Appeal Panel - Internal CITATION: Ministry of Transport v Kharbanda (GD) [2006] NSWADTAP 61 This decision has been amended. Please see the end of the decision for a list of the amendments. APPELLANT PARTIES: Ministry of Transport RESPONDENT Harinder Kharbanda FILE NUMBER: 069027 HEARING DATES: 28/09/06 SUBMISSIONS CLOSED: 10/23/2006 DATE OF DECISION: 11/29/2006 BEFORE: O'Connor K - DCJ (President) CATCHWORDS: leave to appeal out of time MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 053180 DATE OF DECISION UNDER APPEAL: 04/06/2006 Administrative Appeals Tribunal Act 1975 Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Interpretation Act 1987 Migration Act 1958 (Cth) Passenger Transport Act 1990 Kharbanda v Ministry of Transport [2006] NSWADT 101 Commissioner of Police, New South Wales Police v McIver (GD) [2005] NSWADTAP (ex tempore reasons given 13 October 2004, unpublished) Opera Australia Limited -v- Carr [1999] NSWADTAP 6 Gallo v Dawson (1990) 93 ALR 479 CASES CITED: Lupevo Pty Ltd t/a Ampol Nabiac -v- Bree [2002] NSWADTAP 9 Director General, Department of Infrastructure, Planning and Natural Resources v Stapleton [2003] NSWADT 212 Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42 Maric v Comcare (1993) 40 FCR 244 Wedesweiller v Cole (1983) 47 ALR 528 Farquharson v Director General, Department of Transport [1999] NSWADT 53 APPELLANT D Jordan of counsel instructed by A Wozniak, solicitor, Smythe and Mallam Solicitors REPRESENTATION: RESPONDENT In person ORDERS: 1. Leave to appeal out of time refused; 2. Appeal dismissed. REASONS FOR DECISION 1 The appellant is responsible under the Passenger Transport Act 1990 (the Act) for the administration of taxi driver licensing in New South Wales. By decision delivered 6 April 2006 the General Division of the Tribunal set aside the appellant's decision suspending the respondent's taxi driver authority: see Kharbanda v Ministry of Transport [2006] NSWADT 101. The authority was first issued in August 1999, has since been renewed and, as it happens, has now expired (expiry date 8 August 2006). 2 On 12 April 2006 the appellant instructed his solicitor to appeal the Tribunal's decision to the Appeal Panel. The relevant provisions of the Administrative Decisions Tribunal Act 1997 (ADT Act) are ss 112 and 113. Section 113(3), provides that an appeal is to be lodged: '(a) within 28 days after the Tribunal furnishes the party with written reasons for the appealable decision under section 89, or (b) within such further time as the Appeal Panel may allow.' 3 The written reasons were furnished with the decision. The 28 day period for lodging a notice of appeal expired at the end of 4 May 2006 (6 April 2006 not being included in the time calculation: Interpretation Act 1987 s 36(1)). 4 The notice of appeal was not lodged until 2 June 2006, 28 days late. The respondent objected by his reply and in written submissions filed 30 June 2006 to the appeal being allowed to proceed. 5 This decision deals with that objection. The Hearing 6 The objection raises an interlocutory question, and therefore has been dealt with before the President sitting alone (ADT Act s 24A). A hearing was conducted on 28 September 2006. The respondent, being in detention, participated by telephone. 7 At hearing the appellant was represented by Mr Jordan of counsel who made detailed submissions, and referred to case-law. I referred to an Appeal Panel case, not generally published, where an agency in arguably similar circumstances had been refused leave to appeal out of time: Commissioner of Police, New South Wales Police v McIver (GD) [2005] NSWADTAP (ex tempore reasons given 13 October 2004, unpublished). 8 The solicitor's explanation for delay was the subject of a statement lodged only on 26 September 2006, two days before the hearing. As fresh points had been raised, and as the respondent, in particular, had only just received the explanation, was unrepresented and restricted by reason of being in detention, directions were given to enable the parties to file any further written submissions. In line with the directions, the appellant's further written submissions were filed on 13 October 2006 and the respondent's on 23 October 2006. Approaches to Leave Question 9 In Opera Australia Limited -v- Carr [1999] NSWADTAP 6 the appeal was lodged approximately 10 weeks' late, leave was given to proceed, and it was dismissed in the same decision. As to its grant of leave, the Appeal Panel said: '15 The evidence before the Appeal Panel clearly establishes that the applicant's delay in seeking to appeal was occasioned by the applicant's then legal representatives rather than by the applicant itself. Initially, the applicant's legal representatives erroneously sought to appeal to the Supreme Court. The respondent's legal representative advised the applicant's legal representatives of the correct appeal process, but they chose to ignore that advice until enforcement was threatened. It was not until recently that the applicant's legal representatives advised the applicant itself of their error, and at that stage the applicant elected to obtain different legal representation. 16 The Appeal Panel should allow an extension of the 28 day appeal period if satisfied that failure to extend the period will work an injustice between the parties: Gallo v Dawson (1990) 93 ALR 479. To determine whether a strict application of the rule as to time will work an injustice, it is necessary to consider the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application for extension of time. It is important to consider the applicant's prospects of success on appeal and to bear in mind that, upon the expiry of time for appealing, the respondent has a vested right to retain the judgment unless the application is granted. 17 In this case, the applicant has established an adequate explanation for the delay, i.e. error on the part of its legal representatives and failure by those legal representatives to keep the applicant informed about the status and progress of any appeal.' 10 The Appeal Panel in Lupevo Pty Ltd t/a Ampol Nabiac -v- Bree [2002] NSWADTAP 9 , expressly adopting the approach taken in Commonwealth cases applying a provision in materially identical terms ( Administrative Appeals Tribunal Act 1975 (Commonwealth), s 29(7)), listed the following factors as relevant to the exercise of the discretion to grant leave for an appeal to proceed out of time: - the reason for the failure to lodge the appeal. - the length of the delay in lodging the appeal. - the diligence shown by the Appellant in lodging the appeal after it came to his notice that there were circumstances justifying an appeal. - the nature of the decision below and the consequences of the decision upon the Appellant's rights. - the adequacy of the information conveyed to the Appellant at the time the decision was notified to him, both as to the reasons for the decision and of the Appellant's entitlement to appeal. - the extent of the Appellant's knowledge of the relevant statutory provisions. - the possible prejudice to the Respondent to the appeal. 11 In Director General, Department of Infrastructure, Planning and Natural Resources v Stapleton [2003] NSWADT 212, a case with which I dealt at first instance involving an application for leave by a government agency to file disciplinary proceedings five weeks out of time (the relevant ADT Act provision in this instance was s 44 which refers expressly to the need to provide a 'reasonable explanation' for the late filing), I noted: ' The Case Law 6 My brief survey of the cases that were helpfully brought to my attention by Mr Smith [counsel for respondent opposing grant of leave] from a relatively similar environment, the environment of Commonwealth administrative law, would indicate that that requirement of a reasonable explanation has been seen by the Commonwealth Administrative Tribunal and the Federal Court on appeal from its decisions as really the first factor in a multi-factor approach to the exercise of this discretion. I take it that what has occurred is that the New South Wales parliament has really uplifted that factor into the statute just to remind us of the need to be satisfied that there is such a reasonable explanation. 7 One approach to what the factors might be seem to be, for this purpose, found in O'Connor J's decision of 1991 in Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42 and there is a list at 48, as was pointed out by Mr Smith, of six factors. Then, if you go to Maric v Comcare (1993) 40 FCR 244 which is the most recent in this bundle of decisions, there is a set of factors which appears from the decision as you work through it. There is also a set of factors referred to in a decision of Sheppard J in Wedesweiller v Cole (1983) 47 ALR 528 at page 534 which is referred to at page 248 of the Federal Court Report in Maric. 8 The feature, I think, of all of these cases, unless I have missed something, is that the applicant is the citizen and the respondent is the government agency, whereas we have that dynamic reversed here. The applicant is the government agency and the citizen is the respondent. There are some factors mentioned in these decisions which are what I would call government agency oriented and citizen resistant. A couple of these cases, at least, seem to involve situations where the citizen brought on the proceeding at a significantly later time than the period for bringing those proceedings permitted. 9 There are some issues in these cases about the merits of the citizen's application, and there are references to the efficiency impact that allowing the matter to proceed now would have on the operations of government. So in some ways, we are hearing in this case a counterpoint to those submissions in that the respondent here, the citizen, is really putting forward issues to do with the significance for the citizen of allowing this matter to proceed. Mr Smith has put forward some submissions as to what might be called "efficiency considerations" from the point of view of meeting the case that is now put against his client. 10 There is also some reference in these cases to the attitude that should be taken to omissions on the part of legal advisers, and there is a relatively tough statement, as Mr Smith pointed out, in Maric v Comcare at the foot of page 249 as to the courts not necessarily being prepared in all circumstances to overlook the omissions of legal advisers and to free the client of those omissions or transgressions. It may be that a similar view has some place in dealing with the conduct of public agencies who are in a much better position to obtain good advice than is the situation that might face the ordinary citizen applicant who goes to possibly a solicitor who is relatively inexperienced in the kind of litigation that the citizen wishes to pursue. So it may be that there is some principle yet to be fully developed which has to do with the relationship of omissions on the part of legal advisers in government to the exercise of discretion; as distinct from omissions on the part of legal advisers who happen to simply fall within the ordinary area of the private profession, and can possibly be less expected to appreciate the fine points of the Tribunal's jurisdiction. Explanation for Failing to File in Time 11 Now, as to the explanation in this case, the explanation is set out in an affidavit by Mr Ray of the Department. One of the factors, as I think both counsel will be aware, that is different about Maric v Comcare, and may well be part of the reason for the strong comments that O'Loughlin J makes at the foot of 249, is that it appears that in that case there was no provision of an explanation by the legal advisers to the Court. It was the client who was referring to their omissions. So it may be that that is something of a distinction between that case and this case, though ultimately these matters, as you know, are ones requiring the exercise of discretion on the facts as they appear before the present Court or Tribunal. 12 But I accept that what Mr Ray says in the affidavit does provide an explanation that is reasonable in the sense that it explains the occurrence of an oversight, that is, the legal officers in the Department looked only to their own statute to ascertain whether there were any time limits on the making of disciplinary applications. As it happened, there is a default time limit set out in the rules of the Tribunal. That was identified by the Crown Solicitor and the proceedings were then filed in a relatively timely way once that problem was observed.' 12 The McIver case related to an agency appeal where the filing was 28 days out of time. In dealing with the delay factor the Appeal Panel stated: '7. … The delay in lodgement, one of twenty-eight days, is not as long as some time periods where we have granted leave. On the other hand this is a situation where what is really being said is that the administrative organisation of the police force was such that although the Tribunal met promptly the request for reasons … nothing appears to have been done to action the information in the three weeks before [the officer responsible for the matter] left. Then it was left to Mr McLaughlin, another month later [when he was assigned to take over the files] to do something. All of this points towards some failure of systems in the agency of some significance n terms of dealing effectively and promptly with appeals.' Background 13 On 4 March 2005 the appellant suspended the respondent's authority to drive taxi-cabs following advice from the Commonwealth that the respondent had been taken into detention under s 189 of the Migration Act 1958 on 26 February 2005 as a person reasonably suspected to be an unlawful non-citizen, on the basis that he did not have a work permit. 14 The appellant's internal review decision (18 April 2005) affirmed the primary decision to suspend the respondent's authority 'until [he] can demonstrate to the Director-General's delegate that he is lawfully able to undertake work in Australia'. 15 The respondent is contesting the Commonwealth action. He remains in detention and, consequently, the Tribunal's decision setting aside the appellant's decision did not have the effect of enabling him to return to work as a taxi driver; and, in any event, it has now expired. 16 The power to suspend an authority is conferred by s 33F the Act which provides: ' 33F Variation, suspension or cancellation of authority Having regard to the purpose of authorisation under this Division, the Director-General may at any time vary, suspend or cancel any person's authority under this Division.' 17 Section 33 deals with the 'purpose' of a driver authority, and provides relevantly: '(3) The purpose of an authority under this Division is to attest: (a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a taxi-cab, and (b) that the authorised person is considered to have sufficient responsibility and aptitude to drive a taxi-cab: (i) in accordance with the conditions under which the taxi-cab service concerned is operated, and (ii) in accordance with law and custom.' 18 The key paragraphs of the internal review decision were as follows: 'I am satisfied that while [the respondent] remains in detention and is not permitted to work in Australia, a member of the community would consider that [the respondent] is not lawfully able to drive a taxi-cab and he would be of low repute if he attempted to do so. It is important to note that the suspension of the authorisation recognises that pending determination by an appropriate person or judicial body that [the respondent] is able to lawfully remain, and work, in Australia his reputation will remain adversely affected. This decision is not a judgment on whether or not that will in fact be the outcome of this matter.' The Solicitor's Explanation 19 The appellant's solicitor, Mr Wozniak, filed a statement of explanation on 26 September 2006. He said that on 12 April 2006 he received instructions to appeal the decision. He stated that he immediately prepared a notice of appeal, prepared a cover letter dated 13 April 2006, and believes that his office sent it. He attached an (unsigned) copy of the cover letter and notice of appeal. He stated further: 'As a result of not receiving any notification in respect of directions to the Appeal, I subsequently telephoned the Tribunal and ascertained that an appeal had not been lodged and accordingly on 1 June 2006 another copy of the Notice of Appeal was forwarded by facsimile to the Tribunal.' 20 As this statement reflects, Mr Wozniak is a solicitor who is experienced in the practice and procedure of the Tribunal. I note that over many years he has routinely instructed on behalf of the appellant both at first instance and at appeals; and frequently has appeared as advocate. 21 In his written submissions Mr Jordan says that either for reasons of administrative error in the solicitor's office, error in the Tribunal Registry or error in mail handling in Australia Post, the notice of appeal went missing. 22 Registry practice is to issue a 'registration letter' in response to the lodgement of a notice of appeal. The letter sets out various matters including any directions as to filing of further material. 23 In this case the day the notice is said to have been sent was the Thursday before Easter. Allowing for the Friday and Monday public holidays (14 April and 17 April) it might reasonably have been expected that in the ordinary course of the mail the notice would have been received by Wednesday 19 April 2006. The Registry practice is to provide its registration letter within two to four working days. Allowing for a further holiday (Anzac Day, Tuesday 25 April) a solicitor lodging an appeal at that time of the year could reasonably have expected to have received a reply from the Registry by no later than Friday 28 April. 24 Mr Wozniak does not explain adequately how it took him from late April until close to 1 June 2006 to identify the problem. I accept that he acted promptly once he realised there was a problem. 25 In the Stapleton case, I did grant leave despite the oversight of the agency's legal officers. That case involved the first filing in a new statutory jurisdiction. The oversight was one committed by officers unfamiliar with the new jurisdiction. Ultimately in that case, the factor that tipped the balance in favour of the grant of leave was the public interest in allowing the disciplinary action to proceed in circumstances where there had been admissions by the respondent which gave rise to a serious question as to whether professional misconduct had occurred. 26 There has been no criticism of the adequacy of the information conveyed to the appellant by the Tribunal at the time the decision was notified to it. Nor is this a case where there is some doubt as to the extent of the appellant's knowledge of the relevant statutory provisions. 27 A more generous approach to the acceptance of an explanation for late filing may be appropriate in the case of 'one-time' participants in the processes of the Tribunal, especially if they are unrepresented or have special disabilities. Even in the case of a sophisticated litigant (such as a government department) it may be unduly harsh to visit upon it an omission on the part of its legal adviser. Public Interest in Grant of Leave; Prejudice to Respondent 28 If the explanation for the delay is considered not to be acceptable (as in this instance), the considerations which may well tip the balance in favour of granting leave will be the public interest and the extent of any prejudice to the respondent. 29 Both parties made detailed submissions on these points. Stapleton is a good example of a case where the public interest factors were seen as weighing in favour of allowing the case to proceed, even though there had been a delay greater than the present delay in lodging the proceedings in the Tribunal. 30 The appellant submits, one, that the 'appeal raises important questions in relation to the continuing issue of general application, namely, whether an authority issued under the Passenger Transport Act 1990 can attest that an unlawful non-citizen satisfies the requirements of fitness, propriety and aptitude to drive a taxi-cab, even though his performance of that function constitutes an offence in contravention of the Migration Act 1958'; and, two, that: 'The delay has not caused any material prejudice to the respondent because he was in immigration detention at the time of the tribunal's decision and has not been released.' 31 The Tribunal has accepted that, even if the administrator has no information negative to the character or reputation of a licensee, the laying of the charge may be enough to justify action by way of suspension. The Tribunal has also consistently ruled that, in this regard, the administrator or the Tribunal, acting in the stead of the administrator, is not required to inquire behind the charge and conduct a collateral inquiry, though this is often sought by applicants (as occurred in this case). 32 This issue of whether a suspension should be lifted has usually come before the Tribunal at an interim point in the proceedings in the form of an application for a stay of the suspension so that the applicant can return to work pending determination of the review application. In the often-cited case of Farquharson v Director General, Department of Transport [1999] NSWADT 53 the Tribunal refused such an application from a driver on bail who had been suspended after being charged with conspiracy to murder. There are now a number of decisions dealing with the circumstances in which a provisional 'black mark' of this kind might be sufficient to justify the maintenance of a suspension. The main determinant in these cases has been the degree to which the illegal conduct alleged against the licensee bears on the nature of the kind of work done in the regulated occupation. In Farquharson, for example, the offence charged was one of involving the commission of violence of the most serious kind and it was compared to the work done by the licensee – that of carrying passengers in the intimate and isolated setting of the taxi. 33 The Tribunal in present case, having regard to all the material, took a less severe view than the appellant of the significance of a charge of being an illegal immigrant for the 'repute' of a taxi driver. In contradistinction to the departmental decision-makers, it did not see the fact that a driver was suspected of being an unlawful non-citizen as being likely to have any significant bearing on public confidence in the character or good repute of a driver as compared with, say, one facing a charge of personal violence or dishonesty. 34 In my view the Tribunal's decision does not have the systemic or 'test case' significance that the appellant seeks to give it. I accept that it is arguable whether the approach reflected in cases like Farquharson (dealing with stay applications and addressing the criteria found in s 60 of the ADT Act) necessarily translates to the making of a final determination (where s 33 of the Act is the focus). The approach taken by the Tribunal in this case is open to be reconsidered on a future occasion. 35 The respondent was entitled to assume once the appeal period passed that he had been successful and did not face any further action in respect of his authority, dormant as it is. The respondent would, if the appeal proceeds, suffer the very real prejudice of having to prepare submissions in reply and participate in an appeal process which may not be completed for another four to six months, alongside the one in which he is already entangled. 36 In any case, even if the appellant's view is accepted that the case raises an important question that requires resolution, there is no practical risk that its non-resolution on this occasion will be harmful to the public interest. The appellant can not return to work as a taxi-driver for two reasons - he remains in detention and the licence has expired. Conclusion 37 Balancing all these factors, leave to appeal out of time is refused. Order 1. Leave to appeal out of time refused. 2. Appeal dismissed. 07/02/2007 - To correct details of constitution of Appeal Panel - Paragraph(s) Front cover DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.