Elias v Point to Point Transport Commissioner

Judgment (7 paragraphs)

[1]

Introduction

On 12 May 2022 Mr Elias has made an application for administrative review of a decision, which he says was made by the Point to Point Transport Commissioner (the Commissioner) on 2 May 2022, that he is ineligible to drive a taxi or hire vehicle point to point because he does not meet the driver requirements set out in clause 25(2) of the Point to Point Transport (Taxis and Hire Vehicles) Regulation 2017 (NSW) (the PTPTR). He was advised of this in an e-mail dated 12 May 2022 which said: I have reviewed our previous interactions with you in regards to your eligibility to drive a public passenger Service vehicle. Under Section 25 of the Point to Point Transport (Taxis and Hire Vehicles) Regulation 2017, a person must not drive a taxi or hire vehicle that is being used to provide a passenger service if the person who last held a driver authority under the Passenger Transport Act 1990 or the Passenger Transport Act 2014 that was cancelled (other than on medical grounds) or whose most recent application for a driver authority under either of those acts was rejected (within the proceeding 10 years) on the grounds that the person was not considered to be of good repute and in all respects fit and proper person to be the driver of a public vehicle used for a public passenger service. As you have had a driver authority refused on 6 June 2014 by Roads and Maritime Service (RMS), you are unfortunately ineligible and unable to drive under Point to Point. For further information in relation to our legislation, I have provided the below link that you may find helpful. https://legislation.nsw.gov.au/view/html/inforce/current/sl-2017-0424#sec.25.
On 14 June 2022, the administrative review application was listed for directions. The Commissioner forecast that he intended to file an application for dismissal of the application on the ground that the Tribunal has no jurisdiction to hear it. The Tribunal made directions for the filing of a dismissal application with submissions, and for Mr Elias to file submission in reply. The Tribunal noted that the parties consented to the dismissal application being determined on the papers, and dispensed with a hearing under s.50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).

Necessary Background

In order to properly understand the background in this case it is necessary to note changes in the regulatory environment for taxi drivers in recent years, and to briefly outline Mr Elias interactions with the Regulators since 2004.
Until 1 November 2017 drivers of public passenger (e.g. taxis, hire cars and buses) were required to hold driver authorities issued by the Director-General under the Passenger Transport Act 1990 (NSW) (the 1990 Act). The Director-General had power to cancel and suspend driver authorities.
In 2004 Mr Elias' taxi driver authority was cancelled by the Director-General on the basis that due to a series of convictions, complaints and infringements, he was not of good repute, and was not a fit and proper person to hold an authority. Mr Elias sought review of that decision by the Administrative Decisions Tribunal. The Tribunal found that Mr Elias was of good repute and was a fit and proper person to hold a taxi driver authority: see Elias v Ministry of Transport [2004] NSWADT 211.
On 17 February 2010 Mr Elias' driver authority was cancelled on the basis that the regulator could no longer attest that he met the required standards to hold an authority. The written decision for the cancellation cited complaints going back 4 years, and convictions and infringements going back as far as 1994, many of which had occurred since the earlier cancellation. Some had been considered in the earlier Tribunal hearing. As was his right, Mr Elias sought administrative review of that decision in the Administrative Decision Tribunal. His application for administrative review was unsuccessful. On 19 April 2010 the decision to cancel his driver authority was confirmed.
On 1 November 2017, the Point to Point Transport (Taxis and Hire Vehicles) Act 2016 (NSW) (PTPTA) commenced operation. It repealed and replaced the 1990 Act with respect to the regulation of taxi and hire car drivers. It created a new regulator, the Point to Point Transport Commissioner: see Part 9 of the Act. It was enacted following the rise of Uber and similar services, and regulated passenger and booking services as well as taxi and hire cars.
Drivers of taxis and hire cars are not required to hold driver authorities under the PTPTA, as they had been under the 1990 Act.
Section 21 is concerned with standards for drivers. It provides: (1) The regulations may specify safety standards for drivers who drive motor vehicles used for passenger services. (2) Safety standards may be specified with respect to any of the following - (a) driver licence requirements, competence, qualifications, driving records, criminal records, identification and fitness or medical requirements, (b) reporting of changes in health or other matters, (c) reporting of safety incidents or accidents, (d) compliance with safety requirements established by providers of passenger services or booking services, (e) provision of information to providers of passenger services or booking services. (3) Subsection (2) does not limit the matters for which safety standards may be specified.
Division 6 of Part 2 of the PTPTR provides standards for drivers. Clause 24(1) provides: (1) 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 clause goes on to specify in considerable detail what are disqualifying offences. This has the effect of prohibiting a person found guilty of a disqualifying offence from driving a taxi or hire vehicle that is being used to provide a passenger service. It is a blanket prohibition with no discretion.
Clause 25 is concerned with ineligible drivers. Sub-clause (2) provides: (2) A person must not drive a taxi or hire vehicle that is being used to provide a passenger service if the person is a person - (a) who last held a driver authority under the Passenger Transport Act 1990 or the Passenger Transport Act 2014 that was cancelled (other than on medical grounds), or (b) whose most recent application for a driver authority under either of those Acts was rejected (within the preceding 10 years) on the grounds that the person was not considered to be of good repute and in all other respects a fit and proper person to be the driver of a public vehicle used for a public passenger service.

Does the Tribunal have jurisdiction to hear Mr Elias's application?

Section 145 of the PTPTA says: (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.
Section 145, together with s 9 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act) and s 30 of the NCAT Act, combine to give the Tribunal jurisdiction with respect to reviewable decisions made under the PTPTA, which is enabling legislation.
A central difficulty that faces Mr Elais is that - assuming for the purposes of discussion that the email of 12 May 2022 contains a decision - it is not a reviewable decision specified in s 145 of the PTPTA. While the section does refer to taxi licences, that is not a reference to taxi drivers licensing, but to the licensing of taxis under Part 4 of the Act. "Taxi licence" is defined in s 3: taxi licence means a licence issued under Part 4.
Therefore, if the email constitutes a decision to stop Mr Elias from driving taxis, as he claims, it is not a reviewable decision within the jurisdiction of the Tribunal. This has been previously found to be the case by the Tribunal in other cases, namely EGJ v Point to Point Transport Commissioner [2020] NSWCATOD 29 at [33]; Tabbaa v NSW Taxi Council [2020] NSWCATAD 46 at [12]; and, Cherry v Point to Point Transport Commissioner [2022] NSWCATAD 128 at [27].
It seems clear from reading Mr Elias' material that he is aggrieved by the 2014 decision to cancel his driver authority, and thinks it unfair that he is now unable to drive because of it. He questions whether the Tribunal would have made the same decision, had the Member known of the consequences which would flow following the introduction of the PTPTA and the PTPTR. The reality is that the legislation provides that he is ineligible to drive a taxi as a result of the cancellation, and that I have no power to review it. He is ineligible as a matter of law.
With respect to the issue of whether the email of 12 May 2022 constitutes a decision at all, it is not necessary to decide that issue in order to determine the dismissal application. It is clear that, if the email does advise of a decision, it is not an administratively reviewable decision under the PTPTA. I agree with what Principal Member Pearson said in EGJ v Point to Point Transport Commissioner [2020] NSWCATOD 29 at [33]: "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. …
Section 55 of the NCAT is concerned with dismissal and relevantly provides: (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances - (a) … (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, …
As the Tribunal has no jurisdiction to decide Mr Elias' application for administrative review, I consider that the application should be dismissed as misconceived.

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Judgment (7 paragraphs)

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Legislation Cited (5)

Cases Cited (3)