By application dated 28 August 2017, the applicant has sought a review of the decision of the respondent to suspend his Taxi Driver Authority. The review application is listed for hearing on 27 November 2017.
By further application dated 11 October 2017, the applicant has sought a stay of the respondent's decision until the hearing of his review application. This application was agitated in the directions list on 17 October 2017
For the following reasons, the application for a stay of the decision is refused.
[2]
Background and submissions
Each party was represented by their legal representative, and each as content for the matter to proceed today, even though no submissions or evidence had been filed.
There was no issue that the Tribunal has power to order a stay: see s 43 of the Civil and Administrative Tribunal Act 2013, discussed in Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37 at [7].
Mr Levingston explained the background to the respondent's decision. The applicant had been found guilty of two charges of assault on 20 January 2017. He was not convicted of a charge of aggravated assault. He was sentenced on 27 March 2017. Pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999, the Court recorded a conviction and sentenced the applicant to a bond of two years. The applicant is now under the supervision of Correctional Services.
Warriach v Roads & Maritime Services [2017] NSWCATOD 150 | Case summary | Zoe
Mr Levingston told me that the applicant had not appealed either conviction or sentence, and did not propose to.
Mr Levingston also explained a brief background to the offences. The applicant, a taxi driver, had given a lift to a young man. An understanding was reached as to consensual sex, but the victim to the assault later withdrew his consent. An incident followed the withdrawal of that consent, and the two assault charges and the one charge of aggravated assault charges were laid.
They are the short circumstances surrounding the offences. I understand that upon sentence, the respondent suspended the applicant's Taxi Driver Authority, and that he has been unable to drive a taxi since that time.
Mr Levingston relies on the financial hardship being suffered by the applicant as a reason for staying, until the review hearing, the respondent's decision to suspend his driver authority. He told me that the applicant, who has had held a Taxi Driver Authority for nine years, is no longer able to work in the industry, and is presently receiving Centrelink benefits. As his weekly rental is $640, and his wife does not work, he and his wife are experiencing financial hardship.
Mr Levingston submits that it is in the public interest, as well as being in the interests of the applicant and his family, that the applicant be allowed to work pending the hearing of his application to review the respondent's decision.
I note for completeness that Mr Levingston suggested that the applicant would accept conditions being placed on a stay, but had no suggestions to make as to what those conditions should be.
The application for a stay as opposed by the respondent. In summary, Mr Wozniak submitted that it was not in the public interest that the respondent's decision be stayed, and that financial hardship was not a sufficient reason to warrant a stay being granted.
In addition, Mr Wozniak submits that the offences were objectively serious, and that the applicant received the maximum period of suspension. In response, Mr Levingston explained that the charge of aggravated assault had been dismissed.
[3]
Relevant Principles
In Bentran, the President of Tribunal (Wright J), summarised the principles to be applied in determining whether or not to grant a stay pending the determination of an appeal (see par [9]). In summary, those principles included the following:
1. The onus is on an applicant for a stay to make out a case that it is appropriate for the court or Tribunal to make such an order;
2. An order staying the operation of a decision or orders will generally be appropriate where such an order is reasonably necessary to secure the effectiveness of the appeal;
3. The Tribunal may also take into account the strength or otherwise of the case of the party seeking the stay. This consideration may be particularly relevant when it is plain that an appeal, which does not require leave, has been lodged without any real prospects of success and simply in the hope of gaining a respite against immediate execution of the decision.
4. The Tribunal's power to grant a stay includes a power to make such an order subject to such conditions as the Tribunal specifies;
5. In exercising the discretion, the Tribunal will weigh the balance of convenience and the competing rights of the parties and may impose appropriate conditions so as to achieve a result that is fair to all parties;
6. Finally, the overriding principle in an application for a stay is to ask what the interests of justice require.
Bentran was a decision concerning a claim in the Consumer and Commercial Division of the Tribunal. The appeal the subject of the present stay application is brought in the Occupational Division of the Tribunal. In cases such as Kesserwani v Chiropractic Council of NSW [2016] NSWCATOD 77, Wang v Dental Council of NSW [2016] NSWCATOD 90 and Kaye v Health Care Complaints Commission [2016] NSWCATOD 149, which were also heard in the Occupational Division, but governed by the Health Practitioner Regulation National Law 2009, the Tribunal noted that in stay applications it must consider the protection of the health and safety of the public, being the paramount consideration of the Tribunal.
In my view, a similar principle should apply in circumstances surrounding the suspension of a Taxi Driver Authority. In this respect I note that s 33 of the Passenger Transport Act 1990 provides that the purpose of a Taxi Driver Authority is to attest that the authorised person is considered:
1. To be of good repute and in all other respects a fit and proper person to be the driver of a taxi-cab, and
2. To have sufficient responsibility and aptitude to drive a taxi-cab:
1. in accordance with the conditions under which the taxi-cab service concerned is operated, and
2. in accordance with law and custom.
In my view, it would be inappropriate for the Tribunal to stay the respondent's decision to suspend his Taxi Driver Authority, thus attesting to the applicant's fitness and propriety to be the driver of a taxi, and that he had sufficient responsibility and aptitude to drive a taxi-cab in accordance with law and custom, in circumstances where he was convicted of two assaults of one of his own passengers.
The principal matter relied on by the applicant is that it is in the public interest that the stay be granted pending the hearing of his substantive application. I disagree. While it may be in the applicant's interest that a stay of the respondent's decision be granted pending the hearing of his substantive application, in my view the public interest is best served by a continuation of the present position, that is, that the applicant's Taxi Driver Authority remain suspended.
In addition, in my view, the following matters militate against the grant of a stay:
1. The grant of a stay is not necessary to ensure the effectiveness of the substantive application;
2. The prospect of success in the substantive application appear to be low, given that the applicant was convicted of two assault in circumstances where he was actually engaged in driving a taxi and conveying passengers, and a passenger was the victim of the assaults;
3. The safety of the public warrants a cautious approach to the grant of the stay.
I reject the respondent's submission that the two year bond, being the maximum period of a bond pursuant to s 9 indicates the seriousness of the offence. Section 9 actually provides that the maximum period for a bond is five years.
In my view the interests of justice require me to reject the application for a stay. In doing so, I note that the hearing of the review application is to be held relatively soon, on 27 November 2017.
[4]
ORDERS
1. The application for a stay is refused.
[5]
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
[6]
Amendments
02 November 2017 - paragraph 18, first line word inserted; paragraph 19, third line word inserted
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Decision last updated: 02 November 2017