Tzoudas v Ministry of Transport [2006] NSWADT 186

CITATION: Tzoudas v Ministry of Transport [2006] NSWADT 186

DIVISION: General Division

APPLICANT PARTIES: Anastasios Tzoudas RESPONDENT Ministry of Transport

FILE NUMBER: 053383

HEARING DATES: 22/12/2005, 3/04/2006, 13/06/2006

SUBMISSIONS CLOSED: 06/13/2006

DATE OF DECISION: 06/20/2006

BEFORE: Pearson L - Judicial Member

CATCHWORDS: Costs

MATTER FOR DECISION: Costs

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990

Alessa Pty Ltd v Total & Universal Pty Ltd [2002] NSWADTAP 16 Brooks Maher v Cheung [2001] NSWADT 18 CASES CITED: Director General, Ministry of Transport -v- Haider (GD) [2004] NSWADTAP 42 Gizah Pty Ltd v AXA Trustees Limited (No. 2) [2001] NSWADT 164 Raethel v Director-General Department of Education and Training [2000] NSWADT 56 Ybasco v Director-General, Department of Transport No 2 [1999] NSWADT 85

APPLICANT M Mayell, barrister REPRESENTATION: RESPONDENT A Wozniak, solicitor

ORDERS: Application for review dismissed. No order as to costs

REASONS FOR DECISION 1 On 2 September 2005 the Manager Compliance of the respondent advised the applicant that the Director General of the Ministry of Transport was considering the cancellation of his driver's authority no. AQ8482, and invited the applicant to make submissions. In this letter the respondent outlined the history of seventeen complaints against the respondent from 26 October 1992, the most recent being a complaint received on 30 June 2005 from the daughter of an elderly lady who stated that during the course of a journey the applicant had asked inappropriate questions. In a response to this invitation the applicant's solicitor submitted that the applicant admitted to only six of the seventeen complaints relied upon by the respondent, and provided two references, one from a customer and the other from the Chairman of RSL Ex-Servicemen's Cabs & Co-operative Members Ltd, and a medical certificate. On 28 September 2005 the respondent notified the applicant that his authority to drive a public passenger vehicle had been cancelled under section 33F of the Passenger Transport Act 1990 (the PT Act). In a statement of reasons the respondent stated that based on the complaint history he was not satisfied that the applicant was a person of 'good repute' within the meaning of s33(3)(a) of the PT Act. 2 The applicant requested internal review. On 24 October 2005 the respondent notified the applicant that the decision to cancel the driver's authority was affirmed. On 3 November 2005 the applicant applied to the Tribunal for review of the decision, and also applied for an urgent stay of the decision under s60(2) of the Administrative Decisions Tribunal Act 1997 (the ADT Act). 3 On 8 November 2005 the application for an urgent stay was refused by Deputy President Hennessy, and the matter was listed for hearing on 22 December 2005. 4 On 22 December 2005 the respondent requested an adjournment. The basis for this application was that the complainant and her mother were unavailable to give oral evidence. The complainant's mother was receiving chemotherapy and the complainant was taking her mother for treatment. The applicant's counsel did not oppose an adjournment, provided a stay was granted. The applicant's counsel noted that the allegations against the applicant were strenuously denied; he had had 36 years of driving taxis; he was the owner of a taxi; and he was in financial hardship. The respondent did not oppose the stay. The Tribunal granted a stay, and the matter was adjourned to 3 April 2006. 5 On 3 April 2006 the respondent requested a further adjournment, based on the non availability of the complainant and her mother. This application was opposed by the applicant's counsel, noting that his client was ready to proceed. The Tribunal adjourned the matter to 13 June 2006. 6 On 13 June 2006 the respondent's solicitor informed the Tribunal that the complainant's mother was gravely ill and the complainant was her sole carer. The respondent had withdrawn the decision to cancel the applicant's driver's authority and made a new decision to issue a warning. 7 The Tribunal dismissed the application under s73(5)(h) of the ADT Act, on the basis that as the decision under review had been withdrawn the application was lacking in substance. Application for Costs 8 The applicant applied for costs. In support of this application the applicant's solicitor submitted: The applicant's authority had been revoked on 22 September 2005 and reinstated on 22 December 2005, and he had suffered a financial penalty during this period because he was unable to drive; The respondent had informed the applicant by letter dated 22 May 2005 of the decision to issue a warning in respect of the allegations of 30 June 2005; The allegations against the applicant were serious and were denied; The matter had been reviewed on three occasions: on the first internal review, the second internal review, and then again before the letter dated 22 May 2005. The respondent could have reached the decision to issue a warning instead of cancelling the applicant's authority much earlier; There had been no discussion or correspondence concerning the decision to withdraw. 9 The applicant's solicitor indicated that in addition to loss of livelihood the applicant had incurred legal costs of $11,775. 10 The respondent opposed costs, submitting: The Deputy President had refused to order a stay on the basis of the seriousness of the allegations against the applicant; The applicant could have applied for an urgent stay on the date of the original decision, namely 28 September 2005, and did not need to wait until the application for review was lodged on 3 November 2005; The respondent had prepared summonses for the witnesses and contacted them, however the decision to withdraw the cancellation and issue the warning was notified directly to the applicant rather than his solicitor; The respondent could have made the decision to run the matter on the basis of the material on file, however as a matter of procedural fairness had wanted to have the complainant and her mother available for cross examination, and had not opposed the stay on that basis. Consideration 11 The Tribunal has power under s.88 of the ADT Act to order costs. Section 88 provides: (1) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs. (2) The Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. (3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs. (4) In this section, "costs" includes: (a) costs of or incidental to proceedings in the Tribunal, and (b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application. 12 The Tribunal must be satisfied that there are "special circumstances", and that those "special circumstances" warrant an award of costs: see Gizah Pty Ltd v AXA Trustees Limited (No. 2) [2001] NSWADT 164 at [29]. In Brooks Maher v Cheung [2001] NSWADT 18 the Tribunal noted that while the circumstances which would or would not warrant an award of costs could not be exhaustively listed, "…where one party causes another party to incur costs because of unreasonable delays, or by making misconceived, frivolous, vexatious or insubstantial procedural or substantive applications, an award of costs may be warranted". 13 "Special circumstances" have been defined as "circumstances that are out of the ordinary, but without having to be extraordinary or exceptional": Brooks Maher v Cheung [2001] NSWADT 18 at [14]. The power to order costs should not be used as "some kind of sanction to punish agencies for poor administration", and the Tribunal should not embark on "a general inquiry into the way in which the agency dealt with the applicant": Raethel v Director-General, Department of Education and Training [2000] NSWADT 56 at [56] – [58]. 14 In Practice Note 12, reissued on 11 May 2005, the following examples of "special circumstances" which may warrant an order for costs under s.88(1) of the ADT Act are set out as follows: "Whether a party has conducted the proceedings in the way that disadvantaged another party to the proceedings by conduct such as: (i) failure to comply with an order or direction of the Tribunal without reasonable excuse; (ii) failing to comply with this Act, the regulations, the rules or enabling enactment; (iii) asking for an adjournment as a result of (i) or (ii); (iv) causing an adjournment; (v) attempting to deceive another party or the Tribunal; (vi) vexatiously conducting the proceedings; (vii) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings; and (viii) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law. 15 The allegation made by the complainant on 30 June 2005 was a serious one, involving inappropriate questioning and language allegedly used by the applicant to the complainant's mother while a passenger in his taxi. The respondent's file indicates that on 14 July 2005 the applicant was interviewed, and denied the allegations. The applicant has continued to deny the allegations. If the allegations were proven to have been correct, this would be a significant matter going to whether the applicant is "of good repute" and "in all other respects a fit and proper person" to be the driver of a taxi. The history of complaints against the applicant provided in the decision under review includes two earlier complaints of sexual harassment, on 23 October 1996 and 14 May 2001. The applicant's solicitor argued that the Tribunal should not rely on the documentary record, on the basis that there were matters of both fact and law on file which were incorrect and which the applicant would have challenged had the matter proceeded to a hearing. The Tribunal has made no finding as to the incident of 30 June 2005 or any of the earlier complaints. However, in the context of the applicant's history as a taxi driver, which included the existence of the previous complaints on the file, the complaint of 30 June 2005 was a crucial factor in determining whether or not to take action under s33F of the PT Act to vary, suspend or cancel the applicant's authority. 16 The respondent's file contains a record of the complaint as received on the NSW Taxi Customer Feedback Management System. At the hearing on 22 December 2005 the respondent provided a statement made by a Compliance Officer who stated that she had had a telephone conversation with the complainant regarding her availability to attend, and was advised that the complainant's mother was very sick with cancer, and that she has to take her mother to her chemotherapy treatments. The respondent's application for an adjournment on that occasion, and again on 3 April 2006, was made on the basis that it wished to have the complainant and her mother available to give oral evidence, and to be cross examined. The respondent could have chosen to rely entirely on its file to support its case, rather than requiring oral evidence: Ybasco v Director-General Department of Transport (No 2)[1999] NSWADT 85. Its preference for obtaining oral evidence from the complainant and her mother if possible was consistent with the principles of procedural fairness, which required that the applicant have the opportunity to fully test the allegations made against him. The decision of the Appeal Panel in Director General, Ministry of Transport -v- Haider (GD) [2004] NSWADTAP 42 stresses the importance of having evidence in person to test allegations, particularly where those allegations raise serious matters. Having regard to the public interest in ensuring that only those who meet the requirements of s33(3) of the PT Act are authorised to drive taxis, and the serious nature of the allegations, the Tribunal agreed to the adjournments on the basis that the most appropriate way to test the evidence was to have the complainant and her mother appear in person, if that were possible. 17 The adjournments of 22 December 2005 and 3 April 2006 were not based on some neglect or delay caused by the respondent, but on the non availability of two key witnesses for reasons of serious illness. The applicant argued that the respondent could have made its decision to withdraw the cancellation and issue the warning at an earlier time. Given the nature of the complainant's circumstances, the Tribunal is not satisfied that the respondent has unduly delayed in making the decision not to pursue the cancellation. The conduct of the respondent was not seriously unfair to the applicant: see Alessa Pty Ltd v Total & Universal Pty Ltd [2002] NSWADTAP 16. The inability of the applicant to drive his taxi until the stay was granted on 22 December 2005 is not a matter which the Tribunal regards as constituting "special circumstances". The Tribunal is not satisfied that there are special circumstances which warrant an award of costs. The applicant's application for an order for costs is not granted. Decision 18 Application for review dismissed. No order as to costs.