Sikka v Roads and Maritime Services (No. 2) (GD) [2013] NSWADTAP 48

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Sikka v Roads and Maritime Services (No. 2) (GD) [2013] NSWADTAP 48 Hearing dates: 10 October 2013 Decision date: 25 October 2013 Jurisdiction: Appeal Panel - Internal Before: Judge K P O'Connor, President A Scahill, Judicial Member M Bolt, Non-judicial Member Decision: 1. Appeal dismissed. 2. Decision of respondent affirmed. Catchwords: OCCUPATIONAL REGULATION - Appeal - Extended to Merits - Fitness - Consideration of Driver's Explanation for Alleged Misconduct - Explanation not accepted - Decision affirmed Legislation Cited: Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990 Cases Cited: Sikka v Roads and Maritime Services (GD) [2013] NSWADTAP 28 Category: Principal judgment Parties: Amit Sikka (Appellant) Roads and Maritime Services (Respondent) Representation: M Jools (agent by leave, Appellant) A Wozniak, Smythe Wozniak Legal (Respondent) File Number(s): 139010 Decision under appeal Citation: Sikka v Roads and Maritime Services (unreported, 11 March 2013) Date of Decision: 2013-03-11 00:00:00 Before: General Division File Number(s): 123138

reasons for decision 1This is the second decision in an appeal brought by Mr Sikka. Mr Sikka has applied to the Tribunal for review of a decision by Roads and Maritime Services (RMS) as administrator of the Passenger Transport Act 1990 to cancel his taxi driver authority issued under that Act. The Tribunal affirmed the cancellation. Mr Sikka appealed to the Appeal Panel. In our earlier decision, we accepted Mr Sikka's objection that the Tribunal's reasons were inadequate, set aside the Tribunal's decision and extended the appeal to the merits: Sikka v Roads and Maritime Services (GD) [2013] NSWADTAP 28 (28 June 2013). The RMS decision remained unaffected. 2(As permitted by s 79 of the Administrative Decisions Tribunal Act 1997, the Appeal Panel has been reconstituted with Judicial Member Scahill replacing Ms Huntsman, who became unavailable following her resignation as Judicial Member to take up an appointment as a Magistrate. The parties consented to this replacement.) 3On 30 July 2013 the Panel issued directions allowing the parties to file additional material. On 7 August 2013 the Panel (constituted by the President sitting alone for this purpose) refused an application by Mr Sikka for a stay of the RMS decision, so that he might be permitted to resume work as a taxi driver pending resolution of the appeal. He had the benefit of a stay during the period the case was before the Tribunal below (31 May 2012 to 11 March 2013) and for a further period after lodgment of the appeal (25 March 2013 to 23 April 2013). 4RMS filed a supplementary statement from Ms Minerva Mikhael, customer services manager, GM Cabs. At the Appeal Panel hearing on 10 October 2013, Mr Sikka's agent, Mr Jools, handed up a short document containing some queries in relation to Ms Mikhael's statement. Ms Mikhael attended, and was cross-examined. Mr Sikka gave evidence supplementary to that previously given by him to the Tribunal, was cross-examined and answered questions from the Panel. 5The concern that led the Appeal Panel to the view that the Tribunal's reasons had been inadequate related to its non-response to the defence of machine error that Mr Sikka has pressed in answer to the key concerns that led RMS to decide to cancel his authority.