Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Roads and Maritime Services v Rifahi [2015] NSWCATAP 43 Hearing dates: 8 December 2014 Date of orders: 16 March 2015 Decision date: 16 March 2015 Jurisdiction: Appeal Panel Before: N Hennessy LCM, Deputy President M Jerram Acting LCM, Senior Member Decision: 1. Leave is refused for Roads and Maritime Services to appeal on grounds other than a question of law 2. The appeal is dismissed. Catchwords: CIVIL AND ADMINISTRATIVE TRIBUANL – appeal – exercise of statutory discretion – taxi driver – fit and proper person – good repute - failure to take into account relevant considerations - unreasonableness Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Passenger Transport Act 1990 (NSW) Cases Cited: Australian Broadcasting Tribunal v Bond (Bond Media Case) 170 CLR 321 Collins v Urban [2014] NSWCATAP 17 Council of the New South Wales Bar Association v Franklin (No 2) [2014] NSWCA 428 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 Lloyd v Director General, Department of Transport [2001] NSWADT 201 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 Sobey v Commercial Agents Board (1979) 22 SASR 70 Ziems v Prothonatory of the Supreme Court of New South Wales [1957] HCA 46; 97 CLR 279 Category: Principal judgment Parties: Roads and Maritime Services (Appellant) Mohammed Rifahi (Respondent) Representation: M Robinson SC (Appellant) Respondent (in person) File Number(s): AP 14/46510 (AP 14/0332) Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Date of Decision: 8 August 2014 Before: A Scahill, Senior Member File Number(s): 1420137 reasons for decision Introduction 1. In January 2014 Mr Rifahi was convicted of two counts of assault occasioning actual bodily harm on his former wife and her sister. He was sentenced to a term of imprisonment for 18 months from 5 February 2014 to 4 August 2014. The sentence is to be served by way of an intensive corrections order in the community. In Mr Rifahi's case, that involves performing voluntary work in a Salvation Army store one day a week. Following an application by Roads and Maritime Services for Mr Rifahi's taxi authority to be cancelled, the Tribunal reviewed the evidence and found that in April 2014 Mr Rifahi was "of good repute and in all other respects a fit and proper person" to drive a taxi. 2. Roads and Maritime Services has appealed to the Appeal Panel against that decision. It has the right to appeal 'on a question of law' but must obtain the Appeal Panel's permission before appealing on any other ground: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2). We have rejected the three grounds of appeal on questions of law and refused to give leave for the appeal to proceed on other grounds. Grounds of appeal on questions of law Summary of grounds 1. The three grounds of appeal on questions of law are: 1. In making its findings as to s 11(2)(a), rather than section 33(3) of the Passenger Transport Act 1990 the Tribunal failed to set out adequate reasons or lawful reasons for its decision. 2. The Tribunal failed to take into account relevant considerations it should have taken into account, namely whether Mr Rifahi demonstrated any insight into his past criminal conduct and his dishonest dealings with Roads and Maritime Services. 3. The Tribunal's decision is afflicted by legal unreasonableness in that: 1. no sensible Tribunal acting with due appreciation of its responsibilities would have so decided; 2. the Tribunal failed to give adequate weight to relevant factors of great importance; 3. the Tribunal gave excessive weight to irrelevant factors of no importance; 4. the Tribunal reasoned illogically or irrationally; 5. the Tribunal's decision is a disproportionate response by reference to the scope of the power; and/or 6. the Tribunal's decision lacks evident and intelligible justifications. Failing to give adequate or lawful reasons for its decision 1. The Tribunal identified the relevant test to be applied as that set out in s 11(2) of the Passenger Transport Act. Roads and Maritime Services pointed out that that is not the correct provision because it comes within Part 2 of that Act which relates to operators and drivers of public passenger vehicles other than taxis and private hire vehicles. Section 33, which is in Part 4 of the Act, relates to taxi-cab drivers and is the relevant provision. It states that: 33 Authorities (1) RMS may, by the issue of authorities under this Division, authorise persons to drive taxi-cabs, subject to and in accordance with this Division. A person authorised under this Division is referred to in this Part as an "authorised taxi-cab driver". (2) A person who drives a taxi-cab is guilty of an offence unless the person is an authorised taxi-cab driver. Maximum penalty: 100 penalty units. (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. 1. Because s 11(2)(a) and s 33(3)(a) are relevantly identical, the fact that the Tribunal identified the wrong provision did not affect its decision. It applied the correct test. Nor is there any basis for the submission by Roads and Maritime Services that the Tribunal failed to provide lawful or adequate reasons for arriving at its decision under s 11(2)(a) instead of s 33(3)(a). The Tribunal cannot be expected to give a reason for making an inconsequential mistake of which it was apparently not aware at the time. Failing to take into account a relevant consideration 1. According to Roads and Maritime Services, when determining whether Mr Rifahi was of good repute and in all other respects a fit and proper person to drive a taxi, the Tribunal failed to take into account his dishonesty in failing to notify them of the convictions and his lack of insight into his offending behaviour. 2. Section 33F gives Roads and Maritime Services, and the Tribunal when reviewing its decision, power to "vary, suspend or cancel any person's authority." That power must be exercised "having regard to the purpose" of authorising a person to drive a taxi set out in s 33(3). That purpose is "to attest 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". 3. As with the licencing and disciplinary regimes of many occupations and professions, the statutory regime under the Passenger Transport Act is protective, not punitive. It is uncontroversial that good repute as well as fitness and propriety must be assessed in the context of the work which the licence entails, in this case driving a taxi. The test is directed towards maintaining and encouraging appropriate standards in the taxi industry. In Sobey v Commercial Agents Board (1979) 22 SASR 70 at 76, Walters J said in relation to the licensing of commercial and private agents, that the expression means that an applicant must show that he or she "is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails." 4. Determining whether someone is of good repute and a fit and proper person to be a taxi driver involves the exercise of a discretion or, put another way, a "value judgment": Australian Broadcasting Tribunal v Bond (Bond Media Case) 170 CLR 321 at 388 Toohey and Gaudron JJ. As Toohey and Gaudron JJ went on to say in the Bond Media Case: In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision-maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration. 1. While there is an "area in which a decision-maker has a genuinely free discretion", any discretionary power must be exercised "reasonably": Minister for Immigration and Citizenship v Li [2013] HCA 18 at [63] and [66]; 249 CLR 332 at 362 and 363 (Hayne, Kiefel and Bell JJ.) In assessing reasonableness, the appellate body must look to the scope and purpose of the statute conferring the discretionary power and to its objectives. 2. For the purpose of these proceedings, the most relevant object of the Passenger Transport Act is "to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services": s 4(e). 3. While the weight to be given to any particular matter under consideration is a matter for the Tribunal, its decision will be "manifestly unreasonable" if it fails to give adequate weight to a relevant factor of great importance or gives excessive weight to an irrelevant factor of no importance: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41, Gibbs CJ and Dawson J agreeing at 30, 71; Minister for Immigration and Citizenship v Li [2013] HCA 18 at [72]; 249 CLR 332 at 365, 366. This concept has been explained in the context of the exercise of appellate review of judicial discretion as the result being "unreasonable or plainly unjust": House v King (1936) 55 CLR 499 at 505. 4. It is not an error of law for a decision maker to fail to take into account a relevant consideration unless it is bound to take into account that consideration: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. As Deane J said in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375, the decision-maker is not to be criticised for failing to consider everything which the affected party has chosen to include in an "exhaustive list of all the matters which the decision-maker might conceivably regard as relevant." 5. We will consider below the two matters which Roads and Maritime Service submitted that the Tribunal was bound to take into account but did not – Mr Rifahi's dishonesty in not disclosing his conviction when re-applying for a driver's authority and any lack of insight or remorse. Dishonesty 1. On 23 December 2013, when filling out the application for renewal of his taxi-driver authorisation, Mr Rifahi answered "no" to the question, "[S]ince you were first issued with or last renewed your driver authority are there any charges pending against you for any criminal offences or have you been found guilty or convicted by a court in NSW or elsewhere of any criminal offences?" At that time Mr Rifahi had been charged with, but not convicted of, at least two offences. 2. Based on this answer and Mr Rifahi's explanation for it, the Tribunal found that he knew he was obliged, at the time he applied for renewal of his driver authority in December 2013, to advise Roads and Maritime Services of the assault charges and that he deliberately decided not to tell them. 3. When summarising the reasons for its decision, the Tribunal said, in relation to dishonesty, that: There is no evidence before the Tribunal that Mr Rifahi has previously been dishonest with authorities as he was in completing his application for renewal of authority in December 2013. 1. Evidence of dishonesty is relevant when considering a person's fitness: McNamara v Arnold BC9502405 at 10 (Supreme Court of South Australia 26 October 1996). It is obviously a matter of great importance. But, contrary to Roads and Maritime Services' submission, the Tribunal did take Mr Rifahi's dishonesty into account. The Tribunal found that Mr Rifahi was dishonest but also had regard to the fact that this was a one-off instance of dishonesty. Mr Rifahi's dishonesty, in combination with other relevant matters, did not persuade the Tribunal to set aside the administrator's decision. It is for the Tribunal, not the Appeal Panel, to determine the appropriate weight to be given to matters which are required to be taken into account in exercising statutory power. Lack of insight 1. The other matter which Roads and Maritime Service submitted that the Tribunal was bound to take into account but did not, was Mr Rifahi's lack of insight or lack of remorse in relation to his offending behaviour. Again, that is often a matter of great importance because it may affect the likelihood that Mr Rifahi will re-offend. 2. Roads and Maritime Services pointed out that Mr Rifahi denied various matters which were in statements written by his former wife and her sister and that he maintained that the circumstances of the assault was a "set up". Those submissions require us to examine the evidence before the Tribunal as to the circumstances of the offences and the Tribunal's findings about those circumstances. 3. It is our understanding that Mr Rifahi did not give a statement to police. Because he pleaded guilty to only two of the original seven counts, the evidence before the Local Court comprised a Fact Sheet from which certain allegations had been deleted. The Tribunal appeared to accept Mr Rifahi's evidence that he had never seen the victims' statements until the hearing in the Tribunal. 4. The Tribunal made the following findings at [10] and [11] on the basis of the expurgated version of the Fact Sheet: The assaults occurred in the context of Mr Rifahi trying to exercise access to his 2 children who were living with his former wife . . .and her sister. . .The police facts of the offences to which Mr Rifahi pleaded guilty are set out as follows. Mr Rifahi came to the home where his children were living with his former wife and her sister. He said to his daughter "come to the car right now." When his daughter said that her mother did not want them to go on access he went back to his car and got a cricket bat and walked towards his daughter shaking the bat. When his former wife told their daughter to go back into the home Mr Rifahi walked towards his former wife swinging the bat and struck his former wife on the back of her leg. He then struck a second blow to her leg causing her to fall over. He then stood over her. His former wife's sister then came into the front yard and he hit her on the head with the bat knocking her to the ground. She experienced swelling and bleeding to the back of her head. His former wife's sister's 10-year-old son said stop hitting my mum. He then stood over his former wife shouting and threatening her with the bat. His former wife's sister's daughter then said "I will call the police". At this point he picked up the bat, went to his car and drove away. 1. Mr Rifahi also gave oral evidence to the Tribunal as to the events of that day saying, for example, that he thought his former wife was trying to "ransom the kids" and that he had been "set up". He denied hitting his former wife's sister with a cricket bat. Instead he said that he had pushed her away with his hands and that the whole episode took only about two minutes. Other witness statements said that the confrontation had gone on for 15 to 20 minutes. He denied that he had said to his former wife's sister, "I'll kill you, I don't care." 2. Any denials of matters which were not in the expurgated version of the Fact Sheet are irrelevant. Those facts did not form the basis of Mr Rifahi's conviction and the Tribunal made no findings about them. 3. The denial of matters which were in the expurgated version of the Fact Sheet, such as that Mr Rifahi hit his former wife's sister with a cricket bat, are relevant. But, having pleaded guilty to those matters, the Tribunal was not in a position to make findings inconsistent with the material in the fact sheet. 4. The Tribunal referred to the opinions of a psychologist Dr Milic and NSW Probation and Parole as to the degree to which Mr Rifahi was remorseful or had insight into his behaviour. The Tribunal concluded that the positive opinions in those reports were undermined to some extent by Mr Rifahi's evidence particularly that he had been 'set up' by his former wife. The Tribunal interpreted that evidence as candour on Mr Rifahi's part in circumstances where he could have said 'the right thing' in an attempt to deceive the Tribunal as to his views. 5. The Tribunal took into account the fact that Mr Rifahi maintained that he had been 'set up' as well as all the other relevant evidence as to lack of insight or remorse. As we said in relation to findings of dishonesty, it is for the Tribunal, not the Appeal Panel, to determine the appropriate weight to be given to matters which are required to be taken into account in exercising statutory power. Legal Unreasonableness 1. As well as relying the unreasonableness of failing to give adequate weight to a relevant factor of great importance, Roads and Maritime Services relied on several other aspects of unreasonableness set out by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18. 2. The first aspect was that, given the serious nature of the offences, the Tribunal's decision lacks 'evident and intelligible justification'. That test is taken from the following passage in Li's case at [76], p 367: Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification. 1. In certain cases involving misconduct by lawyers, courts have considered that the fact of a serious conviction is sufficient to conclude that the person is unfit to practice law. For example, in Council of the New South Wales Bar Association v Franklin (No 2) [2014] NSWCA 428, the Court of Appeal found that although Mr Franklin's conviction did not take place in the practice of law ,or directly involve any dishonesty, the mere fact of a conviction of the most serious crime of sexual intercourse without consent in circumstances of aggravation meant that he was not a fit and proper person to continue to be on the roll of lawyers. After quoting Dixon CJ in Ziems v Prothonatory of the Supreme Court of New South Wales [1957] HCA 46; 97 CLR 279, Meagher JA, (with whom Beazley P and Leeming J agreed) said that Mr Franklin's conviction for sexual assault is one which 'of its own force [carries] such a stigma that judges and members of the profession may be expected to find it too much for their self-respect to share with the person convicted the kind and degree of association which membership of the Bar entails." 2. While there may be cases where the fact of a serious conviction will be sufficient to justify the cancellation of a taxi driver licence, this is not one of them. Driving taxis and being on the roll of barristers are significantly different matters. One is a profession, the other is an occupation. At [85] the Tribunal accepted that "members of the travelling public may well consider that the offences impact negatively upon Mr Rifahi's repute." The Tribunal considered that that negative impact was softened by the positive character references Mr Rifahi provided. 3. From the point of view of the travelling public it is the ability of a person to provide safe, reliable and efficient transport services that is critical. One relevant question in this case is whether a reasonable member of the travelling public considers it unsafe for a person convicted of assault occasioning actual bodily harm on his former wife and sister in law to be a taxi driver. The Tribunal's conclusion reflects the view that they would not. That view does not lack 'evident and intelligible justification.' The Tribunal's reasons explain in detail how the conclusion was reached that Mr Rifahi is of good repute and a fit and proper person to drive a taxi. 4. The second aspect of unreasonableness on which Roads and Maritime Services relied was that it was illogical to allow Mr Rifahi to drive a taxi when he was still serving a term of imprisonment even though the sentence was by way of a community corrections order. Roads and Maritime Services submitted that it should be a 'rule of thumb' in serious cases such as this, that the person is not permitted to drive until he or she has completed any sentence. 5. In a 2001 decision of the Administrative Decisions Tribunal, was "guided by the time imposed by the courts in terms of the good behaviour bond" when "assessing whether sufficient time had elapsed for the Tribunal to be confident that a person was of good repute and in all other respects a fit and proper person to drive a taxi": Lloyd v Director General, Department of Transport [2001] NSWADT 201 at [63] – [65]. The Tribunal acknowledged that completing a sentence is not conclusive evidence that a person is rehabilitated. 6. In cases where 'good character' is part of the legal test for the practice of a particular occupation or profession, the question of reformation of character is significant. Similarly if a person has been 'unfit' in the past, the question arises is to whether they are now a fit and proper person to perform a particular role. The classic statement of the law comes from Ex Parte Tziniolis; re the Medical Practitioner's Act (1966) 67 SR (NSW) 448 at 460-461, in a passage approved in part by the Supreme Court in Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637: Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes, it must require clear proof to show that some years later he has established himself as a different man. The position is somewhat similar to that which exists when application is made by a barrister or a solicitor who has been found guilty of serious misconduct exhibiting a lack of proper standards, seeking reinstatement on the ground that, after a lapse of time, he has become a fit and proper person to be a member of a profession which requires qualities and standards in which he has known to have been deficient. In such cases, it has been frequently said that a heavy onus lies on the applicant - see Ex Parte Clyne [[1962] SR (NSW) 436 at 441], and cases there cited. 1. Each case will depend on its facts. The Tribunal would fall into error if it adopted a rule of universal application or even a general guideline that a person serving a sentence for a criminal offence should not be considered to be fit and proper or of good repute. Nevertheless, fitness must be determined as at the date of hearing. That is what the Tribunal did and there was no error in the Tribunal's approach. 2. The third aspect of unreasonableness was said to be that the Tribunal gave excessive weight to Mr Rifahi's testimonial evidence. Roads and Maritime Services submitted that given the serious nature of the offence, Mr Rifahi's dishonesty in not disclosing the charges and the fact that he is still completing his sentence, the Tribunal must have given the positive testimonials undue weight. Roads and Maritime Services also noted that the testimonials did not attach a copy of the matters for which Mr Rifahi was convicted so it cannot be assumed that the authors knew about those matters. 3. The Tribunal noted that Mr Rifahi gave evidence that he told his referees that he had been convicted of the assaults. In addition the letters were addressed to the Magistrate of Bankstown Court and most refer expressly to the assault charges. At [85] the Tribunal noted the "expressions of support for Mr Rifahi's repute from a range of people, including those using his services, who have been made aware of Mr Rifahi's offences." As well as supportive references, the Tribunal took into account favourable evidence from two psychologists and NSW Probation and Parole. 4. The Tribunal's decision was not unreasonable in any of the senses described by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18 and this ground of appeal is not made out. Grounds of appeal otheR than on a question of law Summary of grounds 1. The grounds of appeal on questions other than questions of law were: 1. the Tribunal failed to weigh the competing factors and evidence appropriately; 2. the Tribunal gave excessive weight to Mr Rifahi's evidence below, especially the testimonial evidence; 3. the Tribunal failed to have regard to the dishonesty of Mr Rifahi in misleading Roads and Maritime Services on his licence application form in 2013; 4. the Tribunal failed to afford weight or sufficient weight to the question of the perception of the travelling public; and 5. the Tribunal failed to consider whether Mr Rifahi demonstrated insight into his past criminal conduct and his dishonest dealing with Roads and Maritime Services. Principles for granting leave 1. Where leave to appeal is required the general principles to be applied in determining whether or not leave to appeal should be granted were set out in Collins v Urban [2014] NSWCATAP 17at [84] as follows: In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. 1. None of the matters Roads and Maritime Services has raised come within any of these categories. There are no factual errors alleged or any issues of principle involved. There is no injustice, nor is there an error that is plain and readily apparent. 2. Roads and Maritime Services submitted that the Tribunal failed to afford weight or sufficient weight to the question of the perception of the travelling public. At [85] the Tribunal accepted that "members of the travelling public may well consider that the offences impact negatively upon Mr Rifahi's repute." The Tribunal went on to refer to the positive testimonials as evidence of good repute. 3. We are not satisfied that there is any basis for granting leave for the appeal to proceed on grounds other than a question of law. Orders 1. Leave is refused for Roads and Maritime Services to appeal on grounds other than a question of law. 2. The appeal is dismissed. ********** 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: 16 March 2015