Haidary -v- Director General, Department of Transport (No. 2) [2001] NSWADT 42

CITATION: Haidary -v- Director General, Department of Transport (No. 2) [2001] NSWADT 42 DIVISION: General Division APPLICANT PARTIES: Zabihullah Haidary RESPONDENT Director General, Department of Transport FILE NUMBER: 003400 HEARING DATES: 05/03/01 SUBMISSIONS CLOSED: 03/05/2001 DATE OF DECISION: 04/19/2001

BEFORE: Hoeben GMM - Judicial Member APPLICATION: Passenger Transport Act - taxi driver - cancellation of authority - Taxi driver - cancellation of authority MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990 Haidary v Director General of Motor Transport (No1) [2000] NSWADT 106 Haidary v Director-General of Transport [2000] NSWADTAP 26 Workers Compensation (Dust Diseases ) Board v Veksans (1993) 32 NSWLR 221 CASES CITED: Luu -v- Minister for Immigration and Multicultural Affairs (1998) 157 ALR 213 Prothonotary of the Supreme Court of NSW - v- Pangella 16th April 1993 unreported Weaver -v- Law Society of NSW (1979) 142 CLR 201; (1979) 25 ALR 359 Stead -v- State Government Insurance Commission (1986) 161 CLR 141 General Medical Council-v-Spackman [1943] AC 627 APPLICANT REPRESENTATION: In person RESPONDENT A Wozniak, solicitor ORDERS: 1. The decision remitted for review is affirmed.

1 On the 16 August 2000 the Tribunal published its first decision (dated 3 August 2000) in the matter now again before the Tribunal: Haidary v Director General of Motor Transport (No1) [2000] NSWADT 106. The order of the Tribunal at first instance was "to affirm the decision of the delegate of the Director General dated 12 April 2000 to cancel the applicant's authority." As that decision (no transcript being available) adequately sets out the circumstances of the present matter they will not now be repeated. The applicant sought an internal appeal of this decision to an Appeal Panel on a point of law only. 2 On 13 December 2000 the Appeal Panel (Haidary v Director-General of Transport [2000] NSWADTAP 26) published its decision and made the following orders: " The appeal is allowed. The decision of the Tribunal in Haidary v Director General of Transport dated 3 August 2000 is set aside. The case is to be remitted to be heard and decided again by the Tribunal. When hearing and deciding the matter again, the Tribunal is to comply with the following directions: The matter is to be determined on the oral and documentary evidence before the Tribunal at first instance, with the following exceptions: (i) The applicant is to be given the opportunity to present oral evidence in relation to the circumstances of the offence. The respondent is to be given the opportunity to cross examine the applicant only in relation to matters on which he was not previously cross examined. (ii) The respondent is to provide to the Tribunal and the applicant, and the Tribunal is to take into account, any evidence of Mr Miller's ' version of events ' if it is available." 3 No objection was taken by either party as to the constitution of the Tribunal to which the matter was remitted for rehearing. 4 Section 114 of the Administrative Decisions Act 1997 (the Act) sets out the Tribunal's jurisdiction and powers in regard to appeals on points of law: s 114 Appeals on questions of law (1) If an appeal under this Part is restricted to questions of law, the Appeal Panel is to determine the appeal and may make such orders as it thinks appropriate in light of its decision. (2) The orders that may be made by the Appeal Panel on any such appeal include, but are not limited to, any of the following: (a) an order affirming or setting aside the decision of the Tribunal (as originally constituted), (b) an order remitting the case to be heard and decided again by the Tribunal (as originally or similarly constituted), either with or without the hearing of further evidence, in accordance with the directions of the Appeal Panel, (c) an order made in substitution for an order made by the Tribunal. 5 No transcript of the Appeal Panel proceedings was available. 6 Section 114 must be read within the context of the statutory scheme set out in Part 1 of Chapter 7 of the Act. Section 114 of the Act contemplates a considerable discretion in making orders following an appeal. Nevertheless, it is clear from the wording of the orders in the present case "in the light of its decision" that this was not to be a rehearing "de novo" in the sense enunciated by Kirby P (as he then was) in Workers Compensation (Dust Diseases ) Board v Veksans (1993) 32 NSWLR 221 where the matter is be decided entirely afresh. 7 It is clear in the context of the Appeal Panel's decision that the rehearing was to be limited to "the circumstances surrounding the offence" and that cross-examination was to be limited to those circumstances. 8 The applicant, on the other hand, who was unrepresented, believed that all matters were to be heard afresh including his nine traffic offences as well as the complaint. The Tribunal explained the limit of the Appeal Panel's orders. The applicant pressed his viewpoint. It was then decided, given the applicant's unrepresented status, that some opportunity be afforded him to revisit the other matters. This was achieved in the form of the applicant being able to expand generally, inter alia, on his earlier evidence in the first instance (it was noted that the respondent objected to this course of action). As it transpired the opportunity afforded gave no benefit to the applicant but simply highlighted the Tribunal's findings against interest in the first instance. Evidence 9 The Tribunal, in coming to its decision has taken into account the oral and documentary evidence that was put before the Tribunal. This included, inter alia, the applicant and respondent's evidence plus the court-subpoenaed documents including the police records and the magistrate's decision relating to the Assault Occasioning Actual Bodily Harm (the offence). 10 The respondent provided a written statement of Mr Miller, which outlined his recollection of the circumstances of the offence, while the applicant requested and was given the opportunity of questioning Mr Miller. 11 As already indicated, the opportunity afforded the applicant resulted in the highlighting of a number of adverse facts (viz. in relation to his traffic record and "good character") already raised and considered in the first instance, it is now not relevant to repeat these. 12 The evidence of Mr Miller, at the relevant time a manager of a taxi network (Premier Cabs), was limited in that he was not an eyewitness to the offence. What he did observe was the commotion after the whipping when a crowd of bystanders attempted to restrain the applicant. Mr Miller was a witness to the latter event. He observed the applicant being, what he believed, unfairly roughed up by an unruly mob. He came to his assistance and restrained at least one of the crowd and called the police. He spoke to the police who after hearing his account decided not to take a statement. Apparently, there was at least one other taxi driver present during the commotion who spoke to the police but, as he was also not an eyewitness to the offence, no statement was taken. 13 Mr Miller also attested to the fact that the applicant, in his opinion, was always courteous and he and his taxi clean. He also attested to the fact that because of his position it was unlikely he would ever know or even remember if there had been any passenger complaints against the applicant. He stated that he did not know the applicant in any other capacity other than in the allocation of taxi jobs. He could give no evidence as to whether or not the applicant received a booking, computer or otherwise on the night in question. Mr Miller's evidence as to the physical state of the victim of the attack confirms the police contemporaneous records in that he saw a rather large angry welt stretching from under the chin down to the far side of the neck. Finally, in an answer to a question in cross examination relating to the traffic offences he stated that he considered that reoffending within two months of a Precision Driver Course was serious and he would have grave concerns about the driver's driving competence. 14 The applicant's oral evidence of the offence centered on the issue that the inebriated trio (the victim and his two companions) were never his passengers. He supports this statement by his allegation that his taxi light was off and he had just received a computer booking. There has been no corroboration of this evidence. The police records indicate that the applicant consistently stated that he refused the group because they were drunk. At no time was it mentioned in the contemporaneous records that he had his light off and had been booked elsewhere. 15 The applicant stated he was a "victim" in that he was forced to fend off three inebriated prospective passengers. He believed the police were misguided and that his solicitor in the local court was incompetent. From the main thrust of his oral evidence the Tribunal understands that his argument of self-defence should have absolved him from conviction. The magistrate in his judgment considered the applicant's evidence and submission of provocation and reasonable force where he states "It may be, and no doubt it was the case, that the defendant did not initiate the conflict...He wasn't the initiator but his reaction was a gross over reaction using this rather fearsome piece of plaited and taped encased insulation." 16 The applicant resubmitted another aspect of his version of events that he gave before the magistrate in that he, by chance, happened to find the whip-like instrument on the ground next to the cab. The magistrate stated: "I think the defendant's evidence that he found this weapon conveniently ...is just a little bit too fortuitous to accept". The magistrate did not accept the applicant's version of events. 17 The applicant stated that at the time of the offence he was worried about his wife being refused entry into Australia . This problem has now been overcome. He also stated that he had a major headache. Jurisdiction 18 Section 12 of the Passenger Transport Act 1990 (the primary Act) gives the Director General discretion to grant authorities. Section 11(2) (a) and (b) requires, inter alia, as to whether: (a) 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 public transport vehicle: and (b) that the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates: (i) in accordance with the conditions under which a public passenger service is operated; and (ii) in accordance with law and custom." and in relation to the Act, Division 3, Powers of Review the Tribunal under s 63 has broad powers in the determination of a review of an administrator's decision: s 63 Determination of review by Tribunal (1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. (3) In determining an application for the review of a reviewable decision, the Tribunal may decide; (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal." The Decision 19 Given that the opportunity afforded the applicant (see paragraph 7) did not assist his case or add anything relevant or significant to what had already been considered and received by the Tribunal in the first instance, the following decision is based on the evidence and submissions in accordance with the Appeal Panel's orders. 20 As the Tribunal gave limited weight to the offence in the first instance and ensuring not to elevate the offence to a level of importance it never had, the Tribunal is of the opinion that nothing presented to it at the rehearing, in regard to the circumstances surrounding the offence, prompts it to alter its original determination. 21 The issue of the passengers being only prospective passengers, the alleged computer booking and whether the booking happened or not is no justification for the commission of the offence. It has been noted that the applicant was represented by a solicitor in the criminal jurisdiction. From this it can be inferred that police witnesses were appropriately cross-examined. Indeed, in cross-examination within the rehearing it was revealed that the applicant himself also cross-examined prosecution witnesses. The above, together with the concern the applicant had over his wife's difficulties entering Australia and the headache is not sufficiently compelling to alter the Tribunal's earlier decision. The melee, which resulted after the offence occurred and the consequential decision by police not to obtain statements from at least two taxi personnel, who were not eye witnesses to the offence, is not sufficiently significant to affect the Tribunal's earlier decision. Again it was revealed in cross-examination that, in any event, the applicant called at least one witness, in his court trial, but presumably this failed to sway the magistrate. 22 In the alternative, there is another reason for the Tribunal's opinion and this relates to a matter of law variously propounded in a number of cases, including: Luu -v- Minister for Immigration and Multicultural Affairs (1998) 157 ALR 213 (Luu); Prothonotary of the Supreme Court of NSW - v- Pangella 16th April 1993 unreported; and Weaver -v- Law Society of NSW (1979) 142 CLR 201; (1979) 25 ALR 359. 23 The seminal principle is best set out in Luu per Weinberg J. There too, the case dealt with the allegation that the applicant had been denied procedural fairness in that he had not been afforded the opportunity to give evidence, call witnesses and make relevant submissions. The court stated that this opportunity was available subject to the requirement that the evidence and arguments proffered were sufficiently relevant and significant to warrant being received: see Stead -v- State Government Insurance Commission (1986) 161 CLR 141; at 145-6; 67 ALR 21. In such circumstances it is not necessary for the decision-maker to hear the entirety of the evidence. Finally, but subject to the enabling legislation, it is not open to a person to invite a Tribunal to consider evidence, which if accepted would have had the effect of setting at nought a conviction. 24 The above principle is founded upon the distinction drawn by Viscount Simon in General Medical Council-v-Spackman [1943] AC 627 at 634-5. That distinction was based upon two categories of cases. The first category was where the decision challenged was itself founded upon the fact of the conviction. In these cases the person seeking to upset the decision could not go behind the fact of conviction to illustrate he was innocent of the charge. The second category the conviction was a relevant factor but the decision challenged was not based upon it. The second category allowed investigation of the circumstances behind the conviction. 25 In the present rehearing the applicant believed he was wrongly convicted although regretting the offence itself. The applicant sought, by revisiting the circumstances surrounding the offence, to impugn the local court conviction or, at the very least, controvert the essential facts upon which the conviction lay. It is the Tribunal's opinion that the applicant's case, as presented by him, belonged to Viscount Simon's first category of cases. 26 The applicant invited the Tribunal to believe that he fortuitously found the whip-like instrument on the footpath by his taxi; that his use of this instrument as a whip in the manner he did was reasonable; that he was the "victim" being as he was confronted by three inebriated males and there was no other option but to do what he did. Again the applicant invited the Tribunal to find that because the passengers were "only" prospective passengers and he was, allegedly, booked elsewhere that these factors together were sufficiently significant to call into question his conviction. 27 Such circumstances bring into question the essential facts upon which the basis of the conviction was made. 28 Similarly, what occurred after the offence has already been dealt with but suffice to say that they were neither sufficiently relevant nor significant to affect what will be the outcome of this rehearing. 29 If the applicant has a properly based case upon which to challenge his conviction, the appellate process may still be available to him, including the right to seek leave out of time. The Administrative Decisions Tribunal is not an adversarial body and is not bound by the rules of evidence. This Tribunal is not in the business of determining guilt or innocence. It must be careful not to bring into question the propriety of any conviction save in so far as the law allows. 30 It is the opinion of the Tribunal that the rehearing represented to the applicant a further opportunity to reagitate the circumstances of the conviction itself with the object of, at least impugning it rather than a plea for the Tribunal to exercise its discretionary powers under the Act. 31 The decision remitted for rehearing is affirmed.