Victorian Civil and Administrative Tribunal|2008-05-02

The application is dismissed.
That the Applicant in this proceeding be anonymised and be referred to as "NS".
Pursuant to s.146(4)(b) of the Victorian Civil and Administrative Tribunal Act 1998, the Tribunal directs that no person other than a party to the proceeding, or their legal representatives, may inspect the file.

This decision deals with an application pursuant to s.169N of the Transport Act 1983 ("the Act") by NS ("the Applicant") for an order directing the Director of Public Transport ("the Respondent") to issue a driver accreditation to the Applicant. It is the first such application since the new accreditation arrangements commenced operation.

Division 6 of Part VI of the Act deals with, among other things, the accreditation of drivers of commercial passenger vehicles. A commercial passenger vehicle means a motor vehicle used for carrying passengers for hire or reward.[1]
As I have mentioned, it is an offence to drive a commercial passenger vehicle without holding a driver accreditation.
The accreditation regime in Division 6 of Part VI commenced on 1 July 2007. In the Second Reading Speech to the Transport Legislation (Further Amendment) Bill, which led to the introduction of the new regime, the Minister for Transport referred to the amendments as providing 'a more robust process for accrediting persons' who can drive commercial passenger vehicles. The Minister went on to observe:-

"... the current scheme does not provide sufficient protection for the public - especially the most vulnerable members of our community - from the intrusion into this industry of the most unsuitable people. At present persons who are unsuitable can be rejected by the exercise of a simple discretion, where the onus lies on the regulator to justify a negative decision.

The bill will handle this in a more robust fashion. In particular, persons with the worst criminal history, such as predatorial sexual offences against children and persons in care, and crimes such as murder, rape and terrorism will be automatically refused accreditation.

This sends an important message to the community, that government will act to protect those who most need protection when using public transport."[2]

Section 169(1) provides that the Director may grant an application for accreditation if the Director is satisfied that:
- issuing the accreditation is appropriate, having regard to the 'public care objective'; and
- the Applicant:

- is technically competent and sufficiently fit and healthy to be able to provide the service; and

- is suitable in other respects to provide the service; and

the Applicant has complied with the application requirements under Division 6 of Part VI of the Act.

The 'public care objective' referred to in section 169(1)(a) is set out in section 164(1), in the following terms:
- (1) The public care objective is the objective that the services provided by drivers of commercial passenger vehicles and vehicles used for the operation of private bus services -
  - (a) be provided -
    - (i) with safety; and
    - (ii) with comfort, amenity and convenience -

to persons using the services and to other persons, particularly children and other vulnerable persons; and

(b) be carried out in a manner that is not fraudulent or dishonest.

Section 169 also provides that the Director must not issue or renew a driver accreditation in certain circumstances. In the context of this matter, it is relevant to note that one such circumstance is if the Director is aware that the Applicant 'has been found guilty of a category 1 offence' (section 169(2)(b)). A 'category 1 offence' is defined in section 86 of the Act to include 'an offence specified in clause 3 of Schedule 1 to the Sentencing Act 1991'. Clause 3 of Schedule 1 of that Act specifies certain serious violent offences including, relevantly for the purpose of this proceeding, the offence of 'make threat to kill'.
In this matter the Director has (by his delegate, Mr Kevin Walsh) refused to issue the Applicant with a driver accreditation because the Applicant has been found guilty of a category 1 offence.
The Applicant has applied to the Victorian Civil and Administrative Tribunal ("the Tribunal") for an order that the Director issue the driver accreditation. The application is made pursuant to section 169N of the Act.
An application for an order under section 169N must be made within 28 days of the refusal of the application for driver accreditation, or the cancellation of driver accreditation, whichever is applicable.[3] This application was made within the prescribed time.
Under section 169N the Tribunal must not make an order directing the Director to issue a driver accreditation unless:
- the Tribunal is satisfied of the matters set out in section 169(1)(b), (see s.169N(3)(a)); and
- the Applicant has demonstrated that the issue is appropriate having regard to the 'public care objective', (see s.169N(3)(b)).
The matters set out in section 169(1)(b) are that the Applicant:
- (i) is technically competent and sufficiently fit and healthy to be able to provide the service; and
- (ii) is suitable in other respects to provide the service.
The requirement in section 169N(3)(a) does not impose any onus of proof on the Applicant, but because the Tribunal needs to be 'satisfied' as to the specified matters this inevitably poses a challenge to the applicant to show why the Tribunal should be so satisfied.[4] Pursuant to s.169N(3)(b), it is for the Applicant to demonstrate that the issue of an accreditation is appropriate, having regard to the 'public care objective'.
In making an order in a matter involving a category 1 offence, section 169N(4) provides that the Tribunal may have regard to any matter to which a consideration in section 169C(3)(b) would apply. Section 169C(3)(b) sets out the following considerations:

"(b) if the applicant has been found guilty of a category 2 offence or category 3 offence -

(i) the nature and gravity of the offence and its relevance to the service to be provided by the applicant; and

(ii) the period of time since the applicant committed the offence; and

(iii) whether a finding of guilt or conviction was recorded; and

(iv) the sentence imposed for the offence; and

(v) the age of the applicant when the offence was committed; and

(vi) in relation to any sexual offence, the age of any victim; and

(vii) whether or not the conduct that constituted the offence has been decriminalised since the offence was committed; and

(viii) the applicant's behaviour since committing the offence; and

(ix) the likelihood of the applicant committing another such offence in the future, in particular, any future threat to a child or other vulnerable person; and

(x) any information given by the applicant; and

(xi) any other matter the Director considers relevant."

While section 169C(3)(b), in terms, only applies in circumstances where an applicant has been found guilty of a category 2 or category 3 offence, the clear intent of section 169N(4) is that the Tribunal may have regard to the matters specified in sub-paragraphs 169C(3)(b)(i) to (xi) in relation to the category 1 offence which led the Director to refuse accreditation.
An issue in these proceedings is whether, in the context of an application pursuant to section 169N, the Tribunal has power to impose a disqualification period pursuant to section 169C.
Sub-section 169C(1) provides, relevantly, that if the Director has refused an application for accreditation, the Director may 'determine that the applicant is disqualified from applying for accreditation ... for the period determined by the Director'. Sub-section 169C(2) provides that a disqualification period must not exceed 5 years.
Sub-section 169N(2) provides that on application by, relevantly, a person whose application for accreditation is refused because they have been found guilty of a category 1 offence, the Tribunal may, by order, direct the Director to:

"(a) issue a driver accreditation to the applicant; or

(b) renew the driver accreditation of the applicant; or

(c) reinstate the driver accreditation of the applicant."

As a creature of statute, the Tribunal has no inherent jurisdiction.[5] It has such jurisdiction as is conferred on it by Victorian legislation, referred to as 'enabling enactments' in the VCAT Act.[6] Under some enactments it is given a review jurisdiction and under others it has original jurisdiction.[7]
In this matter, the Transport Act 1983 is the relevant 'enabling enactment'.
Section 51 of the VCAT Act provides that, in exercising its 'review jurisdiction' in respect of a decision, the Tribunal has all the functions of the decision maker. Accordingly, if section 169N of the Act confers a review jurisdiction on the Tribunal, all of the functions of the Director may be exercised, including the imposition of a period of disqualification.
Whether section 169N confers review jurisdiction depends upon the proper construction of that provision in the context of the Act as a whole.[8]
In this regard, it is relevant to note that section 169N speaks of a person applying to the Tribunal for an order. This may be contrasted with section 169O, which provides that a person affected by a relevant decision 'may apply to VCAT for a review of that decision'. The difference in language suggests that the legislature intended a different meaning. As Irvine CJ said in Scott v Commercial Hotel Merbein Pty Ltd:-

"The authorities show that where there is a departure from a definite form of expression in the same Act in relation to a particular matter, the legislature had a different intention."[9]

Applying this approach to the construction of section 169N suggests an intention to confer original jurisdiction on the Tribunal, rather than review jurisdiction.
Such a construction is supported by the approach the Tribunal has taken to a provision in broadly similar terms in the Working with Children Act 2005. Under that Act, the Secretary must give a negative notice in respect of a person who has been convicted of certain defined offences (referred to as a category 1 application).[10] The Secretary exercises a structured discretion in respect of category 2 and 3 applications.
Section 26 of the Working with Children Act 2005 deals with the jurisdiction of the Tribunal. The nature of the Tribunal's jurisdiction depends on the category (or even sub-category) of the application. In respect of certain types of category 1 applications sub-section 26(1) provides:-

"(i) A person who is refused an assessment notice on a category 1 application (other than a person referred to in paragraph (a) or (b) of section 12(1)) may apply to VCAT for an assessment notice to be given to him or her." (Emphasis added).

The Tribunal's jurisdiction, with respect to category 2 and 3 applications, is expressed differently, in section 26(5):-

"(5) Subject to sub-section (6), an applicant who has been given a negative notice -

... (b) on a category 2 application or a category 3 application -

may apply to VCAT for review of the decision to give the notice." (Emphasis added).

In PJR v Secretary of the Department of Justice[11] Morris P. considered the nature of the jurisdiction conferred by these provisions:-

"There is also a right of review, but on broad grounds, in relation to applications that are category 2 or category 3. In hearing and determining such a review the tribunal sits in the shoes of the Secretary and has the power to re exercise the discretion open to the Secretary. In the case of a category 1 application that arises under section 12(1)(c) or (d) of the Act - and this is the position in the present case - the tribunal does not have a power to review the decision of the Secretary, but has original jurisdiction to consider an application for an assessment notice."[12]

For these reasons, I am satisfied that section 169N confers original jurisdiction on the Tribunal.
It follows that the Tribunal's jurisdiction to impose a period of disqualification must come from either the terms of section 169N itself or from elsewhere in the Act. It is clear that section 169N confers no such power.
Section 169C deals with the imposition of a period of disqualification, but provides that the power may be exercised by the Director. There is no explicit conferral of such a power on the Tribunal.
Ms Hubble submitted that such a power should be implied to avoid the mischief of an applicant, who has been convicted of a category 1 offence, making repeated applications to the Director for accreditation and, on refusal, applying to the Tribunal pursuant to s.169N.
Considerable caution needs to be exercised in implying words into a statute. It should only be done if necessary to give effect to the underlying statutory purpose or object.[13] I am not persuaded that the circumstances here warrant such an approach.
The mischief identified by counsel can be dealt with by the application of the Tribunal's general powers.
Section 75 of the VCAT Act gives the Tribunal the power to make an order summarily dismissing a proceeding that, in its opinion, is an abuse of process. The concept of 'abuse of process' is not defined in the VCAT Act, but it is a flexible concept designed to ensure that the processes of the Tribunal are used in good faith.[14] The concept may encompass repeat applications that lack merit and do not demonstrate any material change in circumstance.
In the event that the Tribunal makes an order summarily dismissing or striking out an application as an abuse of process it may also order the Applicant to pay any other party an amount to compensate that party for 'any costs, expenses, loss, inconvenience and embarrassment' resulting from the proceeding.[15]
For completeness, I should deal with an argument advanced on behalf of the Applicant that, on its proper construction, section 169C only relates to offences which were committed five years prior to the exercise of the Director's discretion. On this basis it is said that as the relevant category 1 offence took place in March 2002, it can no longer be taken into account. This argument relies on the phrase 'must not exceed 5 years' in section 169C(2).
There is no substance to this point. The five year period specified in section 169C(2) relates to the maximum period of disqualification which may be determined by the Director under section 169C(1). Sub-section 169C(2) does not operate as a bar preventing the Director from considering offences which are more than five years old.
I now turn to the factual background to the present application.

This matter has some history and a brief chronology is set out below.
On 10 March 2002 the Applicant made application for a Driver Certificate (as it was then known). By letter dated 2 April 2002 Mr Robert Stoneham, then Manager of Licensing and Certification, refused the application because of the Applicant's history of driving offences, including dangerous driving and driving whilst his licence authorisation was suspended.
On 25 October 2002, at the Sunshine Magistrates' Court, the Applicant was found guilty of one count of make threat to kill. On 12 January 2004, at the Sunshine Magistrates' Court, the Applicant was found guilty of driving whilst license authorisation disqualified and was sentenced to one month's imprisonment, which was wholly suspended for nine months.
On 15 April 2005 the Applicant made another application. By letter dated 23 May 2005 Mr Stuart Shearer, then Director of Victorian Taxi Directorate, refused that application.
On 11 May 2006 the Applicant made application for reconsideration of the refusal. This application was also refused.
On 11 January 2007 the Applicant's legal representatives made application, with supporting mitigating material, for reconsideration of the refusal to issue him with a Driver Certificate. By letter dated 15 January 2007 Mr Brian Hamill, then Manager of Licensing and Certification, refused the application. The Applicant was also deemed ineligible to apply until 25 October 2009. Upon request from the Applicant, on 24 January 2007 Mr Hamill provided written reasons for the decision referring to the Applicant's criminal offences and driving offences. An application for reconsideration was made by Mr Andrew Skelton, on the Applicant's behalf, on 21 June 2007. This application was refused by Mr Greg Williamson, Manager of Licensing and Certification, by letter dated 16 August 2007. On 13 November 2007 Mr Peter Corcoran, Acting Director, reviewed the Applicant's file and confirmed the refusal of his application for the reasons provided.
On 13 December 2007 the Applicant made application for a driver accreditation under the new legislative regime. By letter dated 23 January 2008 Mr Walsh refused the application. That refusal has led to the current proceedings.

In support of the application Mr Baird relied on a written submission;[16] correspondence from the Applicant's solicitors to the Victorian Taxi Directorate, dated 11 January 2007;[17] correspondence from Mr Andrew Skelton, CEO Yellow Cabs, to the then Director of the Victorian Taxi Directorate, dated 21 June 2007;[18] and a letter from the Applicant to Mr Kevin Walsh.[19] The annexures to these items of correspondence are also relied upon.
In addition to this material Mr Baird pointed to the fact that the Applicant had four children under 8 years of age, one of whom has had significant health problems. Accreditation would allow the Applicant to increase his income. The Applicant already works in the taxi industry, in that his father is the owner of 10 maxi cabs (i.e. taxis which have a wheelchair facility) and currently the Applicant is effectively running the business, as his father is absent overseas. Accreditation would allow the Applicant to collect and deliver taxis to drivers and to fill in on shifts as required.
In relation to the Applicant's conviction for a category 1 offence the following points were advanced:-
- the offence took place on 20 March 2002, when he was also charged, relating to the same incident, with driving in a dangerous manner;
- while he was convicted of the offence of 'make threat to kill' a fine of only $250 was imposed, suggesting that the Court viewed it as a minor offence;
- he was also convicted of driving in a dangerous manner in connection with the same incident and was placed on a Community Based Order to perform 100 hours of unpaid community work over a six month period and his licence was cancelled for twelve months;
- he has shown remorse (reference was made to Exhibit A4 in this context); and
- he has been sufficiently punished in respect of the incident on 20 March 2002.
As mentioned earlier, there are a number of annexures to the correspondence relied on by the Applicant, in particular:-
- References from Mr Graham Bell, Fleet Operations - Yellow Cabs; Sheik Fouad Nachar, a Muslim celebrant; and Mr Walid Al-Kantar, Secretary of the Newport Islamic Society.
- An Independent Drive Assessment with Excel Drive, dated 30 March 2007, in which he was assessed as competent in all 44 categories and as demonstrating 'safe decision making, obedience to all road rules and satisfactory driving skills at a level expected of a professional taxi and hire car driver'.
- Attendance at a one day intelligent driving course run by DECA training; DECA training also undertook an 'Observed Drive' in which the Applicant was assessed as either very good or satisfactory in all 36 categories. The assessor noted: 'Proved to be a very safe and competent driver. Showed a good attitude to training'.
- A report by a consulting psychologist, Mr Michael O'Neill.[20] Mr O'Neill assessed the Applicant on 27 February 2007 and in his subsequent report of 5 March 2007 he describes the Applicant as 'a polite and co-operative individual with a pleasant and easygoing manner'. In relation to the incident on 20 March 2002 and the Applicant's application for what was then called a Driver's Certificate, Mr O'Neill says:

"NS described an incident in which there was an altercation with a plain clothed police officer some years ago. I understand he was eventually charged, although there was apparently no direct contact with the officer. While NS may have acted inappropriately, I saw no evidence that would indicate a significant disorder of his impulse control. I also note he has had no driving offences for some years ...

NS has applied for a taxi licence and I note he has fulfilled driving requirements as requested. From a psychological point of view, I see no reason why he cannot drive a taxi. He suffers from no psychological impairment and has good reasons as to why he should drive a taxi. I note that he intends to drive maxis only and I also note his commitment to driving children with disabilities, no doubt related to the problems faced by his blind son.

NS has committed to attending for twelve months on a monthly basis at this clinic for continued counselling related to anger management, insight orientated therapy and general review. I support his application for a taxi licence."

The Applicant subsequently attended clinic once a month for six months for continued counselling.

None of the authors of these documents was called to give evidence in the proceedings.
Further, the correspondence from the consulting psychologist does not contain any particulars about the incident on 20 March 2002 and there is no way of knowing whether Mr O'Neill was appraised of all of the circumstances or of the fact that the Applicant was convicted of dangerous driving and making a threat to kill. It is also relevant to note that the Applicant only attended the clinic for six months, not for the twelve months to which he had apparently committed. Nor is there any evidence relating to the anger management counselling received by the Applicant and his response to such counselling.
Mr O'Neill's report was challenged by the Respondent and, as he was not called, his opinions were not able to be tested. In these circumstances I place very little weight on this aspect of the Applicant's case.
The Respondent submits that the conviction for make threat to kill is a sufficient ground to refuse the application for accreditation. It is said to be evidence that the Applicant does not meet the criterion for driver accreditation under section 169 of the Act and, in particular, accreditation would not be appropriate having regard to the public care objective (s.169(1)(a)) and the other matters set out in section 169(1)(b)(ii).
It was also submitted that the Applicant's driving record was 'appalling and is evidence that he cannot drive a taxi safely'.
In support of its submissions, the Respondent called Mr Kevin Walsh and Sergeant Valerio Ciacia of Victoria Police. Sergeant Ciacia was the informant in relation to the charges arising from the incident on 20 March 2002.
The following matters emerged from Sergeant Ciacia's evidence:-
- the offence occurred on 20 March 2002 when the Applicant was driving on an on-ramp leading to the Westgate Bridge, and involved a police officer who was driving his personal vehicle.
- the threat which constituted the offence was a hand gesture, specifically the Applicant put his hand out the window of his vehicle, formed his hand into the shape of a pistol and 'fired' two shots;
- the hand gesture was not accompanied by a verbal threat and there was no suggestion that the Applicant was armed with a weapon of any kind;
- no collision occurred between the two vehicles;
- the Applicant was convicted of dangerous driving and was disqualified from driving for 12 months and ordered to undertake 100 hours of unpaid community service;
- a fine of $250 was imposed in relation to the Applicant's conviction for the offence of 'Make Threat to Kill'.
I propose to deal with the category 1 offence before turning to the Applicant's driving record.
As noted earlier, in deciding whether to make an order pursuant to section 169N(2) the Tribunal may have regard to any matter to which a consideration in section 169C(3)(b) would apply. These matters are set out earlier in paragraph 18 and, to the extent that they are relevant to this matter, are dealt with below:-
- the nature and gravity of the offence and its relevance to the service to be provided (para 169C(3)(b)(i)): the threat which constituted the offence was a hand gesture, it was not accompanied by any verbal threat and there was no suggestion that the Applicant was armed with a weapon of any kind. But it is significant to note that the offence occurred while the Applicant was driving and that the threat was directed at another driver.
- period of time since the Applicant committed the offence (para 169C(3)(b)(ii)): the offence was committed some six years ago, which is a significant period of time.
- whether a finding of guilt or conviction was recorded (para 169C(3)(b)(iii)): a conviction was recorded.
- the sentence imposed for the offence (para 169C(3)(b)(iv)): a fine of $250 was imposed. The minimal fine suggests that the offence was at the very low end of conduct which may constitute the offence.
- the age of the Applicant when the offence was committed (para 169C(3)(b)(v)): the Applicant was 26 or 27 years of age at the time of the offence.
- whether or not the conduct that constituted the offence has been decriminalised since the offence was committed (para 169C(3)(b)(vii)): no, it has not.
- the Applicant's behaviour since committing the offence (para 169C(3)(b)(viii)): the Applicant has committed some traffic offences since. The references submitted in the proceedings attest to his general good character.
- the likelihood of the Applicant committing another such offence in the future, in particular, any future threat to a child or other vulnerable person (para 169C(3)(b)(ix)): the Applicant has expressed remorse in relation to the incident and the references submitted attest to his general good character. I think he is unlikely to commit another such offence in the future.
Having regard to the matters set out above, I find that the Applicant's conviction for 'make threat to kill' does not, considered in isolation, provide an impediment to an order directing the Director to issue a driver accreditation to the Applicant.
I now turn to the Applicant's driving record.
Attachment KW1 to the witness statement of Mr Kevin Walsh is a certificate issued by the Roads Corporation which gives particulars of the traffic offences committed by the Applicant. The certificate was issued pursuant to section 84 of the Road Safety Act 1986 and, in the absence of evidence to the contrary, is proof of the matters stated in the certificate. The section 84 certificate shows that the Applicant has held a driver's licence since 1992 and has been convicted of the following offences:-

CAR LICENCE OR PERMIT CANCELLED AND DISQUALIFIED FOR 12 MONTHS FROM 25/10/2002.

BIKE LICENCE OR PERMIT CANCELLED AND DISQUALIFIED FOR 12 MONTHS FROM 25/10/2002.

PLACED ON COMMUNITY BASED ORDER FOR 6 MONTHS. TO PERFORM 100 HOURS OF UNPAID COMMUNITY WORK OVER 6 MONTHS.**

**EXCEEDING THE SPEED LIMIT BY 40KM/H OR MORE, BUT LESS THAN 45KM/H.

CAR LICENCE OR PERMIT SUSPENDED FOR 4 MONTHS FROM 02/07/2001.**

**EXCEEDING THE 110KM/H SPEED LIMIT BY 20KM/H OR MORE, BUT LESS THAN 30KM/H.

CAR LICENCE OR PERMIT SUSPENDED FOR 1 MONTH FROM 02/07/2001.**

**EXCEEDING THE SPEED LIMIT BY 30KM/H OR MORE, BUT LESS THAN 40KM/H.

CAR LICENCE OR PERMIT SUSPENDED FOR 1 MONTH FROM 21/10/1999.**

CAR LICENCE SUSPENDED FOR 2 MONTHS FROM 31/07/1995.

FAILING TO CARRY PROBATIONARY LICENCE WHILST DRIVING OR IN CHARGE OF A MOTOR VEHICLE.

CAR LICENCE SUSPENDED FOR 2 MONTHS FROM 31/07/1995.

CAR LICENCE CANCELLED AND DISQUALIFIED FOR 6 MONTHS FROM 28/03/1994.

DISQUALIFIED FROM OBTAINING A CYCLE LICENCE FOR 6 MONTHS FROM 28/03/1994.

CAR LICENCE CANCELLED AND DISQUALIFIED FOR 6 MONTHS FROM 28/03/1994.

DISQUALIFIED FROM OBTAINING A CYCLE LICENCE FOR 6 MONTHS FROM 28/03/1994.**

**EXCEEDING THE SPEED LIMIT BY 40KM/H OR MORE, BUT LESS THAN 45KM/H.

CAR LICENCE OR PERMIT SUSPENDED FOR 4 MONTHS FROM 05/04/1994.**

DISQUALIFIED FROM OBTAINING A CAR LICENCE OR PERMIT FOR 12 MONTHS FROM 20/05/1992.

DISQUALIFIED FROM OBTAINING A BIKE LICENCE OR PERMIT FOR 12 MONTHS FROM 20/05/1992.

ON BOTH CHARGES, PLACED ON COMMUNITY BASED ORDER FOR 6 MONTHS. TO PERFORM 75 HOURS UNPAID COMMUNITY WORK.

A complete demerit point extract is also attached to Mr Walsh's statement.
In summary, since 1992 the Applicant's driver's licence has either been cancelled or suspended for a total of 31 months and included amongst the offences are:
- Two counts of dangerous driving in 2002 and 1992;
- Driving whilst car licence is suspended in 1996;
- Unlicensed driving in 1991 and 1992; and
- 21 speeding offences.
Since obtaining his driver's licence in 1992 the Applicant has committed traffic offences in every year except 2003 and 2005. His most recent offences were committed on 29 May 2007, for failing to stop at a stop sign or line, and exceeding the speed limit by 10km/hour or more, but less than 15km/hour.
I agree with the Respondent's characterisation of the Applicant's driving record - it is appalling. I have had regard to the driver education and assessment undertaken by the Applicant and I do not doubt his technical competence or his knowledge of the road rules. But it is clear that, in practice, he frequently infringes those rules.
On the basis of the Applicant's driving record I am not satisfied that the Applicant has demonstrated that the issue of a driver accreditation is appropriate having regard to the public care objective. In this context, it is relevant to note that, if accredited, the Applicant intends to drive Maxi Cabs and the public care objective is particularly directed at the protection of vulnerable persons, which includes elderly and disabled persons.
For completeness, I note that the authority relied on by the Applicant, AB v Victorian Taxi Directorate [2007] VCAT 1243 (6 July 2007) is clearly distinguishable from the circumstances in this matter. AB was decided under a different legislative regime and the Applicant's driving record was not an issue in that case.
As the Applicant has failed to demonstrate that the issue of a driver accreditation is appropriate the application must fail.
As noted earlier, in addition to the dismissal of the application, the Respondent seeks the imposition of a period within which the Applicant is disqualified from making a further application. For reasons I have already given, I am not persuaded that I have power to make the disqualification order sought and accordingly I make no such order. However, I note that if I did have the requisite power, I would have imposed a disqualification period of 12 months. Given the Applicant's driving record, he needs to demonstrate that he can drive without significant infringement for a reasonable period.
I dismiss the application.

[2] Victorian Parliamentary Hansard 1 June 2006 at p.1568

[4] See New Theme Pty Ltd v Victorian Casino and Gaming Authority [2002] VSCA 80 (3 June 2002) at [63] per Eames JA

[5] Herald and Weekly Times Pty Ltd v VCAT & Ors [2006] VSCA 7 (9 February 2006), at [27] per Maxwell P.

[7] See generally Casey v Galimberti & Ors [2006] VSCA 232 (1 November 2006) at [5]-[6] per Maxwell P.

[8] See Stewart v Shuey [1999] VSC 114

[13] See Thompson v Goold & Co [1910] AC 409 at 420 per Lord Mersey; Marshall v Watson [1972] HCA 27; (1972) 124 CLR 640 at 649 per Stephen J

[14] Urban Tide PL v Monash CC [2004] VCAT 540 (19 March 2004) at [13] per Morris P

[20] A copy of Mr O'Neill's report is attached to a letter from Mr Andrew Skelton, the Chief Operating Officer of Yellow Cabs, to the Director of the Victorian Taxi Directorate in support of the Applicant's application for what was then called a Driver's Certificate.

NS v Director of Public Transport (Occupational and Business Regulation) [2008] VCAT 856 (2 May 2008)

NS v Director of Public Transport

At a glance

Court

Decision date

Source

Judgment (70 paragraphs)

Parties

Cases Cited (2)

NS v Director of Public Transport (Occupational and Business Regulation) [2008] VCAT 856 (2 May 2008)