Plaintiff v Defendant

2 The Victorian Qualifications Act 2000 was replaced by the regime constituted by the Education and Training Reform Act 2006 (Vic) which came into force on 1 July 2007. It is unnecessary to consider the provisions of that legislation, as all relevant events occurred before 1 July 2007.

3 The managing director of Austwide is Syed Zainulabidin. Mr Zainulabidin utilised the name "Zain Shah" in the course of the dealings and communications which are relevant to this proceeding. For convenience, I will refer to him as Mr Shah.

4 The defendant Jeffrey Dalman is the Deputy Director - Operations of the "Victorian Taxi Directorate" ("VTD"). The VTD is an administrative unit of the Department of Infrastructure of the Victorian Government. Its responsibilities include the regulation of the taxi industry. Under the provisions of the Transport Act 1983 (Vic), the Director of Public Transport is the "licensing authority" for purposes that include the licensing of taxi drivers. In this regard, the Director of Public Transport ("the Director") has delegated his powers to, amongst others, Mr Dalman. Mr Dalman is sued in respect of a decision made by him as delegate of the Director. For convenience, I will refer to the defendant as "the VTD" unless it is necessary to refer to Mr Dalman personally.

5 In summary, the dispute in the proceeding concerns the power of Mr Dalman, as delegate of the Director, to decide that a person who has completed the taxi drivers course with Austwide, and who has been assessed by it as meeting the standards required to drive a taxi, does not thereby hold the necessary qualification to successfully apply for a taxi driver's certificate. The issue is one of statutory construction. I turn to consider the applicable legislative regime.

6 The licensing of taxi drivers is regulated by the Transport Act 1983 (Vic) ("the Act") and the regulations made thereunder for the purpose of regulating the conduct of the taxi industry in Victoria.

7 At all material times before 1 July 2007, a person who wished to drive a taxi in Victoria was required to apply for a "driver's certificate".[1] Upon receiving such an application, the "licensing authority" (the Director or a delegate) was required to either grant the application (subject to any conditions considered appropriate) or to refuse it.[2] Driving a taxi without being the holder of a driver's certificate was a criminal offence.[3]

8 Section 162(1)(g) of the Act provided that the Governor-in-Council may make regulations for or with respect to prohibiting the driving of a taxi by a person not being the holder of a driver's certificate and prescribing, amongst other things:

(iii) the qualifications to be required of and the tests to be passed by, applicants for such certificates.

9 Regulation 6(1)(d) of the Transport (Taxi-Cabs) Regulations 2005 (Vic) ("the Regulations") provided as follows:

(1) The licensing authority may require an applicant for a driver's certificate to -

(d) pass any test and hold any qualification specified by the licensing authority that relates to his or her competence to drive a taxi-cab;

10 On 1 July 2007, the provisions concerning driver's certificates were repealed, and an entirely new regime was introduced. Now, a person cannot lawfully drive a taxi-cab in Victoria unless they are "accredited". Further, s 167(1) of the Act now provides as follows:

(1) The Director may require an applicant for a driver accreditation to pass any test and hold any qualification specified by the Director for the specified class of vehicle to which the accreditation applies that relates to and includes the following -

(e) the applicant's knowledge and skills relating to customer service in the field of commercial passenger transport and private bus services.

11 It is unnecessary to consider the provisions of s 167, as all relevant events occurred before its operation.

12 In Fahkri v Ellis[4] Nathan J described the purposes of the Act and the Regulations in relation to the taxi industry in the following manner:

The Transport Act and the Regulations made thereunder were enacted for the purposes, inter alia, of ensuring the orderly conduct of the taxi industry and the safety of the public. There is a public interest in taxi-cabs being driven by persons who are efficient, effective and safe.[5]

13 This statement by Nathan J is consistent with the objects provisions contained in the Act[6] and the Regulations.[7] It was common ground that the relevant statutory provisions should be construed to give effect to these purposes.

14 The issue in the proceeding is the proper interpretation of reg 6(1)(d). In order to understand how the issue arises, it is necessary to refer to the facts.

15 In June 2006, Mr Shah contacted Mr Brian Hamill of the VTD and said that he was interested in delivering a taxi drivers course. Mr Shah asked what he had to do. Mr Hamill then sent Mr Shah an email in the following terms:

Before the Victorian Taxi Directorate (VTD) will accept course graduates from an RTO, the RTO must satisfy the VTD that it has the course included in its scope of registration and has the necessary taxi industry expertise and related equipment required to conduct the Course in Taxi Driving.

16 Mr Hamill also attached a document headed "Information for Taxi Driver Training Providers" ("the Information Document"), which relevantly states as follows:

The Victorian Taxi Directorate (VTD) will only issue a Driver's Certificate to drive a commercial passenger vehicle if the person applying for the Certificate meets certain criteria including holding qualifications or passing tests as specified by the Directorate.

For the purposes of metropolitan taxi-cab or hire car driver's certificate applicant qualifications, the VTD requires satisfactory evidence that the applicant has undertaken the 21387VIC Course in Taxi Driving and has been assessed as having attained the competencies required under that Course.

Delivery of 21387VIC Course in Taxi Driving must be by a Registered Training Organisation (RTO) that has the course included in its scope of registration.

Before the VTD will accept course graduates from an RTO, the RTO must satisfy the VTD that it has the course included in its scope of registration and has the necessary taxi industry expertise and related equipment required to conduct the Course in Taxi Driving by providing the following to the VTD:

• Demonstrate possession of the necessary taxi industry related equipment needed to conduct the course, which includes (as a minimum):

− electronic transaction (eftpos) terminal/s (interfaced with meter/s);

− taxi mobile data terminal/s (depot job dispatch terminal/s); and

− vehicle/s (fitted out with above equipment) to be used for taxi driver training.[8]

17 The "necessary taxi industry ... related equipment needed to conduct the course" which is referred to by Mr Hamill is essential to the efficient operation of a modern taxi service. Some of the equipment also fulfils an important safety function.

18 A mobile data terminal ("MDT") links a taxi to a central communications facility. The primary function of an MDT is to allocate work amongst taxi drivers. In addition, MDTs allow taxi drivers to remain in constant contact with the central communications facility in the event of an emergency. Where the taxi driver may be in danger, this facility may be vital in avoiding harm to the driver.

19 The taxi meter is linked to the mobile data terminal and to an EFTPOS terminal located in a taxi. If a driver is unable to use the taxi meter and EFTPOS machine correctly, they are unable to carry out the financial transactions which are an essential part of operating a taxi. Taxi drivers need to be able to competently process transactions with the use of this technology. This includes knowing how to log onto the system at the start of a shift and log off the system at the end of a shift.

20 In about July or August 2006, the plaintiff submitted an application for its course graduates to be accepted by the VTD. This was rejected. This led the plaintiff to submit a fresh application on 9 February 2007.

21 Two important documents were included in the fresh application. The first was a letter dated 12 December 2006 on Yellow Cabs letterhead. That letter relevantly stated:

13CABS and Austwide Institute of Training now have an agreement whereby Austwide Institute will incorporate 13CABS PIN training into their DC Course in exchange for the use of 13CABS dispatch equipment. This agreement allows all Austwide Training Institute students to have access to a live set of in-cab dispatch equipment.[9]

22 The second important document was a letter dated 29 January 2007 on Austwide letterhead. That letter stated:

I Zain-Syed (CEO) [sic] of the AIOT certified [sic] that I have spoken to Cab charge office in NSW. Ph: 02-9332-9217 with Mr Lorry Stuckey about the Training equipments [sic] e.g. Taxi meter, Eftpos machine etc will be provided to AIOT after the approval from VTD. If you have any query regarding this please don't hesitate to contact me.

23 On 26 April 2007, Mr Hamill wrote to Mr Shah and notified him that the VTD approved Austwide to deliver the taxi drivers course; in other words, that the VTD would accept that graduates from the taxi drivers course conducted by Austwide held a specified qualification under regulation 6(1)(d). The VTD's approval was subject to Austwide demonstrating suitable accommodation in which to conduct the taxi drivers course and a "Statement of Compliance" being provided. Mr Hamill advised that the Statement of Compliance should certify that Mr Shah had read and understood the Information Document and that Austwide would comply with the administrative requirements for the delivery of the course.

24 On 1 May 2007, Mr Hamill received a letter from Mr Shah confirming that Austwide would comply with the conditions set out in the Information Document and all administrative requirements for the delivery of the course. On the same day, Mr Hamill inspected Austwide's training premises. There were no students there. Mr Hamill did not recall seeing any equipment in the classroom. He assumed, however, on the basis of the training materials provided, and the letters from Yellow Cabs and Austwide, that this would be present and operational once Austwide commenced providing the taxi drivers course.

25 Mr Hamill then wrote to Mr Shah by letter dated 2 May 2007, in the following terms:

I am pleased to advise that your application is approved and the VTD will recognise drivers trained and assessed by your organisation as meeting the standards required for the issue of a driver's certificate endorsed to drive metropolitan taxis and hire cars.

26 Once the VTD recognised Austwide, the VTD added the name and contact details of Austwide to its list of RTOs which were recognised by it to deliver the taxi drivers course to prospective applicants for a driver's certificate. This list was contained in documentation handed out to prospective applicants and was placed on the VTD's website on the internet.

27 On 6 June 2007, Karen Downie of Yellow Cabs telephoned Mr Hamill. She told him that the agreement between Austwide and Yellow Cabs had not gone ahead. She also said that it was her understanding that Austwide did not have taxi meter or EFTPOS machines in its classroom because Cabcharge had refused to supply them due to concerns about the agreement with Yellow Cabs "falling over".

28 On either 6 or 7 June 2007, Mr Hamill met with Mr Dalman and Greg Williamson of the VTD. Mr Dalman told Mr Hamill and Mr Williamson to visit Austwide's training premises, to determine whether or not there was operational equipment in the classroom.

29 At about 11.00 am on 7 June 2007, Mr Hamill and Mr Williamson visited Austwide's training premises in Footscray. They did not give Mr Shah notice that they were coming. When they arrived, Mr Shah invited them into his office. Mr Hamill told Mr Shah that he had received information that the Austwide students did not have access to MDTs, taximeters or EFTPOS equipment for use in the classroom. Mr Shah acknowledged that the agreement with Yellow Cabs had broken down, and did not deny that the agreement with Cabcharge had also broken down. Mr Shah explained that, as part of the Yellow Cabs agreement, he was required to let Yellow Cabs' trainers conduct driving assessments of his students. He said that Yellow Cabs had wanted too much money for this, so the agreement had not gone ahead.

30 Mr Shah said that students were being trained in the use of the computer dispatch system in a single taxi. Mr Hamill said that he thought this method was inappropriate. He also expressed his disappointment that Mr Shah had not contacted the VTD to let it know that the agreements with Yellow Cabs and Cabcharge were no longer in place, when he knew that the existence of those agreements was an integral part of Austwide's application. Mr Shah did not say anything in response to this. Nor did he say that he had, or was proposing to have, any other arrangement in place.

31 Mr Shah invited Mr Hamill and Mr Williamson to have a look at the training room where training was currently being conducted. Mr Hamill went inside the room and formed the view that it "looked very over-crowded".

32 Mr Hamill and Mr Williamson then returned to the VTD office. They explained to Mr Dalman what had happened.

33 On 8 June 2007, Mr Dalman sent a letter to Mr Shah recording the decision which is challenged in this proceeding ("the decision"). That letter was in these terms:

I refer to a visit by officers of the Victorian Taxi Directorate (VTD) on 7 June 2007 to your training venue in Footscray to investigate concerns that you did not have the necessary equipment available to ensure that participants could be adequately trained in the Course in Taxi Driving - 21387VIC. Equipment includes a taxi meter/s, electronic transaction (eftpos) terminal/s interfaced with meter/s and taxi data terminal/s.

The visit confirmed that you do not currently have the above taxi equipment for use in your class room and you confirmed that proposed agreements with 13 Cabs and Cab Charge [sic] to supply the above equipment have not eventuated and you are currently in dispute with these companies concerning the agreement to supply the equipment.

Also of concern was the overcrowding of students in your training room, which had an inadequate number of desk/tables and space for the 17 students in the room.

The VTD approved your organisation to deliver the Course in Taxi Driving conditional that all equipment be supplied. Your submission included an agreement between Austwide and 13 Cabs for the provision of a taxi data terminal/s and a signed statement from yourself stating that Cab Charge will provide a taxi meter/s and electronic transaction (eftpos) terminal/s following VTD approval to deliver the course.

By your organisation not having the necessary taxi related equipment for training purposes and an inadequate number of desk/tables and space for the number of students you are training at any one time, the VTD is not satisfied that graduates from your course will achieve the required competency standard in the use of this equipment.

Consequently, the VTD will not accept course graduates from your organisation from the time and date you receive this letter until you can demonstrate that you have the necessary equipment operational in your class room and give an undertaking that students shall be provided with adequate space to effectively carry out their training.[10]

34 Following the decision, Austwide has not satisfied the VTD that it has the necessary equipment operational in its classroom. In these circumstances, the VTD confirmed and implemented the decision.

35 The VTD confirmed the decision by writing to Austwide's solicitors and stating that the decision was made under reg 6(1)(d). That letter is in the following terms:

Under regulation 6(1)(d) of the [Regulations], the VTD is entitled to specify which qualifications an applicant must hold. Currently, due to the circumstances set out in Mr Dalman's letter, qualifications resulting from your client's course are not so specified.

36 The VTD implemented the decision by removing Austwide's name from its documentation provided to prospective applicants for authorisation under the Act to drive a taxi, and also from its website list of specified registered training organisations whose qualifications would be recognised by the VTD. Thereafter, until Austwide obtained an interlocutory injunction until trial, requiring the VTD to recognise the qualifications of applicants for a taxi driver's certificate or accreditation who had completed the taxi drivers course with Austwide, the VTD adopted the practice of requiring such applicants to undergo a further training course (in relation to the operation of the relevant equipment) with another registered training organisation. The VTD made arrangements for that course to be delivered for the modest cost of approximately $100.

Was the decision authorised by the Regulations?

37 It was submitted on behalf of Austwide that the decision, and all acts taken to implement it, were made without power. Three grounds were relied upon.

38 First, it was submitted on behalf of Austwide that the power contained in regulation 6(1)(d) to require an applicant for a driver's certificate to pass any test or hold any qualification was limited to tests and qualifications which relate to the physical act of competently driving a taxi, and does not include any power to specify any test or qualification which relates to other matters which are incidental to the driving of a taxi and the provision of taxi services. It was submitted that this narrow interpretation of the regulation was supported by the Information Document provided by the VTD to Mr Shah in June 2006. It was submitted that this Information Document appeared to be in a standard form prepared by the VTD. Reliance was placed upon the fact that the Information Document does not contain any specification that the equipment specified must be located in a classroom and gives no directions concerning the need for adequate classroom facilities. It was submitted that the contents of the Information Document should be taken into account in the interpretation of regulation 6(1)(d).

39 I reject these submissions. It is not permissible to have reference to the Information Document for the purpose of construing the Regulations. Regulation 6(1)(d) should not be construed in the narrow sense contended for by Austwide. Such an interpretation would defeat the underlying purpose or object of the Regulations. Regulation 1 states that the objectives of the Regulations:

are to prescribe measures intended to enhance passenger and driver safety and the reliability and quality of taxi-cab services, including requirements for or in relation to -

(a) driver certification; conduct and presentation;

(b) taxi-cab construction, equipment, appearance and operation;

(c) hirings, the charging and payment of fares and charges and the operation of taximeters ...

40 In my view, the discretion contained in regulation 6(1)(d) is not confined to the physical act of driving a taxi, but should be construed to embrace all aspects of the competence of an applicant for a taxi driver's certificate to provide taxi services to members of the public. This includes competently operating the relevant technology associated with the provisions of those services.

41 Second, it was submitted on behalf of Austwide that the Director has no discretion under regulation 6(1)(d) if an applicant for a taxi driver's certificate has successfully undertaken the taxi drivers course with an RTO such as Austwide. It was submitted that this follows from the language "hold any qualification specified".[11] It was submitted that this language should be understood as referring to the obtaining of a qualification issued by an RTO, and does not focus upon the subjective view of the Director as to whether an applicant for a driver's certificate has the necessary competence to drive a taxi cab.

42 It was submitted on behalf of the VTD that the decision involved a specification of a "qualification" to be held by an applicant for a taxi driver's certificate. Two grounds were relied upon. In the first place, it was submitted on behalf of the VTD that the word "qualification" in regulation 6(1)(d) is not confined to the mere successful completion of a taxi drivers course at an RTO. It was submitted that, consistent with the purpose of the Regulations, the word "qualification" should be given a broad meaning encompassing an applicant's competence to drive and operate a taxi-cab. Reliance was placed upon particular dictionary definitions of "qualification" which include: "a required circumstance or condition for acquiring or exercising a right, holding an office or the like"[12] or "a quality, accomplishment, etc., which qualifies or fits a person for some office or function."[13] I do not accept this aspect of the submissions made on behalf of the VTD. In my view, the plain meaning of the phrase "hold any qualification" relates to the fact that the applicant has obtained a specified kind of qualification, such as from an RTO. This interpretation is consistent with an alternative dictionary definition of "qualification" as "a document attesting that a person is qualified."[14]

43 An alternative argument was put on behalf of the VTD. It was submitted that, even if the expression "hold any qualification" means the holding of a qualification of the kind specified, in this case the qualification resulting from the successful completion of a taxi drivers course conducted by an RTO, regulation 6(1)(d) confers a discretion upon the licensing authority to specify that "graduates" from a particular RTO do not hold the relevant qualification.

44 I accept this alternative submission made on behalf of the VTD. The discretion of the Director under regulation 6(1)(d) is to be exercised by him or his delegate having regard to his statutory functions in relation to the regulation of the taxi industry. The discretion must be exercised having regard to the statutory purposes, to which I have referred, of ensuring that taxi services are delivered to the public in a reliable, efficient and safe manner. Those purposes may be undermined if the Director has no choice but to accept that a graduate from any RTO has the necessary competence to drive a taxi even if he believes that graduates from a particular organisation do not have that competence in a material respect. In this case, Mr Dalman, as delegate of the Director, has decided that graduates from the taxi drivers course conducted by Austwide do not, until certain steps are taken by Austwide, have the necessary competence to provide taxi services to members of the public. On this basis, he has specified that graduates from the taxi drivers course conducted by Austwide do not hold a qualification specified by him. This decision was within his power.

45 In the originating motion and affidavits in support sworn on behalf of Austwide, it was contended that the decision should be set aside because it was made in breach of the rules of natural justice. However, no written or oral submissions were directed towards this issue and it must be taken to have been abandoned.

46 The proceeding will be dismissed. The interlocutory relief which was granted to the plaintiff will be discharged. I will hear the parties as to the precise form of judgment and as to costs.

[1] s 156(1) of the Act; reg 4(1) of the Transport (Taxi-Cabs) Regulations 2005 (Vic).

[4] (1996) 25 MVR 166.