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Hassid v Department of Transport and Main Roads[2024] QCAT 286

Hassid v Department of Transport and Main Roads[2024] QCAT 286

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Hassid v Department of Transport and Main Roads [2024] QCAT 286

PARTIES:

Philip Thomas Hassid

(applicant)

v

Department of Transport and Main Roads

(respondent)

APPLICATION NO:

GAR367-24

MATTER TYPE:

General administrative review matters

DELIVERED ON:

16 July 2024

HEARING DATE:

12 July 2024

HEARD AT:

Brisbane

DECISION OF:

Member P Roney KC

ORDERS:

  1. The decision of 16 May 2024 under section 43(2)(b) of the Transport Operations (Passenger Transport) Regulation 2018 to suspend the Applicant’s driver authorisation is stayed until further order of this Tribunal.
  2. Each party has liberty to apply to set aside or alter the stay order on 3 business days written notice.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – where application filed to stay decision immediately suspending taxi driver authorisation – whether it is desirable to grant a stay – principles relevant to the grant of a stay

HUMAN RIGHTS – whether original decision or a refusal of a stay was compatible with section 8 of the Human Rights Act 2019

Queensland Civil and Administrative Act 2009, s 20, s 22

Criminal Code Act 1899 (Qld), s 328A (1)

Human Rights Act 2019, s 19, s 24

Transport Operations (Passenger Transport) Act 1994

Transport Planning and Co-ordination Act 1994, s 34

Transport Operations (Passenger Transport) Regulation 2018, s 43(2)(b)

Cooper v Department of Transport and Main Roads [2024] QCAT 62

Eldridge v Department of Transport and Main Roads [2019] QCATA 155

Eldridge v Department of Transport and Main Roads [2018] QCAT 434

Elliott v Queensland Building Services Authority [2010] QCAT 180

Elliott v Department of Transport and Main Roads [2022] QCAT 64

GT v Department of Transport and Main Roads [2022] QCAT 187

Hall v Department of Transport and Main Roads [2022] QCAT 10

Holder v Law Society [2003] 1 WLR 1059

Johnston & Ors v Carroll & Anor; Witthahn & Ors v Wakefield; Sutton & Ors v Carroll [2024] QSC 2

Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58

King v The Queen (2012) 245 CLR 588

Malik v the United Kingdom (2012) ECtHR, Application no. 23780/08

Jiminez v The Queen (1992) 173 CLR 572

McBride v The Queen (1966) 115 CLR 44

R v Wilson [2009] 1 Qd R 476

R v Grimaldi [2011] QCA 114

R v Plath [2003] QCA 567

R v Perham [2016] QCA 123

Racing Queensland Ltd v Cullen [2011] QCAT 393

Scott v Queensland Police Service – Weapons Licensing [2021] QCAT 330

The Hideaway Café Bar Pty Ltd v Chief Executive, Office of Liquor and Gaming Regulation [2012] QCAT 46

Todd v Department of Transport and Main Roads [2019] QCAT 385

Victorian Taxi Families Inc v Taxi Services Commission [2018] VSC 594

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

  1. [1]
    The Applicant is a cab driver by occupation. Until 16 May 2024 the Applicant was the holder of a Transport and Main Roads, driver authorisation to provide passenger transport in Queensland. That allowed him to drive public taxis, which was and had been for many years his sole occupation and his source of income. He had held a driver authorisation recorded in Transport and Main Roads records since 18 October 2018. On 16 May 2024 a decision was made under s 43(2)(b) of the Transport Operations (Passenger Transport) Regulation 2018 (‘TOPTR’) to immediately suspend his driver authorisation. After a review application was rejected, he has applied to the Tribunal to review the decision.
  2. [2]
    Section 20 of the Queensland Civil and Administrative Act 2009 (‘QCAT Act’) provides that the hearing of the review application is to be a fresh hearing on the merits, and that the purpose of the review is to produce the correct and preferable decision. There is no presumption to be made that any part of that decision is correct or that some error needs to be proven about the way in which the decision was arrived at.[1]
  3. [3]
    He now applies for a stay of the decision pending the hearing of the review application. As he puts it; to ‘allow me to keep driving taxis until the police charge has been fully determined’.
  4. [4]
    It seems to be common ground that the suspension indefinitely means that he cannot drive a taxi whilst the suspension is in place. No one suggests otherwise.
  5. [5]
    There are numerous decisions of this Tribunal which have dealt with the principles relevant to granting a stay in this context under section 22(4) of the QCAT Act. In the Hideaway Café Bar Pty Ltd v Chief Executive, Office of Liquor and Gaming Regulation [2012] QCAT 46 Member Howard said, and I agree, that the following principles apply:
  1. [10]
    The tribunal may, after having regard to the factors set out in section 22(4) of the QCAT Act, make an order to stay the operation of a reviewable decision if it considers it is desirable to do so. In exercising its discretion to grant a stay, the tribunal must form a positive view that the making of a stay order is desirable. The matters which must be considered under section 22(4), are the interests of any person whose interests may be affected; any submission of the decision-maker for the reviewable decision; and the public interest.
  2. [11]
    However, section 22(4) does not prevent the consideration of other relevant factors. The Appeal Tribunal has found that the standard curial principles also apply to govern the exercise of the discretion in addition to a consideration of those factors in section 22(4). Other relevant issues include whether an arguable case has been shown by the applicant; whether the balance of convenience favours the granting of the stay; and whether the refusal of the stay would render a favourable appeal decision nugatory. In the circumstances of a merits review, the equivalent of the latter consideration might be whether refusal of the stay would render success on review ineffective.
  3. [12]
    The considerations in determining a stay application in the administrative review context have been considered in the federal merits review jurisdiction which is exercised by the Administrative Appeals Tribunal (the AAT). In the AAT the test is whether a stay order is desirable, and is appropriate to secure the effectiveness of the review hearing and determination having regard to the interests of any persons who may be affected by the review. ‘Desirable’ has been interpreted as requiring a positive aspiration. The public interest has also been weighed against the interests of the applicant for the stay.
  4. [13]
    In this context, the power to grant a stay has been considered to be ‘negative’ rather than positive: in effect, stay orders may be granted to preserve the situation which existed prior to the making of the reviewable decision. This has been interpreted by the Federal Court of Australia as enabling preservation of the status quo, whether or not this involves granting or refusing the stay application.
  5. [14]
    That is, if the reviewable decision is a decision to cancel a license, a stay may be allowed to preserve the status quo prior to the making of the reviewable decision in appropriate circumstances. However, the power to make a stay order is not to place an applicant in a different, or changed, position from its position prior to the making of the reviewable decision. It seems to me that this is also a relevant matter when determining a stay application in the review jurisdiction of QCAT under the QCAT Act.
  1. [6]
    Section 43(2)(b) of the TOPTR provides:

43Immediate amendment or suspension

  1. The chief executive may immediately amend a person's driver authorisation by imposing a condition on the authorisation if—
  1. the person has been convicted of a category B or category C driver disqualifying offence; or
  1. the person has been charged with a driver disqualifying offence and the charge has not been dealt with; or
  1. the chief executive considers it necessary in the public interest having regard to the purpose of driver authorisation as stated in section 23 of the Act.
  1. The chief executive may immediately suspend a person's driver authorisation if—
  1. the person has been convicted of a category B or category C driver disqualifying offence; or
  1. the person has been charged with a driver disqualifying offence and the charge has not been dealt with; or
  1. the person does not comply with a written notice given to the person under section 59; or
  1. the chief executive considers the suspension is necessary in the public interest having regard to the purpose of driver authorisation as stated in section 23 of the Act; or
  1. the chief executive is no longer satisfied with the person's proof of identity; or

(f) the chief executive is no longer satisfied the person holds a licence that was required for the grant or renewal of the driver authorisation.

  1. [7]
    It would be fair to say that there is a range of circumstances which enliven the power to exercise the discretion, some more serious than others. For example, a conviction for a serious offence would have more significance that the fact that a charge had been brought for the same offence or a less serious offence.
  2. [8]
    What followed was a statement of the facts and circumstances forming the grounds for the decision. Those circumstances were that the applicant was charged with a driver disqualifying offence. The Transport Operations (Passenger Transport) Act 1994 (‘TOPTA’) defines driver disqualifying offences as including, ‘dangerous operation of a vehicle’, for which he had been charged. It was said not to amount to a determination of his innocence or guilt of the charge. The statement annexed TransLink's policy about driver disqualifying offences for his information. The immediate suspension of his driver authorisation was deemed to remain in effect until the earlier of:
  1. the charge is dealt with; or
  1. you receive notification informing you of a decision under section 42 of the TOPTR to amend, suspend or cancel the driver authorisation; or
  1. you receive written notice from the chief executive ending the suspension.
  1. [9]
    A notice of the decision and the reasons for the decision was provided to him on 16 May 2024. He subsequently applied to the Manager (Passenger Transport Operations), Department of Transport and Main Roads for a review of that decision. The Manager considered the original decision and his written request for a review in accordance with section 34 of the Transport Planning and Co-ordination Act 1994 and decided to confirm the original decision.
  2. [10]
    The statement of reasons for the decision to confirm the original decision said that it was based on information provided by him and the original Department of Transport and Main Roads officer who immediately suspended his driver authorisation. The original decision was made under the Transport Operations (Passenger Transport) legislation and the Department of Transport and Main Roads policy.
  3. [11]
    The Manager reviewed the immediate suspension of driver authorisation sent to him on 16 May 2024 and concluded that the applicant’s statement of reasons had not provided any further evidence for her to reconsider the decision in his case. She found that he had been charged with a driver disqualifying offence, 'dangerous operation of a motor vehicle', with a court date set for 25 June 2024. She considered it relevant that this charge was also whilst he was operating a Public Passenger Vehicle. She decided to uphold the decision to immediately suspend his driver authorisation until the courts have finalised his case and reached a verdict. She asked that it be noted that this does not amount to a determination of his innocence or guilt in respect of the charge.
  4. [12]
    A more detailed statement of reasons has since been provided. It states that on 19 March 2024 the Respondent was advised from a 13CABS report, which it attached to the statement, that the Applicant had been involved in an incident on 5 March 2024 whilst driving a Public Transport Vehicle namely a Taxi and that the Queensland Police Service had advised them of the incident. The record of the cab operator given to the police concerned an incident where at 1:30am in Kelvin Grove. The Applicant allegedly drove away when the passenger was exiting his vehicle and the passenger fell to the ground. It is alleged that the driver knew that this happened but continued to drive away from the scene and only returned when he saw police lights in his rear-view mirror as they were close by.
  5. [13]
    At this time the Respondent did not proceed with any action until the Respondent had been notified by Queensland Police of any charges that had been laid against the Applicant.
  6. [14]
    Then on 25 April 2024 the Applicant was charged with an offence under section 328A (1) of the Criminal Code Act 1899 (‘Criminal Code’), dangerous operation of a vehicle, and the police notified the Respondent of this under section 148A of the TOPTA. The notification referred to dangerously attempting to drive whilst the complainant was exiting the vehicle. The charge was returnable in the Brisbane Magistrates Court on 25 June 2024 for a first mention. The material does not disclose whether it was dealt with then or adjourned, however the Applicant pleaded not guilty so it is reasonable to infer that the charge remains on foot. No party has addressed the issue of clear relevance, as to how long the criminal charges will take to be heard and determined, whether it is to be months or even years. He says that it has been set down for December. As it stands, he will be incapable of earning an income as a taxi driver till it has been resolved. Dangerous operation offences can be dealt with summarily where there is no death or grievous bodily harm (s 328A (1)). That may mean it can be dealt with sooner rather than later.
  7. [15]
    In section 328A the word ‘dangerously’ has its ordinary meaning. The ordinary meaning of ‘dangerous’ is ‘fraught with or causing danger; involving risk; perilous; hazardous; unsafe’. It describes, when applied to driving, a manner or speed of driving which gives rise to a risk to others, including motorists, cyclists, pedestrians and the driver’s own passengers: King v The Queen (2012) 245 CLR 588.
  8. [16]
    The prosecution must prove that there was a situation which, viewed objectively, was dangerous. Jiminez v The Queen (1992) 173 CLR 572 at [583] (‘Jiminez’); McBride v The Queen (1966) 115 CLR 44 at [50]-[51] (‘McBride’). For the driving to be dangerous, there must be some feature which is identified not as a mere want of care, but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by a person who may, on occasions, drive with less then due care and attention: Jiminez at [579]. The prosecution must prove that there was some serious breach of the proper conduct of the vehicle upon the roadway, so serious as to be in reality, and not speculatively, potentially dangerous to others: see McBride at [49]-[50].
  9. [17]
    Fault is not an element of the offence, that is not to say that in establishing the offence consideration of the offender's mental state must necessarily be disregarded; the provisions of Ch 5 of the Criminal Code, eg ss 23, 24, 25, and 31 may be raised: see R v Wilson [2009] 1 Qd R 476 at [15]. See also R v Grimaldi [2011] QCA 114. In relation to the defence of mistake of fact in section 24: see also R v Plath [2003] QCA 567 at [7] and R v Perham [2016] QCA 123 at [34]. If a driver is unaware that a passenger is alighting from a vehicle, or believes they already have, then potentially the defence of mistake of fact might be made out. That is relevant to this case.
  10. [18]
    The Respondent became aware of the charges against the Applicant after receiving advice from the Queensland Police Service (‘QPS’) on 16 May 2024.
  11. [19]
    On 28 May 2024, the Applicant telephoned the Respondent’s office to discuss the review. The Respondent's office discussed the notice with the Applicant and further explained the review process and the actions he could take to request a review of the decision. On 28 May 2024, the Respondent received an email from the Applicant requesting an internal review of the decision to immediately suspend his driver authorisation. The Applicant's email addressed a number of matters.
  12. [20]
    On 30 May 2024, the Applicant telephoned the Respondent's office to request an urgent internal review of the decision to immediately suspend his driver authorisation. The Applicant also advised that he was driving a Taxi at the time. On 30 May 2024, the Applicant applied to the Queensland Civil and Administrative Tribunal for a Stay of the decision to immediately suspend his driver authorisation.
  13. [21]
    On 5 June 2024 the Respondent sent a letter to the Applicant advising that the original decision to immediately suspend was upheld. The stated primary consideration in making the decision to immediately suspend was the purpose of driver authorisation as per Section 23 of the TOPTA which states:

23Purpose of driver authorisation

  1. The purpose of driver authorisation is to maximise public confidence in public passenger services in relation to the drivers of public passenger vehicles.
  1. Without limiting subsection (1), the purpose includes ensuring that drivers of public passenger vehicles–
  1. are suitable persons to drive public passenger vehicles having regard to the need to provide for the personal safety of passengers and their property, and the public; and
  1. conduct themselves responsibly with passengers and the public; and
  1. are responsible in the act of driving and are capable of safely operating the relevant type of vehicle; and
  1. are aware of their customer service responsibilities; and
  1. are held accountable for complying with appropriate standards.
  1. Without limiting subsection (1) or (2), the purpose also includes ensuring that drivers do not damage the reputation of public passenger transport.
  1. In deciding whether to grant driver authorisation to a person, or to renew or amend, impose a condition on, or suspend or cancel a person's driver authorisation, the chief executive must take into consideration–
  1. the purpose of driver authorisation mentioned in subsections (1) to (3); and
  1. the paramount principle mentioned in section 33A that children and other vulnerable members of the community must be protected.
  1. [22]
    The reasons stated that while no order of importance had been given to the factors about which regard has been taken, it is submitted that the public interest is the most important factor to be considered followed by the interests of the Applicant. The reasons stated that this is reinforced by section 23 of the TOPTA which lists the purpose of driver authorisation is to maximise public confidence in public passenger services in relation to the drivers of public passenger vehicles.
  2. [23]
    The applicant’s submissions both to the Department and in this Tribunal say that the report to the taxi company is inaccurate in that there is video footage if the incident which shows that the passenger ignored instructions not to alight, while he was trying to slowly move the car to a safer position. And that the passenger demanded to be let out at ‘a ridiculously dangerous position’. He says he knew nothing about how the passenger alighted until after she had done so, and he had moved closer to a safer position. He says that his attention was totally focussed on that repositioning and he had been subjected to a sequence of unsettling and disorienting things that the passenger perpetrated during the fare, to the point where, rather than dangerous driving, he did an excellent job of not having an accident. He says there was no serious injury to the passenger, just a few grazes. He said that the police officer in attendance told him the passenger was very drunk. He denies the allegation that he knew that the passenger had fallen out but continued to drive away from the scene and only returned when he saw police lights in his rear-view mirror as they were close by.
  3. [24]
    No reference of any kind was made to these matters either in the reasons for the original decision, those on the review, or the revised reasons filed in the Tribunal.
  4. [25]
    In his 28 May 2024 submissions to the Department and again in this Tribunal the applicant contends as follows:
  1. My wife and I have been in a constant state of hardship ever since we were completely financially wiped out (ie lost everything) by the 2011 floods. Because we chose not to go bankrupt, even now, over 13 years since the event, we have not finished dealing with the consequences (all creditors have recently finally been satisfied but we are still catching things up with the ATO). I also had to set aside my 35 years real estate business 6 years ago, to complete this process (taking up my lifelong fall-back occupation of taxi driving to keep the bills paid). We have recently been forced to move which we are in the middle of doing because the place we were staying at was sold. If you proceed with this suspension, we will WITHIN 3-4 WEEKS become homeless and destitute with NO prospects of returning to a normal life. This consequence is massively out of proportion to the events that are provoking it (see below).
  1. My wife also suffers from a life-threatening medical condition (for which she has taken endocrinologist prescribed drug treatment for decades) which arises infrequently but at times when she is most stressed. Making us homeless greatly increases the chances of her experiencing an episode and greatly reduces the chances of my having the means to be at her side at hospital for a couple of weeks as she gets through the worst of it (which is what it has taken the last few times). If anything happens to her as a consequence of your unfair actions please do NOT say you were not told!
  1. Such drastic action by you is massively unfair and massively disproportionate to the actual events provoking it. The charge will be strenuously contested. Despite what the video which you have no doubt seen superficially seems to show the appropriate way to view this event takes account of ALL factors and a very different conclusion should be drawn. I have explained this to the police and they still decided to proceed with the charge which in my opinion was a predictable but very poor decision. The court WILL take account of all the factors and I am confident they will see it my way.
  1. I first drove a taxi in Sydney in the 70's as a Uni student and have done a couple of other stints during difficult periods since then, prior to this latest and by far longest stint which is ongoing. Since taking up taxi driving once again 6 years ago I estimate I have done about 45,000 fares given the massive hours I work to ensure I can pay my bills and inch our way out of the flood induced predicament and back to square 1 (yes aiming for square 1 at my age- nearly 70, years old). So, ONE FARE in which something questionable) happens out of 45,000 in which there IS virtually nothing but extremely happy passengers (where is your acknowledgement and accounting of that?) resulting in us being forced to be homeless and putting my wife's life at risk is ridiculous, unfair, and offensive. Every day I see other drivers (and you know the group I am talking about) doing outrageous and illegal things to passengers (which as far as I can tell you do NOTHING about) and I am one of those doing the right thing ALL THE TIME!
  1. Taking such drastic action before a matter is determined in court is widely regarded in most spheres as being by definition unjust and inappropriate. (You have heard of the presumption of innocence, ie innocent until proven guilty?). I have explained to you the dramatic consequences of doing this so this exacerbates that inappropriate action. You will argue that even the possibility of such a conviction provokes your need to protect the public. But in making that assessment you take NO ACCOUNT whatsoever of the overall nature of my driving record. If the public are truly in danger in my taxi then if things are to be assessed fairly taking full account of everything you would have NOBODY driving taxis (which unfortunately will be the case in a few years anyway but that 1S whole other nasty story). And the flipside is that you have NO RIGHT to make us homeless and put my wife's life at risk over conjecture!

(Original emphasis)

  1. [26]
    No reference of any kind was made to these matters in the reasons of the review, or the revised reasons filed in the Tribunal, or in any submission filed in this Tribunal.
  2. [27]
    Despite the Respondent having been given the opportunity to file submissions, indeed an order was made that it files written submissions in response to the application for a stay by 11 June, later extended to 25 June, it did not do so. It was again contacted on 12 July 2024 to clarify if any further submission was forthcoming, but none was.
  3. [28]
    The issues of his otherwise good driving history, the proportionality issue, the effect on his income earning capacity, and his family situation were clearly matters that would be relevant to consider in this Tribunal, as well of course, balanced against the policy or purpose clearly recognised in section 23 of the TOPTA, that driver authorisation is designed to maximise public confidence in public passenger services in relation to the drivers of public passenger vehicles. That purpose is to be given great weight. However, in my view it is at least strongly arguable that where a misdemeanour driving charge has been brought but is awaiting determination in the Courts, there having been no finding of guilt, and there are reasons to doubt whether public safety or public confidence in a driver will be affected by not suspending a   driver authorisation, then it is the correct and preferable decision to not suspend a driver authorisation for the time being, but to carefully monitor the situation.
  4. [29]
    There have been a few other decisions of this Tribunal which have dealt with similar but also very different situations.
  5. [30]
    In Todd v Department of Transport and Main Roads [2019] QCAT 385, Member Fitzpatrick (as she was then) considered an application for review of a decision made by the Department of Transport and Main Roads to refuse to approve an application for accreditation as a driver trainer made on 10 July 2018. There was no suggestion that the Applicant did not have the qualifications to perform the functions of a driver trainer. However, by Regulation 5 of the Transport Operations (Road Use Management – Accreditation and Other Provisions) Regulation 2015 (Qld) (‘the Regulations’), the Chief Executive may refuse to consider an application. By Regulation 8, an application may be refused if the applicant has been convicted of a disqualifying offence, charged with a disqualifying offence and the charge has not been finally disposed of, or been convicted of a road transport offence within five years immediately before the application was made. Further, the application may be refused if the Chief Executive is satisfied public safety is likely to be endangered if the application is granted or the Chief Executive considers it necessary in the public interest. In the five years prior to the application the Applicant had been convicted of offences including burglary, unlawful use of a motor vehicle, stealing, unauthorised dealing with shop goods, possessing dangerous drugs and failing to take reasonable care and precautions in respect of a syringe or needle. These were convictions of disqualifying offences under Regulation 8. Her traffic history prior to the application included offences such as failing to give way at a stop sign, speeding and driving whilst disqualified. These were offences to which the Chief Executive may have regard under Regulation 8. The Department considered these offences to be grounds for refusal of the application. Other relevant matters were the giving of a false declaration upon making her application that she had not been convicted or charged with a criminal offence in the last ten years and sending an email purporting to have been written under the hand of a psychologist recommending her as suitable for the role of driver trainer.
  6. [31]
    The member held that she had been convicted of many serious offences, that her traffic history was not good and that gave the member serious concern as to her suitability for the role of driver trainer. The member considered that giving a false declaration when making the application for accreditation and falsifying an email to promote her application are actions which demonstrated that she was not suitable for accreditation as a driver trainer.
  7. [32]
    None of those circumstances are present in the case before me.
  8. [33]
    In Eldridge v Department of Transport and Main Roads [2019] QCATA 155, the Tribunal was concerned with someone who had held a tow truck driver certificate for 3 years. Holding a tow truck driver certificate required a person to also hold a driver’s licence, and like here, the public interest extended to management of traffic to enhance safety. In that context, because Mr Eldridge failed a random drug test for a third time, the Tribunal dismissed his application to review a decision by the Department of Transport and Main Roads to refuse him a tow truck driver certificate
  9. [34]
    Having considered the impact upon Mr Eldridge and his family, the Tribunal made the following salient finding:

Although sympathy can be extended to the Applicant for the trauma symptoms he has recently experienced, the fact remains that the law holds tow truck drivers to a particular standard. That standard requires industry participants to hold in high regard all matters going to road safety and one in which suitability for industry participation is assessed with particular regard to a person’s traffic offence history. Marijuana use is inimical to road safety, and the Applicant’s most recent drug driving offence now marks the third occasion within 38 months in which he has been convicted for driving with a prescribed drug in his system, this showing insufficient regard for road safety. Given the difficulties experienced by the Applicant in initially obtaining approval for the grant of a tow truck driver certificate (in January 2017), the Applicant should have been fastidious regarding his future need to abstain from all drugs, lest any further convictions deprive him of the right to continue as a regulated tow truck driver. Yet the Applicant has not been fastidious, and has let his guard down. The Applicant having now failed a random drug test for a third time has the effect that the Applicant is not able to be assessed as an appropriate person to hold a tow truck driver certificate.

  1. [35]
    Again, those circumstances bear no resemblance to those here.
  2. [36]
    Some other somewhat relevant examples involving licencing situations, which have not been particularly helpful in deciding the present case, include the original decision in Eldridge v Department of Transport and Main Roads [2018] QCAT 434, Hall v Department of Transport and Main Roads [2022] QCAT 10, Elliott v Department of Transport and Main Roads [2022] QCAT 64, GT v Department of Transport and Main Roads [2022] QCAT 187, and Cooper v Department of Transport and Main Roads [2024] QCAT 62.
  3. [37]
    In my view, a stay order is desirable, and is appropriate to secure the effectiveness of the review hearing having regard to the interests of the public, the Applicant, the policy behind the licencing system and the persons who may be affected by the review.
  4. [38]
    I have weighed the public interest against the interests of the Applicant for the stay. In my view, the stay orders should be granted to preserve the situation which existed prior to the making of the reviewable decision and to enable the Applicant to avoid serious impecuniosity and other disadvantage.
  5. [39]
    The respondent does not point to any issue which would suggest that there is any prejudice to it or to the public in granting a stay. It seems to suggest that it is the mere existence of the charge which might lead to a disqualification, which founds the basis for suspending the licence. However, doing so can have potentially serious financial and social consequences for working members of the public who require such licenses to conduct their businesses or derive ordinary household income. The automatic suspending of the licenses of individuals who are charged with such offences, no matter what extenuating circumstances exist and no matter how weak the prosecution case may be, has potentially draconian consequences.
  6. [40]
    When it comes to considering the merits of the review application, this Tribunal will carefully consider all the relevant circumstances including whether there has been a conviction for the offence of dangerous driving. However, for present purposes, it seems to me that it is neither necessary nor appropriate that, pending the determination of the charge which may only occur in half a year or more, the Applicant stands to be derived of his income earning capacity.
  7. [41]
    There is no suggestion that there is any kind of risk of reoffending or that there is some aspect of the Applicant’s personality or the way he conducts himself as a taxi driver, which exposes the public in any ongoing risk
  8. [42]
    There is one further issue of significance.
  9. [43]
    The original decision stated that it was compatible with section 8 of the Human Rights Act 2019 (the ‘HR Act’) as it did not directly limit any of his human rights under the Act. How that conclusion was arrived at is not stated. The decision in Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Witthahn v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service) [2024] QSC 2 (the ‘Wakefield decision’) has implications for this matter. Sadly, neither party addressed the issue in submissions.
  10. [44]
    There it was held that Section 58(1) of the HR Act imposed two obligations on the respondent decision maker in that case:
    1. Substantive: not to make a decision in a way that is incompatible with human rights (section 58(1)(a)); and
    2. Procedural: not to fail to give proper consideration to a relevant human right in making a decision (section 58(1)(b)).
  11. [45]
    There will likely be a question whether the decision maker and the decision reviewer can demonstrate that, before making the decisions as was required because of the express terms of section 58 of the HR Act, that the decision makers:
    1. understood in general terms which of the rights of the persons affected by the decisions might be relevant and how those rights would be interfered with by the decision;
    2. had seriously turned their minds to the possible impact of the decision on a person’s human rights;
    3. had identified the countervailing interests and obligations; and
    4. had balanced competing private and public interests as part of the exercise.
  12. [46]
    As Justice Martin said in the Wakefield decision, the ‘proper consideration’ that needs to be given under sections 58(1)(b) or 58(5) engages a standard of consideration higher than that generally applicable at common law to taking into account relevant considerations. As a decision maker in this Tribunal, I am also charged with the same duty.
  13. [47]
    The HR Act protects the Right to Property (section 24). ‘Property’ is not defined in the HR Act. The right was modelled on Article 17 of the Universal Declaration of Human Rights (‘UDHR’) but has received the most consideration in the form it appears in Article 1 of the First Protocol to the European Convention on Human Rights (‘ECHR’), the right to ‘peaceful enjoyment’ of ‘possessions’. That right has been limited to existing possessions and not future acquisitions or future income: Malik v the United Kingdom (2012) ECtHR, Application no. 23780/08 at [81], [88] and [93] (‘Malik’). However, the goodwill associated with a right to practice one’s profession is capable of protection: Malik at [81], [89]-[93]; Holder v Law Society [2003] 1 WLR 1059, so too a licence to trade: Malik at [91] and the authorities cited therein.
  14. [48]
    There are case-law authority which demonstrate that interferences with licences or permits to operate a business or carry out regulated activities such as serving alcoholic drinks, taxi-driving[2], or owning a firearm[3] may breach the licence-holder's (or Applicant's) property rights, which are essentially the economic interests connected with the operation of the business activities.
  15. [49]
    The material does not say whether the Applicant is an employee or a contractor, nor whether he has any property interest in a taxi driving business. Nor to my knowledge, has there been any decision which treats the opportunity to earn an income from being authorised to drive a taxi or equivalent as a protected property right, however, I consider it at least arguable that the loss of the driver authorisation in this case could be regarded as affecting the Applicant’s protected property rights and that is a matter to be taken into consideration on the review.
  16. [50]
    In the circumstances, I order that the decision of 16 May 2024 under section 43(2)(b) of the Transport Operations (Passenger Transport) Regulation 2018 to suspend the Applicant’s driver authorisation be stayed until further order of this Tribunal.
  17. [51]
    Each party has liberty to apply to set aside or alter the stay order on 3 business days written notice.

Footnotes

[1]Elliott v Queensland Building Services Authority [2010] QCAT 180; Racing Queensland Ltd v Cullen [2011] QCAT 393; Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58

[2]Victorian Taxi Families Inc v Taxi Services Commission [2018] VSC 594.

[3]Scott v Queensland Police Service Weapons Licensing [2021] QCAT 330

Close

Editorial Notes

  • Published Case Name:

    Hassid v Department of Transport and Main Roads

  • Shortened Case Name:

    Hassid v Department of Transport and Main Roads

  • MNC:

    [2024] QCAT 286

  • Court:

    QCAT

  • Judge(s):

    Member P Roney KC

  • Date:

    16 Jul 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Cooper v Department of Transport and Main Roads [2024] QCAT 62
2 citations
Jump To
Cite 1 - [2024] QCAT 62
Cite 2 - [2024] QCAT 62
Eldridge v Department of Transport and Main Roads [2018] QCAT 434
2 citations
Jump To
Cite 1 - [2018] QCAT 434
Cite 2 - [2018] QCAT 434
Eldridge v Department of Transport and Main Roads [2019] QCATA 155
2 citations
Jump To
Cite 1 - [2019] QCATA 155
Cite 2 - [2019] QCATA 155
Elliott v Department of Transport and Main Roads [2022] QCAT 64
2 citations
Jump To
Cite 1 - [2022] QCAT 64
Cite 2 - [2022] QCAT 64
Elliott v Queensland Building Services Authority [2010] QCAT 180
2 citations
Jump To
Cite 1 - [2010] QCAT 180
Cite 2 - [2010] QCAT 180
GT v Department of Transport and Main Roads [2022] QCAT 187
2 citations
Jump To
Cite 1 - [2022] QCAT 187
Cite 2 - [2022] QCAT 187
Hall v Department of Transport and Main Roads [2022] QCAT 10
2 citations
Jump To
Cite 1 - [2022] QCAT 10
Cite 2 - [2022] QCAT 10
Holder v Law Society [2003] 1 WLR 1059
2 citations
Jump To
Cite 1 - [2003] 1 WLR 1059
Cite 2 - [2003] 1 WLR 1059
Jiminez v R (1992) 173 CLR 572
2 citations
Jump To
Cite 1 - (1992) 173 CLR 572
Cite 2 - (1992) 173 CLR 572
Johnston v Commissioner of Police [2024] QSC 2
2 citations
Jump To
Cite 1 - [2024] QSC 2
Cite 2 - [2024] QSC 2
Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58
2 citations
Jump To
Cite 1 - [2010] QCATA 58
Cite 2 - [2010] QCATA 58
King v The Queen (2012) 245 CLR 588
2 citations
Jump To
Cite 1 - (2012) 245 CLR 588
Cite 2 - (2012) 245 CLR 588
McBride v The Queen (1966) 115 CLR 44
2 citations
Jump To
Cite 1 - (1966) 115 CLR 44
Cite 2 - (1966) 115 CLR 44
R v Grimaldi [2011] QCA 114
2 citations
Jump To
Cite 1 - [2011] QCA 114
Cite 2 - [2011] QCA 114
R v Perham [2016] QCA 123
2 citations
Jump To
Cite 1 - [2016] QCA 123
Cite 2 - [2016] QCA 123
R v Plath [2003] QCA 567
2 citations
Jump To
Cite 1 - [2003] QCA 567
Cite 2 - [2003] QCA 567
R v Wilson[2009] 1 Qd R 476; [2008] QCA 349
2 citations
Jump To
Cite 1 - [2009] 1 Qd R 476
Cite 2 - [2009] 1 Qd R 476
Racing Queensland Ltd v Cullen [2011] QCAT 393
2 citations
Jump To
Cite 1 - [2011] QCAT 393
Cite 2 - [2011] QCAT 393
Scott v Queensland Police Service – Weapons Licensing [2021] QCAT 330
2 citations
Jump To
Cite 1 - [2021] QCAT 330
Cite 2 - [2021] QCAT 330
The Hideaway Café Bar Pty Ltd v Chief Executive, Office of Liquor and Gaming Regulation [2012] QCAT 46
2 citations
Jump To
Cite 1 - [2012] QCAT 46
Cite 2 - [2012] QCAT 46
Todd v Department of Transport and Main Roads [2019] QCAT 385
2 citations
Jump To
Cite 1 - [2019] QCAT 385
Cite 2 - [2019] QCAT 385
Victorian Taxi Families Inc v Taxi Services Commission [2018] VSC 594
2 citations
Jump To
Cite 1 - [2018] VSC 594
Cite 2 - [2018] VSC 594

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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