Bonadies v Chief Executive, Department of Transport and Main Roads [2011] QCAT 447

CITATION: Bonadies v Chief Executive, Department of Transport and Main Roads [2011] QCAT 447 PARTIES: Daniel Ermenegildo Bonadies v Chief Executive, Department of Transport and Main Roads APPLICATION NUMBER: GAR330-10 MATTER TYPE: General administrative review matters HEARING DATE: 15 September 2011 HEARD AT: Brisbane DECISION OF: Professor Adrian Ashman, Member DELIVERED ON: 15 September 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Department cancelling the Queensland Driver’s Licence held by Mr Bonadies is confirmed. CATCHWORDS: REVIEW OF ADMINISTRATIVE DECISION – Department of Transport – Cancellation of driver licence – interstate speeding offence – > 40kph over the speed limit – Department has discretion to issue a Show Cause Notice – Department failed to take into consideration personal circumstances Transport Operations (Road Use Management) Act 1995 (Qld), 131(1AA) Transport Operations (Road Use Management—Driver Licensing) Regulations 1999 (Qld), ss 33(1), 33(5) Transport Operations (Road Use Management –Driver Licensing) Regulation 2010 (Qld), ss 124(d), 125(4) Queensland Civil and Administrative Tribunal Act 2009, ss 17, 20, 24 APPEARANCES and REPRESENTATION (if any): -- 1 of 4 -- APPLICANT: Daniel Ermenegildo Bonadies represented by Ms C E Maluish of TVP Law RESPONDENT: Chief Executive, Department of Transport and Main Roads represented by Mr B. McMillan of Crown Law Mr Michael Skinner representing the Chief Executive, Department of Transport and Main Roads REASONS FOR DECISION [1] Mr Bonadies has a history of traffic offences in New South Wales and Queensland beginning when he was 19 year old. His last infringement occurred in New South Wales when he was stopped by Police for exceeding the speed limit on a multi-lane highway by more than 40 kph. In fact, Mr Bonadies was travelling at 200kph in a 110 kph zone. [2] Mr Bonadies appeared in the Tweed Heads Court in January 2010 and was disqualified from holding or obtaining a licence in New South Wales for two years. [3] On 15 February 2010, the Chief Executive issued a Show Cause Notice as to why Mr Bonadies’s Queensland driver’s licence should not be cancelled on the grounds that he had been disqualified from holding or obtaining a driver’s licence in another state or country1. [4] Mr Bonadies did not respond to the Show Cause Notice and a Show Cause Decision Notice was issued by the Chief Executive2 stating that his licence would be cancelled from 17 March 2010. Mr Bonadies did not reply to the earlier notice because he was in prison at the time and did not receive the mail. [5] On release from prison he applied for reconsideration of the Chief Executive’s decision and this decision was subsequently confirmed by Mr Michael Crawford, Acting Manager (Client Service Delivery). [6] Mr Bonadies lodged an application to review the Chief Executive’s decision at the Tribunal on 1 October 2010 based upon relevant sections of the Transport Operations (Road Use Management) Act 1995 (Qld)3 and the Queensland Civil and Administrative Tribunal Act 20094. Under the Tribunal Act, the matter must be reviewed as a fresh hearing on its merits. [7] Both parties submitted documents to the Tribunal setting out the history of the case and pleadings. 1 Section 33(1) Transport Operations (Road Use Management—Driver Licensing) Regulations 1999 (Qld). 2 Section 33(5) Transport Operations (Road Use Management—Driver Licensing) Regulations 1999 (Qld). 3 Section 131(1AA). 4 Sections 17, 20, 24 Queensland Civil and Administrative Tribunal Act 2009. -- 2 of 4 -- [8] In the hearing, the Chief Executive submitted that there were grounds for amending, suspending, or cancelling Mr Bonadies’s Queensland driver licence on the basis of his disqualification from holding or obtaining a driver licence in another state or country. Mr Bonadies did not contest these grounds. [9] The Chief Executive also stated that there was no disagreement that a Show Cause Notice may be issued and after an opportunity has been given to make representation, the Chief Executive may cancel a driver licence according to the (now) amended Transport Operations Regulation 20105. [10] Despite the validity of the administrative actions in seeking representation, the Chief Executive asserted that the basis for the decision to cancel Mr Bonadies’s licence was s 127(12) of the Transport Operations Act. In summary, this section states that if a person is disqualified from holding or obtaining a driver licence by an order made under an Act in another state, the licence is void and of no legal effect. [11] The Chief Executive stated that the Show Cause Notice might usually be issued to confirm that the correct party was identified for administrative action, that is, for amending, suspending, or cancelling a licence. In Mr Bonadies’s case, Mr Crawford had taken into consideration the submission made by Mr Bonadies and found that there was no justification for altering the original decision. [12] In the hearing Mr Bonadies argued that the Chief Executive had the discretion for a decision other than cancelling his licence and that its discretion takes priority over the terms stated in s 127(12). Mr Bonadies’s offence occurred in New South Wales and was a suspension of his licence not a cancellation. Applying Queensland legislation to his circumstances means that Mr Bonadies is likely to be significantly disadvantaged particularly if the length of time without a licence was extended due to the matter being before the Tribunal. It was noted that the appeal has been under consideration by the Department and the Tribunal for well over a year. [13] The Chief Executive replied to the latter concern by stating that Mr Bonadies would be entitled to reapply for a licence on the expiry of the NSW Court’s order, that is, on the 5 January 2012. [14] In coming to its decision, the Tribunal is satisfied that the grounds for amending, suspending, or cancelling a licence are contained in s 124(d) of the 2010 Regulation. Similarly, it is clear (and agreed by Mr Bonadies and the Chief Executive) that the Chief Executive has discretion to issue a Show Cause Notice under s 125(1), to receive representations, and determine what action to take. Nowhere in the Regulation or in the Show Cause Notice is guidance given about what information might be relevant to include in a representation. This is especially pertinent if a section of the Transport Operations Act nullifies any pleadings based on personal and/or financial circumstances. 5 Sections 124(d), 125(1), 125(4) Transport Operations (Road Use Management – Driver Licensing) Regulation 2010 (Qld). -- 3 of 4 -- [15] In the present case, the reasons given by Mr Crawford did not refer to the nullifying absolute contained in s 127(12). He considered the fine, disqualification and its period by the NSW Court, the failure to appeal the Court’s order, Mr Bonadies’s personal interests and needs, matters relating to public interest and road safety, and the lack of submission that might justify an alternative action by the Chief Executive. Any reasonable reading of his affidavit would suggest that such matters formed the sole basis of his decision. At very least, the issue of the Show Cause Notice and the opportunity to plead one’s case would give some hope that personal circumstances would play a part in moderating the Chief Executive’s original decision. [16] The purpose of the Tribunal’s review of the Chief Executive’s decision is to produce the correct and preferable decision and to decide the review by way of a fresh hearing on the merits6. [17] There is no basis for the cancellation of Mr Bonadies’s driver licence other than s 127(12) of the Transport Operation Act, which I summarised in paragraph 10 above. The Chief Executive might have activated its discretion in issuing a Show Cause Notice, but any information other than a challenge on the basis of incorrect identity of the Queensland licence holder could not prevent the voiding of the licence under s 127(12). The application of a regulation by the Chief Executive cannot displace a condition imposed by the Act. No submissions by Mr Bonadies to the Chief Executive were relevant. [18] The Tribunal’s finding, therefore, is to confirm the decision of the Chief Executive but on the basis of my reasoning in paragraph 17. [19] The Tribunal notes that Mr Bonadies is eligible to reapply for the issue of a driver licence immediately upon the expiry of the NSW Court order, that is after 5 January 2012. [20] The Tribunal also notes that the Chief Executive has initiated a review of the contents of its Show Cause Notice to prevent the misunderstandings that occurred in the present matter. A draft was provided to the Tribunal during the hearing. 6 Section 20 of the Queensland Civil and Administrative Tribunal Act 2009. -- 4 of 4 --