Elias v Point to Point Transport Commissioner

Material before the Tribunal

1. I have had regard to the following material in deciding the dismissal application. 1. From Mr Elias: 1. Application for administrative review and attachments (12 pages); 2. Emails between Mr Elias and National Crime Check regarding his National Police check with documents relating to that check. 3. Email from Mr Elias dated 5 July 2022 setting out his submissions. 1. From the Commissioner: 1. Application for summary dismissal; and 2. Written submissions in support of the dismissal application with attachments.

Necessary Background

1. 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.
2. 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.
3. 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.
4. 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.
5. 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 It repealed and replaced the 1990 Act with respect to the regulation of taxi and hire car drivers.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.
6. Drivers of taxis and hire cars are not required to hold driver authorities under the PTPTA, as they had been under the 1990 Act.
7. 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.
8. 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.
9. 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.

Issues

1. Relying on clause 25 the Commissioner advised Mr Elias in the email dated 12 May 2022 that he is not eligible to drive a taxi or hire vehicle that is being used to provide a passenger service. Mr Elias identifies that as the decision he is seeking to review. The Commissioner, on the other hand, says that the email advised Mr Elias that he was ineligible to drive a taxi because of cl 25 of the PTPTR, but did not make a decision to the effect, as there was no decision to be made. Mr Elias simply is ineligible as a matter of law. As a consequence, the Commissioner submits the Tribunal does not have jurisdiction to hear the administrative review application as there is no decision
2. Further, the Commissioner submits that the Tribunal's administrative review jurisdiction is confined to decisions specified in the enabling legislation, in this case the PTPTA. The Commissioner points to s 145 of that Act and says that if there was a decision made, then the decision is not one that is subject to administrative review.

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

1. 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.
2. 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.
3. 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.
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].
5. 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.
6. 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. …
7. 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, …
8. As the Tribunal has no jurisdiction to decide Mr Elias' application for administrative review, I consider that the application should be dismissed as misconceived.

Order

1. The Tribunal makes the following order: 1. The application for administrative review is dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 as it is misconceived because the Tribunal does not have jurisdiction to hear it.

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: 13 February 2023