In his application to the Tribunal the applicant stated that he has recently been employed as a casual driver. When his details were entered in the point to point system the licence eligibility light turned red. His employer contacted "the point to point" and was told he needed to have his licence for at least 12 months. He had made many mistakes with his licence and lost and paid the ultimate punishment and went to jail. Since then, he took it to court and succeeded in getting his licence reinstated. He has now found a job but has to wait until his 12 months are up. The outcome he is seeking with the application is to get his licence eligibility changed from a red light to a green light so he could get back on the road and get more shifts.
The applicant provided a statutory declaration, in which he stated that he was informed about the decision on his licence eligibility verbally by an officer from "the point to point transport NSW", and that it could not be put in writing. He provided a copy of a letter from his employer confirming that they were aware of the applicant's past driving indiscretions, and were prepared to assist him by employing him as a casual driver. He did not provide a copy of his driving record.
The respondent's position is that the applicant has not made an application to the Commissioner, and the Commissioner has not made any decision either orally or in writing. An authorised service provider can access information relevant to driver and vehicle eligibility via the Driver Vehicle Dashboard (DVD), which draws data from the Commissioner, Transport for NSW, and the NSW Police Force. The DVD is able to access details of any traffic infringements held by Transport for NSW (formerly Roads and Maritime Services), criminal records held by the NSW Police Force, or Point to Point Transport infringements held by the Commissioner. The DVD automatically compares records to the requirements of cl 25 of the Regulation and indicates by a "green" light or "red" light whether an individual meets the requirements based on the available NSW records. The DVD result is an automated process.
The Commissioner states that the applicant's prospective employer, an authorised service provider, accessed the DVD on or about 4 July 2019, and a "red" light was displayed relating to the applicant's eligibility. A subsequent conversation confirmed that the red light result was because the applicant had not held an unrestricted NSW driver licence for at least 12 months in the preceding 2 years.
The applicant conceded in his application to the Tribunal that he had not, at the time his prospective employer entered his details in the DVD system, held an unrestricted driver licence for 12 months. The Tribunal accepts that to be the case. It was not in dispute that the applicant's prospective employer received a "red" light on entering those details.
[2]
Jurisdiction of the Tribunal
In Tabbaa Senior Member Ransome provided the following summary of the regulatory scheme:
8. 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).
9. 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).
10. 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.
11. 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 Regulation provides for Safety of Services, including safety standards for vehicles, insurance requirements, and requirements for drivers.
The relevant provision in the Regulation for this application is cl 25, which provides:
25 Ineligible drivers
(1) A person must not drive a taxi or hire vehicle that is being used to provide a passenger service unless -
(a) the person has held an unrestricted Australian driver licence for a total of at least 12 months in the preceding 2 years, and
(b) the person meets the medical standards for commercial vehicle drivers set out in Assessing Fitness to Drive, published by Austroads and the National Transport Commission, as in force from time to time.
…
(4) In this clause -
unrestricted Australian driver licence means -
(a) an unrestricted driver licence within the meaning of the Road Transport Act 2013, or
(b) a licence issued under a law in force in a State or internal Territory authorising the holder to drive a motor vehicle on a road or road related area, being a licence that is equivalent to an unrestricted driver licence within the meaning of that Act.
The Tribunal is satisfied that by operation of cl 25(1)(a) of the Regulation, the applicant was an ineligible driver at the time his prospective employer checked his eligibility.
The Tribunal has administrative review jurisdiction over a decision, or class of decisions, of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review: s 9(1) Administrative Decisions Review Act 1997 (the ADR Act).
The applicable "enabling legislation" is now the Point to Point Act. As noted above, the regulatory scheme for drivers of taxis and hire vehicles changed under that Act. Relevantly, Sch 6 to that Act, which commenced on 1 November 2017, repealed Parts 4 and 4A of the Passenger Transport Act 1990 that had provided for taxi and private hire driver authorities, and amended s 52 of the Passenger Transport Act 1990 to remove the reference to Parts 4 or 4A from the conferral of administrative review jurisdiction in relation to decisions to refuse, or to suspend or revoke, a relevant authority or accreditation. Section 145 of the Point to Point Act now confers administrative review jurisdiction on the Tribunal for review of certain decisions relating to taxi licences, and does not include decisions about driver eligibility.
The consequence is that even if the indication via a red light on the DVD database that the applicant was not an eligible driver constitutes a "decision" for the purposes of administrative review under the ADR Act, and even if that "decision" were made by the respondent Commissioner, it was not one that could, under s 145 of the Point to Point Act, be reviewed by the Tribunal.
It is not necessary to determine whether there was a "decision", as defined in s 6 of the ADR Act, made by the respondent Commissioner, and it is preferable that determination of that question be left to a matter where it has been the subject of full argument. By virtue of the specification in s 145 of the Point to Point Act of the decisions that are reviewable decisions, the Tribunal does not have jurisdiction to review a determination of driver eligibility under cl 25 of the Regulation. The application for review should be dismissed pursuant to s 55(1)(b) of the NCAT Act on the basis that it is frivolous or vexatious or otherwise misconceived or lacking in substance.
[3]
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 review is dismissed.
[4]
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: 25 March 2020
Parties
Applicant/Plaintiff:
EGJ
Respondent/Defendant:
Point to Point Transport Commissioner
Cases Cited (5)
Tribunal's powers to dismiss
Section 55 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:
(a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate,
(b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,
(c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings,
(d) if the Tribunal considers that there has been a want of prosecution of the proceedings.
(2) The Tribunal may reinstate proceedings that have been dismissed under subsection (1) (c) if the Tribunal considers that there is a reasonable explanation for that failure.
In support of the request that the Tribunal determine the application to dismiss the proceedings under s 55(1)(b), the Commissioner submitted that it had been respondent to three applications similar to this application, by persons unable to drive a taxi or hire vehicle that is used to provide a passenger service. The inability to lawfully drive those vehicles was because the person had failed a safety standard provided for in the Regulation, and not as a result of a decision being made by the Commissioner. All those applications were withdrawn without determination. Two of the applicants had been represented by a solicitor, and one by an industry colleague. If the Tribunal determines to dismiss this application for want of jurisdiction, and reasons are published, individuals considering a similar application can be advised of the decision, saving the expense of legal representation or minimising the cost of obtaining legal advice. The Commissioner is not seeking costs regardless of how the matter is finalised.
Section 55 confers a discretion on the Tribunal, which must be exercised consistent with the objects and purposes of the NCAT Act. The objects are stated in s 3 of the NCAT Act, and include in (c) to ensure that the Tribunal is accessible and responsive to the needs of all of its users, and (d) to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible. The latter object is reflected in the guiding principle stated in s 36(1) of the NCAT Act, which is to facilitate the just, quick and cheap resolution of the real issues in proceedings. The Tribunal must seek to give effect to the guiding principle when exercising any power given under the Act or the procedural rules: s 36(2).
The focus of the guiding principle, and the other procedural provisions in Part 4 of the NCAT Act, is the resolution of issues in proceedings, and it is not appropriate for the Tribunal to express opinions on hypothetical issues. That means that the Tribunal should be satisfied that there is an appropriate evidentiary basis for any determination.
The applicable principles in considering an application for summary dismissal are stated in Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 per French CJ and Gummow J at [24]-[25]:
24.The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said:
"The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried".
25.More recently, in Batistatos v Roads and Traffic Authority (NSW) Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde which included the following:
"Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way."
The Tribunal agrees with the Commissioner that there is a public benefit in providing, through published reasons for decision, guidance as to the Tribunal's jurisdiction and processes, particularly for self represented parties. The present proceedings are brought under the Point to Point Transport (Taxis and Hire Vehicles) Act 2016 (the Point to Point Act), which made significant changes to the regulatory scheme for authorisation of drivers and service providers formerly contained in the Public Transport Act 1990. The new regulatory scheme has generated several applications to the Tribunal, some of which have required consideration of the Tribunal's administrative review jurisdiction. Those decisions confirm that the regulatory changes are in some instances complex, and raise novel issues.
In Hossain v Roads and Maritime Services [2018] NSWCATOD 11 and Alameddine v Roads and Maritime Services [2018] NSWCATAD 22 The Tribunal concluded that after the commencement of the Point to Point legislation on 1 November 2017 the Tribunal had no jurisdiction under the Passenger Transport Act 1990 to review a decision to suspend an authority to drive taxis, or a decision to refuse an application for an authorisation to drive a taxi, respectively. Those decisions include a detailed analysis of the review provisions. In Tabbaa v NSW Taxi Council [2020] NSWCATAD 46 the Tribunal held that the Tribunal had no jurisdiction to review a decision by the NSW Taxi Council to refuse to provide training and a driver identity card.
The present proceedings raise a different jurisdictional issue. The Tribunal is satisfied that there is sufficient evidence available to determine that jurisdictional issue, and a benefit, particularly for self represented parties, in doing so. In the interests of protecting the privacy of the applicant, the Tribunal has decided to make an order under s 64 of the NCAT Act that his identity not be disclosed.