent's discretion would be limited unacceptably because it would be obliged to approve graduates from a particular organisation, even though it believed that those graduates lacked competency in a material respect. This would be contrary to the purpose of the Transport Act and Regulations.

50 The VQA Act does not express an intention that its provisions should limit regulatory discretions conferred in the Transport Act or Regulations. Accreditation and registration powers conferred under the VQA Act on the VQA cannot remove the responsibility of the respondent to fulfil its role in regulating the conduct of the taxi industry in Victoria.

51 It is erroneous to suggest that where the respondent has specified a particular course of a training provider, then that is the extent of its role. This does not amount to the respondent fully discharging its responsibility under reg 6(1)(d) with the VQA then stepping in to assume control by regulating the training provider. In order to achieve the objectives for which the power was conferred, the VTD must retain the power to exercise the discretion to determine the requirements for successful applicants for driver's certificates.

52 Once exercised, the respondent's discretion is not spent. The power may be exercised from time to time as occasion required.[28] That is, if the respondent decides to specify a VQA accredited qualification provided by an RTO, it may later decide not to require such a qualification and instead specify a non-VQA accredited course.

53 It would be an absurd situation if the power conferred on the respondent was limited from time to time by reference to the VQA Act depending on which course the respondent specified under reg 6(1)(d). Similarly, it would be absurd if, having specified a course not accredited by the VQA, the respondent could not then specify those training providers whom it considered to provide training of an adequate standard to produce graduates competent in the skills necessary for the approval of the provision of a driver's certificate.

54 The power conferred by reg 6(1)(d) is to be exercised by the respondent. The extent of the discretionary power cannot expand or contract depending on whether the particular course specified has or has not been placed on the State Register by the VQA.[29] The act of the VQA in placing a qualification on the State Register[30] does not amount to a restriction on the power of the VTD to specify a qualification that must be held by an applicant for a driver's certificate or the training providers capable of providing that qualification.

55 Contrary to the submission of the appellant, the actions of the respondent did not amount to an assumption of the powers of the VQA to regulate training providers. The VTD and the VQA have different functions and responsibilities and different powers are conferred on them to carry out these functions. Despite the very different functions of the two bodies, there will necessarily be some overlap in their powers and some entities who are affected by the exercise of the power of both.

56 The respondent validly exercised the power conferred by reg 6(1)(d) to ensure that successful applicants for driver's certificates meet the level of competency specified by it. This was done with the objective of 'enhanc[ing] passenger and driver safety and the reliability and quality of taxi-cab services.' [31] The aims of this function are very different to those of the VQA in regulating training providers.

57 It is incorrect to suggest, as was submitted for the appellant, that, in specifying that an applicant hold a qualification from particular training organisations, the respondent's actions are contrary to the principles in Shanahan v Scott.[32] That case concerned the validity of a Regulation purported to be made under a general regulation-making power conferred by the parent Act. In holding that the Regulation was ultra vires, the High Court held, by majority, that a general power provided in an Act

does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends. [33]

58 These principles concern validity of Regulations made under a power conferred by an Act, and whether the action of making the particular Regulation was ultra vires. Assuming they apply to the present case, where actions taken under a power conferred by a Regulation are at issue, I am of the opinion that they are not offended. 'An authority conferred by a statute is construed as authorizing everything which can fairly be regarded as incidental to or consequential upon the authority itself.' [34] The actions of the VTD are within the parameters of the regulatory function intended by Parliament and expressed in the objectives of the Regulations. They are incidental to the execution of those objectives and the statutory function in relation to the regulation of the taxi industry.

59 No error on the part of the trial judge is made out and the grounds relating to ultra vires fail.

Treatment of the natural justice point at trial

60 The second category of grounds of appeal concerns natural justice and procedural fairness. In his reasons, the learned trial judge noted that '[i]n the originating motion and affidavits in support sworn on behalf of Austwide, it was contended that the [respondent's] decision should be set aside because it was made in breach of the rules of natural justice'. On this point his Honour concluded that, 'as no written or oral submissions were directed towards this issue ... it must be taken to have been abandoned'. [35]

61 The appellant's natural justice and procedural fairness grounds at trial fell into three related categories. First, failure on the part of the respondent to provide sufficient particulars of allegations; secondly, failure on the part of the respondent to provide sufficient notice; and thirdly, failure on the part of the respondent to provide the appellant with sufficient time to respond to allegations before decisions were made.

62 The appellant's written submissions at trial were made under two paragraph headings, 'Relevant Legislation' and 'The decision of 8 June 2007'. One submission is made in paragraph 1 alleging that the respondent did not have the power to direct the manner in which the appellant conducted its training courses. This equates to an ultra vires argument. Paragraph 2 contains a series of four submissions in sub-paragraphs (i) - (iv). All four paragraphs clearly relate to an argument that, on a proper construction of the relevant legislation, the VTD acted ultra vires. For example, para (iv) states that the respondent had 'no basis at law to force the [appellant] to meet the requirements imposed by it'. Seven lines of factual material then follow describing the actions of the VTD. The only reference to natural justice or procedural fairness in the written submissions at trial appears in the paragraph following the four roman numbered submissions where a bare assertion is made that the VTD decision was, inter alia, a denial of natural justice and procedural fairness:

It is submitted that the decision of 8 June 2007 was ultra vires, arbitrary, unreasonable, oppressive, and collateral, beyond jurisdiction and a denial of natural justice and procedural fairness. Furthermore the decision on any view was not relevant to driver competence.[36]

63 At trial, the appellant's counsel made no oral submissions in relation to natural justice or procedural fairness and conceded that the salient issue was whether the VTD had the discretion to refuse to recognise an applicant who held a qualification in the Drivers' course issued by an RTO, and that this was a question of statutory interpretation.[37] The appellant's counsel went on to state, '[f]or the sake of the transcript, I will say that I rely upon the other matters in the outline of my submissions, but I don't see any point taking it any further. That [the ultra vires point] is really the salient issue.' [38] However, no oral argument was put in relation to natural justice or procedural fairness to augment the bare assertions made in the written submissions.

64 Later in the proceedings, the following exchange occurred:

[COUNSEL FOR THE RESPONDENT]: We had made in our written submissions, Your Honour, various other submissions about natural justice which we don't understand to be a point that is pressed.

HIS HONOUR: Yes, I heard no submissions about it. I take it to be abandoned. I will ask [counsel for the appellant] to clarify that.

[further submissions by counsel for the respondent]

HIS HONOUR: Yes, [counsel for the appellant]. Can I just clarify the procedural fairness point. You didn't address any submissions towards it either orally or in writing, and I was taking it that that wasn't being pressed.

[COUNSEL FOR THE APPELLANT]: Perhaps I didn't address it specifically, I understand that, but I seek to address you upon that. If the ultra vires argument is not accepted by Your Honour, the discretion under 6(1)(d), if it is to be exercised, has to be exercised in two ways. Firstly, it has to be exercised with regards to competence. It must relate to competence. If it doesn't relate to competence, it is ultra vires. Secondly, if it relates to competence, it has to be exercised reasonably. It is exercised unreasonably. It is denial of procedural fairness, natural justice. It becomes oppressive.[39]

65 The trial transcript discloses that the appellant's counsel at trial then put submissions in relation to competence, asserting that if the learned trial judge held that the respondent did not exercise the power ultra vires, it must be exercised in relation to the competence of the applicant for a driver's certificate. Again these arguments properly relate to whether the respondent acted ultra vires. They are arguments in relation to the scope of the power conferred by reg 6(1)(d), not in the method by which the power was exercised and its effect on the appellant. They do not provide any basis for an assertion that the respondent breached the rules of natural justice in dealing with the appellant or denied the appellant procedural fairness. At a later stage in the proceeding the learned trial judge expressed a similar opinion stating, 'I still don't understand [counsel for the appellant] to be pursuing the natural justice point based on lack of procedural fairness. I have heard no submissions about it.'[40] Counsel for the appellant did not indicate that his Honour's understanding was incorrect.

66 On appeal, it was contended for the respondent that this amounted to counsel for the appellant at trial making a concession in relation to the procedural fairness point, and that this concession affected the manner in which the respondent conducted its case at trial. That is, no submissions were made on the point and an affidavit in support was not filed.

67 Parties are ordinarily bound by the case they choose to run.[41] In the present circumstances, the learned trial judge specifically raised with counsel for the appellant the fact that no submissions had been made in relation to natural justice or procedural fairness. Counsel was then given the opportunity to put submissions on the point, however, failed to do so. It was then made clear that the trial judge and counsel for the respondent took the point to be abandoned through there being no submissions on the topic. Counsel for the appellant remained silent, making no attempt to clarify this. As such, the appellant is now bound by the conduct of its case at trial.

68 In the event that the trial judge did not treat the point as being abandoned, it is difficult to see how his Honour could have addressed the assertions made. The assertion that the appellant was not afforded procedural fairness and that the respondent breached the rules of natural justice were not supported by argument. There was a dearth of factual analysis to found such an argument. A bare assertion that natural justice was denied, or procedural fairness not afforded provides no basis for the trial judge to find for the plaintiff. It is not for a judge to work out or speculate as to the basis for such assertion.

69 In challenging the respondent's actions, the appellant was required to establish that there was an error of law and in doing so persuade the court that it should exercise its discretion to grant a remedy. Yet, as no argument was articulated below, the trial judge would have been required to divine the basis of the point and determine without assistance what actually constituted the alleged breach. Had his Honour achieved this, the appellant still bore the onus of proving the breach.[42] Given that arguments supporting the appellant's assertions were not articulated, the appellant cannot have discharged this onus.

70 The due administration of justice demands that a party must not be permitted to raise a point on appeal that was not taken at trial unless it could not have been met with further evidence. [43] Even where further evidence is unnecessary, allowing a new point to be raised on appeal may not be in the interests of justice. In the present circumstances, both parties prepared for trial on the basis that the natural justice point would be argued. This is so even if the appellant did not articulate the arguments in written or oral submissions below.

71 In light of the nature of the point at trial, the natural justice grounds on appeal are not made out. However, if the point were re-opened and it therefore became necessary to examine the arguments, the appellant would still not succeed based on the written and oral material of both parties at trial and on appeal.

72 On appeal, in oral submissions, the appellant conceded that the basis of the point in relation to natural justice was not articulated below. However, the appellant submitted that this was not fatal to the point, arguing that the facts of the issue are simple: on 7 June 2006, the VTD conducted an unannounced visit to the premises of the appellant. This amounted to a breach of natural justice not only in terms of the actions of the VTD in removing the appellant's name from its list of providers and refusing to accept applicant's holding a qualification issued by the appellant, but also, with respect to the lack of notice provided prior to the site visit.

73 The content of the requirement to accord procedural fairness has not been articulated in a universal test. What is required depends upon the facts and circumstances of the particular case, with the statutory framework being of critical importance.[44] To establish a breach of procedural fairness requires demonstration that the procedure adopted was unfair.[45] If a denial of procedural fairness is established, the likely outcome had the denial not occurred is relevant to the decision to grant relief. The remedy for breach of natural justice is discretionary. The Court will not grant a remedy if it can conclude that the denial made no difference to the outcome, although such a conclusion should be approached with caution.[46] It is very difficult to demonstrate that the outcome would not be different had there been no procedural unfairness.[47]

74 In the present case, the respondent recognised the course offered by the appellant as meeting the required standard following representations by the appellant as to the manner of conducting its course, including representations as to the equipment that would be in place to train the students. These representations included that the course would be delivered with the use of electronic equipment provided through agreements with Yellow Cabs and Cabcharge.

75 It is likely that Mr Shah knew that the agreements to supply operational equipment were integral to approval of the application by the VTD. The appellant was required to provide a statement of compliance to confirm that the Information Document had been read and understood and would be complied with. The requirement to possess taxi industry related equipment necessary to conduct the course was clearly stated in the Information Document. In addition, Mr Shah provided a letter from Yellow Cabs as proof of the agreement between them to supply the equipment and a letter written by Mr Shah on the appellant's letterhead confirming that Cabcharge would also provide equipment.

76 Despite this, when the two agreements did not go ahead, and the representations made by Mr Shah to secure inclusion of the appellant's name on the list of course providers were not longer correct, Mr Shah did not inform the VTD of the situation. It was the failure to implement these representations which led to the respondent's decision to cease accepting graduates of the appellant's course and to remove the appellant's name from the list on its website. Yet this decision was not final. The respondent merely required the appellant to make good on its earlier representations in order to restore the situation.

77 The Information Document provided to the appellant stated that the VTD would conduct on-site audits and reserved the right to respond to and investigate industry or consumer concerns about driver training standards specific to an individual RTO. In circumstances where the evidence suggested frequent or serious divergence from acceptable training standards or procedures, the Information Document indicated that the VTD may refuse to accept course graduates from a particular RTO.

78 The circumstances of this case indicate that no unfairness is demonstrated by the appellant. The respondent merely required the appellant to make good on the representations it had made in order to secure the VTD's acceptance of its graduates and inclusion of its name on the list of training providers. Even if a denial of natural justice did indeed occur, such a denial is unlikely to have affected the outcome for the appellant. The fact is that the agreements in relation to classroom equipment had failed to come to fruition. This situation would not have changed had the appellant been given notice of the intended site visit, or a fuller opportunity to be heard in relation to the assertions made by the respondent. What the respondent required of the appellant was merely that it fulfil its previous representations regarding the facilities that would be offered to students. If this were done, the respondent would reinstate the appellant's name to its list of training providers and resume accepting graduates from its training course.

79 The natural justice ground was not made out at trial, yet even if it were to be re-opened on appeal the appellant would not succeed.

80 The final ground in the Notice of Appeal appears under the heading 'manifest unreasonableness'. The ground asserts that the learned trial judge erred in failing to hold that the respondent's conclusions that Austwide's graduates would not achieve appropriate competency due to lack of 'live' equipment and overcrowding in the classroom were manifestly unreasonable. This, contends the appellant, stems from two facts that go against the conclusions drawn by the respondent. First, all the relevant equipment was available for use in an accurately simulated environment in a classroom and in an actual taxi-cab. Secondly, the classroom had accommodation for seven students in addition to those occupying it on the date of the respondent's site visit.

81 The appellant's written submissions simply repeated the ground with two further assertions. First, that 'simulated environments are used in various industries for purposes of training including the aviation industry'. Secondly, that the VTD's conclusions were contrary to the principles set out in the Wednesbury case.[48] The 'manifest unreasonableness' ground was not raised by the appellant orally and nothing further was added to elucidate these scant arguments. Nevertheless, if the point can be considered, it must fail.

82 The threshold to establish Wednesbury reasonableness is high, requiring 'something overwhelming', something 'so unreasonable that no reasonable authority could ever have come to it'.[49] It is not sufficient for the appellant to assert that the reasoning of the VTD was 'unreasonable'. Something more than a strong disagreement with the reasoning process, or a conviction that the reasoning is wrong, is required.[50]

83 As discussed already, the nature of the power conferred on the respondent by reg 6(1)(d) is broad. So much is evidenced by the language of the provision itself. The lack of specific factors that must be taken into account in determining an applicant's competency to drive a taxi lend further weight to such a conclusion. It was, therefore, open to the respondent to consider the relevant matters and assess for itself whether Austwide's graduates would achieve the appropriate competency. The respondent's conclusion was that 'live' equipment in the classroom, of the kind represented by the appellant as being available, was necessary to ensure the appellant's graduates were competent. Similarly, the number of students that would be accommodated in the classroom would lead to over-crowding and be detrimental to the competency of the graduates. Such conclusions were reasonably open to the respondent.

84 Further, the appellant's ground itself reveals no allegation of unreasonableness in a Wednesbury sense. The appellant takes issue with the

respondent's conclusions, not with the respondent's process of reasoning. Such an argument is clearly directed to the merits, rather than the legality, of the decision. It reveals simple disagreement with the outcome, not the method by which it was arrived at.

85 None of the grounds are made out. If follows that it is unnecessary to consider the respondent's Notice of Contention. I would dismiss the appeal.

86 The appellant was a registered training organisation that was qualified to deliver a course in taxi driving under the Victorian Qualifications Authority Act 2000. The respondent, as the delegate of the Director of Public Transport, who is the licensing authority under the Transport Act 1983, approved the appellant's taxi driving course on 1 May 2007. The circumstances in which he did so are fully set out in the reasons of the Chief Justice which I have had the benefit of reading in draft and with which I entirely agree.

87 On 7 June 2007 representatives of the respondent, as the delegate to the Director, without notice, inspected the appellant's premises. Following that inspection the respondent advised the appellant that it would not accept drivers trained and assessed by the appellant until the appellant had necessary equipment such as a taxi meter and EFTPOS machine operational in the training classroom and provided adequate space in which to train the students. The respondent then removed the appellant's name from the Department's hard copy and web-based list of training providers. The appellant commenced proceedings by way of judicial review contending that the decisions made by the respondent following its inspection were ultra vires, constituted a denial of natural justice and were unreasonable contrary to the principles set out in Wednesbury's case.[51] It now appeals from a decision from a judge in the trial division dismissing that proceeding.

88 The appellant contends that the respondent's acts are ultra vires because only the Victorian Qualifications Authority ('VQA') under the Victorian Qualifications Authority Act 2000 is responsible for the qualifications of the appellant to deliver the course in taxi driving. It submits that the respondent, as the licensing authority under the Transport Act, has no role to play in relation to the qualification of the appellant. It was submitted that the respondent had no authority to require particular competency standards in the use of taxi equipment or to impose any requirement as to the manner in which such proficiency standards were to be achieved. The appellant also contended that the respondent had acted with procedural unfairness in visiting the appellant's premises without notice with the intention that it would withdraw its approval of the appellant to deliver the course following its inspection.

89 For the reasons given by Warren CJ, I agree that the provisions of the Victorian Qualifications Authority Act does not limit the broad powers conferred by the Transport Act or the regulations made thereunder in the manner suggested by the appellant. In particular, the power conferred by the Transport Act in Regulation 6(1)(d) was not to be read down by virtue of the Victorian Qualification Authority Act. The respondent as the delegate of the responsible licensing authority was empowered to specify the manner in which the required competency standard in the use of taxi equipment was to be achieved.

90 In addition to the reasons given by the Chief Justice I would add these observations. The appellant conceded during oral argument that the word 'qualification' which appears in Regulation 6(1)(d) permitted the respondent as the licensing authority to add further requirements to those imposed by the VQA under the Victorian Qualifying Authority Act. It was said that the power of the licensing authority to require the applicant for a driver's certificate to 'hold any qualifications specified by the licensing authority' was to be construed as meaning any qualification additional to those required by the VQA. But it was said that the

licensing authority could not impose requirements which derogated from or affected the certification of the appellant by the VQA. The appellant contended that the requirement that the necessary equipment be operational in the classroom was in derogation of the VQA requirement that it would be sufficient if such equipment was available in a simulator which the appellant had at its disposal. That submission must in my view be rejected. The regulation conferred a broad power upon the licensing authority to impose qualification requirements whether they be additional to or in derogation of those fixed by the VQA. In any event, even if the licensing authority were confined to the imposition of requirements that were additional to those fixed by the VQA, there was no evidence adduced before the trial judge or on appeal that established that the VQA thought it sufficient that such equipment be used in a simulator to instruct applicants. Consequently even if the appellant's construction of Regulation 6(1)(d) were correct there was no basis upon which it could be concluded that the licensing authority's requirement derogated from that of the VQA.

91 The complaint that there was a denial of natural justice cannot be sustained. The complaint was not pursued at trial and was but faintly pressed on appeal. The respondent was under no obligation to give the appellant forewarning of his intention to have his representatives inspect the premises nor was he obliged to advise the appellant as to the possible consequences that might follow such an inspection.

92 Before this Court it was submitted that the real complaint was that the respondent without notice, inspected the appellant's premises when it was already his intention to withdraw approval of the appellant. I do not think it open to the appellant to now advance such a submission, no such argument having been advanced at trial. It was plainly an issue upon which the respondent may have wished to call evidence, had it been pursued. Moreover the appellant was unable to point to any evidence to sustain the submission, now made, that the respondent had such an intention at the time that its representatives inspected the appellant's

93 For these and the reasons given by the Chief Justice I agree that the appeal should be dismissed.

94 I have had the benefit of reading in draft the reasons of both the Chief Justice and Redlich JA with which I, respectfully, agree.

96 The argument that the decision of the VTD was in breach of natural justice and that its decision should be set aside was not agitated at trial and was taken by the learned trial judge to be abandoned. I agree with Redlich JA that it is not open to the appellant to now argue this point on appeal. The trial judge was only obliged to consider and determine this issue if it was raised by the appellant.[52] The record shows that it was not.[53] No "exceptional circumstances"[54] have been demonstrated and the appellant should not be allowed to raise the argument on this appeal.

97 In any event, I agree with the Chief Justice and Redlich JA that there was no denial of justice by the VTD; in particular there was no obligation upon it to give notice of its intention to inspect the appellant's premises.

98 For these reasons and those given by the Chief Justice and Redlich JA, I agree that the appeal should be dismissed.

[1] Mr Shah's real name was Syed Zainulabidin. He used the name 'Zain Shah' in his relevant dealings with the VTD.

[2] Effective from 1 July 2007, a new scheme was implemented for the accreditation of drivers of commercial passenger vehicles, including taxis; see Transport Legislation (Further Amendment) Act 2006 (Vic) (No 47/2006) s 14, which amended the Transport Act 1983 (Vic) to insert a new Division 6 Part VI and Transport (Taxi-Cabs) (Amendment) Regulations 2007 (Vic) (No 69/2007) s 8, which replaced Division 1 Part 2 of the _Transport (Taxi-Cabs) Regulations 200_6 (Vic).

[3] 'Commercial passenger vehicle' was defined in s 86 to mean 'any motor vehicle ... which is used or intended to be used for carrying passengers for hire or reward.'

[4] Transport Act 1983 (Vic) s2.

[5] Transport Act 1983 (Vic) s156(2).

[6] 'Taxi-cab licence' was defined in s 86 to mean 'a commercial passenger vehicle licence in respect of a vehicle which operates or is to operate as a taxi-cab'. 'Taxi-cab' was defined as 'a commercial passenger vehicle which is used or intended to be used for hiring by the public on demand and which operates by being hailed or from a stand appointed for the use of such vehicles or which has been previously booked or ordered but does not include such a vehicle which operates solely by being previously booked or ordered'.

[7] (1996) 25 MVR 166, 168.

[8] Austwide Institute of Training Pty Ltd v Jeffrey Charles Dalman (in his capacity as a delegate of the Director of Public Transport) [2007] VSC 367, [43] ('Reasons').

[9] [1957] HCA 4; (1957) 96 CLR 245, 250.

[10] Transport (Taxi-cabs) Regulations 2005 reg 3.

[12] Interpretation of Legislation Act (Vic) s 4.

[13] Interpretation of Legislation Act (Vic) s 35(a).

[14] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 381 (McHugh, Gummow, Kirby and Hayne JJ).

[16] Interpretation of Legislation Act (Vic) s 36(2A).

[17] Victorian Qualifications Authority Act (Vic) s 4(1).

[18] Victorian Qualifications Authority Act (Vic) s 5 (a).

[19] Victorian Qualifications Authority Act (Vic) s 6.

[20] Victorian Qualifications Authority Act 2000 (Vic) s 26A(1).

[21] Victorian Qualifications Authority Act 2000 (Vic) s 26B(1).

[22] Victorian Qualifications Authority Act (Vic) s 3.

[23] Victorian Qualifications Authority Act (Vic) s 3.

[24] Victorian Qualifications Authority Act 2000 (Vic) s 1.

[25] Yager v R [1977] HCA 10; (1977) 139 CLR 28, 43 (Mason J).

[28] Interpretation of Legislation Act s 40(a).

[29] Victorian Qualifications Authority Act 2000 s 19.

[30] Victorian Qualifications Authority Act 2000 s 19.

[31] Transport (Taxi-cabs) Regulations 2005 reg 1.

[32] [1957] HCA 4; (1957) 96 CLR 245.

[33] Ibid, 250 (Dixon CJ, Williams, Webb, Fullagar JJ).

[34] Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408, 428-9 (Brennan J).

[36] Outline of submissions for the plaintiff [appellant], 18 September 2007.

[41] University of Wollongong v Metwally (No 2) (1985) 60 ALR 68; Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1; Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447.

[42] Rose v Bridges (1997) 149 ALR 710.

[43] Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447, [51].

[44] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, [26].

[45] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1.

[46] Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 145-6_; Re Refugee Review Tribunal; ex parte Aala_ [2000] HCA 57; (2000) 204 CLR 82.

[47] Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; (2007) 17 VR 492.

[48] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.

[50] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, [40] (Gleeson CJ and McHugh J).

[51] [1947] EWCA Civ 1; [1948] 1 KB 223.

[52] Rowe v Australian United Steam Navigation Co Ltd [1909] HCA 25; (1909) 9 CLR 1, 24; Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, 7; Chen v Chan [2008] VSCA 280 [36] - [46].

[53] Reasons [45]; Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 [50], [52], [63].

[54] University of Wollongong v Metwally (No 2) (1985) 60 ALR 68, 71.