Conway v Department of Transport and Main Roads [2021] QCAT 230

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Conway v Department of Transport and Main Roads [2021] QCAT 230 PARTIES: ALAN STEPHEN CONWAY (applicant) v DEPARTMENT OF TRANSPORT AND MAIN ROADS (respondent) APPLICATION NO/S: GAR279-21 MATTER TYPE: General administrative review matters DELIVERED ON: 15 June 2021 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Cranwell ORDERS: The application to stay a decision filed on 4 May 2021 is dismissed. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where application filed to review decision cancelling applicant’s licence – where applicant seeking stay of cancellation – whether arguable case Criminal Code Act 1899 (Qld), Schedule 1 s 271 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 22 Tow Truck Act 1973 (Qld), s 21, s 21A Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347 REPRESENTATION: Applicant: MJ Lazinski, instructed by Jacobson Mahony Lawyers Respondent: Self-represented APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). -- 1 of 5 -- 2 REASONS FOR DECISION [1] On 2 February 2021, the Department of Transport and Main Roads (‘TMR’) decided to cancel Mr Conway’s tow truck licence. [2] Mr Conway requested an internal review and, on 31 March 2021, TMR decided to confirm its original decision to cancel Mr Conway’s tow truck licence. [3] On 4 May 2021, Mr Conway lodged an application to review that decision with the Tribunal. On the same day, he also lodged an application to stay the decision under review. Cancellation of tow truck licences [4] Section 21 of the Tow Truck Act 1973 (Qld) relevantly provides: (1) When considering whether it is in the public interest to cancel, suspend or immediately suspend an authority holder’s authority, regard must be had to the following— (a) the need to ensure that the reputation of the tow truck industry is not affected by the involvement in the industry of persons likely to adversely affect the industry’s reputation; (b) the legitimate expectation members of the public, particularly vulnerable members of the public, have that they will not be subject to assaults or aggressive, coercive or otherwise inappropriate behaviour from persons involved in the tow truck industry. Examples for subsection (1)— … 3 It may be in the public interest to cancel or suspend, or if authorised under section 21B, immediately suspend a tow truck driver’s authority if the driver assaults a person at a crash scene. [5] Section 21A relevantly provides: (1) The chief executive may cancel or suspend an authority holder’s authority under section 21D on any of the following grounds— … (b) the authority holder— … (iii) contravenes a condition of the authority; … (g) public safety has been endangered, or is likely to be endangered, because of the authority holder’s conduct; -- 2 of 5 -- 3 (h) having regard to the conduct of the authority holder, when performing activities under the authority or at any other time, the chief executive believes, on reasonable grounds— (i) the person is no longer an appropriate person to hold an authority; or (ii) it is in the public interest to cancel or suspend the authority. Grounds for granting a stay [6] 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. [7] 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. • 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 allegations [8] On 20 August 2020, Mr Conway attended at a traffic accident where vehicles required towing. It appears there was a verbal disagreement between Mr Conway and one Richard Brunow, which escalated into a physical altercation. [9] The following summary is contained in the TMR decision dated 2 February 2021: Body worn camera footage was supplied detailing this incident, along with witness statements by the parties involved. Upon a review of the footage, I find your behaviour before the physical altercation to be aggressive and not in line with public expectations. Further, after the parties involved started to go their separate ways, you are seen approaching the other party and conducting a verbal 1 [2002] QCA 347, [8] (footnotes omitted). -- 3 of 5 -- 4 assault, including language and comments that are not suitable for a public setting. It is alleged that a member of the Queensland Fire and Emergency Service had to step in to defuse the situation and you further participated in an altercation, leading to a physical assault between the parties. [10] Mr Conway has submitted his behaviour was done in self-defence, and that it was therefore lawful for him to use reasonable force to defend himself from Mr Brunow. He submitted: The Applicant has provided a sworn statement to the Queensland Police Service whereby he declared that he was ‘kicked’ by the assailant and ‘headbutted in the nose’ before retaliating. … It is clear that Mr Conway did not approach Mr Brunow; rather, it was Mr Brunow that sought out and approached the Applicant in an aggressive and antagonistic manner. Ms Paludan supports the Applicant’s version of events. [11] TMR submitted in response: The Respondent submits that the audio video footage shows that Mr Frank Conway and then later the Applicant pursue Mr Brunow of their own volition in an aggressive manner after Mr Brunow has walked away from them. The Applicant continues to argue with Mr Brunow and stands extremely close to him in a manner that may be interpreted as intending to be threatening and aggressive. It is submitted that this behaviour of the Applicant after Mr Brunow has walked away which (sic) led to the escalation of the situation. Consideration Good arguable case [12] The issue for the Tribunal in the review proceedings is whether a ground for cancellation of a tow truck licence set out in s 21 and s 21A of the Tow Truck Act is established. [13] Having reviewed the video footage on the file, I consider that the video footage is consistent with the TMR submissions. I emphasise that it is not the Tribunal’s role to determine the merits of the review in deciding a stay application. Mr Conway will have an opportunity to present further evidence and material which may be relevant to the review application before a final hearing. [14] While I cannot determine that Mr Conway does not have an arguable case, based on the material before the Tribunal to date, I consider that Mr Conway’s prospects of success in the review application are poor. Person whose interest may be affected by making the order [15] Mr Conway is a part-owner of a business named ‘Gold Coast Tow Trucks Light and Heavy’. The business employs between 25 and 35 employees at any given point. He is also the primary income earner for his family of four. -- 4 of 5 -- 5 [16] Mr Conway has submitted that the business requires his continual presence at accident sites, as they do not have enough drivers to cope with demand. If he is unable to operate a tow truck, he will suffer financial hardship as he will have to hire another driver to drive his tow truck. [17] I note that Mr Conway has provided no evidence as to the amount of income he earns from driving tow trucks, as distinct from any other income he might earn as co-owner of the business. I therefore accept that there will be a financial impact on Mr Conway if his tow truck licence remains cancelled pending the determination of the review proceedings, although I am unable to quantify that impact. Public interest [18] Mr Conway has submitted that it is in the public interest for members of the public to be able to defend themselves against unprovoked assaults. [19] As set out above, the issue in the review proceedings is whether a ground for cancellation of Mr Conway’s tow truck licence is made out. The issue is not whether Mr Conway has established a ground of self-defence under s 271(1) of Schedule 1 of the Criminal Code Act 1899 (Qld). [20] I accept TMR’s submission that the relevant public interest is in ensuring the integrity and behaviour of all tow truck operators when they are at a location where a vehicle requires towing. Disposition [21] 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 the public interest outweighs the financial impact on Mr Conway. I consider that the public safety of all road users is paramount. [22] 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 --