Young v Roads and Maritime Services

NCAT Appeal Panel|2014-02-27|Before: Wright J

reasons for decision 1Wright J, President, S Montgomery, Senior Member, P Goudie, General Member: The appellant, Mr Young, appealed against a decision of the Administrative Decisions Tribunal (ADT) affirming the respondent's decision to refuse accreditation for Mr Young to operate a public passenger service - Young v Roads and Maritime Services [2013] NSWADT 216. On the appeal Mr Young represented himself and Mr Wozniak, solicitor, appeared for the respondent. Both parties provided written submissions on the appeal and took the opportunity to make full oral submissions at the hearing on 27 February 2014. 2Mr Young appealed as of right on 4 questions of law and also sought leave to have the appeal extended to the merits of the ADT's decision. The Appeal Panel has decided that the appeal on the questions of law should be dismissed and leave to extend the appeal to the merits should be refused. Our reasons for reaching these conclusions are set out below.

Transitional Matters 3The notice of appeal in this matter was filed in the ADT on 8 November 2013. 4On 1 January 2014, the Civil and Administrative Tribunal of New South Wales (NCAT) was established and on its establishment the ADT was abolished: see Civil and Administrative Tribunal Act 2013 (the Act), s 7 and cl 3 of Schedule 1. 5By operation of cl 7(1) of Schedule 1 to the Act, this appeal is taken to have been duly commenced in NCAT and may be heard and determined by NCAT. For this purpose and under cl 7(3), NCAT has and may exercise all the functions which the ADT previously had and the applicable legislation is that which would have applied if the NCAT legislation had not been enacted. Consequently, the Administrative Decisions Tribunal Act 1997 (ADT Act) as in force at 31 December 2013 applies to this appeal. In particular, Part 1 of Ch 7 of the ADT Act which deals with internal appeals to the Appeal Panel of the ADT applies to this appeal even though it is being heard by the Appeal Panel of NCAT. 6As a result, in this matter the appellant has a right to appeal on a question of law, under s 113(2)(a) of the ADT Act. As noted above, Mr Young has also made an application under s 113(2)(b) for leave to extend this appeal to a review of the merits of the ADT's decision.

Background 7In September 2012, Mr Young applied to Roads and Maritime Services, the respondent, for accreditation to operate a bus service of 4 buses as a public passenger service under the Passenger Transport Act 1990 (NSW) (PT Act). The application was accompanied by a 3 page letter in which Mr Young made specific submissions as to the issues of his competency and local council approval for storage of the buses to be used in providing the service. 8On 21 September 2012, the respondent wrote to Mr Young and asked him to supply: (1)A training certificate saying that he had successfully completed an approved operator training course; and (2)A letter of approval from the relevant local council indicating that he was permitted to keep the number of buses specified at the premises specified. 9The respondent's response did not address Mr Young's submissions made in his earlier letter. On 25 September 2012, Mr Young replied but did not provide either of the documents requested but rather argued that he should be taken to have satisfied the requirements. By a letter dated 27 September 2012, the respondent reiterated its request for the training certificate and the letter from the local council. 10At some time before 15 November 2012, the respondent decided to refuse Mr Young's application for accreditation. On 15 November 2012, Mr Young applied for an internal review of that decision and supplied a letter from the local council dated 7 November 2012 concerning the storage of buses at an industrial site leased by Mr Young. That letter from the council did not, however, indicate the number of buses that might be stored at the site. On review, the respondent's initial decision was confirmed. 11On 7 January 2013, Mr Young applied to the ADT to review the respondent's decision. In its decision of 4 October 2013, the ADT confirmed the decision to refuse Mr Young accreditation. That decision is the subject of this appeal.

Relevant Legislative Provisions 12As found by the Tribunal below at [1], Mr Young had applied for accreditation to operate a bus service of four buses as public passenger service. 13In s 3(1), "public passenger service" is relevantly defined as meaning: the carriage of passengers for a fare or other consideration: (a) by motor vehicle (other than a light rail vehicle) along a road or road related area, ... 14Accreditation to carry on such a service is dealt with in s 7 of the PT Act which provides: (1) A person who carries on a public passenger service by means of a bus or other vehicle (other than a vessel), being a service operating within, or partly within, New South Wales, is guilty of an offence unless the person is an accredited service operator for that service. Maximum penalty: 1,000 penalty units. (2) The purpose of accreditation under this Division is to attest: (a) that the accredited person is (or, in the case of an accredited corporation, the designated directors and managers of the corporation are) considered to be of good repute and in all other respects fit and proper to be responsible for the operation of a public passenger service, and (b) that the accredited person has demonstrated the capacity to meet the government's standards of: (i) financial viability, and (ii) safety of passengers and the public, and (iii) vehicle maintenance, to the degree and in the manner required in respect of services of the kind specified in the accreditation. (3) Standards for the purposes of subsection (2) (b): (a) may be prescribed by the regulations, or (b) to the extent that they are not so prescribed, may be determined and published by TfNSW and made available to interested persons. (3A) Different standards for the purposes of subsection (2) (b) may be prescribed or determined under subsection (3) for different classes of public passenger services and different classes of operators of public passenger services. (4) Any person wishing to obtain from TfNSW a copy of a standard published under subsection (3) (b) must pay the fee (if any) prescribed by the regulations. (5) Standards published under subsection (3) (b) may be re-determined by TfNSW from time to time, and are to be re-published and made available as occasion requires. 15Regulations prescribing the standards for the purposes of s 7(2)(b) of the PT Act have been made under s 7(3) and are found in the Passenger Transport Regulation 2007 and in particular cll 6 - 13 of which cll 9, 11 and 12 are most relevant for present purposes. Those latter regulations contain the following provisions: 9 Applicant to be competent to carry on relevant service ... (2) In particular, the applicant must: (a) satisfy RMS as to the applicant's knowledge of the following: (i) the relevant provisions of the Act and this Regulation, (ii) other laws relating to traffic, (iii) the relevant provisions of the Work Health and Safety Act 2011, (iv) if the application is for accreditation to carry on a taxi-cab service - the laws relating to the bailment of motor vehicles, and (b) if required to do so by [the respondent], undertake and successfully complete (or pass an examination in respect of) such course relating to the operation of the relevant service as is approved by TfNSW and conducted by a registered training organisation, or a higher education institution approved by TfNSW. ... 11 Applicant to have access to maintenance facilities for vehicles ... (2) The applicant must provide [the respondent] with full details of the premises at which the vehicles will normally be kept when not in use. 12 Additional requirement: bus services (1) An applicant for accreditation to carry on a public passenger service by means of one or more buses must also provide [the respondent] with a copy of an approval from the relevant council to keep the buses required for the service at the premises specified by the applicant in compliance with clause 11 (2). ...

Grounds of Appeal on Questions of Law 16Mr Young relied upon 4 grounds of appeal as follows: 1.Consideration 34 denies supply of correspondence with University of Sydney. This evidence had been included in file as 00017, 00021, 00022, again as 00073, 00076, 00077, and the most recent correspondence as A017, A018, A019. 2.Mandatory requirement Course Certificate rejected in Hearing (30p31, 22p27). Consideration 30 of the Decision fails to follow the ruling made. 3.Tribunal reserved its decision awaiting supply of transcript McTiernan v RMS yet would not accepted expanded letter from Council supplied by the Appellant referred to in Consideration 32. 4.Consideration 33 failed to rule on the storage of buses as rental vehicles, and the applicability of the PTA 1990 as evidence in A016, the Listed Grounds for Review Application and transcript 33p31 to 11p32. 17At the hearing of the appeal on 27 February 2014, Mr Young indicated that he did not press ground 3 and accordingly it will not be considered further.

Ground 1 18The reference to "consideration 34" is a reference to [34] in the reasons for decision at first instance. That paragraph was in the following terms: Secondly, with respect to the issue of concerning proof that Mr Young has undertaken and completed the bus operators training I am satisfied on the evidence that Mr Young undertook such a course at the Institute of Transport Studies in 2001 at Sydney University. Aside from assertions by Mr Young, there is no evidence that demonstrates that Mr Young completed that course. Mr Young says this is so because the University cannot locate the relevant records. He has narrated details of the correspondence he had with the University in his effort to obtain proof, but had not produced that correspondence to RMS or the Tribunal, including evidence that the University cannot locate its records. 19This ground relates to the issue of whether Mr Young undertook and completed an operator training course. On 21 September 2012, the respondent had written to Mr Young requiring him to supply a training certificate saying that he had successfully completed an approved operator training course. It was not in dispute that this amounted to a requirement under reg 9(2)(b) of the Regulation that he "undertake and successfully complete (or pass an examination in respect of) such course relating to the operation of the relevant service as is approved by TfNSW and conducted by a registered training organisation, or a higher education institution approved by TfNSW".

The Appellant's Submissions 20Mr Young, in writing and orally, essentially made two submissions in relation to this ground and [34] of the Tribunal's reasons. First, he referred to the letters and documents that were before the Tribunal at first instance concerning his enrolment and participation in a Certificate of Coach Management Course at Sydney University in 2001. He contended that the "Central Question of Law is the non recognition of this material [which he had listed above in his written submissions]". He did not contend, however, that this material established that he had completed the course in 2001. Rather it concerned whether the University could not locate its records concerning his participation in the course and related matters. 21Secondly, Mr Young relied upon "the failure to take into account ... the Short Answer Examination Result ..., its relevance to Regulation 9 ... and its relationship with the Training Course regime since 2010" as establishing an error of law on the part of the Tribunal. The "Short Answer Examination Result" was a document before the Tribunal below that was an "Assessment Cover Sheet" in respect of the Certificate of Coach Management course which Mr Young undertook in 2001. It showed that Mr Young received a mark of 40/40. It also stated: Part 1 - SHORT ANSWER QUESTIONS There are twenty short answer questions to be completed in order to successfully pass this part of the course. This assessment is worth 40 marks. You will be given two (2) weeks to complete and return them to [the University of Sydney]. 22Mr Young argued that his passing this assessment or examination satisfied the requirements of cl 9(2)(a) or (b). He also submitted that the other parts of the 2001 course were assignments on business planning and marketing but in about 2010 these other parts had been deleted as accreditation requirements and the current training course examination was simply a 50 multiple choice questionnaire having a pass mark of 40 correct answers. Mr Young only became aware of this after the hearing below but argued that the respondent knew or should have known of these matters. He also alleged that the respondent withheld this information from the Tribunal at first instance. His written submissions included the following: The Appellant submits this non disclosure by the Respondent, and lack of precision in the Hearing focus of review regarding the current requirements, as a further Question of Law relating to remaking the decision on the application for accreditation. Information relating to the current nature of the course and examination was not checked by the Appellant, as he had been advised during Directions there was no use examining witnesses from the Respondent because the decision on the application was to be made afresh, thereby implying any variation in requirements would be recognised and considered.

Respondent's Submissions 23The respondent submitted that ground 1 relied upon by Mr Young did not involve any question of law. In summary it was argued that the Tribunal below correctly identified the applicable law in its reasons for decision and made factual findings on the material before it as recorded in various places in the reasons, including in [30], [34], [35] and [36]. There was no error of law.

Consideration of Ground 1 24Mr Young's first submission was that there had been an error of law because of "the non recognition" of documents and correspondence relating to his participation in the Coach Management Course at Sydney University in 2001. As the Appeal Panel understood it, this was a submission that the Tribunal's finding at [34] that "[a]side from assertions by Mr Young, there was no evidence that demonstrates that Mr Young completed that course" was without any foundation on the material before the Tribunal and thus involved an error of law. 25The material referred to by Mr Young in this regard did not, however, demonstrate that he had in fact completed that course. That is not to say that he did not enrol and complete part of the course, as shown by his result sheet in respect of "Part 1 - Short Answer Questions" referred to above. This was referred to in [34] where the Tribunal held that it was satisfied that "Mr Young undertook such a course at the Institute of Transport Studies in 2001 at Sydney University". Nonetheless, the Tribunal's finding at [34] that there was no evidence to demonstrate that he had completed the course was not erroneous in fact or law. 26Mr Young's second submission involved a number of related points. The first was that by obtaining a result of 40/40 for the "Part 1 - SHORT ANSWER QUESTIONS" assessment, Mr Young had satisfied the requirement in cl 9(2)(b) that he "undertake and successfully complete (or pass an examination in respect of) such course relating to the operation of the relevant service ...". In particular, it was argued that the assessment which he had completed was "an examination in respect of [an approved coach management] course" and consequently cl 9(2)(b) was satisfied. Thus the Tribunal erred to the extent that it found that cl 9(2)(b) had not been satisfied. 27This point turns on the proper construction of words "pass an examination in respect of ... such course" in cl 9(2)(b). The purpose of this regulation and of the accreditation regime as a whole includes protecting the public by ensuring that persons carrying on a public passenger service satisfy the relevant standards of financial viability, safety of passengers and the public and vehicle maintenance - see s 7(2)(b) of the PT Act. The respondent's capacity to require an applicant for accreditation as public passenger service operator to "undertake and successfully complete (or pass an examination in respect of) such course relating to the operation of the relevant service ..." in order to obtain accreditation must be understood in the light of that purpose. 28Clause 9(2)(b) involves alternatives: (1)Undertaking and successfully completing an approved course; or (2)Passing an examination in respect of such a course. 29In the light of the purpose of regulation, the construction to be preferred is that passing an examination in respect of such a course refers to passing all the examination or assessment requirements of the course not just passing one of those examinations or assessments. This is consistent with the first alternative which involves the course not only being undertaken but also being successfully completed. It would be a nonsensical result if an applicant for accreditation could satisfy the requirements of cl 9(2)(b) merely by passing one, perhaps minor, assessment or examination which was part of an approved course without passing all of the other assessment and examination elements of the course. 30Mr Young also submitted that "[t]his examination pass satisfies the requirements of Regulation 9 - 2(a) or (2(b)." Even if such an examination satisfied the requirements of cl 9(2)(a), that would not be sufficient. Cl 9(2) requires both paras (a) and (b) to be satisfied. This follows from the use of the conjunction "and" between those two paragraphs. 31Thus, the Tribunal did not err in law in finding in the circumstances that Mr Young had not satisfied cl 9(2) as a result of passing the "Part 1 - SHORT ANSWER QUESTIONS" assessment. 32Mr Young went on, however, to develop this part of his case by arguing that after about 2010 the requirements for the relevant course had been adjusted so that they no longer included those parts of the course which he had not completed or could not establish that he had completed in 2001. Accordingly, he submitted that he should be taken to have satisfied cl 9(2)(b) by reference to his 40/40 result for the "Part 1 - SHORT ANSWER QUESTIONS" assessment, this being an examination in respect of all of the current content of the course. He also argued that it was incumbent upon the respondent to draw these changes in the course content to the attention of the Tribunal at first instance since the hearing before the Tribunal involved making the decision afresh. 33This part of his submissions relied upon additional material that had not been before the Tribunal at first instance, namely documents relating to the content of the Bus and Coach Operator Accreditation Scheme Online Training Course (obtained from the internet on 19 November 2013). At one point, Mr Young submitted that this material should be admitted if leave was granted to extend the appeal to the merits. Later in the hearing, however, Mr Young indicated that if leave were granted to extend the appeal to the merits he would not seek to have the Appeal Panel consider material that was not before the Tribunal at first instance. 34Mr Young did not seek to put this material before the Tribunal below. In the circumstances the Appeal Panel does not accept that there was any obligation on the respondent to put this material, even if it knew about it, before the Tribunal. Furthermore, there was no error by the Tribunal in not taking this material which was not before it into account. In short, the second part of Mr Young's submissions on this first ground of appeal does not establish any error of law on the part of the Tribunal below. 35For these reasons, the appeal based on ground 1 should be dismissed.

Ground 2 36Mr Young's second ground of appeal was not entirely clear but appeared to be that cl 9(2)(b) was discretionary not mandatory. On this basis, his accreditation application should not have been refused on the basis that he could not establish that he had completed the required course if he could otherwise establish that he was qualified by life experience and other training to operate a public passenger service. It was also suggested that the Tribunal had accepted that the regulation was discretionary during the hearing but had failed to decide the matter on that basis in its reasons for decision, especially at [30]. 37On the hearing of the appeal, Mr Young's submissions on this ground tended to overlap to a substantial extent with his submissions in relation to ground 1 as to whether his passing the "Part 1 - SHORT ANSWER QUESTIONS" assessment in 2001 should be taken to have satisfied cl 9(2)(b). 38The respondent submitted that in essence ground 2 did not raise a ground of appeal distinct from ground 1. 39Whilst there is some substance in the respondent's submission, the Appeal Panel proposes to proceed on the basis that ground 2 seeks to raise a separate point from ground 1. 40In relation to ground 2, it can be accepted that there is an element of discretion in cl 9(2)(b). This is because satisfying the terms of cl 9(2)(b) is only necessary if the respondent requires the applicant to do so. The words "if required to do so by [the respondent]" at the beginning of para (b) of the regulation effectively give the respondent a discretion as to whether completion of a course is required or not. 41During the hearing at first instance, Mr Young contended that the respondent "should not have required that he demonstrate completion of a course" - see [30]. The Tribunal dealt with this point at [36] in the following terms: 36 While I accept that Mr Young has significant life experience concerned with the hire, sale and servicing of various vehicles and has held responsible position relating to those matters, I am not satisfied that this necessarily equips him with the competence and knowledge required of the operator of a public passenger service. There are responsibilities and accountabilities concerning the regulation of passengers and ensuring their safety associated with the role of an operator that Mr Young's past does not necessarily equip him with. I agree with RMS that it was appropriate to require him to prove that he has undertaken and completed an approved course of training for bus operators in accordance with clause 9(b) [sic, 9(2)(b)] of the PTR. 42The Tribunal implicitly accepted that the requirement of cl 9(2)(b) was discretionary, took into account Mr Young's submission in that regard and concluded that it was appropriate to require Mr Young to satisfy the requirement in cl 9(2)(b). There was no error of law by the Tribunal in its findings, reasoning and conclusions in this regard. 43Mr Young also submitted that cl 9(2)(b) was discretionary because there were alternate ways in which it could be satisfied either by completion of an approved course or by passing an examination in respect of such a course. He then went on to argue that he had satisfied the examination alternative by passing the "Part 1 - SHORT ANSWER QUESTIONS" assessment in 2001. Whilst it is correct that there may be alternative ways in which the requirements of cl 9(2)(b) can be satisfied, Mr Young did not satisfy either alternative merely by passing the Part 1 assessment. The Appeal Panel's reasoning concerning the construction of cl 9(2)(b) and whether passing the Part 1 assessment satisfies a requirement to "pass an examination in respect of ... such a course" has been set out above in relation to ground 1. 44The Appeal Panel concludes that no error of law was established on the basis of ground 2 relied upon by Mr Young and the appeal on ground 2 should be dismissed.

Ground 4 45Ground 4 related to whether Mr Young had satisfied the requirement of cl 12. Mr Young formulated this ground as follows: Consideration 33 failed to rule on the storage of buses as rental vehicles, and the applicability of the PTA 1990 as evidenced in A016, the Listed Grounds for Review Application and transcript 33p31 to 11p32. 46In his written submissions, Mr Young included the following: The Act and Regulations [the PT Act and the Regulation] do not appear to have been designed to cover the dual applications of the Appellant's buses as both rental vehicles, and possibly at times Public Passenger Vehicles. Rental vehicles are not defined by the Act, and are also not expressly denied as Public Passenger Vehicles. Rental buses are covered by the same strict roadworthy inspection regime as Public Passenger Buses. ... These vehicles clearly cannot be stored as Public Passenger vehicles when in the hands of most hirers. How is it fair or indeed realistic to demand these conditions when off rent. ... The Council letter ... quotes "buses" plural, so approval could have been granted for two buses .... 47The essence of Mr Young's submissions on this ground, as the Tribunal understands them, was that the Tribunal erred on a question of law on two bases. First, there was before the Tribunal a letter from the relevant Council indicating that "buses" could be stored at a nominated site. Notwithstanding that the application for accreditation was to operate a 4 bus public passenger service, the application for accreditation could and should have been granted to operate a bus service of 2 buses as a public passenger service. 48Secondly, the PT Act and the Regulation only applied to the buses when they were being used for the purposes of a public passenger service and not when they were unused or were being used as self-drive hire vehicles. Consequently cl 12 did not apply in respect of the buses when they were not being used for the purposes of a public passenger service and Mr Young should not have been required to comply with cl 12 for that reason. 49The respondent submitted that the Tribunal correctly identified the law in its reasons for decision and its factual findings were based on the material in evidence before the Tribunal. No error of law was disclosed. 50As to Mr Young's first submission based on the use of the plural "buses" in the Council's letter concerning storage, the Tribunal said at [33]: 33 Turning first to issue of whether Mr Young has complied with clause 12 and provided RMS with a copy of an approval from the council to him keeping the buses required for the service at the nominated premises, I am satisfied that the letter from council on which Mr Young relied does not provide consent to him keeping the buses required for the service (four) at the premises. The language of clause 12 is clear: it requires a copy of written approval. In the absence of written approval Mr Young has not satisfied the requirements of clause 12. 51Clause 12, which has been set out above, required an applicant for accreditation to carry on a public passenger service by means of one or more buses to provide: a copy of an approval from the relevant council to keep the buses required for the service at the premises specified by the applicant in compliance with clause 11(2). 52The letter from the Council to which the Tribunal referred in its reasons identified a certain parcel of land in the heading to the letter and continued, in part: I refer to your letter dated October 31st 2012 requesting Council's confirmation that buses can be stored within one of the light industrial units on site leased by yourself in order to satisfy the requirements of Transport NSW. Council confirms that it has no objection to the keeping of buses at the premises. 53The requirement of cl 12 was to provide a copy of the relevant council's approval "to keep the buses required for the service" at certain premises. According to the Tribunal at first instance, the service for which accreditation was sought was "to operate a bus service of 4 buses". Thus, in this case, Mr Young was required to provide a copy an approval from the relevant council to keep 4 buses at the nominated location since 4 buses were required for the service for which accreditation was being sought. The letter from the council did not amount to an approval to keep the 4 buses required at the nominated location and consequently did not satisfy cl 12. The Tribunal did not err in this regard. 54As to the second submission, which Mr Young sometimes called the "dual use" submission, this submission proceeded on the misapprehension that the PT Act and the Regulation only applied to the buses in question when they were being used for the purposes of a public passenger service and not when they were unused or were being used as self-drive hire vehicles. 55Whether the PT Act and the Regulation applied to the buses the subject of Mr Young's application for accreditation cannot be determined at a general level. Each section or clause must be construed to determine the extent to which it applies to or in respect of those buses. 56Clause 11(2) required the applicant to provide full details of "the premises at which the vehicles will normally be kept when not in use". (emphasis added). When that subclause is taken together with cl 12, Mr Young was required to nominate where the "buses required for the service" would be kept "when not in use" and to provide a copy of the relevant council's approval to keep those buses at the nominated location. From the words used in cll 11 and 12, it follows that those clauses apply to the 4 buses required for the public passenger service for which Mr Young was seeking accreditation even when they were not in use, that is, even when they were not being used to provide the public passenger service or used in any other way. 57The Tribunal did not err in applying cll 11 and 12 to Mr Young's application for accreditation. 58On these bases, the appeal based on ground 4 should be dismissed.

Extension to the Merits 59Mr Young also sought leave to have the appeal extended to review the merits of the Tribunal's decision. The basis for this part of the appeal was stated to be: 1. The Member stressed that the Hearing was to again make the decision of the Agency (9p7). No reference appears to examination results 00021/00076 or the breadth of the Appellant's experience outlined in material and references partly summarised in A036/1 and A036/2, and in particular Army Transport and Aviation qualifications dealing with passengers. Furthermore, evidence supplied by the Respondent regarding current operations, supports ability to operate successfully with no evidence of any passenger complaint or safety breach having been submitted. The Appellant feels that this with the examination evidence satisfied Regulation 9, thereby Section 7 of the Act. 2. The PTA 19901 does not attempt to cover the specifics of rental vehicles used occasionally to carry out Passenger Transport Services, yet does not reject this use. The Appellant's buses are subject to the same inspection regime as full time Passenger Transport Service buses (A030/A031/A032). The Appellant has little control over where buses are kept during hire, by its nature, but has a 15 year successful, secure, monitored site when not out on hire. 60The Appeal Panel has decided that it is not appropriate to grant leave for the appeal to be extended to the merits for a number of reasons. 61First, Mr Young has not established that there was any error of law on the part of the Tribunal. Thus, there is no necessity to reconsider the merits of the matter on that basis. It should be noted, however, that an application for leave of the Appeal Panel under s 113(2)(b) to extend to a merits review does not require the applicant first to demonstrate or argue an error of law: Lloyd v Veterinary Surgeons Investing Committee [2005] NSWCA 456; 65 NSWLR 245 at [14] and [60]-[63] (per Tobias JA, with Spigelman CJ agreeing). 62Secondly, Mr Young relies upon the assertion that his examination result and the breadth of his experience are not referred to in the Tribunal's reasons for decision, as a reason to grant leave. While not dealt with in detail, the Tribunal did refer to these matters in its reasons and did consider them - see for example [29], [30], [34], [35], [36] and [37]. There is no reason to believe that if the Appeal Panel were to reconsider these matters there would be any substantial prospect that it would come to a conclusion different from that reached by the Tribunal at first instance. 63Thirdly, Mr Young's second reason for granting leave to extend to the merits appears to touch upon the same argument that was considered in relation to ground 4 above. It involves the submission that the PT Act "does not attempt to cover the specifics of rental vehicles used occasionally to carry out Passenger Transport Services, yet does not reject this use" and the allegation that Mr Young has "a 15 year successful, secure, monitored site when not out on hire". Without additional factual material being put before the Appeal Panel, there is once again little if any prospect of the Panel reaching a different conclusion from the Tribunal below. 64On the question of whether Mr Young wished to put further material before the Appeal Panel if the appeal were extended to the merits, Mr Young initially indicated that he wished to do so. Mr Wozniack indicated that the respondent would also wish to put on additional material concerning Mr Young's criminal convictions and other matters if leave were granted. Mr Young then decided that he was only seeking leave to have the appeal extended to the merits on the basis of the material which had been before the Tribunal at first instance. 65Finally, having regard to the Tribunal's reasons for decision and the matters raised by the parties in submissions, the Appeal Panel was not satisfied that there would be any injustice in this case in refusing leave to extend the appeal to a review of the merits of the decision under appeal. 66For these reasons, leave to extend the appeal to a review of the merits should be refused.

Conclusion 67For the reasons set out above, the Appeal Panel orders: (1)Leave to extend the appeal to the merits of the decision under appeal is refused. (2)The appeal is dismissed. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar

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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 March 2014

Administrative Decisions Tribunal Act 1997(NSW)

Passenger Transport Regulation 2007(NSW)

At a glance

Court

Decision date

Before

Source

Judgment (14 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (1)

Cited By (1)