Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Fisher v Roads and Maritime Services [2018] NSWCA 295 Hearing dates: 4 December 2018 Decision date: 04 December 2018 Before: Beazley P; Basten JA Decision: (1) Refuse the applicant an extension of time within which to seek leave to appeal from the judgment of Harrison J delivered on 31 January 2018. (2) Order that the applicant pay the costs of Roads and Maritime Services in this Court. Catchwords: CIVIL PROCEDURE – leave to appeal –application for leave to appeal lodged three months out of time – no explanation provided for lateness – no prejudice suffered by respondent – respondent contended appeal without merit – whether to refuse extension of time JUDICIAL REVIEW – leave to appeal – authority to operate commercial bus service revoked by Roads and Maritime Services – decision confirmed by Administrative Decisions Tribunal – extension of time for internal appeal refused – application for judicial review refused – application to appeal out of time –whether issue of principle – whether proposed appeal had realistic prospects of success Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 51.8 Cases Cited: AJO v Roads and Maritime Services [2014] NSWCATAP 21 Category: Procedural and other rulings Parties: Brian Stanley Fisher (Applicant) Transport for New South Wales (First Respondent) Roads and Maritime Services NSW (Second Respondent) NSW Civil and Administrative Tribunal (Third Respondent) Representation: Counsel: Applicant self-represented Mr K Averre (First and Second Respondents) Solicitors: Applicant self-represented Hunt & Hunt (First and Second Respondents) Crown Solicitor's Office (Third Respondent) File Number(s): 2018/66516 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2018] NSWSC 17 Date of Decision: 31 January 2018 Before: Harrison J File Number(s): 2014/242718 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. THE COURT: It is necessary in order to operate a commercial bus service in New South Wales for a driver to hold a "driver authority" under the Passenger Transport Act 1990 (NSW). For several years, Brian Stanley Fisher held such an authority. On 14 July 2011, the authority was cancelled by Roads and Maritime Services. 2. Mr Fisher sought a stay of that decision pending a review by the Administrative Decisions Tribunal ("Tribunal"). After hearing extensive evidence, on 25 May 2012 the Tribunal affirmed the decision to cancel Mr Fisher's driver authority. 3. The next step taken by Mr Fisher was to appeal, within time, to the Appeal Panel of the Tribunal. However, he withdrew that appeal and it was dismissed. More than 12 months later he sought to commence a further appeal. On 21 May 2014, Deputy President Hennessy of the NSW Civil and Administrative Tribunal ("NCAT"), refused to extend time and dismissed the purported appeal. 4. On 29 June 2017 the applicant commenced proceedings by way of judicial review in the Supreme Court. To succeed in those proceedings, the applicant had to establish that the Tribunal or NCAT exceeded or failed to exercise its jurisdiction, or that an error of law appeared on the face of the record, the record including the Tribunal's (or NCAT's) reasons for decision. By judgment delivered on 31 January 2018, Harrison J dismissed the further amended summons with costs. [1] 5. On 6 August 2018, Mr Fisher lodged a summons seeking leave to appeal from the judgment of Harrison J. He had filed and served a notice of intention to appeal on 28 February 2018. The summons was required to be filed within three months of the judgment under review: namely, by the end of April 2018. The summons was therefore three months out of time. Although the respondents conceded that no prejudice had been suffered, they also pointed out that no explanation had been given for the delay, nor had an extension of time been sought. They did, however, submit that the application for leave had no real prospect of success and leave should be refused. In fact, the appropriate course in such a case would be to refuse an extension of time. 6. The applicant appears to have believed that at all stages he was entitled to an award of damages in the event that he established that the driver authority had been invalidly cancelled. That is not so. None of the Tribunal, NCAT, or the Supreme Court has jurisdiction to grant damages on that basis. 7. The draft notice of appeal contained a number of grounds and sub-grounds, none of which were numbered and most of which were discursive in form. It is sufficient to focus upon the challenges to the decision of the Tribunal as originally constituted, and the decision of the Deputy President to refuse leave to appeal from the primary decision. However, these matters raised issues which were agitated before Harrison J, yet there was no attempt in the notice of appeal to demonstrate error on the part of the primary judge. Nevertheless, a review of the extensive reasons given by the primary judge demonstrates why an appeal would have no realistic prospects of success. As the judge noted, [2] the judicial member constituting the Tribunal gave extensive reasons, over 132 paragraphs, for concluding that the proceedings in the Tribunal must be dismissed. The Deputy President set out her reasons for refusing to extend time to appeal in a decision covering more than 50 paragraphs. [3] 8. Harrison J noted that he had been provided with over 200 pages of written submissions by Mr Fisher. 9. After noting the submissions provided by the parties, the primary judge dealt with the issues under 14 headings. These may be summarised in the following terms. 10. First, the judge considered whether the decision to cancel the applicant's driver authority was a result of extraneous and improper purposes, based on adverse publicity in the press. Noting that the respondent had conceded that there was such adverse publicity, the primary judge concluded that Mr Fisher was unable to establish any causal link between the adverse attention and pressure and the impugned decisions. [4] Secondly, he considered whether Mr Fisher's good repute had been ignored. He concluded that once the factual finding that he was not a fit and proper person to be a driver had been reached, good repute became irrelevant. [5] The factual finding was, the judge found, open to the Tribunal. [6] 11. Thirdly, the judge considered the applicant's complaints that the decision to revoke his driver authority had had dire financial consequences for him and his family. Weight was also placed on that complaint before this Court. Accepting that the factual complaint may well have been correct, the judge concluded that the original decision was one the Tribunal was entitled to make on the evidence and had been made without jurisdictional or procedural error. [7] Complaints of procedural fairness were dismissed as without substance. [8] These included what was described as inadequate case management in the Tribunal. 12. In this Court, somewhat belatedly, Mr Fisher invited the Court to review the whole of the NCAT file. That application misunderstands the nature of the role of this Court, and indeed of the primary judge, undertaking judicial review of a tribunal decision. That function is to review the decision for legal error. If none was revealed on the face of the decision and reasons, and it was not shown that there had been procedural unfairness in the manner in which the proceedings had been conducted before the Tribunal, the limit of the jurisdiction of the Court is reached. The appropriate review will be undertaken on the basis of evidence presented in Court, not on the basis of some administrative function by way of reconsidering a tribunal "file", which may or may not contain evidence, may not contain only evidence, and will reveal administrative steps which have no bearing on the outcome. Somewhat inconsistently, the applicant also suggested that the Tribunal should have been restricted to the material before the original decision‑maker. The judge rejected that as wrong in law. He was correct to do so. [9] 13. The primary judge also dealt with an allegation of apprehended bias which was repeated in this Court. The judge said he could find no evidence for such an allegation and dismissed it as no more than "an expression of dissatisfaction with [the Tribunal's] decision." [10] Various allegations of errors in fact‑finding, lack of evidence and a failure on the part of the Tribunal to make its own inquiries were also rejected. [11] The primary judge was correct in his assessment of the two decisions. 14. The judge noted and dismissed a submission that the decisions of both the primary Tribunal and the Deputy President were manifestly unreasonable and lacked any evident or intelligible justification. In rejecting that ground, the judge said: [12] "If I may say so, with respect, each decision is thorough and well structured. Upon a fair reading of either decision, one is left in no doubt about what the conclusions are or why they have been reached. There is neither an absence of reasons, nor insufficient reasons." It was also correct to say that the decisions could not be described as manifestly unreasonable or lacking any evident or intelligible justification. 1. The applicant submitted in this Court that there was inconsistency between the decision of the Tribunal and a special verdict of a jury in a defamation case the applicant had brought against Channel 7. That submission has no substance for two reasons: first, the proceedings in defamation, although they may have arisen out of the publicity which accompanied the complaints about the behaviour of the applicant as a school bus driver, involved a separate cause of action under different legislation and with different elements. Secondly, the decision of the jury in September 2014 came more than two years after the decision of the Tribunal on 25 May 2012. It does not demonstrate any error on the part of the Tribunal, nor would it demonstrate more than a factual disagreement as to certain allegations in respect of the conduct. Factual disagreements do not demonstrate factual error, and factual error does not form the basis of judicial review in the Supreme Court. 2. Finally, the primary judge noted the following matters in more general terms. "[74] Mr Fisher's approach to these matters has operated in these proceedings to elide his dissatisfaction with a series of decision makers without any apparent or consistent discrimination among them. It has been difficult, therefore, to discern from the summons and Mr Fisher's extensive written submissions, including his additional submissions forwarded to my Associate some months after the conclusion of the hearing before me, precisely what ground is alleged against which party. [75] It is timely to bear in mind that Deputy President Hennessy was concerned with Mr Fisher's belated attempt to resurrect his appeal out of time. The Deputy President did not cancel or suspend Mr Fisher's driver authority and she did not hear evidence from witnesses who spoke against him. She determined the application having regard to the fact that Mr Fisher had earlier made and withdrawn an application for leave to appeal and that his second application was effectively late for reasons that were unsatisfactory. She also assessed his prospects of success in the light of his several proposed appeal grounds, all of which have resurfaced in this Court. The Deputy President said this at [17]: 'The 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. [Mr Fisher] has either misunderstood the law or the way the law applies to his case…'" 1. The primary judge was of the same view. Enough has been said to demonstrate that the application for leave to appeal to this Court has no realistic prospects of success. It raises no issue of principle. Even if leave were not required, it would be an appropriate matter for the Court to refuse an extension of time. The applicant must pay the costs of Roads and Maritime Services, being the body which made the cancellation decision under challenge in the Tribunal. 2. Accordingly, the Court makes the following orders: 1. Refuse the applicant an extension of time within which to seek leave to appeal from the judgment of Harrison J delivered on 31 January 2018. 2. Order the applicant to pay the costs of Roads and Maritime Services in this Court. ********** Endnotes 1. Fisher v Transport NSW [2018] NSWSC 17. 2. Primary judgment at [21]-[22]. 3. AJO v Roads and Maritime Services [2014] NSWCATAP 21. 4. Primary judgment at [36]. 5. Primary judgment at [40]. 6. Primary judgment at [41]. 7. Primary judgment at [45]. 8. Primary judgment at [47] and [50]. 9. Primary judgment at [56]. 10. Primary judgment at [61]. 11. Primary judgment at [57]-[58], [62], [63]-64] and [67]. 12. Primary judgment at [70]. Amendments 07 December 2018 - Amending typographical error in quote in [14]. 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: 07 December 2018