Tzoudas v Ministry of Transport [2009] NSWADTAP 36

Appeal Panel - Internal

CITATION: Tzoudas v Ministry of Transport [2009] NSWADTAP 36

APPELLANT Anastasios Tzoudas PARTIES: RESPONDENT Ministry of Transport

FILE NUMBER: 089082

HEARING DATES: 4 March 2009, 28 May 2009

SUBMISSIONS CLOSED: 28 May 2009

DATE OF DECISION: 9 June 2009

BEFORE: Handley R - Deputy President; Leal S - Judicial Member; Antonios Z - Non-Judicial Member

CATCHWORDS: Taxi driver – cancellation of authority

DECISION UNDER APPEAL: Tzoudas v Ministry of Transport [2008] NSWADT 350

FILE NUMBER UNDER APPEAL: 083127

DATE OF DECISION UNDER APPEAL: 12/17/2008

Passenger Transport Act 1990 LEGISLATION CITED : Passenger Transport Regulation 2007 Administrative Decisions Tribunal Act 1997

Briginshaw v Briginshaw (1938) 60 CLR 336 CASES CITED: Charara v R [2006] NSWCCA 244 Kioa v West (1985) 159 CLR 550

APPELLANT A Rogers, counsel REPRESENTATION: RESPONDENT A Wozniak, solicitor

ORDERS: The decision under appeal is set aside and the matter is remitted to a differently constituted Tribunal to be heard afresh.

REASONS FOR DECISION 1 On 17 December 2008, Anastasios Tzoudas appealed against a decision of the Tribunal made on 17 December 2008 to affirm a decision of a delegate of the Director General of the Ministry of Transport to cancel Mr Tzoudas' taxi driver authority on the ground that he is not a fit and proper person to hold such an authority. The decision was explained in a Statement of Reasons dated 14 January 2009: Tzoudas v Ministry of Transport [2008] NSWADT 350. Background 2 Mr Tzoudas held an authority to drive a taxi under the Passenger Transport Act 1990 ('the PTA'). Over the period 1995 to 2007, a number of complaints were made against Mr Tzoudas and, on 14 April 2008, a delegate of the Director General advised Mr Tzoudas that his taxi driver authority had been cancelled, a decision that was made under s 33F of the PTA. Section 33(3) of the PTA provides relevantly that the purpose of such an authority 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". Clause 29(2) of the Passenger Transport Regulation 2007 also provides relevantly that an applicant for an authority to drive a public passenger vehicle must satisfy the Director General that he or she "is of good repute and in all other respects a fit and proper person to be the driver of the vehicle concerned". 3 A description of the complaints made against Mr Tzoudas is included in the Tribunal's decision. A particular focus of the hearing was the most recent of the complaints in relation to an incident on 7 November 2007. The complainant in that matter, Rosemary Opitz, had provided a statement for the Ministry dated 30 January 2008. Ms Opitz also provided a further statement dated 18 September 2008 and gave evidence at the Tribunal hearing. She stated that she and her aunt, aged 93, booked a taxi to take them from Coogee to Macquarie Street, Sydney where her aunt had a medical appointment. Ms Opitz sat in the front passenger seat of the taxi and her aunt sat in the back. Ms Opitz said that in the course of the journey, Mr Tzoudas touched her right breast for about two seconds. He touched her breast with his right hand while they were at traffic lights in Oxford Street; he also had his left hand on the back of her seat as he was driving and, on several occasions, touched her left shoulder. Ms Opitz indicated that when Mr Tzoudas touched her breast, she was shocked and did not think about whether it was an accident, although she hoped it was. 4 In the course of the cross-examination of Ms Opitz, the Tribunal adjourned to view Mr Tzoudas' taxi. Mr Rogers organised a demonstration with Mr Tzoudas sitting in the driver's seat and his solicitor in the passenger seat to show where Mr Tzoudas' left hand and arm would have been located if his hand was on the back of the passenger seat. When the hearing resumed, Mr Rogers then put further questions to Ms Opitz in cross-examination. Ms Opitz suggested that the configuration of the cab (which had bucket seats) might not have been the same as on the day when the incident occurred. 5 Mr Tzoudas also gave evidence at the hearing. He agreed that he sometimes drove the taxi with his left arm around the passenger seat. He said nothing happened in the taxi that day and denied he had touched Ms Opitz's breast. 6 In the Statement of Reasons for his decision, at [44], the Tribunal member said: "44 I note that the applicant disputed the allegations of inappropriate behaviour towards Ms Opitz or other passengers in his taxi. I have heard evidence from Ms Opitz but I have not heard from any of the earlier complainants. I agree with Mr Rogers' submission that little weight can be placed on complaints that have not been able to be tested. In the circumstances I am unable to form a view in relation to the earlier complaints. I also agree with Mr Rogers' submission that the outcome of this matter rests on whether or not Ms Opitz's version of the incident on 7 November 2007 is accepted. 45 There are aspects of Ms Opitz's evidence that suggest that she is mistaken in parts of her recollection of the incident on 7 November 2007. However, I am generally satisfied that her account of the incident is accurate. In my view it is probable that the applicant acted towards Ms Opitz in a manner that was inappropriate. 46 The applicant's evidence is that he often drives with his arm resting on the back of the front passenger seat. Ms Opitz was firm in her evidence that the applicant had placed his arm behind her and that he had touched her left shoulder. I agree that this would not have been possible with the front passenger seat arranged as it was at the time of the demonstration. However, I also agree with Mr Wozniak's argument that the demonstration was exaggerated. The seat was set back at a wide angle relative to the driver's seat. It is unlikely that the applicant would normally drive with his arm resting on the back of the front passenger seat when it is set back at that angle. However, if the seat were set forward, the driver's arm could comfortably rest on the back of the front passenger seat in the manner that Ms Opitz described. In my view it is probable that the seat was set forward during Ms Opitz's journey on 7 November 2007 and that the applicant had placed his arm behind her and that he had touched her left shoulder. 47 Ms Opitz was adamant that the applicant had touched her inappropriately. She stated that the applicant had placed his hand on her breast and estimated that he did so for about 2 seconds. However, she stated that at the time of the incident she was uncertain about whether or not it was accidental or deliberate. She had later formed the view that it was deliberate. Mr Rogers submits that there could be no doubt that it was deliberate if the applicant's hand was on her breast for 2 seconds. I agree with this submission. It is my view that Ms Opitz was probably mistaken in regard to the length of time that the applicant's hand was on her breast. However, in my view it is probable that the applicant had deliberately placed his hand on Ms Opitz's breast." The Appellant's Submissions 7 Mr Rogers submitted that the Tribunal made errors of law in its decision. First, he said the Tribunal failed to approach the matter having regard to the principles in Briginshaw v Briginshaw (1938) 60 CLR 336 ('Briginshaw'). In Briginshaw, at 362, Dixon J, in discussing the civil standard of proof, said: "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences." 8 Mr Rogers said the allegation that Mr Tzoudas touched a passenger's breast is a serious one, which obliged the Tribunal to adopt the above approach. At [45], the Tribunal, while generally satisfied that Ms Opitz's account of the incident was accurate, said there were "aspects of Ms Opitz's evidence that suggest she is mistaken in parts of her recollection of the incident on 7 November 2007". Nevertheless, the Tribunal found, in particular, that it was "probable that the Applicant acted towards Ms Opitz in a manner that was inappropriate". At [46], the Tribunal said it was probable that the passenger seat was set forward during Ms Opitz's journey (rather than being set back at a wide angle relative to the driver's seat, as in the demonstration) and that Mr Tzoudas placed his hand behind her and touched her left shoulder. 9 Mr Rogers said that, at [47], the Tribunal found "Ms Opitz was probably mistaken in regard to the length of time that the applicant's hand was on her breast", but that it was probable that Mr Tzoudas "had deliberately placed his hand on Ms Opitz's breast". Mr Rogers said given Ms Opitz's evidence that Mr Tzoudas' hand was on her breast for two seconds, it follows that by rejecting this evidence, the Tribunal considered that the touching was momentary. If the touching was only momentary and Ms Opitz thought, at the time, that the touching was accidental, there could not be a legitimate application of the principles in Briginshaw sufficient to make a finding adverse to Mr Tzoudas. The Judicial Member put his findings no higher than that the conduct was 'probable'. Mr Rogers submitted that, given the ambiguities in Ms Opitz's evidence, it is hard to see how the Tribunal could be reasonably satisfied that Mr Tzoudas touched Ms Opitz's breast deliberately in such circumstances. 10 In relation to the evidence as to Mr Tzoudas touching Ms Opitz's left shoulder, Mr Rogers noted that when at [46], the Tribunal said it was probable that the passenger seat was set forward during Ms Opitz's journey (rather than, as in the demonstration, being set back at a wide angle relative to the driver's seat), no such evidence was adduced and no such proposition was put to Mr Tzoudas. Mr Rogers submitted that the Tribunal was not entitled to infer that the demonstration was an attempt to mislead it without giving Mr Tzoudas an opportunity to respond. He was never asked whether the seats had been configured differently during the journey. Drawing such an impermissible inference was also an error of law. 11 Mr Rogers submitted that these two errors of law led the Tribunal to draw an incorrect conclusion – that Mr Tzoudas probably touched Ms Opitz on the breast deliberately. Mr Rogers also submitted that Ms Opitz's evidence is sufficiently unreliable for the Appeal Panel to grant leave to appeal on the merits. The Respondent's Submissions 12 Mr Wozniak submitted that the Tribunal did satisfy itself according to the Briginshaw principles and reached a 'reasonable satisfaction' in making the material findings. The Tribunal's finding that it is 'probable' that Mr Tzoudas deliberately placed his hand on Ms Opitz's breast "equates to the finding that it was more probable than not and accordingly would satisfy the required standard of proof". 13 Mr Wozniak said there was no need to put to Mr Tzoudas that the demonstration was exaggerated "because there was evidence already before the Tribunal that he often drove with his arm around the back of the seat and clearly in the way the demonstration was conducted it was simply not possible". 14 Mr Wozniak recited the material evidence and the Tribunal's findings and rejected Mr Rogers' submission that Ms Opitz's evidence was inconsistent. He said the Judicial Member had the opportunity of observing both Ms Opitz and Mr Tzoudas give evidence and the Appeal Panel should recognise the advantage enjoyed by the Judicial Member who saw and heard the witnesses at the hearing: Charara v R [2006] NSWCCA 244 ('Charara'), at [18] (per Mason P). Consideration 15 As noted above, Mr Rogers submitted that the Tribunal made two related errors of law in reaching its decision: first, the Tribunal failed to have regard to the principles in Briginshaw in making its findings, and second, the Tribunal was not entitled to infer that the demonstration was an attempt to mislead it without giving Mr Tzoudas an opportunity to respond to the proposition that the seats in the taxi were configured differently during the journey from Coogee to Macquarie Street. Mr Wozniak contended that the Tribunal properly applied the Briginshaw principles. He submitted that the Tribunal could rely on evidence from the hearing indicating that the journey involved a seating configuration different from that at the demonstration given Mr Tzoudas' evidence that he often drove with his arm around the back of the passenger seat – a stance which would not be possible with the configuration demonstrated. 16 Dealing with the second matter first, in the Appeal Panel's view, the Tribunal should not have drawn the inference that the likely configuration of the seating arrangement in the taxi during the journey was different from that in the demonstration without this being put to Mr Tzoudas and without giving him an opportunity to respond. To draw such an inference, which appears to have materially influenced the Judicial Member's perception of the incident, without affording this opportunity to Mr Tzoudas, was a breach of procedural fairness and therefore an error of law. (See, for example, Kioa v West (1985) 159 CLR 550 – Gibbs CJ at [39].) The configuration of the seats in the taxi was clearly a critical matter in terms of the plausibility of the different accounts of what happened given by Ms Opitz and Mr Tzoudas. 17 The Briginshaw principles, outlined by Dixon J in the extract above, require that while the standard of proof in these proceedings is the balance of probabilities, consideration must be given to the seriousness of the allegations made against Mr Tzoudas and the gravity of the consequences flowing from particular findings. In making material findings, the Tribunal must be reasonably satisfied on the basis of probative evidence. 18 The Tribunal expressed its finding in terms of it being 'probable' that the incident with Ms Opitz involved Mr Tzoudas deliberately placing his hand on her breast. In the Appeal Panel's view, the seriousness of the allegation made against Mr Tzoudas and the gravity of the consequences of a finding that the alleged conduct took place – in these proceedings, the cancellation of his taxi driver authority and consequent loss of livelihood - required that in the circumstances outlined above, the Tribunal should not rely on inferences in making material findings without having first given Mr Tzoudas an opportunity to respond. 19 The Appeal Panel therefore concludes that the Tribunal also made an error of law in terms of its treatment of the evidence. Decision 20 The Appeal Panel was mindful of the views expressed in Charara, and decided that in circumstances where having the benefit of hearing evidence first hand from the witnesses is likely to be important in making relevant findings, the appropriate course is to set aside the Tribunal's decision and remit the matter to a differently constituted Tribunal to be heard afresh.