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

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Elliott v Department of Transport and Main Roads [2022] QCAT 64 PARTIES: HAROLD ALBERT ELLIOTT (applicant) v DEPARTMENT OF TRANSPORT AND MAIN ROADS (respondent) APPLICATION NO/S: GAR468-20 MATTER TYPE: General administrative review matters DELIVERED ON: 22 February 2022 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Cranwell ORDERS: The application to stay a decision filed on 6 July 2021 is dismissed. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where application filed to review decision cancelling applicant’s approval – where applicant seeking stay of cancellation – whether arguable case Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 22 State Penalties Enforcement Act 1999 (Qld), s 33 Transport Operations (Road Use Management) Act 1995 (Qld), s 18, Schedule 4 Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347 REPRESENTATION: Applicant: Self-represented Respondent: Self-represented APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and -- 1 of 5 -- 2 Administrative Tribunal Act 2009 (Qld). REASONS FOR DECISION [1] On 30 October 2020, the Department of Transport and Main Roads (‘TMR’) decided to: (a) cancel Mr Elliott’s Approved Examiner approval; and (b) cancel his Approved Inspection Station (‘AIS’) approval. [2] Mr Elliott requested an internal review and, on 5 February 2021, TMR decided to confirm its original decision to cancel Mr Elliott’s approvals. [3] On 6 July 2021, Mr Elliott lodged an application to stay the decision. Cancellation of approvals [4] Section 18 of the Transport Operations (Road Use Management) Act 1995 (Qld) (‘the Act’) relevantly provides: (1) Each of the following is a ground for amending, suspending or cancelling an approval— … (b) the holder of the approval has contravened a condition of the approval; (c) the holder of the approval, or any relevant person for the holder within the meaning of section 17C(3), has been convicted of— (i) an offence against— (A) this Act or a corresponding law; or (B) the Heavy Vehicle National Law or a law of another State that corresponds to a provision of the Heavy Vehicle National Law; or (ii) for the holder of an approval prescribed under a regulation, or a relevant person for the holder within the meaning of section 17C(3)—a disqualifying offence; … (h) for any approval other than an approval mentioned in paragraph (g)— public safety has been endangered, or is likely to be endangered, because of the approval; [5] Schedule 4 of the Act contains the following definition: convicting a person includes— (a) a court finding the person guilty, or accepting the person’s plea of guilty, whether or not a conviction is recorded; and -- 2 of 5 -- 3 (b) the person paying a penalty under the State Penalties Enforcement Act 1999. [6] Section 33(1) of the State Penalties Enforcement Act 1999 (Qld) relevantly provides: (1) If a person served with an infringement notice has not, within 28 days after the date of the infringement notice— (a) paid the fine in full to the administering authority; or (b) applied to the administering authority to pay the fine by instalments; or (c) made to the administering authority an election to have the matter of the offence decided in a Magistrates Court; or (d) if relevant, given to the administering authority an illegal user declaration, a known or unknown user declaration or a sold vehicle declaration for the vehicle for the offence; the administering authority may give to SPER for registration a certificate (default certificate) for the relevant infringement notice offence. Grounds for granting a stay [7] The Tribunal’s power to grant a stay of a reviewable decision is to be found in s 22 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). The Tribunal may grant a stay if it considers the order is desirable after having regard to the factors set out in sub-section (4): (a) the interests of any person whose interests may be affected by the making of the order or the order not being made; (b) any submissions made to the tribunal by the decision-maker for the reviewable decision; (c) the public interest. [8] The Tribunal, in considering stay applications, also takes into account the tests applied by the courts in respect of stay applications. The tests for the granting of a stay were set out by Jerrard JA in Elphick v MMI General Insurance Ltd & Anor as follows:1 To succeed on an application for a stay the applicants must show good reason for the stay to be granted and that it is an appropriate case in which to grant a stay. Those authoritative decisions in this court establish that an applicant should demonstrate: • A good arguable case on appeal. • That the applicant will be disadvantaged if a stay is not ordered. 1 [2002] QCA 347, [8] (footnotes omitted). -- 3 of 5 -- 4 • That competing disadvantage to the respondent should the stay be granted, does not outweigh the disadvantage suffered by the applicant if the stay not be granted. The infringement notices [9] Mr Elliott had nine infringement notices issued to him in relation to his performance as an approved examiner, between 22 October 2019 and 28 May 2020. The notices related to allegations of: (a) issuing safety certificates when the vehicles had major defects which would have been apparent on a proper inspection of the vehicle required to be undertaken prior to issuing the safety certificate; (b) failure to keep and maintain equipment necessary for inspection as a mobile AIS unit; (c) driving a defective vehicle being the mobile AIS unit which Mr Elliott used to conduct mobile safety certificate inspections; and (d) failure to notify change of business details. Consideration Good arguable case [10] The issue for the Tribunal in the review proceedings is whether a ground for cancellation of Mr Elliott’s approvals under s 18 of the Act is established. [11] Mr Elliott claims to have elected to have the infringement notices dealt with in court, but TMR’s evidence is that the notices have defaulted to SPER. There is no evidence before the Tribunal that Mr Elliott has contested the infringements notices in court, nor is there any evidence that he has paid the fines. [12] The present review proceedings are not a basis for seeking to overturn the infringement notices. However, I note that Mr Elliott’s submissions before the Tribunal contain admissions in relation to some of the infringement notices. For example, he stated: On 28/02/2020 I attended the office of TMR in Maryborough with what I know was a defective vehicle as the vehicle [registration omitted] had been bogged in my yard the previous evening and extracted. My power steering had blown a hose and I picked up a bottle of fluid and proceeded as I didn’t want to disappoint [the TMR inspector] again. Other faults were found on my vehicle during the audit process and a major defect attached. These defects were remedied over the weekend and I believe clearance documents sent to the required address. I will include time dated stamps that show all the defects repaired by 03/03/2020. A further request to operate my brake test equipment on this date could not be complied with as it would not operate properly, this was found to be water ingestion in the machine that was caused by my vehicle window being left down the previous evening. [13] Similarly, Mr Elliott stated: -- 4 of 5 -- 5 I was also unfamiliar with the code of practice brake test requirements, I placed too much faith in technology and a simple word would have fixed the issue. My previous electronic brake test machine was a Circuitlink Brake Testa and had been purchased new in 2000, this machine with old technology came with a printed result that would indicate pass or fail for the tested vehicle class and I was expecting similar from the current technology. My current brake test machine did not come with an owner’s manual and I was merely given a demonstration of its use. The corrective actions regarding this have been met. [14] Mr Elliott’s admissions do not reflect well on him and are arguably capable in themselves of giving rise to a ground cancellation of his approval under s 18(1)(h) of the Act, namely that public safety has been endangered, or is likely to be endangered, because of the approval. [15] I emphasise that it is not the Tribunal’s role to determine the merits of the review in deciding a stay application. Mr Elliott will have an opportunity to present further evidence and material which may be relevant to the review application before a final hearing. However, based on the material currently before the Tribunal to date, I am unable to characterise Mr Elliott as having a ‘good’ arguable case. Person whose interest may be affected by making the order [16] Mr Elliott gave evidence that he is married with a young daughter. He was self- employed, and has been unemployed since his approvals were cancelled. I therefore accept that Mr Elliott has suffered, and will continue to suffer, significant financial hardship if his approvals remain cancelled. Public interest [17] I accept TMR’s submission that the public interest is a significant issue in this matter. Issuing safety certificates for defective vehicles, which allows defective vehicles to be used on public roads, places the drivers and passengers in those vehicles and other road users at risk. Disposition [18] In order to issue a stay, I must be satisfied that it is desirable to do so. In the circumstances of this matter, I accept TMR’s submission that any financial hardship experienced by Mr Elliott is secondary to the public interest of the safety of all road users. [19] It follows that I am not satisfied that it is desirable to issue a stay. The application to stay a decision is therefore dismissed. -- 5 of 5 --