Volziker v Secretary to Department of Transport [2012] VCAT 402 | Case summary

Respondent's determination by way of interim suspension is stayed pending the hearing and determination of this review proceeding or further order.
The application is listed for hearing on 28 March 2012 at 55 King Street, Melbourne commencing at 10:00 am with an estimated hearing time of half a day.
Costs reserved

To drive taxis in Victoria one requires an accreditation under the terms of the Transport (Compliance and Miscellaneous) Act 1983. The provisions of this statute as to taxi drivers and others engaged in the taxi industry are very complex indeed. I have on previous occasions described the relevant provisions as constituting a 'legislative thicket'. Mercifully for the purposes of the application today, it is not necessary to beat our way through every element of that thicket and it will be sufficient to refer to a number of salient provisions.
There is operative in Victoria a scheme whereby subsidies are provided for taxi trips by the elderly and the disabled. That scheme is colloquially known as the 'MPTP Scheme'. The Secretary to the Department of Transport alleges that the applicant, Mr Volziker has abused that scheme by obtaining subsidies under the scheme where the passengers in question were not entitled to attract the subsidy. As a result some nine counts of obtaining property by deception were laid against him. Ultimately he pleaded guilty in the Magistrates' Court of Victoria to one of those nine counts, presumably as a result of some type of plea bargain. The Magistrate convicted the applicant of the count to which he pleaded guilty and made an order for restitution of an amount somewhat less than $6,000.
Meanwhile, the Secretary, acting under powers bestowed by Section 169K of the Transport (Compliance and Miscellaneous) Act 1983 imposed an interim suspension of Mr Volziker's accreditation. That interim suspension remains in force now, though according to Ms Roberts who represents the Secretary today, the Secretary proposes to make a final determination as to how the applicant, Mr Volziker should be dealt with on a final basis under Section 169I which determination will supersede the interim suspension which is before us now.
The applicant through his solicitors has filed an application to review the interim suspension. Assuming that such application is brought within jurisdiction and that the decision in question is one which the Tribunal has authority to review, the Tribunal is empowered by Section 50 of the Victorian Civil & Administrative Tribunal Act 1998 to impose a stay on the operation of the decision.
An initial question arises as to whether the interim suspension determination is one which the Tribunal may review such that the Section 50 stay power is engaged. Section 169O(1)(b) empowers a person affected by a decision to apply to the Tribunal for review of 'a decision of the licensing authority to suspend or cancel an accreditation under this division'. What we have here is a suspension. It was contended by Ms Roberts on behalf of the Secretary, that the suspensions which might be reviewed were those which were imposed as final dispositions under Section 169I and those only and not the interim species imposed under Section 169K. Had Parliament intended that restriction, no doubt it could have employed words which achieved that result in a clear manner. No such words have been drawn to my attention and so, as it seems to me now, this suspension is a determination which the Tribunal has authority to review, hence its stay power under Section 50 of the Victorian Civil and Administrative Tribunal Act is engaged.
The power to stay is granted in quite general terms with no express statement in the statute as to what considerations are to guide the Tribunal in considering whether to grant a stay or not. Clearly, the most obvious ground on which one might grant a stay and the initially dominant consideration is that a stay should be granted prima facie in circumstances where failure to do so might render the review application nugatory. If someone is put out of business then the review application may turn out either not to achieve anything even if successfully invoked in a legal sense or to achieve less than a complete reversal of the initial determination if it is impossible to reverse irreparable damage which has been done in the meantime. I do not have any affidavit material before me and I have heard no viva voce evidence.
Mr Edwards on behalf of the applicant however, has contended that his client finds himself in dire financial straits and it is those dire financial straits which provided the incentive for him to engage in the criminality to which he pleaded guilty. He has an aged mother and a disabled wife and according to Mr Edwards it is the disabilities of the wife that require the applicant to take relatively expensive rental accommodation near the city and near a tram route. Logically to put someone in those circumstances out of business has the potential to inflict irreparable damage which cannot be entirely reversed even if the review application is successful.
In the case of AZD v Secretary to the Department of Justice [2009] VCAT 977 at [15] I said some couple of years ago that there is a predilection in stay proceedings not to put people out of business until those people have had the opportunity to prosecute their review applications. This consideration certainly points in favour of granting a stay here. Contrarywise, the authorities in the Tribunal also establish that the public interest in maintaining standards in trades and professions that are regulated may predominate and may overwhelm any prima facie predilection to grant a stay. The Secretary has said that these considerations should predominate here. The Transport (Compliance and Miscellaneous) Act 1983 postulates as the key consideration in driver accreditation, the public safety objective and Ms Roberts draws attention to the fact that as a taxi driver, the applicant, would be interacting with the elderly and the disabled, a vulnerable class of person. On the other hand the offences which brought the applicant to his present situation serious as they are, and being offences if you like, against the entire community insofar as they entail imposing on the taxpayers of the State, do not represent specific and direct threats to individual disabled and aged persons. Again, the applicant even if he obtains a stay today will have to face potentially both a decision by the Secretary as to whether some final suspension or disqualification should be imposed as part of the present process and one or more further hearings in the Tribunal by way of review of what the Secretary may determine. Those considerations will put him under the spotlight and would first, provide a very strong incentive to him if you will, to keep his nose clean and not to repeat the fraudulent conduct that he has apparently engaged in in the past and secondly, given that the applicant would be under continued scrutiny by the Secretary for the purpose of gathering a compelling case to put to the Tribunal on review, the applicant would be under the spotlight so far as the Secretary is concerned and therefore, much less able to impose upon the taxpayer in the way he apparently did in the past. Those considerations seem to me to mean that there is little risk on the material before me to the public safety objective given that there has been no exhibition of specific threats to individual vulnerable members of the public and the wider interests as to the integrity of the scheme's to subsidise the travel by taxi of the elderly and the disabled are likely to be protected by the scrutiny under which the applicant now is and his desire not to accrue any further black marks between now and the final hearing of any review proceeding or proceedings. That being the case, in my view, the proper course is to grant the stay which has been sought.

Volziker v Secretary to Department of Transport

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Judgment (5 paragraphs)

Volziker v Secretary to Department of Transport (Occupational and Business Regulation) [2012] VCAT 402 (21 February 2012)

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