Civil and Administrative Tribunal New South Wales Medium Neutral Citation: AJO v Roads and Maritime Services [2014] NSWCATAP 21 Hearing dates: 16 December 2013 Decision date: 21 May 2014 Jurisdiction: Appeal Panel Before: N Hennessy LCM, Deputy President Decision: The applicant's application for leave to appeal out of time is refused. Catchwords: PRACTICE AND PROCEDURE - appeal more than 12 months out of time - previous appeal withdrawn and dismissed - reason for delay - prejudice to respondent - merits of the appeal Legislation Cited: Administrative Decisions Tribunal Act 1997 Cases Cited: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Beale v GIO (1997) 48 NSWLR 430 Building Professionals Board v Hans (GD) [2008] NSWADTAP 13 Comcare v A'Hearn (1993) 45 FCR 441 Dix v Client Compensation Tribunal (1993) 1 VR 297 Currabubula & Paola v State Bank NSW [2000] NSWSC 232 Doyle v Chief of Staff (1982) 42 ALR 283 Lal v Director General, Department of Transport [2001] NSWADT 74 Lucic v Nolan (1982) 45 ALR 411 Mifsud v Campbell [1991] 21 NSWLR 725. Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 Rowe v Australian Steam Navigation Co Ltd [1909] HCA 25; (1909) 9 CLR 1 Saadieh v Director General, Department of Transport [1999] NSWADT 68 Category: Interlocutory applications Parties: AJO Roads and Maritime Services Representation: Counsel J Viney (Respondent) Appellant (Self-represented) Smyth & Wozniak, solicitors (Respondent) File Number(s): 139046 Publication restriction: Section 75(2) of the Administrative Decisions Tribunal Act 1997 Decision under appeal Citation: AJO v Director-General, Department of Transport [2012] NSWADT 101 Date of Decision: 2012-05-25 00:00:00 Before: Molony JM File Number(s): 113143 and 113191 reasons for decision Introduction 1The Appellant, AJO, has appealed against a decision of the Tribunal cancelling his school bus driver authority. He originally appealed within the 28 day time limit but that appeal was withdrawn and dismissed on the first day of hearing. The current appeal was lodged more than 12 months later. I have decided not to accept this appeal out of time because AJO has already withdrawn one appeal and has taken over 12 months to lodge a second appeal. In addition the appeal, if accepted, has very little prospects of success. 2On 1 January 2014, the Administrative Decisions Tribunal was abolished and the jurisdiction to determine internal appeals was assigned to the NSW Civil and Administrative Tribunal: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), Sch 3, cl 3(1). In accordance with cl 6 of Sch 1 of the NCAT Act, this application to extend time is a "part heard" proceeding. Such proceedings are to be determined in accordance with the Administrative Decisions Tribunal Act 1997 (ADT Act) because that is the law that would have applied to the proceedings: Sch 1, cl 7(3). When determining an application for extension of time, the Appeal Panel is exercising an interlocutory function. The Appeal Panel may be constituted by one presidential judicial member: ADT Act, 24A(1)(d) and s 24(2). 3The Tribunal's power to extend time is in s 113(3) of the ADT Act: An appeal under this Part must be made: (a) within 28 days after the Tribunal gives the party oral reasons or written reasons for the appealable decision (whichever is the later), or (b) within such further time as the Appeal Panel may allow. 4The general rule is that proceedings commenced outside the prescribed period will not be entertained: Lucic v Nolan (1982) 45 ALR 411 at 416. But there is no onus on an applicant to provide an acceptable explanation for the delay or to establish by any particular evidence that time should be extended: Comcare v A'Hearn (1993) 45 FCR 441; Dix v Client Compensation Tribunal (1993) 1 VR 297 at 302). It is relevant to consider whether the respondent was entitled to regard the matter as being finalised: Doyle v Chief of Staff (1982) 42 ALR 283 at 287. Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is also relevant. 5In summary, relevant considerations include: the history of the proceedings, the reasons for the delay, the consequences to the parties of granting or refusing the extension of time and the prospects of success of the appeal: Currabubula & Paola v State Bank NSW [2000] NSWSC 232 at [87]. The aim is to do justice between the parties. History of the proceedings 6On 25 May 2012, following a four day hearing where AJO was represented by a solicitor and a barrister, the Tribunal handed down its reasons for affirming the decisions of Roads and Maritime Services to suspend and then cancel AJO's bus driver authority. 7AJO appealed within time and the appeal was listed for hearing on 4 October 2012. AJO was represented on that occasion by Mr Smark, SC who conceded that the appeal, as then drafted, lacked merit and applied to vacate the hearing date. In oral reasons delivered on the day, the Appeal Panel refused the application for an adjournment. Mr Smark SC then applied for the appeal to be withdrawn. The appeal was withdrawn and dismissed under s 73(5)(g)(i) of the ADT Act. 8The withdrawal and dismissal of the first appeal is not a bar to AJO filing another Notice of Appeal but it is a relevant factor when considering whether to extend the time to do so. AJO filed a further Notice of Appeal on 31 October 2013, over 12 months after the appeal had been dismissed and 17 months after the Tribunal had handed down its decision. The matter was listed on 16 December 2013 to determine whether the second appeal should be accepted out of time. 9On the day of that hearing AJO sought to tender an affidavit that had not previously been filed. He said it was unfinished. I gave him a short time to finish the affidavit and file it but Mr Viney, representing the respondent, said he could not proceed because he needed to get instructions in relation to allegations AJO had made against the lawyers who had withdrawn his first appeal. The matter was relisted for hearing on 20 January 2014. Reason for delay 10In his affidavit dated 20 December 2013, and filed on 14 January 2014, AJO set out the history of the legal advice he had sought and received after the appeal was withdrawn in October 2012. AJO outlined what he did to obtain advice about appealing either to the Supreme Court or against the Appeal Panel's decision to refuse the application for an adjournment. He requested written reasons for the Appeal Panel's decision which he obtained in January 2013. He sought advice from counsel on 29 January 2013 and was referred to other lawyers. AJO did not lodge a fresh appeal at that stage but chose to apply for a new bus driver authority. That application was refused in July 2013. 11AJO says that after meeting with another barrister on 31 July 2013 he "reluctantly" decided to appeal to the Appeal Panel again, without the benefit of legal representation. He also says his marriage broke down around that time. He lodged the appeal on 31 October 2013. 12While I am satisfied that AJO was actively seeking legal advice about his options until the end of January 2013, and that he was under considerable stress because of his family situation, he knew that time was of the essence. After receiving some advice, he chose to apply for a new authority. It was not until three months after that application had been refused that he lodged a second appeal. Consequences to the parties 13The consequences to AJO of refusing to extend time are that he would lose his final opportunity to submit that the Tribunal at first instance made an error of law in finding that he is not a fit and proper person to hold a bus driver authority. He would also lose his final opportunity to submit that the Appeal Panel should give him leave to extend the appeal to the merits of the Tribunal's decision. He strongly believes that the Tribunal was mistaken in its conclusion that he is not a fit and proper person to drive a school bus and he wants to appeal to 'clear his name'. He contends that some students who gave evidence against him lied as part of a narcissistic vendetta against him. He maintains that he is "an innocent, good, honest and decent man (who has) had his whole life destroyed including losing everything he and his partner had worked their whole life for, their business, marriage and family unit." 14From the respondent's point of view, the consequence if the time is extended is that it will have to bear the expense of defending an appeal which it assumed had been finalised in October 2012. Merits of the appeal Introduction 15The final consideration is the merits of the appeal. If the grounds of appeal are weak, that is a consideration which would tend to suggest that leave should not be granted. It is not the Appeal Panel's role to finally determine the merits at this stage. 16AJO has the right to appeal on "questions of law". He also asks for permission (or 'leave') to appeal against the merits of the Tribunal's decision: Administrative Decisions Tribunal Act 1997 (NSW) (ADT Act), s 113(2). AJO filed an Amended Notice of Appeal on 2 December 2013, setting out 20 grounds of appeal on questions of law. AJO also set out detailed reasons for seeking leave to appeal against the merits of the Tribunal's decision. AJO filed further lengthy material on 5 February, 3 April and 10 April 2014. No directions were made for the filing of that material and it has not been taken into account except as possible further or fresh evidence. 17The application for extension of time was heard on 16 December 2013. Having read the relevant material, I have formed the view that the appeal has very little prospects of success. AJO has either misunderstood the law or the way the law applies to his case. Without finally determining any of AJO's grounds of appeal, the merits of the main grounds are discussed below. Misapplication of Regulation 18AJO submitted that the Tribunal misapplied cl 101 of the Passenger Transport Regulation 2007. That provision states that: A driver of a bus, or an authorised officer on a bus, is not to direct a person who the driver or authorised officer knows is a school student (or ought reasonably to know is a school student) to leave the bus unless: (a) on leaving the bus, the school student will be in the care of a person who is legally responsible for the student, or (b) the place at which the student is directed to leave the bus would appear to a reasonable person to be appropriate, having regard to the traffic conditions, proximity to other transport and nature of the locality. 19According to AJO, the situation about which evidence was given in his case falls within cl 101(b) because he put the student off the bus at a school (not the student's school but a different school) and not with the intent of leaving him there. 20The Tribunal cited cl 101(b) and concluded at [55] that requiring a particular student to leave the bus was a breach of that clause and the Behaviour Guidelines. AJO disagrees with the Tribunal's finding that the factual circumstances come within that provision. It is unlikely that if an Appeal Panel were to hear this appeal it would conclude that the Tribunal 'misapplied' this provision. Procedural fairness 21When reviewing a decision of an administrator, the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of procedural fairness: ADT Act, s 73(2). 22AJO said that the Tribunal had made adverse findings about his conduct in relation to events on which the Respondent had not relied when coming to its decision. He says that he did not know what allegations the Tribunal would rely on in coming to a conclusion that he was not a fit and proper person. For example, the allegation that he abandoned a child who was on the bus or that he threw a bag of rubbish out of the bus, were not raised in the documents the Respondent filed pursuant to s 58 of the ADT Act. 23Contrary to AJO's submission, it is not a breach of the rules of procedural fairness for the Tribunal to rely on evidence which the Respondent did not rely on when making its decision. In making findings of fact, the Tribunal is to have regard to the material 'then before it" including any relevant factual material: ADT Act, s 63. The Tribunal is required to "take such measures as are reasonably practicable to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions": ADT Act, s 73(4(a). 24The circumstances surrounding AJO's decision to put a student off the bus was the subject of lengthy cross-examination of some of the students by AJO's lawyer. AJO was on notice of the allegation and had a reasonable opportunity to respond to it: ADT Act, s 73(4)(c). 25According to AJO the allegation that he threw a bag of rubbish out the door of the bus was not mentioned in the s 58 documents and he was not asked in cross-examination whether the bag contained rubbish. 26At [61], the Tribunal made the following finding: He conceded that when AJP got off the bus, where his mother was waiting for him, he had thrown a bag of rubbish from the bus and claimed it was AJP's. He did not speak with AJP's mother as, he said, he did not recognise her. He gave no evidence of attempting to contact either of AJP's parents to discuss the problems with AJP. 27The Tribunal's finding is that AJO conceded that he had thrown a bag of rubbish from the bus. If AJO did not give evidence disputing that allegation, it was open to the Tribunal to make that finding. 28A further ground of appeal relating to procedural fairness was that AJO asserts that 500 documents were "dumped on him" three days before the hearing. In circumstances where AJO was represented by lawyers who could have applied for an adjournment, the service of documents close to the hearing date is unlikely to constitute a breach of procedural fairness. 29Another matter that AJO says was not raised in the Respondent's statement of reasons was his conduct as an accredited bus operator. At [99] of the reasons, the Tribunal states that: In a detailed letter written by AJO in response to complaints from three parents dated 28 October 2009 he wrote, among many other things, that: In cases where students are non-compliant, the matter is almost always resolved by re-allocation of the student's seating position usually near the front of the bus where the driver can observe and monitor the student's behaviour and minimise the potential risk to other students. In extreme cases and in compliance with the MOT's school student behaviour policy a student may be removed from the bus. This only occurs under extreme circumstances and then we usually work with the parent to assist with alternative transport arrangements ... 30This evidence is a letter written by AJO. It was part of the material before the Tribunal and the Tribunal was entitled to take it into account if it was relevant. The fact that it was relevant to his conduct as an accredited operator does not necessarily mean that it was not relevant to the question of whether he was a fit and proper person to be the driver of a school bus. 31Finally, AJO says Tribunal was biased but points to no basis for that contention other than the fact that the case was determined against him. Relevant considerations 32A further ground of appeal was that the Tribunal did not take into account all relevant considerations. The Tribunal will only make an error of law by failing to take into account a relevant consideration if that consideration is a consideration that the Tribunal is bound to take into account: Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24. Whether or not a decision maker is bound to take into account or to ignore any particular matter is to be determined from the "subject-matter, scope and purpose" of the legislative scheme: Peko Wallsend, per Mason J at 39-40. 33At [29] the Tribunal cited the decision in Saadieh v Director General, Department of Transport [1999] NSWADT 68: In Saadieh v Director General, Department of Transport [1999] NSWADT 68, Hennessey DP set out the factors to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. They are: - the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted; - the applicant's reputation in the community; and - the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences. 34The nature, seriousness and frequency of any complaints made against AJO was the main basis for the Tribunal's decision. AJO submitted that the Tribunal did not take into account his good record in reaching its decision. If AJO had a good record, and there was evidence of that record before the Tribunal, that does not necessarily overcome or discount the complaints about him and the findings in relation to those complaints. 35At [29] the Tribunal said: Also of concern is the fact that AJO, on his own evidence, made no inquiries as to who had been sick, or as to their welfare. In my opinion it is reasonable, and essentially a matter of common decency, to expect a country school bus driver to inquire about the welfare of a student who has been sick; to make sure they are all right and fit to continue travelling. Making phone calls at the conclusion of the trip, in an effort to make such inquiries, is too late. 36AJO objects to the reference to 'country school bus driver' saying there is no difference between city or country bus drivers and that the fact that he is a country bus driver is an irrelevant consideration. Even if the Appeal Panel accepted that the expectations of country bus drivers are no different from those of city bus drivers it is highly unlikely that it would find that the Tribunal had made an error of law by including that reference. The point is a relatively insignificant one. 37A consideration which AJO said that the Tribunal did not take into account was "the catastrophic loss which he and his former wife faced following cancellation of his licence." The Tribunal found that the effect on AJO and his family of the cancellation of his bus authority was not relevant when determining whether he is a fit and proper person to hold such an authority: Lal v Director General, Department of Transport [2001] NSWADT 74 at [47]. AJO disputes that conclusion but does not provide any authority for his contention. Without any such authority, this ground of appeal is likely to fail. Errors in the fact finding process Introduction 38AJO disagrees with many of the Tribunal's findings of fact. He characterises those disagreements as errors of law or as a basis for the Appeal Panel giving leave to appeal against the merits of the decision. AJO provides considerable detail in his Amended Notice of Appeal as to the errors he says the Tribunal made in relation to factual findings. The main focus of AJO's criticism was that the Tribunal accepted as reliable evidence given by a small group of people (who he refers to as a 'subset') who had been the subject of ongoing disciplinary action and who were at risk of being banned permanently from the bus service. According to AJO, their evidence was not reliable because it was part of a narcissistic vendetta against him, and the Tribunal should not have accepted it. He also says that on the basis of all the evidence, the Tribunal should have found that he is a 'fit and proper' person to hold a driver authority. 39As a general rule, the Tribunal's fact finding cannot be challenged on a question of law appeal if there is some evidence to support that finding. Although not bound by the rules of evidence, the Tribunal must base its decision on 'probative evidence': Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 491-493. It is only where there is no probative on which a 'primary finding of fact' could be based, that there is an error of law: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156. Essentially AJO is attacking the Tribunal's findings as to credibility. It is unlikely that he would be able to persuade an Appeal Panel hearing the appeal to extend the appeal to the merits on that ground. Duty to inquire? 40Section 73(2) of the ADT Act states that: The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. 41AJO asserted that this provision means that the Tribunal has a duty to obtain evidence from students outside what he refers to as the 'subset' of children who were at risk of being disciplined. 42The Tribunal must take into account all relevant evidence but has no duty to obtain evidence that neither party has adduced. Under s 73(5)((b) of the ADT Act, the Tribunal "is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings." But an Appeal Panel is unlikely to find that the Tribunal has made an error of law by relying on the documents produced by the administrator and the documents filed by the appellant. While the Tribunal can request a party to produce particular evidence, it is generally a matter for the parties to adduce the evidence on which they intend to rely. Overlooking evidence 43AJO questions the Tribunal's factual finding at [96]: In this case AJO has consistently maintained that student behaviour on his bus has been very poor, and that there have been numerous instances of poor behaviour over a number of years. AJO has not produced any record of misbehaviour by or of a warning given to a student for misbehaviour under the policy to verify this. 44AJO says that there were records of misbehaviour or warnings given to students in the s 58 documents filed by the Respondent and that the Tribunal overlooked that material. Another finding the Tribunal made was that AJO was talking on his mobile phone but no-one asked him whether he was parked at the time. 45It is an error of law to ignore evidence critical to a disputed issue and contrary to an assertion of fact made by one party: Mifsud v Campbell [1991] 21 NSWLR 725. There is no need to refer to all the evidence in detail before making a finding of fact. In Beale v GIO (1997) 48 NSWLR 430 at 443 Meagher JA set out the relevant principle: First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to. 46Again, this is a ground which the Appeal Panel is unlikely to uphold. Further or fresh evidence 47AJO says that he has significant new evidence which he wishes to adduce on appeal including the evidence in an affidavit of 14 January 2014. In that affidavit AJO sets out his background, his family and working history and the history of the proceedings. He also wishes to give new evidence or clarify his evidence about each and every incident relating to the cancellation of his authority. That evidence, so far as it relates to the substantive appeal, cannot be admitted until a decision is made as to whether the appeal should be accepted out of time and leave is given for the appeal to extend to the merits of the Tribunal's decision. 48The principles on which the Appeal Panel would accept fresh or further evidence were set out in Building Professionals Board v Hans (GD) [2008] NSWADTAP 13 (12 March 2008) at [52] to [57]. The second of those principles is that the Appeal Panel would have to be satisfied that the further evidence, if tendered at the hearing conducted by the Tribunal, was 'likely to have produced a different result'. 49There is no suggestion that any of the evidence AJO wishes to adduce was not available to him at the time of the hearing. He had lawyers representing him at that stage. 50Furthermore, parties are bound by the manner in which the proceedings were conducted at first instance: Rowe v Australian Steam Navigation Co Ltd [1909] HCA 25; (1909) 9 CLR 1 per Isaacs J at 24. 51In those circumstances it is highly unlikely that an Appeal Panel would allow a new hearing with further evidence. Conclusion 52I have decided not to accept this appeal out of time. AJO originally appealed within the 28 day time limit but that appeal was withdrawn and dismissed on the first day of hearing. The current appeal was lodged more than 12 months later. While AJO provided evidence explaining the delay, his explanation does not adequately account for the entire period. I appreciate that the consequences to AJO of refusing to allow him to bring a second appeal are significant. But I must also take into account the fact that the respondent would have to bear the expense of defending an appeal which it assumed had been finalised in October 2012. Finally I have taken into account the prospects of success of the appeal which I regard as poor. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 21 May 2014