Denysenko v Department of Transport and Main Roads [2013] QCAT 667

CITATION: Denysenko v Department of Transport and Main Roads [2013] QCAT 667 PARTIES: Bohdan Angelo Denysenko (Applicant) v Department of Transport and Main Roads (Respondent) APPLICATION NUMBER: GAR354-13 MATTER TYPE: General administrative review matters HEARING DATE: 12 December 2013 HEARD AT: Brisbane DECISION OF: Member Hughes DELIVERED ON: 13 December 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The Tribunal does not have jurisdiction to review the decision; and 2. The Application is dismissed. CATCHWORDS: Review application – no jurisdiction – decision excluded from review – notice “in respect of” driver licence suspension because of demerit points - not a reviewable decision under an enabling Act Queensland Civil and Administrative Tribunal Act 2009 ss 6(2)(b), 17(1) Transport Operations (Road Use Management) Act 1995 ss 3(2), 131(1AA), 131(1C)(d) Transport Operations (Road Use Management - Driver Licensing) Regulation 2010 s 79 Our Town FM Pty Ltd v. Australian Broadcasting Tribunal [1987] FCA 301 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). -- 1 of 4 -- 2 REASONS FOR DECISION What is this Application about? [1] Holding a driver licence is important to many people, especially those who rely upon it for their work. Mr Bohdan Denysenko is one of these people. [2] Nevertheless, holding a driver licence is a privilege and not a right. Licenses are issued within the context of the public interest to identify drivers and as a means to control access to roads to enhance safety and transport efficiency.1 [3] Mr Denysenko has applied to the Tribunal to review a decision by the Department of Transport and Main Roads: … to insist upon (Mr Denysenko) filing and serving an Option Notice to either take a suspension or good behaviour bond based on accumulated demerit points made against (Mr Denysenko’s) licence between 2006-07.2 [4] The Department claims that jurisdiction is excluded for “the suspension of a Queensland driver licence because of the allocation of demerit points”.3 [5] The Tribunal must therefore determine jurisdiction. What is the Tribunal’s jurisdiction? [6] The Tribunal’s jurisdiction to review must be conferred upon it by an enabling Act to review a decision made under that Act.4 An enabling Act can include subordinate legislation.5 [7] The enabling Act here is the Transport Operations (Road Use Management) Act 1995. That Act relevantly provides that a person aggrieved by the refusal to issue or renew a licence or by the suspension of a licence may apply to the Tribunal for a review of the refusal or suspension.6 [8] However, a review does not lie … in respect of the suspension of a Queensland driver licence of a person because of the allocation of demerit points.7 What is the decision? [9] Mr Denysenko argues that the Department’s “decision to insist” that he file and serve an Option Notice is not a decision “in respect of the suspension of a Queensland driver licence of a person because of the allocation of 1 Transport Operations (Road Use Management) Act 1995 s 3(2). 2 Applicant Submissions to Tribunal dated 6 November 2013. 3 Submission to Tribunal by the Department of Transport and Main Roads dated 18 November 2013. 4 Queensland Civil and Administrative Tribunal Act 2009 s 17(1). 5 Ibid s 6(2)(b). 6 Transport Operations (Road Use Management) Act 1995, section 131(1AA). 7 Ibid s 131(1C)(d). -- 2 of 4 -- 3 demerit points”.8 He claims the decision is therefore not excluded from review. [10] The “decision to insist” is detailed in the Notice attached to Mr Denysenko’s application.9 The decision is communicated via the Notice. I am therefore satisfied that the Notice encapsulates the decision. Is the Notice “in respect of” the suspension of a licence because of demerit points? [11] The Notice includes the following information:  Heading of Accumulation of Demerit Points – Notice to Choose  Accumulated 12 demerit points  Requirement to choose between the “suspension of your driver licence for a period of 3 months” or a “good driving behaviour (GDB) period for one year"  Procedure to “Notify Demerit Point Enforcement Choice”  Details of offences  Effect of Driver licence suspension [12] The intent and effect of the Notice is to require Mr Denysenko to choose between the suspension of his licence for three months or be of good driving behaviour for one year. If a person fails to notify the Department of their choice by a certain date, the licence is suspended. [13] The phrase “in respect of” simply requires a connection. The expression “in connection with” has a wide connotation and does not import any particular causal or temporal relationship – it can cover matters leading up to, or which might lead up to, an assessment.10 [14] A review does not lie “in respect of” the suspension of a Queensland driver licence because of the allocation of demerit points. In this context, the words extend to any procedure required by law to suspend a licence because of the allocation of demerit points: Questions of degree may arise; but if, in a particular case, it can be seen that a particular procedure is part of the decision-making process prescribed by law, it must be regarded as a procedure required "in connexion with" that decision.11 [15] The decision to require Mr Denysenko to choose an option is made because of accumulated demerit points - it is a mandatory procedure required by law preceding the possible suspension of his licence.12 8 Ibid s 131(1C)(d). 9 Accumulation of Demerit Points – Notice to Choose dated 13 September 2013. 10 Our Town FM Pty Ltd v. Australian Broadcasting Tribunal [1987] FCA 301 at paragraph 37. 11 Our Town FM Pty Ltd v. Australian Broadcasting Tribunal [1987] FCA 301, per Wilcox J at paragraph 38. 12 Transport Operations (Road Use Management - Driver Licensing) Regulation 2010 s 79. -- 3 of 4 -- 4 [16] The Notice is part of the procedure to suspend his licence because of the allocation of demerit points. It is therefore a decision “in respect of” the suspension of a driver licence because of the allocation of demerit points. If Mr Denysenko served the suspension, would it affect jurisdiction? [17] Mr Denysenko’s concern is that the Department is effectively requiring him to re-serve a period of suspension when he has already had one demerits- based suspension levied against him.13 [18] This is because the Notice attached to his application relates to the accumulation of demerit points between 28 June 2006 and 14 August 2007. The Department had previously sent him notices for this period but they were returned unclaimed. [19] Mr Denysenko claims that the Department told him about these previous notices when he updated his address on 29 September 2011. He adds that the Department told him that if he did not provide an option, his licence would be suspended. [20] Mr Denysenko did not provide an option. He therefore claims he believed his licence was suspended for three months and he did not drive from October 2011 to December 2011. [21] If Mr Denysenko believes the Department has improperly issued the Notice because he has already served the period of suspension, then he may have a right to judicial review. It does not, however, obviate from the characterisation of the decision and whether it is reviewable by the Tribunal. Conclusion [22] I find that the decision is in respect of the suspension of a Queensland driver licence of a person because of the allocation of demerit points and therefore excluded from the Tribunal’s jurisdiction. [23] The Application is therefore dismissed. 13 Letter Shamrock Woodland Lawyers to QCAT dated 9 October 2013. -- 4 of 4 --