New South Wales Supreme Court Ali v RTA & Anor [2005] NSWSC 612 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 21 June 2005 JUDGMENT DATE : 29 June 2005 JURISDICTION : Common Law Division JUDGMENT OF : Associate Justice Harrison DECISION : (1) The decision of Magistrate Flack dated 14 October 2004 is affirmed; (2) The further amended summons filed 24 March 2005 is dismissed; (3) The plaintiff is to pay the defendants' costs as agreed or assessed. CATCHWORDS : Local Court decision - certorari - "fit and proper person" s 18(1)(c) Driving Instructors Act 1992 Driving Instructors Act 1992 (NSW) - s 18(1)(c) LEGISLATION CITED : Local Courts (Civil Claims) Act 1970 (NSW) - s 69 Supreme Court Act 1970 (NSW) - s 23 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Craig v The State of South Australia (1995) 184 CLR 163 Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 CASES CITED : Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 R v Electricity Commissioners; ex parte London Electricity Joint Committee Co Ltd [1924] 1 KB 171 Raymond Robbins v Business Licensing Authority [2000] VCAT 457 Sobey v Commercial Private Agents Board (1979) 22 SASR 70 Maqsud Ali (Plaintiff) Road and Traffic Authority PARTIES : (First Defendant) Local Court of New South Wales, Liverpool (Second Defendant) FILE NUMBER(S) : SC 13627/2004 Mr A Kumar COUNSEL : (Plaintiff) Mr S Free Crown Solicitor (First Defendant) SOLICITORS : Submitting Appearance (Second Defendant) LOWER COURT JURISDICTION : Local Court LOWER COURT FILE NUMBER(S) : 284/2004 LOWER COURT JUDICIAL OFFICER : Magistrate Flack IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ASSOCIATE JUSTICE HARRISON WEDNESDAY, 29 JUNE 2005 13627/2004 - MAQSUD ALI v ROADS AND TRAFFIC AUTHORITY & ANOR JUDGMENT (Local Court decision - certorari - "fit and proper person" s 18(1)(c) Driving Instructors Act 1992) 1 HER HONOUR: By further amended summons filed 24 March 2005 the plaintiff seeks firstly, a declaration that the decision made by the second defendant affirming the decision of the first defendant under s 18(1)(c) of the Driving Instructors Act 1992 (NSW) to refuse the plaintiff a licence is void; secondly an order in the nature of certiorari setting the decision aside; and thirdly, an order in the nature of mandamus that the second defendant consider and determine the plaintiff's appeal against the second defendant according to law. The plaintiff relied on his affidavits sworn 28 February 2005 and 14 March 2005. 2 The plaintiff is Maqsud Ali. The first defendant in the Roads and Traffic Authority (RTA). The second defendant in the Local Court of New South Wales at Liverpool. The first and second defendants have both filed a submitting appearance. 3 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the plaintiff. Section 69(2) of the Local Courts (Civil Claims) Act 1970 (NSW) (the Act) permits a party who is dissatisfied with a judgment as being erroneous in point of law to appeal to this Court. The onus lies on the plaintiff to demonstrate that there has been an error of law. 4 However, the plaintiff seeks declaratory relief in the nature of certiorari and relies on s 23 of the Supreme Court Act 1970 (NSW) that the Supreme Court has "all jurisdiction that may be necessary for the administration of justice in New South Wales". This remedy is available where a body of persons having legal authority to determine questions affecting right of subject, and having the duty to act judicially, act in excess of their legal authority – see R v Electricity Commissioners; ex parte London Electricity Joint Committee Co Ltd [1924] 1 KB 171 at 205. Certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and error of law on the face of the record. 5 Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the "record" of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record - see Craig v The State of South Australia (1995) 184 CLR 163 at 175-6. 6 Section 69(4) of the Act provides that the court may determine an appeal by either (a) setting the judgment or order aside or (b) by varying the terms of the judgment or order or (c) by setting the judgment or order aside and remitting the matter for determination in accordance with the court's directions or (d) by dismissing the appeal. Grounds of appeal 7 The plaintiff appeals the whole of the decision of Magistrate Flack on the grounds that he was denied natural justice or procedural fairness in considering and determining the plaintiff's application under s 18 of the Driving Instructors Act 1992 (NSW). The grounds of appeal are firstly that (a) the Magistrate made the decision without allowing the plaintiff an opportunity to fairly present the character references, being represented by legal counsel; (b) the Magistrate failed to refer the defendant to chamber magistrate in the circumstances; (c) the Magistrate made the decision without allowing the plaintiff a reasonable opportunity to be heard in relation to the decision; (d) the Magistrate failed to consider the full facts or circumstances of the defendant in making the decisions; and (e) the Magistrate failed to provide detailed reason for the decision. Secondly, the Magistrate was, or appeared to be biased because he (a) considered the nature of the plaintiff's one criminal conviction as conclusiveness of his not being a "fit and proper person" without ascertaining the facts of the case; (b) considered the one particular conviction as "pretty serious offence" without ascertaining the facts of the case; and (c) by considering the nature of the plaintiff's one criminal conviction as conclusiveness of his not being a "fit and proper person" without specifically looking at the exact facts of the case. Thirdly, the Magistrate took into account one conviction for malicious wounding without ascertaining the facts of the case. Fourthly, the Magistrate failed to take into account the following matters (1) the length of time driving licences were held by the plaintiff; (2) the driving record of the plaintiff; (3) failed to enquire into the facts of the plaintiff's one criminal conviction; (4) the otherwise good criminal record of the plaintiff; (5) the length of time since previous conviction; (6) the employment circumstances of the plaintiff; (7) current occupation requiring dealing with members of the public as taxi driver and waiter; (8) the family circumstances of the plaintiff; (9) the health circumstances of the plaintiff; (10) the financial circumstances of the plaintiff; and (11) the overall good character of the plaintiff. Added to the grounds at the outset of the hearing was that he had legitimate expectation and was owed procedural vehicle. 8 On 25 June 2004 the plaintiff lodged an application for a driving instructor's licence with the RTA. On 9 September 2004 the RTA advised the plaintiff that it refused to issue the licence pursuant to s 18(1)(c) of the Driving Instructors Act 1992 (NSW) on the basis that he was not a fit and proper person to hold a driving instructors licence, in view of his conviction at Burwood Local Court on 27 August 1998 for the offence of Maliciously Wound. The appeal to the Local Court 9 The plaintiff appealed the decision of the RTA to the Local Court. He appeared unrepresented before Magistrate Flack. The Magistrate dismissed the appeal and confirmed the decision of the RTA. 10 The plaintiff's had lodged written grounds of appeal. They were that firstly, having regard to his good character and driving history he was a fit and proper person to hold a licence; secondly, that he required his licence for family and/or work purposes; thirdly, he had been driving for 16 years and he had never committed any traffic offence even though he had been a taxi driver for two years; fourthly, he had only been convicted once and that was six years ago and has not committed any offence since then; fifthly, he is a part time waiter dealing with the public on a day to day basis and it is hard to find a full time job because of his back problem so he would like to become self-employed and become a driving instructor; and sixthly, he had a family to support, a wife and two small children. His wife does not work and he needs to work full time to support his family but because of his back problem and tendonitis, no one wants to employ him because he may be a "compensation risk". 11 In addition the plaintiff produced a reference from Dr Hedge, Golan Mowla, Sue Brazel, Poulose Kachappilly. The reference by Mr Kachappilly, who employs the plaintiff as a waiter stated that he knew of the plaintiff's conviction and says that the plaintiff deals with customers very well. The plaintiff also set out he and his wife's financial position. The facts sheet giving rise to the charge of malicious prosecution was also before the Local Court. 12 The facts sheet stated that on 31 January 1998 at 1.00pm an argument broke out between Mr Ali and the victim. Mr Ali went across the road to his house and returned with a green retractable Stanley knife in his back pocket. The argument resumed with a beer bottle being thrown by each other, back and forth. Mr Ali took the knife out of his pocket and extended the blade. An altercation ensued and the victim received a number of lacerations on his left forearm. The fight was broken up but the plaintiff returned home and took possession of a machete. He stood on the front verandah of his home and showed the victim the machete. At Burwood Local Court plaintiff pleaded guilty to the offence. He was convicted and given a community service order of 100 hours which he duly completed. The law 13 Section 18(1)(c) of the Driving Instructors Act 1992 (NSW) reads: "Grounds for refusal of application (1) The Authority must refuse an application if: … (c) the Authority is not satisfied that the applicant is a fit and proper person to act as a driving instructor." 14 The Magistrate asked the plaintiff a number of questions such as how long the plaintiff had held a licence, which was 16 years. The Magistrate was aware of the character references that had been shown to the RTA. The plaintiff was given opportunities to tell the Magistrate as to why the Magistrate should find him a person of good character and he gave his reasons. 15 The plaintiff's counsel, Mr Kumar, helpfully provided authorities on the meaning of a fit and proper person. These authorities were not provided to the Magistrate, however they are instructive. 16 In Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 at 156 Dixon CJ, McTiernan and Webb JJ held that the "very purpose" of the statutory formula "fit and proper" is to "give the widest scope for judgment and indeed for rejection". Their Honours went on to state (at 156-7) that it would be "unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances." The plaintiff expressly acknowledged in his submissions, that the criminal record of a person is relevant to the question of whether the person is a fit and proper person to hold a licence (paragraph [28] and Sobey v Commercial Private Agents Board (1979) 22 SASR 70 at 75 and Raymond Robbins v Business Licensing Authority [2000] VCAT 457 29 January 2000. 17 Again Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380, Toohey and Gaudron JJ gave the following guidance regarding the "fit and proper person" formula: "The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question." 18 Thus whether a person considered "fit and proper" is discretionary and has the widest scope for judgment. The Magistrate considered the factors that the plaintiff considered relevant to his appeal. 19 The Magistrate concluded: "On this occasion, having in mind the seriousness of the facts in respect of that conviction and the circumstance whereby a knife and machete were used by the defendant, I am not satisfied at this stage, notwithstanding the lapse of time, that he is yet a fit and proper person, having in mind, in particular, that penalty imposed for that serious offence. THE APPEAL IS DISMISSED, THE RTA ORDER IS CONFIRMED." 20 Both parties referred to the objects of the Act but they were not drawn to the Magistrate's attention. They do not really assist. The primary objects of the Act are (a) to ensure that driving instructors meet minimum standards relating to competency in driving instruction, probity and character in order to protect the community and to benefit the driving instruction industry; and (b) to minimise the potential for corruption in the driving instruction industry and inappropriate behaviour by driving instructions; and (c) to promote the safety and protection of persons receiving driving instruction. While the objects refer to minimum standards the focus seems to be to promote the safety and protection of persons receiving driving instruction and protection of the community. 21 In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Mason J stated at 41: "It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power (Sean Investments Pty Ltd v. MacKellar (1981) 38 ALR 363, at p 375; Reg. v. Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177, at p 205; Elliott v. Southwark London Borough Council [1976] 1 WLR 499, at p 507; [1976] 2 All ER 781, at p 788; Pickwell v. Camden London Borough Council [1983] QB 962, at p 990). I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable". This ground of review was considered by Lord Greene M.R. in Wednesbury Corporation [1948] 1 KB 223, at pp.230, 233-234, in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it." 22 The decision that the Magistrate made was one which was open to him. It cannot be said that the decision is manifestly unreasonable. The plaintiff was afforded procedural fairness as he was given an opportunity to present his case. There was no apprehended or actual bias. There has been no error of law. Nor should any declaratory relief be granted. The decision of Magistrate Flack dated 14 October 2004 is affirmed. The further amended summons is dismissed. 23 Costs are discretionary. Costs usually follows the event. The plaintiff is to pay the defendants' costs as agreed or assessed. The court orders: (1) The decision of Magistrate Flack dated 14 October 2004 is affirmed. (2) The further amended summons filed 24 March 2005 is dismissed. (3) The plaintiff is to pay the defendants' costs as agreed or assessed. ********** 30/06/2005 - Changed plaintiff's counsel's name from Mr K Kumar to Mr A Kumer on coversheet - Paragraph(s) Coversheet 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.