McArthur, M.H. v Art, Sport,Environment, Tourism & Territories, Min. for (Gary Punch) & Anor [1988] FCA 179

2. The applicant pay the respondents' costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY

Applicant AND: GARY PUNCH, MINISTER OF STATE FOR THE ARTS, SPORT, THE ENVIRONMENT, TOURISM AND TERRITORIES First Respondent

Malcolm Hugh McArthur ("the applicant") has applied to the Court pursuant to s.11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act") for an extension of the time within which to anitiate a proceeding in the Court for an order of review under that Act. The proposed proceeding would 'be between the applicant, as the party claiming relief, and, as the persons against whom relief is sought, the Honourable Gary Punch ("the first respondent"), who is the Minister of State for the Arts,

Sport, the Environment, Tourism and Territories, and Catherine

Parsons ("the second respondent"), who is the Registrar of Motor Vehicles appointed im pursuance of the Motor Traffic Ordinance 1936 (A.C.T.) ("the Ordinance"). The application

states that the order of review would be sought in respect of:

"(i) the decision of the then Minister for Territories, the Hon. Gordon Scholes, a

predecessor of the first respondent, that the applicant not be granted a taxi

granted a tax1 licence under preferential conditions."

Section 168 of the Ordinance provides, inter alia, that a person who, except in pursuance of a licence granted under the Ordinance, uses any motor vehicle, or causes, permits or suffers it to be used, upon a public street as a taxi is guilty of an offence. Provision is made by sub-s.27(1) for the grant of a licence to use a motor vehicle as a taxi. That sub-section provides that the Registrar, that is to say the Registrar of Motor Vehicles appointed in pursuance of the Ordinance, may grant to a person who intends to use a motor vehicle as a taxi, on payment of the sum of $80,000, a licence to use the vehicle

as a taxi. The Registrar is not to grant a taxi licence to

the holder of a private hire car licence or to a person who already holds two taxi licences (sub-s.27(2)). Sub-section

27(2B) provides that the Registrar is not to grant a taxi

licence if the number of taxi licences in force would exceed

149 or such higher number as the Minister, by instrument in

writing published in the Commonwealth of Australia Gazette,

from time to time determines. Sub-section 209(1) provides,

inter alia, that the Minister may, whenever he thinks fit,

remit any fee or portion of any fee payable under the

The history of the matter begins in or about August 1986 when a notice on behalf of the then Department of Territories was published in "The Canberra Times" newspaper.

The Registrar of Motor Vehicles is considering issuing tax1 licences to the persons listed below. These people are considered to have met the eligibility criteria, previously determined by the Minister for Territories, for the issue of taxi licences at a preferential rate of $250.

To meet the criteria determined by the Minister, a candidate must:

• have had four years experience as a taxi driver in the ACT as at 16 July 1986

. bea resident of the ACT with a current

• taxi driver's licence and not hold an interest in an ACT taxi or private hire

be a full-time driver who has averaged in excess of 34 hours per week and whose primary source of income (earned or unearned) is derived from his/her occupation as a taxi driver. Consideration may be given to drivers who experience periods of ill health

Shlomo Cohen John Fitzpatrick Malcolm McArthur Tony Jackson Brian Elliott Robert Gaillard

Note: There may be further additions to this list at a later date. Such additions will appear in a subsequent notice in this paper. Any person who considers that any of the above do not meet the criteria may inform the Registrar of Motor Vehicles, giving reasons

which would make the person ineligible according to the set criteria."

The person identified in the notice as Malcolm McArthur

On 5 September 1986 the applicant received a letter

from the Acting Registrar of Motor Vehicles reading as

"The Canberra Taxi Proprietors' Association has provided me with a list of taxi drivers claiming

full time industry involvement for the past four years. Your name appears on this list but

the Transport Workers Union records could substantiate your claim.

In consequence if you are to be issued a licence under favourable conditions as a senior taxi

time occupation has been taxi driving over the past four years.

The agreed criteria for inclusion on the list of senior drivers with over four years experience are:-

(a) the drivers are required to have had four years full-time experience as a

(b) only residents of the ACT with current taxi driver licences and who do not hold

a current ACT taxi or private hire car licence (proprietors)

(c) a full-time driver is one who has averaged in excess of 34 hours a week as a taxi driver for the last 4 years and whose primary source of income (earned

or unearned) is derived from his occupation as a taxi driver

(d) where extended period of ill health can be identified as the only reason whereby the average hours as a taxi driver

cannot be met, then the periods during which bona-fide sickness can be

(e) the onus will be on the taxi driver to prove his claim in the event of a dispute.

In establishing a claim I will require documentary evidence such as tax records, taxi owner's records or statutory declarations regarding your driving history, or Co-op driving

I wish to finalise the list of those senior drivers eligible to he issued a licence under favourable conditions as soon as possible and unless you provide your evidence by the 19th of

September 1986 your name will not be included on the list."

The applicant says that he subsequently provided documentation to the Registrar of Motor Vehicles and made representations by letter both to the Registrar and to the Minister for Territories. No details concerning that documentation or those representations are before the Court. The applicant further says that his wife received a letter dated 30 June 1987 from the Sentor Private Secretary to the

"I refer to your letter of 25 May 1987 to the Minister for Territories concerning your

husband's application for a taxi licence under the preferential conditions for senior taxi

drivers. Mr Scholes has asked me to reply on his behalf.

The Minister has requested that the guidelines, which he established for granting taxi licences on preferential terms, should be strictly

applied. On a strict application of the guidelines, your husband did not drive a_ taxi for a continuous period of 4 years and is not

preferential terms. The Minister would not want to be seen to be making an exception to the

guidelines, which have been strictly applied to deny other applicants, for persons who do not meet the guidelines because of a drink driving conviction. Accordingly, the Minister 1s not

prepared to grant Mr McArthur's application for a taxi driver's CsicJ licence under the

Even if the Minister agreed to waive the period when your husband was unlicenced, it would be unlikely for your husband to be able to satisfy the requirement that his 'primary source of income' (earned or unearned) was derived from his occupation as a taxi driver. I noce that your husband was not prepared to produce copies of taxation returns which would have shown whether he satisfied this requirement."

Subsequently, the applicant received a letter dated

3 July 1987 from the Registrar of Motor Vehicles reading as

"I refer to your application for a taxi licence under the preferential conditions the Minister

for Territories agreed to make licences available to senior drivers.

As your wife was informed by the Minister's Senior Private Secretary, the Minister has requested that the guidelines which he established for granting taxi licences on preferential terms, should be strictly applied. On a strict application of the guidelines you did not drive a taxi for a continuous period of 4 years, and you are therefore not eligible for the grant of a taxi licence on the preferential

to be making an exception to the guidelines, which have been strictly applied to deny other

applicants, for persons who do not meet. the guidelines because of a drink driving conviction. Accordingly, the Minister is not prepared to grant your application.

You are further advised that even if the Minister agreed to waive the period when you were unlicenced it would be unlikely that you could satisfy the requirement that your 'primary source of income (earned or unearned)' was

derived from your occupation as a taxi driver. He noted that you were not prepared to produce

copies of taxation returns which would have shown whether you satisfied that requirement."

It appears that, immediately upon receipt of that letter, the applicant sought advice from the Transport

Workers' Union. He was advised to approach the Ombudsman or

The applicant elected to approach the Ombudsman. He went to the Ombudsman's office and there discussed the matter. He also sent to the Ombudsman a letter dated 14 July 1987. It is sufficient to note that the letter asked the Ombudsman to look into the matter "as it appears

that I was singled out for thorough investigation".

The applicant states that from that time on he had several communications with the Ombudsman the effect of

which, according to him, was that the matter was receiving

attention. No details of these communications are in

evidence nor is there any material before the Court to

indicate with what expedition the matter was pursued by the

Ombudsman. The applicant says it was not until 16 March

1988 that he received a final reply from the Ombudsman. That reply was to the effect that, although the Ombudsman's officers had had a series of discussions with the relevant department and had entered into correspondence with the former Minister for Territories, there was no likelihood of the previous decision being reversed and the Ombudsman could

The applicant consulted a firm of solicitors on 31 March 1988. According to him, he was then made aware for the first time of the remedies available under the Judicial Review Act. After receiving advice from his solicitors and from counsel, the applicant instructed that an application

for an order of review be made to the Court. The application for an order extending the time within which to

commence that proceeding was filed on 15 April 1988.

Steps were taken to expediate the hearing of that application because of a notice which had been published in "The Canberra Times" newspaper on 9 April 1988 on behalf of the Department of the Arts, Sport, the Environment, Tourism and Territories. That notice stated that a ballot for one new licence to operate a taxi in the Australian Capital Territory was to be held on 21 April 1988, the licence to be offered to eligible persons inthe order of their names being drawn in the ballot, acceptance of the offer of a licence being by payment of $80,000. It appears that the licence being offered was that which, because of the

limitation upon the number of licences that may be in force

at any one time, had been "reserved" from issue pending determination of the question whether it should be issued to the applicant under the preferential conditions announced by the Minister. Upon notice of the present application being given to the Registrar of Motor Vehicles, however, the ballot was deferred indefinitely. The immediate urgency of

In support of the application for extension of time, counsel for the applicant submitted that an acceptable explanation had been given for the delay of some nine months which had occurred in this case in making application to the Court. He further submitted that the respondents were not prejudiced by the delay and that there was no significant public interest which would militate against granting the extension sought. The circumstances were such, so it was submitted, as to make it fair and equitable to extend the

time to permit the proposed proceeding to be instituted.

material before the Court. They indicated through their counsel that they did not oppose the application for extension of time but submitted that the application should not be granted unless the Court was positively satisfied that it was proper to do: Hunter Valley Developments Pty Ltd v. Cohen (1984) 3 F.C.R. 344 at p.348. Such an approach

on the part of the respondents can hardly be regarded as

It was clearly open to the applicant to seek the assistance of the Ombudsman in the matter and it cannot be gainsaid that he sought that assistance promptly after being notified of the Minister's decision. It must also be acknowledged that, after receiving a final reply from the Ombudsman, he took prompt steps to obtain legal assistance. However, a person who is aggrieved by an administrative decision and who elects to approach the Ombudsman rather than commence curial proceedings under the Judicial Review Act cannot assume or, indeed, expect that, if the approach to the Ombudsman turns out to be unsuccessful, whatever rights he may have under that Act will necessarily he

preserved by the grant of an appropriate extension of time.

It is, I think, fair to conclude that the intervention of the Ombudsman was sufficient to make the relevant authorities aware that the correctness of the Minister's decision was contested. That conclusion is consistent with the circumstance that it was not until after the Ombudsman had made his final reply to the applicant that steps were taken publicly to invite participation in a ballot to select the person to whom the licence would be

I accept that to allow the applicant now to bring the proposed proceeding under the Judicial Review Act would work no prejudice to the respondents. The absence of

prejudice, of course, is not enough to justify the grant of an extension but it 1s a factor to be taken into

In relation to the public interest generally, it is not entirely correct to say that the question should be considered as if the only interests involved are those of the applicant and the respondents. The further delay which will result in resolving the issue in the event that an extension of time is granted will adversely affect, to some degree, those persons who have applied to have their names

included in the ballot of which notice was given on 9 April 1988.

On the hearing of an application for the extension of the time within which to bring a proceeding under the Act, the merits of otherwise of the substantive application may properly be taken into account as a consideration relevant to the exercise by the Court of its discretion:

Lucic v. Nolan (1982) 45 A.L.R. 411 at p.417. In that

regard, some reference was made, during the hearing of the

application, to the substantive issues which the applicant

would seek to raise if the extension of time were granted.

At the threshold is the question whether the applicant has correctly identified the administrative action, or in the case of the Registrar of Motor Vehicles

the inaction, which is sought to be reviewed. The proposed

substantive application proceeds on the basis that the Minister for Territories purported to usurp the power vested by sub-s.27(1) of the Ordinance in the Registrar to grant or

refuse a licence to use a motor vehicle asa taxi. The

correct analysis of the position may well be that the administrative action of the Minister was action taken under sub-s.209(1) of the Ordinance refusing to remit, in the applicant's case, any portion of the fee prescribed by sub-s.27(1). The application also postulates that the Registrar of Motor Vehicles wrongfully failed to exercise the power vested in her by sub-s.27(1). That, however, is a power which, absent a remission by the Minister of the whole or part of the fee, is conditioned to be exercised only upon

Payment of the prescribed fee of $80,000 and it is clear

that the applicant had no intention of tendering payment of

that sum. The proposed application may, therefore, have

been drafted under a misconception of the true position.

Counsel for the applicant outlined the grounds upon which the applicant would seek to rely in support of the proposed substantive application. The principal of these is, as I understand it, that the making of the decision by the Minister for Territories was an improper exercise of the Power conferred by the Ordinance in that irrelevant considerations were taken into account and a relevant consideration was not taken into account. The relevance or otherwise of the matters relied upon is said to be found in a consideration of the criteria determined by the Minister and set out in the notice published in or about August 1986 to which reference has already been made. It is obvious that some difficulties stand in the applicant's path in establishing this ground when regard is had to the width of

the discretions conferred by the relevant provisions of the

Ordinance and the circumstance that the criteria as

published are not referred to, either expressly or by

amplication, in the Ordinance and are not otherwise given

However, having identified these as matters which will require full consideration 1f the extension of time is granted and the proposed substantive application is filed, I propose to make no further comment upon them as further evidentiary material may be available on the hearing of that

application and, in any event, the matters have not been the

Having carefully weighed the various factors to which T have adverted, I have come, though I must say with considerable hesitation, to the conclusion that I should regard the evidence given by the applicant as amounting to an acceptable explanation of the delay which has occurred and that it is fair and equitable, in all the circumstances, to grant the extension of time which the applicant seeks. I

am, however, of opinion that the necessary steps should be taken to ensure that any substantive application which may

I, therefore, order that the time within which the applicant may bring a procceding under the Judicial Review

Act for an order of review in respect of the decision made

by the Minister for Territories on or about 30 June 1987

upon his request to be granted a licence to operate a motor

vehicle as a taxi and in respect of the alleged failure of

the second respondent to make a decision upon the said request be extended up to and including 6 May 1988. I further order that the applicant pay the respondents' costs

Counsel for the applicant Solicitors for the applicant

Counsel for the respondents : Mr T. Howe Solicitor for the respondents : Australian Government Solicitor