Hall v Department of Transport and Main Roads
[2022] QCAT 10
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- Unreported Judgment
- Hall v Department of Transport and Main Roads[2022] QCAT 10
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Hall v Department of Transport and Main Roads[2022] QCAT 10
Hall v Department of Transport and Main Roads[2022] QCAT 10
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Hall v Department of Transport and Main Roads [2022] QCAT 10 |
PARTIES: | ANTHONY JOHN HALL (applicant) V DEPARTMENT OF TRANSPORT AND MAIN ROADS (respondent) |
APPLICATION NO/S: | GAR413-20 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 7 January 2022 |
DECISION OF: | Member Lember |
ORDERS: | The application to review a decision filed on 26 October 2020 is dismissed for want of jurisdiction. |
CATCHWORDS: | ADMINISTRATIVE REVIEW – licensing decision under the Transport Operations (Road Use Management) Act 1995 (Qld) – whether application for review premature – whether the tribunal has jurisdiction Criminal Code Act 1899 (Qld) s 194(1) Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 6, s 9, s 17(1), s 20, s 21 Transport Operations (Road Use Management) Act 1995 (Qld) s 131 Transport Operations (Road Use Management—Driver Licensing) Regulation 2010 (Qld) s 124, s 125 Body Corporate for Alto Gladstone v Queensland Building and Construction Commission & Anor [2020] QCATA 6 Fisher v Wenzel [2019] QCAT 295 |
APPEARANCES & REPRESENTATION: | This matter was determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). |
REASONS FOR DECISION
What is this application about?
- [1]The applicant was born in New Zealand in 1950 under the name “Colin Bruce Harvie”, but on 7 May 1992 changed his name by deed poll to “Anthony Bruce Hall”.
- [2]Department of Transport and Main Roads (“the Department”), who are responsible for driver licensing in Queensland, say that the applicant obtained a Queensland drivers licence in the name of Hall in 1987, noting a birthplace of Sydney, New South Wales and a birth date in 1951. They say that the applicant also obtained a Queensland licence under the name Harvie in 2007, noting a birthplace of New Zealand and a birth date in 1950. That license expired in 2008.
- [3]The Department became aware of the possible duplication on 3 July 2019 and employed facial recognition technology to identify that the photographs used for each of drivers license were of the same person. They searched records of New South Wales births and could not locate records for Anthony Hall that matched his licence, but via New Zealand passport records could find a record of birth for Colin Harvie born in New Zealand in 1950 (albeit on a different day and month).
- [4]On 6 July 2020 the Chief Executive of the Department sent a notice to Mr Hall to show cause[1] as to why his licence should not be cancelled. They received advice from Mr Hall’s representatives that Mr Hall’s use of the two licenses were the subject of criminal charges before the Courts and twice extended the time to respond to the show cause notice, until 18 September 2020.
- [5]On 14 September 2020 Mr Hall was convicted for four offences under section 194(1) of the Criminal Code of making a false declaration.
- [6]By a decision made 14 December 2020 the Chief Executive of the Department cancelled Mr Hall’s drivers license on the grounds that the license was obtained on the basis of information that Mr Hall knew was false or misleading in a material particular[2].
- [7]On 17 October 2020 Mr Hall filed an application for reconsideration of the decision to cancel his licence because of a show cause action. The reconsideration was still current in December 2020 and the tribunal understand from Mr Hall’s submissions that it may have been resolved on or about 25 January 2021.
- [8]Nonetheless, on 26 October 2020 Mr Hall filed an application asking the tribunal to review the Department’s decision and to reinstate his licence and compensate him for the inconvenience and stress he says the cancellation of his licence has caused.
- [9]The role of the tribunal in review proceedings is to review the circumstances afresh and to produce the correct and preferable decision.[3]
- [10]The role of the Department is to assist the tribunal in making that decision,[4] rather than to take an adversarial role or to defend the decision under review.
- [11]In undertaking that role, the Department made submissions[5] questioning whether the tribunal has jurisdiction to hear the matter. Directions were made inviting Mr Hall to make submissions explaining why his application to review the decision should not be dismissed for lack of jurisdiction, with a decision on the question of jurisdiction to then be made. That decision and the reasons for it, follow.
Does the tribunal have jurisdiction to hear this application?
- [12]
- [13]An “enabling Act” is an Act or subordinate legislation, other than the QCAT Act or subordinate legislation under it, that confers review jurisdiction on the tribunal[8].
- [14]The enabling Acts in this application are therefore the Transport Operations (Road Use Management) Act 1995 (Qld) (“the TOURM Act”) and the Transport Operations (Road Use Management—Driver Licensing) Regulation 2010 (Qld) (“the DL Regulations”).
- [15]Section 131 of the TOURM Act relevantly provides that (my emphasis added):
- (2)A person aggrieved by the refusal of the Chief Executive or commissioner or of a superintendent to issue or renew a licence, or by the suspension or cancellation of a licence by the Chief Executive or commissioner, or by the imposition of a condition in respect of a licence by or by direction of the Chief Executive or commissioner or a superintendent may apply, as provided under the QCAT Act, to QCAT for a review of the refusal, suspension, cancellation or imposition.
- (3)Subsection (2) does not apply to a refusal, suspension, cancellation or imposition that is a licensing decision.
- (4)A person aggrieved by a decision of the Chief Executive on a reconsideration of a licensing decision may apply to QCAT for a review of the decision on the reconsideration.
…
- (24)In this section licensing decision means a decision of the Chief Executive to –
…
- (b)amend, suspend or cancel the person’s Queensland driver licence…
- [16]Section 132 of the DL Regulations relevantly provided that:
- (1)This section applies if the Chief Executive has –
…
- (k)has under section 125, amended, suspended or cancelled a person’s license.
- (2)The person may apply to the Chief Executive to reconsider the original decision.
- (8)In this section original decision means a decision mentioned in any of the paragraphs (aa) to (n) of subsection (1).
- [17]The Department submits[9] that the decision to cancel Mr Hall’s license is an original decision and there is no authority provided by any relevant enabling Act for the tribunal to review it. Until a reconsideration decision is made under section 132, there is no “reviewable decision” which comes within the tribunal’s review jurisdiction.
- [18]Mr Hall submits[10] that “as the review has now been completed [the Department’s] objections are no longer relevant”, relying on information that the Department had completed its reconsideration on 25 January 2021. No evidence was produced to the tribunal to confirm that the reconsideration has been in fact been completed.
- [19]In some jurisdictions, the premature filing of an application, pursuant to a procedural requirement under the relevant legislation can be abridged by the tribunal in an exercise of discretion[11]. However, this is not one of those situations.
- [20]The tribunal can only review, in these circumstances, a decision of the Chief Executive on a reconsideration of a licensing decision. The application pertains to the original decision of the Chief Executive to cancel Mr Hall’s licence, which, pursuant to section 131 of the TOURM Act (specifically, subsections (2), (3) and (24)), this is a licensing decision in respect of which the tribunal does not have review powers.
- [21]The fact that a subsequent decision – the reconsideration – may have since occurred does not cure the defect in the application for review – namely, the lack of a reviewable decision upon which the application for review is grounded.
- [22]Even if that issue could be overcome, the tribunal cannot review in one application two separate decisions (which, in this case would be the original decision and the reconsideration decision). The Appeal Tribunal in Body Corporate for Alto Gladstone v Queensland Building and Construction Commission & Anor[12] stated clearly that “simply roll[ing] it all into one application for review to challenge a myriad of decisions”[13] is not valid.
- [23]The application must fail, and is dismissed, for all of those reasons.
Footnotes
[1]Section 125 of the Transport Operations (Road Use Management—Driver Licensing) Regulation 2010 (“the DL Regulations”) (since replaced by the Transport Operations (Road Use Management—Driver Licensing) Regulation 2021 (Qld)) makes this a compulsory step if the cancelling of a license is being considered.
[2]Section 124(b) of the DL Regulations.
[3]Section 20 of the Queensland Civil and Administrative Tribunal Act 1999 (Qld) (“QCAT Act”).
[4]Section 21 of the QCAT Act.
[5]Filed on 10 December 2020.
[6]Section 9(1) of the QCAT Act.
[7]Section 17(1), ibid.
[8]Section 6(2), ibid.
[9]Submissions filed 10 December 2020.
[10]Submission filed 29 January 2021.
[11]For example, see discussion by Adjudicator Alan Walsh in Fisher v Wenzel [2019] QCAT 295 at [21] to [39], concerning the premature filing of an application relating to a dividing fence.
[12][2020] QCATA 6.
[13]Ibid at [70].