Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Inaizi v Roads and Maritime Services (GD) [2013] NSWADTAP 37 Hearing dates: 25 July 2013 Decision date: 30 July 2013 Jurisdiction: Appeal Panel - Internal Before: Magistrate N Hennessy, Deputy President S Montgomery, Judicial Member M Bolt, Non-Judicial Member Decision: 1. Leave is refused for the appellant to appeal against the merits of the decision. 2. The appeal is dismissed. Catchwords: APPEAL - decision to cancel appellant's taxi driver authority - no question of law identified - whether leave should be given to extend appeal to merits - witness evidence given by phone - further evidence foreshadowed but not adduced - whether further evidence would have been unlikely to have led to a different conclusion - . Legislation Cited: Passenger Transport Act 1990 Administrative Decisions Tribunal Act 1997 Cases Cited: Building Professionals Board v Hans [2008] NSWADTAP 13 Lloyd v Veterinary Surgeons Investigation Committee [2005] NSWCA 456 World Best Holdings Ltd v Sarker & Anor [2004] NSWSC 935 R v Zorad (1990) 19 NSWLR 91 Sutcliffe v Pressdram Ltd [1990] 1 All ER 269 Category: Principal judgment Parties: Harbi Inaizi (Appellant) Roads and Maritime Services (Respondent) Representation: Counsel D Wetmore (Appellant) Smythe Wozniak Legal (Respondent) File Number(s): 139007 Decision under appeal Citation: [2013] NSWADT 45 Date of Decision: 2013-02-27 00:00:00 File Number(s): 123246 reasons for decision Introduction 1Mr Inaizi has appealed against the Tribunal's decision to cancel his authority to drive taxis. He can appeal on a question of law but needs the Tribunal's permission to appeal on any other ground: Administrative Decisions Tribunal Act, 1998 (ADT Act). Mr Inaizi was self-represented at the hearing before the Tribunal. Solicitors drafted his Notice of Appeal but then ceased to act. Mr Inaizi was represented by counsel at the hearing. 2The Tribunal's decision to cancel Mr Inaizi's taxi authority was based mainly on an allegation that he made inappropriate comments of a sexual nature to a female passenger on 25 May 2012. The female passenger, "Tracey" provided a statement to the Tribunal which stated, in part, that: I felt uncomfortable with the way the conversation was going. The driver said "do you have a man at home" I said "yes he's waiting for me at home"....[She says the driver asked her age, she did not answer, he started to guess her age and during this time he was turning around trying to look at her]. "When crossing the Harbour Bridge the driver said: "I had sex with a girl from New Zealand four months ago." I said: "oh." The driver said: "yes it was good" he then asked me "do you have a man at home waiting for you" I said: "yes". He said: "I don't believe you have a man waiting for you" "what was he doing at home while you were out?" . . . We were in Victoria Avenue, near my address. The driver said: "I fuck better at 47 that at 20" I was shocked at this and I noticed a Nandos food shop that was open on Victoria Avenue. I said to the driver to stop there. 3Before the Tribunal Mr Inaizi cross-examined "Tracey" who gave evidence by phone. Despite her evidence and GPS records and driver log in details, Mr Inaizi denied that he was the driver. On appeal, he admitted being the driver but denied making comments of a sexual nature. Tribunal's decision 4The Tribunal recounted the evidence and made the following findings of fact: (1)On 21 October 2006 Mr Inaizi wilfully damaged a person's bike while engaged in driving a taxi. (2)Mr Inaizi was the subject of a complaint by a female passenger for making remarks of a sexual nature on 23 August 2011. Roads and Maritime Services told Mr Inaizi that if he made such comments in the future, his authority may be cancelled. (3)Mr Inaizi made sexually inappropriate comments to a female passenger during a journey on 25 May 2012. (4)When completing the form for the renewal of his taxi authority on 4 March 2006 and 6 March 2012, Mr Inaizi knowingly failed to declare that he had been issued with traffic infringement notices. (5)Mr Inaizi continued to drive a taxi for at least one day after he knew that his driver licence had been suspended but the Tribunal accepted his explanation in relation to that matter. 5Cancellation of taxi driver authorities is regulated by the Passenger Transport Act 1990. The Tribunal summarised the legislative provisions in relation to cancellation at [53]: Section 33F clearly provides that in making a cancellation decision regard is to be had to the purpose of the authority. The purpose of an authority is to attest to the matters set out in s33(3)(a)(b) of the Act, namely, to attest that the authorised person is: Of good repute; and A fit and proper person (to be so authorised); and Considered to have sufficient aptitude and responsibility to drive a taxi cab in accordance with law and custom; and in accordance with the conditions under which the taxi service is operated. 6The Tribunal found, despite Mr Inaizi's denials, that he was the driver of the taxi on 25 May 2012 and that he had made the comments that "Tracey" alleged he had made. The Tribunal concluded at [63] that: The applicant's past conduct is that there was a complaint about inappropriate sexual conduct to a passenger in August 2011 (words used to the passenger) and a record of interview conducted and warning/caution issued. In less than 12 months there was a further complaint of inappropriate sexual conduct towards the witness Tracey, and the tribunal has found in these proceedings, as detailed above, that the applicant did say inappropriate sexual comments to Tracey, which made her frightened and made her exit the taxi before reaching home. She had accordingly not been safely transported to her home which was her reasonable expectation when engaging the taxi. Given the short time frame between the earlier complaint, and the current complaint, and the fact that the current complaint occurred after a warning, then the tribunal does not have confidence that the applicant will not conduct himself similarly in the future. The tribunal does not have confidence that the misconduct will not reoccur. The tribunal considers that the misconduct was serious, the comments were sexual and made the female passenger who was alone in the taxi at night, feel unsafe. Grounds of appeal on questions of law 7Mr Inaizi's lawyer identified two grounds of appeal on questions of law. They were that: (1)the Tribunal wrongly took into account the substance of the earlier complaint of inappropriate comments of a sexual nature; and (2)the Tribunal wrongly assumed that the onus was on the appellant to prove that he is a fit and proper person to drive a taxi. 8The first ground relates to paragraph 44 of the Tribunal's decision. In that paragraph, the Tribunal accepted "that this complaint was made by the passenger, that the applicant was interviewed by the respondent about the complaint, that the applicant denied making the statement as alleged and was issued with a warning as to future behaviour attracting serious penalty and possible cancellation of his driver authorisation." The Tribunal went on to say that it had not heard evidence from the complainant in relation to the 23 August 2011 incident and is therefore unable to make findings about what occurred, given the applicant's denial." 9The Tribunal's findings were clear. It was "satisfied that such a complaint was made" and that the applicant was "on notice that serious consequences could flow including cancellation of his driver authority, if there were further complaints". But the Tribunal did not make a finding about what Mr Inaizi had said during the conversation with the passenger. Despite that finding, Mr Inaizi's lawyer submitted that it was "possible" that the fact that the complaint had been made and the content of the complaint "melded" in the mind of the Tribunal Member. In those circumstances, the Tribunal Member may have taken the substance of the complaint into account. 10There is no basis for this submission. It is contrary to the Tribunal's findings. The Tribunal was careful to distinguish between the making of the complaint and the substance of the complaint. Mr Inaizi's lawyer has not identified a question of law. 11The second ground of appeal on a question of law related to an assumption that the Tribunal had misunderstood the issue of onus of proof. Mr Inaizi's lawyer submitted that the onus is on the Department to prove that Mr Inaizi is not a fit and proper person to drive a taxi. According to the Mr Inaizi's lawyer, the way the Tribunal expressed the test implied that the onus was on Mr Inaizi to prove that he is a fit and proper person to drive taxis. 12The Tribunal summarised the law at [53] of the decision. That summary is quoted at paragraph 5 above. The relevant provisions are s 33F and s 33(3) of the Passenger Transport Act 1990: Having regard to the purpose of authorisation under this Division, RMS may at any time vary, suspend or cancel any person's authority under this Division. (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. 13Reading these provisions together, one issue for the Tribunal was whether it could attest that Mr Inaizi is a fit and proper person to be the driver of a taxi. At [53] of its reasons, the Tribunal expressed the test consistently with the way it is expressed in the legislation. When making its findings at [65], the Tribunal also expressed the test correctly: Having regard to the sexually inappropriate conduct in the course of the regulated activity to a female passenger alone in the taxi at night, the tribunal cannot attest to the applicant being a fit and proper person to be authorised to drive a taxi cab . . 14The Tribunal has not made any error of law in the way s 33F and s 33(3) were summarised or applied. Leave to extend the appeal to the merits of the Tribunal's decision 15The Tribunal may grant leave to extend an appeal to a review of the merits of the appealable decision: ADT Act, s 113(2)(b). If an appeal extends to a review of the merits, the Appeal Panel is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material: ADT Act, s 115. An appeal can be extended to the merits without first determining that an error of law has been made: Lloyd v Veterinary Surgeons Investigation Committee [2005] NSWCA 456. The onus of proof lies with the party seeking leave: World Best Holdings Ltd v Sarker & Anor [2004] NSWSC 935 at [25]. The discretion to grant leave is not restricted but the need for leave reflects the public interest in the finality of litigation. 16The grounds of appeal on the merits fall into two categories. The first is that it was unfair for the Tribunal to allow "Tracey" to give evidence by phone. The second is that the Tribunal should hear Mr Inaizi's application again because he did not represent himself effectively at the hearing. 17We accept that a party is disadvantaged to some extent when cross-examining a witness by phone. Without seeing the witness it is not possible to gauge their reaction to particular questions. But Mr Inaizi's lawyer focused on the Tribunal's finding that Tracey's oral evidence was consistent with her statement in circumstances where she could have been reading from her statement over the phone. 18This ground of appeal is expressed in the following way in the Notice of Appeal: Even if the appellant were the driver, Tracey could not be sure and the Tribunal did not have the opportunity of seeing Tracey in order to make an assessment of her veracity as a witness. The Tribunal has stated that, " . . . Tracey gave oral evidence consistent with her written statement, and gave clear evidence as to the words said to her by the taxi driver." Her oral evidence would be consistent with her written statement if she were reading from it. By giving evidence by telephone the Tribunal has no way of telling if she had her statement with her or not. It is submitted that too much weight has been placed upon Tracey's evidence given that she is not sure the appellant was the driver and because her oral evidence was consistent with her written statement. Even if the appellant was the driver, the Tribunal cannot be sure that the words attributed to the appellant were in fact uttered by him simply because Tracey's oral evidence was consistent with her written statement. 19Commenting on these submissions, Mr Inaizi's current lawyer noted that Mr Inaizi has now admitted that he was the driver so any ground of appeal based on his earlier evidence that he was not the driver is irrelevant. 20The point that remains is that the Tribunal erred by placing too much weight on the fact that Tracey's oral and written evidence was consistent. Reading the Tribunal's reasons as a whole, it is apparent that very little weight was given to that matter. It was only one of several matters the Tribunal gave for preferring her version of events. Other reasons were that her account of the conversation had been consistent over time, that the GPS records and driver log in details supported her version and that Mr Inaizi's age corresponded with the age Tracey remembers him saying he was. Even if the Tribunal had not relied on the fact that Tracey's oral and written evidence was consistent, it would have found that Mr Inaizi was the driver. As the Tribunal did not give "too much weight" to that matter, leave to appeal on that ground is refused. 21In relation to the second ground of appeal on the merits, we agree that Mr Inaizi did not effectively represent himself at the hearing. He should have admitted being the driver. That would have avoided the Department having to provide GPS and log in records. We also agree that if he had been represented, "Tracey" may have been subjected to a much more effective cross-examination. Thirdly, Mr Inaizi says he should have adduced evidence and made submissions about the stress he was under at the time the alleged incident occurred. The Tribunal could have taken that evidence into account when determining whether cancellation was the correct and preferable decision. 22In relation to the first two points, Mr Inaizi should not be able to run his case again because he made decisions that he now regrets, including not instructing a lawyer. The Tribunal complied with its duty to ensure that the proceedings were fair despite the fact that Mr Inaizi was not represented. He did not suffer a disadvantage, at least none that the Tribunal could have addressed, as a result of being self-represented: R v Zorad (1990) 19 NSWLR 91 at 94-95. 23Mr Inaizi's final point was that further evidence exists which justifies the Appeal Panel re-hearing the case. That evidence relates to the stress he was under at the time. 24The Notice of Appeal drafted by his former solicitors states that: Since giving evidence before the Tribunal, the appellant has remembered the conversation with Tracey in better detail. 25The Notice of Appeal goes on to recount what Mr Inaizi now remembers that "Tracey" said during the conversation. According to his former solicitors, Mr Inaizi cannot be sure what course the conversation took because "his mind was on other things." Those "other things" were said to be that his son had been charged with committing several serious drug offences in June 2011. On 20 June 2012, a few weeks after the incident in the taxi, his son was committed for trial. Mr Inaizi's former solicitor wrote that Mr Inaizi could not remember clearly what had been said on the taxi journey, although he continues to deny "talking sexual things." 26We are not persuaded that we should extend the appeal to the merits of the Tribunal's decision on the basis that further evidence should be admitted. 27Firstly, Mr Inaizi did not adduce any further evidence. There was no statement from him, or from a medical practitioner, about the effect the charges against his son had on him. His former solicitors made numerous assertions about that matter in the Notice of Appeal, but submissions from lawyers is not evidence. While the Tribunal is not bound by the rules of evidence, it would have been preferable if the further evidence had been adduced on appeal: Sutcliffe v Pressdram Ltd [1990] 1 All ER 269 at 270. 28Secondly, even if we accept the former solicitor's assertions as further evidence it does not follow that Mr Inaizi's stress was the cause of any particular behaviour. Mr Inaizi's lawyer suggested that 'people do strange things when under stress'. While that is no doubt true, a decision maker would need at least some evidence, preferably from a medical practitioner, to be satisfied that the stress Mr Inaizi was under led him to behave in a certain way. 29Thirdly, if Mr Inaizi could link the stress he was under with his behaviour, we would still have to be satisfied that the Tribunal at first instance was likely to have come to a different conclusion if it had had that evidence before it: Building Professionals Board v Hans [2008] NSWADTAP 13 at [54]. The Tribunal knew that Mr Inaizi was under stress but did not know the source of that stress. At [25], the Tribunal recorded the following evidence from Mr Inaizi: It is bad luck this year for me I went through a lot of stress for things concerning my family. 30We are not satisfied that even if the Tribunal had further evidence of the stress Mr Inaizi was under it would have been likely to have made a different decision. Mr Inaizi's case was that he was not the driver when the incident occurred. If he had admitted being the driver and making the alleged remarks, the Tribunal may have taken into account that he was under stress at the time. But that was not Mr Inaizi's case. Nothing he has said persuades us that he should be able to run his case again on a different basis. 31Mr Inaizi's lawyer did not rely on any other ground of appeal listed in the Notice of Appeal or in his so-called Alterations and Additions documents. 32For these reasons we refuse leave for Mr Inaizi to appeal against the merits of the Tribunal's decision. ********** 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. Decision last updated: 30 July 2013