Administrative decision must be notified to applicant and not to lawyer

Article 25 of the Probation Act states that a conditional discharge cannot be considered as a declaration of guilt

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Malcolm Mifsud
3 February 2017, 8:03am
TM filed a statement of defence stating that its decision was correct and based on law and the correct legislation
TM filed a statement of defence stating that its decision was correct and based on law and the correct legislation
The Administrative Review Tribunal decided that decisions on applications for mini-van licences must be notified to the applicants and not sent to their lawyer.  This was held in Josef Borg v Awtorita’ ghat-Trasport f’Malta on 23 January, 2014, presided by Magistrate Charmaine Galea.

Josef Borg told the Tribunal in his application that in a letter dated 29 April, 2015 by Transport Malta (TM) it was held that his application to be a driver under the Motor Vehicles Regulations was refused. The reason given was that he did not satisfy the good conduct requisite since he had been found guilty of a crime that had a punishment stretching more than three months or a fine higher than €465.  Borg held that the letter quoted the wrong law and also that TM did not take into consideration his written submissions, and the decision did not give any reasons.

TM filed a statement of defence stating that its decision was correct and based on law and the correct legislation.

The Tribunal considered the evidence produced and noticed that the decision was sent to Borg’s lawyer and not to Borg himself. On 21 May, 2015 Borg sent a letter to TM, but it arrived on 25 May, 2015, meaning that it arrived after the 10 days in which he could file an objection to TM’s decision, in a time limit set in the letter of 29 April, 2015. Borg explained that he could not get hold of the TM official. TM ruled that no representations were made in the 10 days limit and it ignored Borg’s letter. The Court commented on the fact that the TM letter was sent to the lawyer and not to the applicant, though the law lays down that the final decision should be sent to the applicant. The Tribunal held that in the acts of the case there was no copy of the refusal.

As to whether Borg held a clean conduct the Tribunal held that Borg was found guilty in February 2011 of a crime that carried a punishment of more than three months in duration, or a fine higher than €465. According to the law the tag given to drivers is valid for five years, but it may be revoked.

In order to be given this tag an applicant must satisfy a number of requisites on reputation and on conduct. The Tribunal referred to a 2011 judgement where Borg was found guilty of a crime but was handed a conditional discharge for three years. The Tribunal held that conditional discharges cannot be considered a declaration of guilt for administrative entities when there are applications for licences.

The Tribunal quoted from Article 25 of the Probation Act which states that a conditional discharge cannot be considered as a declaration of guilt. As such TM should no have considered the 2011 judgement in its deliberations to decide whether Borg should be given the tag or licence.

The Tribunal then moved to uphold the application and revoked the decision of May 2015.

Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates

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Malcolm Mifsud is a partner at Mifsud & Associates.