Cherry v Point to Point Transport Commissioner

NCAT Occupational|2022-03-15

REASONS FOR DECISION

On 10 February 2022 Mark Cherry applied to the Tribunal for administrative review in relation to his eligibility to work as a taxi driver. Mr Cherry annexed to his application for review an email dated 21 January 2022 from the Director Operations, Point to Point Transport Commission, informing him that he was not eligible to drive a taxi or hire vehicle because of convictions for an offence that is a disqualifying offence for a driver of a passenger service vehicle under cl 24(2)(c) of the Point to Point Transport (Taxi and Hire Car Vehicles) Regulation 2017. On 24 February 2022 Mr Cherry lodged an application for a stay or interim order under s 60 of the Administrative Decisions Review Act 1997 (the ADR Act).
In his application for administrative review, Mr Cherry stated that he had worked between March to September 2020 as a taxi driver and has now been stopped from working because of the convictions. In his application for an interim order, Mr Cherry stated that he wants the Point to Point eligibility red light on the "Driver Partners Portal" to be returned to a green light, to remove the impediment preventing a taxi utility service being available to the community.
The legal representative of the Point to Point Transport Commissioner (the Commissioner) wrote to Mr Cherry on 9 March 2022, advising that matters relating to driver eligibility are not able to be reviewed by the Tribunal, and requesting that Mr Cherry withdraw his application, stating that if the application was not withdrawn the Commissioner would seek to have the matter dismissed by the Tribunal under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act).
At the hearing of the interim order application Mr Cherry confirmed that he is seeking to have the red light changed to green so that he can drive a taxi: he has the support of the taxi controller, he worked every night during the pandemic, he has a working with children check clearance, and the decision is not fair. The Commissioner's representative contended that there is no decision capable of being reviewed by the Tribunal and the Commissioner is seeking to have the applications dismissed.

Dispensing with a hearing

Section 50 of the NCAT Act relevantly provides: 50 When hearings are required (1) A hearing is required for proceedings in the Tribunal except: … (c) if the Tribunal makes an order under this section dispensing with a hearing, or … (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.
Neither party submitted that a hearing is required, and the Commissioner submitted that the matter could be determined on the papers. The issues in this summary dismissal application relate to the jurisdiction of the Tribunal, rather than involving any contested issues of fact on which evidence might be required, and determining the summary dismissal application on the papers will not incur any further cost to the parties. In the circumstances, being satisfied that the issues for determination can be adequately determined in the absence of the parties by considering their written submissions, it is appropriate to make an order under s 50 of the NCAT Act dispensing with a hearing.

Administrative review jurisdiction of the Tribunal

Section 28 of the NCAT Act provides that the Tribunal "has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation". The Administrative Decisions Review Act 1997 (the ADR Act) provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator. Section 55 of the ADR Act makes plain that the Tribunal only has jurisdiction to review "an administratively reviewable decision".
An administratively reviewable decision is defined in s 7 of the ADR Act to be "a decision of an administrator over which the Tribunal has administrative review jurisdiction". Section 9 provides that the Tribunal has administrative review jurisdiction over a decision of an administrator "if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision". The "enabling legislation" is legislation (other than the ADR Act or the NCAT Act) that provides for applications to be made to the Tribunal with respect to a specified matter or class of matters, or otherwise enables the Tribunal to exercise functions with respect to a specified matter or class of matters: ADR Act, s 4(1); NCAT Act, s 4(1).
Section 63 of the ADR Act specifies the Tribunal's role on an administrative review: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively 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 legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
Section 60(2) of the ADR Act provides that on the application of a party to proceedings for an application for an administrative review under the ADR Act of an administratively 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".
The issue is whether there is any administratively reviewable decision in respect of which the Tribunal has administrative review jurisdiction, and in respect of which the Tribunal would have power to grant an interim order under s 60 of the ADR Act. That depends on the provisions of the "enabling legislation", which is, in the present proceedings, the Point to Point Transport (Taxis and Hire Vehicles) Act 2016 and Point to Point Transport (Taxis and Hire Vehicles) Regulation 2017.
The legislative scheme administered by the Commissioner was summarised by Senior Member Ransome in Tabbaa v NSW Taxi Council [2020] NSWCATAD 46 (Tabbaa) in the following terms:
Prior to 1 November 2017 taxi and hire car drivers in NSW were regulated under the Passenger Transport Act. That Act provided for authorities to drive a taxi or hire car to be issued to persons by the Roads and Maritime Services (RMS). Persons wishing to be taxi drivers or hire car drivers could apply to the Tribunal to seek review of decisions made by RMS to refuse to issue them with a driver authority or to cancel a driver authority. The Point to Point Act came into effect on 1 November 2017 and repealed the Parts of the Passenger Transport Act that provided for taxi and private hire car driver authorities (Part 4 and Part 4A).
The Point to Point Act created the statutory office of the Point to Point Transport Commissioner (the Commissioner) as the regulator of taxis and hire car vehicles in NSW. On 31 October 2017 RMS ceased to be the regulator of taxis and private hire cars and all taxi and private hire vehicle driver authorities issued by RMS ceased to have effect (Hossain v Roads and Maritime Services [2018] NSWCATOD 11; Alameddine v Roads and Maritime Services [2018] NSWCATAD 22).
Under the Point to Point Act taxi and hire car drivers are not required to be authorised by any government agency. A driver is, however, required to meet certain safety standards as set out in the Point to Point Transport (Taxis and Hire Vehicles) Regulation 2017 (the Regulation). Clause 24 of the Regulation provides that a person must not drive a taxi or hire vehicle that is being used to provide a passenger service if the person has been found guilty of a disqualifying offence for a driver. The offence with which Mr Tabbaa has been charged is a disqualifying offence. If Mr Tabbaa is in fact found guilty of the offence, he will be disqualified from driving a taxi or hire car in NSW.
While the Point to Point Act does not provide any authorisation process for individual drivers, the Act does impose important safety obligations on providers of passenger transport services, such as providers of taxi services…
Part 2 of the Point to Point Transport (Taxis and Hire Vehicles) Act provides for Safety of Services, including safety duties and safety standards for providers of passenger services and booking services, and for drivers for passenger services. Section 21(1) of the Point to Point Transport (Taxis and Hire Vehicles) Act states that the regulations may specify safety standards for drivers, which may include under s 21(2)(a) "driver licence requirements, competence, qualifications, driving records, criminal records, identification and fitness or medical requirements". The provisions applicable to drivers who drive motor vehicles used for passenger services are located in the Point to Point Transport (Taxis and Hire Vehicles) Regulation.
Clause 24(1) of the Point to Point Transport (Taxis and Hire Vehicles) Regulation provides that a person "must not drive a taxi or hire vehicle that is being used to provide a passenger service if the person has been found guilty of a disqualifying offence for a driver". Clause 24(2) lists the disqualifying offences for a driver, including under cl 24(2)(c): (c) an offence under section 12, 21, 25A, 25C(1), 26, 27, 28, 29, 30, 31, 31C, 33, 33A, 33B, 35, 35A, 37, 37(1A), 38, 39, 41, 41A, 42, 43, 43A, 44, 45, 45A, 46, 47, 48, 49, 49A, 51A, 51B, 52A, 52AB, 52B(2) or (4), 53, 54, 55, 58, 59, 59A, 60, 60A, 60B, 60C, 60E, 61I, 61J, 61JA, 61K, 61KC, 61KD(1), 61KE, 61KF(1), 61L, 61M, 61N, 61O, 66A, 66B, 66C, 66D, 66DA, 66DB, 66DC, 66DD, 66DE(1), 66DF, 66EA, 66EB, 66EC(2), 66F, 73, 73A(1), 78A, 80A, 80D, 80E, 86, 87, 91A, 91B, 91D, 91E, 91F, 91G, 91H, 91J, 91K, 91L, 91M, 93B, 93C, 93FA, 93G, 93GA, 93H, 93O, 93T(2), (3) or (4), 94, 95, 96, 97, 98, 99, 109, 110, 111, 112, 113, 114, 115, 117, 148, 149, 150, 154A, 154B, 154C, 154D, 154F, 154G, 203E, 204, 205, 206, 207, 208, 211, 307A, 307B, 307C, 310J, 315A, 316(1), 316(2), 316A(1), 316A(4), 322, 326, 349, 530, 531 or 546C of the Crimes Act 1900,
Section 145 of the Point to Point Transport (Taxis and Hire Vehicles) Act provides the administrative review powers of the Tribunal: 145 Reviews by NCAT (1) A person aggrieved by a reviewable decision may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision. (2) The following decisions under this Act are reviewable decisions - (a) a decision to refuse an application for an authorisation or a taxi licence, (b) a decision to suspend or cancel an authorisation or a taxi licence (but not a decision to cancel a surrendered authorisation or taxi licence), (c) a decision to vary a condition of an authorisation or a taxi licence, or to impose or revoke a condition of an authorisation or a taxi licence.
The "authorisation" referred to in the list of reviewable decisions in s 145(2) is the authorisation required under Part 3 of the Point to Point Transport (Taxis and Hire Vehicles) Act for a provider of a taxi service or booking service. The "taxi licence" referred to in s 145(2) is the licence required under Part 4 of the Point to Point Transport (Taxis and Hire Vehicles) Act for the use of a motor vehicle to provide a taxi service. There is no provision in s 145 of the Point to Point Transport (Taxis and Hire Vehicles) Act, or in the Point to Point Transport (Taxis and Hire Vehicles) Regulation, for administrative review of matters relating to driver safety standards.

Dismissal application

Section 55(1)(b) of the NCAT Act provides: 55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances - … (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, …
In the letter of 9 March 2022, the Commissioner submitted that decisions capable of review by the Tribunal under s 145 of the Point to Point Transport (Taxis and Hire Vehicles) Act do not include matters relating to driver eligibility. The Commissioner does not make a decision as to whether a driver is eligible and therefore authorised to drive a passenger service vehicle; rather, drivers must meet the eligibility requirements set out in the Point to Point Transport (Taxis and Hire Vehicles) Regulation in order to provide those services. The Commissioner contends that by operation of cl 24(2)(c) of the Point to Point Transport (Taxis and Hire Vehicles) Regulation Mr Cherry is disqualified from driving a taxi or hire vehicle, as he has been convicted of a disqualifying offence in both 2009 and 2010, and those convictions are incapable of becoming spent; and the Commissioner has no discretion in this respect. The Commissioner noted that Mr Cherry had been convicted of a disqualifying offence in 2014, and that on appeal the conviction was overturned and the charges dismissed; however prior to 2014 Mr Cherry was convicted of an offence under s 59 of the Crimes Act 1900 (assault occasioning actual bodily harm) in 2009 and again in 2010. On each of those convictions a prison sentence of more than 6 months was imposed and as a result those convictions are not capable of becoming spent. The ineligibility of Mr Cherry to drive a taxi or hire vehicle does not constitute a decision which the Tribunal has any power to review.
In submissions provided on 29 March 2022, the Commissioner included a copy of the criminal history check provided by Mr Cherry which shows that on 7 May 2009 and 24 June 2010 Mr Cherry was convicted of the offence of "Assault occasioning actual bodily harm" under s 59 of the Crimes Act 1900, and on each occasion sentenced to imprisonment for 12 months suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999. The Commissioner submitted that while the spent conviction regime applies to disqualifying offences under cl 24 of the Point to Point Transport (Taxis and Hire Vehicles) Regulation, under s 7(1)(a) of the Criminal Records Act 1991 a conviction for which a prison sentence of more than 6 months has been imposed is not capable of becoming spent. The consequence is that Mr Cherry is not eligible to drive a taxi or a hire vehicle used to provide a passenger service. The Commissioner submits that the Tribunal has no jurisdiction to review driver eligibility under the Point to Point Transport (Taxis and Hire Vehicles) Regulation.
Mr Cherry provided several submissions to the Tribunal, including documents confirming his working with children check clearance, a supporting statement from a counsellor who has been Mr Cherry's therapist since 2017, documents relating to the criminal proceedings, tax records, a medical certificate certifying that he is fit to work as a taxi driver, and a legal opinion dated 13 March 2022 relating to the prospects of success of his applications (the legal opinion).
The supporting statement from Mr Cherry's counsellor includes information as to his background, and states that Mr Cherry's physical and mental health improved when he was driving taxis due to him having purpose and engaging in employment, and that there have been impacts on him since being unable to drive taxis. A statement by a taxi owner confirms that Mr Cherry was honest and well-presented and that many community members want him back serving as a taxi driver. Mr Cherry stated that he loved helping his community as a taxi driver, including with front line workers, frail aged, vulnerable persons, licensed premises and hospitals. Doing so was his first time as a sole trader, and he deserves to work. He submits that he was willing to try and improve himself, and that he had previously been permitted to work, and has a right to trade.
The documents provided by Mr Cherry include an Advice of Court Result dated 15 December 2021, which includes the order dismissing the 2014 charges.

Discussion and findings

Mr Cherry relied on the annulment in 2021 of the 2014 convictions for the offences of "use offensive language" and "resist officer in execution of duty", submitting that he should not have been stopped from driving in 2020. However he has not disputed that he was convicted in 2009 and 2010 of offences under s 59 of the Crimes Act, and was sentenced on each occasion to imprisonment for 12 months, suspended with a bond.
Clause 24(4) of the Point to Point Transport (Taxis and Hire Vehicles) Regulation provides that an offence is not specified for the purposes of cl 24(2), that is, is not a "disqualifying offence", "if the conduct has ceased to be an offence in New South Wales". The legal opinion dated 13 March 2022 addressed the question of whether a suspended sentence was "a prison sentence of more than 6 months" that has been "imposed" for the purposes of s 7 of the Criminal Records Act. The legal opinion noted that in CTU v NSW Police Force [2017] NSWCATAD 204 Senior Member Lucy had decided that it was; and that as a consequence, such a conviction was not capable of becoming spent. The legal opinion concluded that the 2009 and 2010 assault offences remain "disqualifying offences". The Tribunal accepts that reasoning, which was not disputed, and concludes that Mr Cherry has been found guilty of a disqualifying offence for a driver. That means that he is prohibited under cl 24(1) of the Point to Point Transport (Taxis and Hire Vehicles) Regulation from driving a taxi or hire vehicle that is being used to provide a passenger service.
The legal opinion refers to results from "P2P software" of a search done in December 2021 in which Mr Cherry sought to confirm his eligibility to re-commence work as a taxi driver. Those results show green lights in respect of "NSW Licence", "NSW Licence Tenure", "Serious Driving Offences" and "Criminal Charge", and a red light in respect of "P2P Eligibility". Mr Cherry provided a copy of that document to the Tribunal with his submissions on 24 February 2022.
The issue is whether there is a decision, as defined in s 6 of the ADR Act, which is specified in the enabling legislation as a decision in respect of which an application may be made to the Tribunal for an administrative review under the ADR Act. It is not clear that any officer of the Commissioner made a "decision" as to whether Mr Cherry is eligible to drive a taxi. The email of 21 January 2022 is in the form of an explanation that on the information available Mr Cherry is not eligible to drive a taxi or hire vehicle. Even if the software results recording in December 2021 a red light for "P2P Eligibility", or that email, reflect a decision, it is not a decision of the kind specified in s 145(2) of the Point to Point Transport (Taxis and Hire Vehicles) Act as a reviewable decision. That means that s 9 of the ADR Act is not met, and the Tribunal does not have administrative review jurisdiction in respect of any such decision: Tabbaa; EGJ v Point to Point Transport Commissioner [2020] NSWCATOD 29.
The Tribunal notes that the material provided by Mr Cherry in support of his wish to be able to drive a taxi (see [22] above) would arguably have been relevant to an administrative review. However, even if the Commissioner's position that Mr Cherry has been found guilty of a disqualifying offence for a driver is incorrect, and even if on review a different conclusion might be reached, in the absence of any provision under the Point to Point Transport (Taxis and Hire Vehicles) Act or the Point to Point Transport (Taxis and Hire Vehicles) Regulation conferring administrative review jurisdiction on the Tribunal, the Tribunal does not have jurisdiction to deal with the application for administrative review. That also means that the Tribunal has no power to make an order under s 60 of the ADR Act, even if such an order could encompass a direction that the eligibility red light be changed to green.
The application for review, and the application for an interim order, should be dismissed pursuant to s 55(1)(b) of the NCAT Act.

Order

The Tribunal orders: 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 a hearing is dispensed with. 2. The application for administrative review lodged on 10 February 2022 is dismissed. 3. The application for an order under s 60 of the Administrative Decisions Review Act 1997 is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 February 2023

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Judgment (7 paragraphs)

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