Al Moussawi v Passenger Transport Standards Committee - [2021] SADC 79

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
AL MOUSSAWI v PASSENGER TRANSPORT STANDARDS COMMITTEE
[2021] SADC 79
Judgment of his Honour Judge Burnett
7 July 2021
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS
PROFESSIONS AND TRADES - LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS
TRAFFIC LAW - PUBLIC TRANSPORT REGULATION - SOUTH AUSTRALIA - LICENSING
The appellant was a taxi driver and an accredited person pursuant to s 27 of the Passenger Transport Act 1994 (SA) (the PTA).
An incident occurred whilst the appellant was driving his taxi cab, as a result of which the appellant was charged with indecent assault. The incident involved the appellant touching the thigh and the cheek of a female passenger, on each occasion for less than a second. The charges for indecent assault were later withdrawn by the police.
The Passenger Transport Standards Committee (the Committee) held a disciplinary hearing in relation to the conduct of the appellant and found that the appellant had breached the obligations imposed on him under the regulations under the PTA in a number of respects. The Committee determined, inter alia, that the appellant’s accreditation under the PTA should be suspended for a period of two years and further that once the suspension had been completed, he appear before the Committee for it to assess his fitness and propriety to hold accreditation.
In imposing the penalty, the Committee stated that it took into account that the incident:
1. resulted in serious criminal charges against the appellant which were discontinued by the police;
2. occurred while he was on duty as an accredited taxi driver;
3. was the second time a similar incident had occurred while he was on duty as an accredited taxi driver.
The appellant appealed the decision of the Committee, which appeal is heard by this Court sitting in its Administrative and Disciplinary Division. Pursuant to s 42E(3) of the District Court Act 1991, the Court must give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
Held:
1. The appeal is allowed and the decision of the Committee as to penalty is rescinded.
2. In lieu therefore, the following orders are made: (1) the suspension of the appellant’s driver accreditation be for a period of 12 months commencing on 13 March 2020 and expiring on 12 March 2021 and (2) the appellant, if he has not already done so, is to undergo within 60 days of today’s date some form of counselling which addresses his inappropriate behaviour and is to provide proof of that counselling to the Committee as soon as possible thereafter.
3. The Committee had committed an error of the type described in House v The King (1936) 55 CLR 499 and therefore there were cogent reasons to depart from the decision of the Committee: Commissioner for Consumer Affairs v McMurray (2017) 128 SASR 1 applied.
4. In imposing the penalty, the Committee erred in placing reliance on the previous incident in circumstances where there was no evidence about that incident and the appellant had denied any culpability in relation to that incident.
5. The Committee also erred in placing reliance on the fact the incident resulted in serious criminal charges, when those charges had been withdrawn by the police. Although the mere fact that the charges may be relevant in imposing an interim suspension, the fact that they had been withdrawn before any evidence at trial and verdict, no adverse inferences or conclusion could be drawn about the fitness or character of the appellant from the mere fact of the charges.
6. The Committee erred in requiring the appellant to re-apply for accreditation upon the expiry of the suspension. There was no evidence before the Committee that justified a defacto disqualification. The Courts have recognised the distinction between the imposition of a suspension and the imposition of a cancellation of an accreditation, see Council of the Law Society of New South Wales v Zhukovska [2020] NSWCA 163; Farquharson v Director General, Department of Transport [1999] NSWADT 53 and Nursing & Midwifery Board of Australia v Roe [2018] WASAT 92.
Passenger Transport Act 1994 (SA) s 27, 31, 38; District Court Act 1991 (SA) 42A, 42B, 42C, 42D, 42E, 42F, 42G; Passenger Transport Regulations 2000 (SA) reg 85(1)(d), Schedule 5, referred to.
Commissioner for Consumer Affairs v McMurray (2017) 128 SASR 1, applied.
House v The King (1936) 55 CLR 499; Council of the Law Society of New South Wales v Zhukovska [2020] NSWCA 163; Farquharson v Director General, Department of Transport [1999] NSWADT 53; Nursing & Midwifery Board of Australia v Roe [2018] WASAT 92; Registrar of Firearms v Marksman Training Systems Pty Ltd (No 2) [2016] SASCFC 72; A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253, considered.

AL MOUSSAWI v PASSENGER TRANSPORT STANDARDS COMMITTEE
[2021] SADC 79

Introduction

This is an appeal by the appellant to this Court sitting in its Administrative and Disciplinary Division. The appellate jurisdiction of this Court in relation to this appeal is conferred by s 38 of the Passenger Transport Act 1994 (SA) (the PTA) which states that an accredited person who is aggrieved by a decision of the Passenger Transport Standards Committee (the Committee) may appeal to the District Court. Section 38 of the PTA states:
38—Appeals
(1)    A person—
(a)    …
(b)    …
(c)who is (or has been) an accredited person and is aggrieved by a decision of the Standards Committee under Division 5,
may appeal to the District Court.
The appellant is a taxi driver and an accredited person under s 27 of the PTA and is aggrieved by a decision of the Committee.
On 22 February 2020, an incident occurred with a passenger whilst the appellant was driving his taxi cab. I will describe that incident in detail later in the reasons. The consequence of that incident was that the appellant was referred to the Committee which is established under the PTA.
Following the incident, the appellant’s accreditation as a taxi driver was suspended on 13 March 2020, on an interim basis, pending the hearing by the Committee.
The appellant received a Notice of Referral dated 24 September 2020.
The Committee met on 20 October 2020 to hear the referral concerning the conduct of the appellant. Following that hearing the Committee made the following decision, which is recorded in a letter to the appellant dated 21 October 2020:
1.Pursuant to s 36(3)(c)(iii) of the Passenger Transport Act 1994 the Committee determined that the suspension on your taxi driver accreditation continue until 13 March 2022 [that is a suspension of two years].
2. On or after 13 March 2022, you will be able to apply for the suspension on your accreditation to be removed, in accordance with the approved application process.
3.The Committee further determined that before you can apply for the suspension on your accreditation to be removed, you are required to undertake some form of counselling which addresses your inappropriate behaviour.
4.The Committee further determined that you reappear before it to assess your fitness and propriety to hold accreditation under the Passenger Transport Act 1994.
The appellant appeals against the decision of the Committee. The appellant was self-represented throughout the appeal process. Although not articulated clearly, the appellant appeals against the decision to suspend his accreditation for a period of 2 years and the requirement that he must apply for accreditation once that suspension has been carried out.
Conduct of the appeal
The appeal is conducted pursuant to s 42A to 42G of the District Court Act 1991 (SA).
Section 42E provides:
42E—Conduct of appeal
(1)The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2)The Court, on an appeal—
(a)is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b)must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3)The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
Section 42F provides that the Court may, on appeal –
(a)     affirm the decision appealed against;
(b)     rescind the decision and substitute a decision that the Court considers appropriate;
(c)     remit matters to the original decision-maker for consideration or further consideration in accordance with any directions or recommendations of the Court.
The Full Court of the Supreme Court in Registrar of Firearms v Marksman Training Systems Pty Ltd (No 2)[1] discussed what was meant in s 42E(3) by “cogent reasons”. Stanley J (Gray J agreeing) held that:
Section 42E(3) is a mandatory provision requiring the Court on appeal to give due weight to the decision being appealed against and the reasons for it, and not to depart from the decision except for cogent reasons. There are two critical features to the operation of s 42E(3). First, the nature of the appeal being conducted by the Court is limited. The Court is not to allow the appeal except for cogent reasons. I consider that the purpose of s 42E(3) is to indicate that the appeal, while it is to be conducted in accordance with the terms of s 42E(2), is not an ordinary merit review of the decision that is the subject of the appeal. The Court on appeal is not to merely substitute its view for that of the original decision maker. It is only to depart from that decision where cogent reasons exist. “Cogent” means “compelling, convincing, powerful”. Second, in the context of this appeal, the decision being appealed against is the decision of the Registrar, affirmed by the Committee, to cancel the respondent’s licences, and the Court is required in conducting the appeal from that decision, to give due weight not only to the decision but to the reasons for it. Those reasons include not only the reasons of the Registrar but, for the reasons explained above, the reasons of the Committee.
[1] [2016] SASCFC 72 at 315.
The Full Court in Commissioner for Consumer Affairs v McMurray,[2] discussed what was meant by a cogent error. After quoting the above passage, Blue J held:[3]
The deference to be accorded to the underlying decision on an appeal governed by section 42E depends on the nature of the asserted error in the decision and reasons for the decision.
Where the asserted error relates to the exercise of a discretion or the making of an evaluative judgment or policy decision, it will be necessary for the appellant to establish a process or outcome error of the type identified by the High Court in House v The King,[4] and the mere establishment of a process error will not avail the appellant unless the appellant also demonstrates that there should have been a different outcome.
[2] [2017] SASCFC 16; (2017) 128 SASR 1.
[3] Ibid at [44].
[4] House v The King (1936) 55 CLR 499 at 505-506.
.
The reference to House v The King is a reference to the well-known passage in which the High Court sets out the circumstances in which an appellate Court may overturn a decision involving the exercise of a discretion. In a joint judgment, Dixon J (as he then was), Evatt J and McTiernan J held:
It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
The above authorities suggest therefore that, at least in the present case, the appellant must show either a demonstrable error of law or fact by the Committee or an error in the exercise of its discretion of the type described in House v The King. In each case, the error must be shown to have led the Committee into making a wrong decision, either in finding the contravention of the regulations or the Code or in imposing an excessive penalty. In this appeal, the focus is on the penalty that was imposed.
The incident
The incident occurred on 22 February 2020 when the appellant was driving a taxi cab.
Almost the entirety of the incident was caught on the CCTV footage, including the conversation that took place between the appellant and his passenger.
By reference to that footage, the following occurred:
1.At 4.58 am, a female passenger entered the taxi at a taxi rank at North Terrace in the city. The passenger was intoxicated and from time to time fell asleep.
2.At 4.59 am, the passenger initiated some conversation with the appellant.
3.At 5.04 am, the appellant suspected that the passenger had urinated in the motor vehicle and there was a discussion about that.
4.At 5.13 am, the appellant brushed the face of the passenger. He put a hand on her cheek for less than a second. The passenger did not make any complaint or reference to this act.
5.At 5.14 am, the appellant briefly put his hand on the thigh of the passenger. Again, the hand was on her thigh for less than a second and he immediately took it off. There was no complaint or reference by the passenger to this act.
6.At 5.16 am, there is a conversation between the appellant and the passenger, at first in relation to where he lived and secondly the appellant asked the passenger whether she was single. When he was informed that she was not, the appellant asked whether she was a “cheater”.
7.At 5.22 am, the taxi arrived at the address of the passenger. The passenger paid, after her credit card was initially declined and asks for a receipt. The passenger and the taxi driver exchanged farewells.
Following the incident, on 11 March 2020 the appellant was arrested and charged with indecent assault in relation to the touching of the female passenger as described.
On 17 March 2020, the Committee wrote to the appellant and stated that:
Due to the seriousness of the alleged offence and that it allegedly occurred in the course of your duties as an accredited taxi driver, the matter was considered by the Passenger Transport Standards Committee (“the Committee”) in your absence on 13 March 2020.
Pursuant to s 36(3)(c)(iii) of the Passenger Transport Act 1994, the Committee of [sic] 13 March 2020, considered the offence and determined that your Taxi Driver Accreditation be immediately suspended in the public interest, pending your appearance before the Committee.
Some time prior to the hearing on 20 October 2020, the police withdrew the charge of indecent assault that had been brought against the appellant.
The hearing
On 24 September 2020, the Committee sent a letter to the appellant in which it set out the allegations that it made against him. In particular, it alleged that the appellant:
1.failed to conduct himself with civility and propriety towards passengers;
2.engaged in dishonest or dishonourable conduct in carrying out his duties; and
3.engaged in conduct that might bring the taxi industry into disrepute.
Section 31 of the PTA provides that accreditation is subject to a condition that the accredited person will observe the relevant code of practice under the Act. Section 31(7) further provides that a person must not contravene or fail to comply with a condition of an accreditation in relation to Schedule 5, Clause 4(of) and (og) of the Passenger Transport Regulations 2000.
Schedule 5 of the Passenger Transport Regulations sets out a number of obligations upon taxi drivers. Relevantly, clause 4(of) states that a taxi driver must not engage in dishonest or dishonourable conduct in carrying out his or her duties. Clause 4(og) provides that a taxi driver must not engage in conduct that may bring the taxi industry into disrepute.
Regulation 85(1)(d) provides that the driver of a public passenger vehicle (which includes a taxi) must conduct himself with civility and propriety towards every passenger.
The letter dated 24 September 2020 noted that the appellant had been charged with indecent assault in relation to the touching of the female passenger, but that charge had been discontinued. The letter to the appellant went on to state the issue under consideration was whether proper cause existed for disciplinary action against the appellant as an accredited person under the PTA.
The letter advised the appellant that the Committee had set 20 October 2020 as the date for the disciplinary hearing.
The appellant was not represented at the hearing before the Committee.
At the hearing, a number of documents including the following documents were before the Committee:
1.The letter to the appellant dated 17 March 2020 to which I have referred advising of the suspension of the accreditation.
2.The letter to the appellant dated 24 September 2020 to which I have referred.
3.The letter to the passenger also dated 24 September 2020 inviting her to attend the hearing. The passenger declined that invitation.
4.The brief of evidence.
5.The statement of the passenger dated 28 August 2020. That statement does not take matters further than the CCTV footage, other than to confirm that she did not consent to the touching.
6.The statement of Kevin Myer, Police Officer, dated 18 September 2020. The statement did not take the matter further.
7.CCTV photographic stills taken from 22 February 2020. As I have watched the CCTV footage, those photographs do not take the matter further.
8.The record of the appellant’s interview with the representative of the Committee on 2 September 2020.
9.The Minister’s Certificate.
10.The CCTV footage.
In addition, there was the evidence given by the appellant at the hearing on 20 October 2020. At the hearing, the appellant accepted that he had touched the passenger on the thigh and cheek and that it was inappropriate behaviour. He also accepted that his discussion around her being a “cheater” was “stupid”.
The appellant gave evidence that he had been first accredited as a taxi driver in 2017. He had contravened the regulations or code of conduct on three occasions during this period. The first occasion was on 1 June 2018 when he failed to display identification. That offence was expiated. On 1 June 2018, the appellant had been charged with indecent assault and the Committee on 6 June 2018 suspended his accreditation pending his appearance on 21 June 2018. He appeared before the Committee who determined that the suspension on the accreditation continue until the finalisation of the Court matter. That charge was withdrawn by the police on 31 January 2019. It appears that the suspension of the appellant was lifted at that time. There was no further suspension and no further hearing held by the Committee in relation to that matter. The appellant stated that was a false allegation against him. He gave evidence that it was untrue and all the things were false. There was no other evidence about this allegation.

These offences were the second occasion on which the appellant had appeared before the Committee.
Reasons of the Committee
As I have set out at the commencement of these Reasons, by letter dated 21 October 2020, the Committee advised the appellant of its decision. This letter confirmed the oral decision that the Committee gave at the hearing on 20 October 2020.
The Committee delivered written reasons on 27 November 2020. The Committee found that the behaviour of the appellant was not acceptable and that he should not have touched the passenger. The Committee found that there was cause for disciplinary action against the appellant in respect of each of the breaches of the Code or Regulations and including that he was not a fit and proper person to hold accreditation under the PTA. There is not a great deal of analysis as to how the Committee reached its decision on penalty. The Reasons record that the Committee first determined that the suspension on the appellant’s accreditation continue until 13 March 2022 for breaches of the PTA and the Regulations under that Act. The Committee further determined that before the appellant could apply for the suspension to be removed, he was required to undertake some form of counselling which addresses his inappropriate behaviour. The Committee also determined that the appellant appear before it to assess his fitness and propriety for accreditation.
The Committee went on to state:[5]
In reaching its decision the Committee took into account that this:
·matter resulted in serious criminal charges against him which were discontinued by the South Australian Police before proceeding to court;
·incident occurred while he was on duty as an accredited taxi driver; and
·was the second time a similar incident had occurred while he was on duty as an accredited taxi driver.
[5] Page 12 of the Reasons.
The Committee then goes on to consider, quite properly, the expectations of professionalism and that the public have a right to expect that taxi drivers will not breach the trust that has been placed in them and must display a level of integrity, character and common sense consistent with passenger confidence in engaging a taxi driver by a person who holds accreditation under the PTA. The Committee further noted that its primary responsibility was to protect the public and ensure the Rules and Regulations that govern the taxi industry are complied with. The Committee noted that when serious breaches of this nature occur the reputation of the taxi industry is at stake.
The appellant’s complaint about the decision of the Committee relates to the penalty that it imposed and not its decision to find that he had breached the Regulations.
In my opinion, the reasoning of the Committee demonstrates that it had committed an error of the type described in House v The King in exercising its discretion as to the penalty that was to be imposed on the appellant. As such, there are, in my opinion, cogent reasons to depart from the decision of the Committee.
The first error made by the Committee was in relation to the reliance it placed on the previous incident that had occurred in 2018. One of the three matters that the Committee stated that it expressly took into account was that this was the second time a similar incident had occurred while the appellant was on duty as an accredited taxi driver. In my view, there was no evidence before the Committee that justified a finding that this was the second time a similar incident had occurred. The appellant gave evidence at the hearing before the Committee in relation to the previous allegation and said “but they were just false allegation against me, it was untrue, all the things, all false”.[6] In response to this statement, the Chair of the Committee stated “Okay, we won’t go into that one, we’ll just assume it was a different story but…”. There was no other evidence before the Committee in relation to this previous incident. There was no evidence on which the Committee could base its finding that this was the second time that such an incident had occurred. It was contrary to the statement by the Chair during the course of the hearing that the Committee wold not inquire into this issue. At most, the evidence permitted a finding that it was the second time that an allegation had been made against the appellant.
[6] Transcript of the hearing at p18, question 164.
In these circumstances, in my opinion, it was therefore an error for the Committee to find that this was a second occasion in which a similar incident had occurred. Whilst it was an error to so characterise the earlier incident on the evidence available, it could also be characterised as an error of the type referred to in House v The King by taking into account an irrelevant matter.
Counsel for the Committee referred to the fact that the Committee had, earlier in its Reasons, observed that the first charge of indecent assault was withdrawn and that the matter had not progressed through the Court and that the appellant had added that they were false allegations.[7] I accept that submission.
[7] Reasons at p10.
However, notwithstanding these matters, the Committee still found and took into account that this was the second time a similar incident had occurred and this was one of the three matters that it referred to in making its determinations as to penalty.
The second error made by the Committee was in its reliance upon the fact that the matter resulted from serious criminal charges against the appellant which were discontinued by the Police before proceeding to court. Again, this demonstrates, in my view, an error in that the Committee took into account how the matter came before it (and its serious criminal nature) in circumstances where there had been no finding of criminal behaviour or indeed, any trial relating to criminal conduct.
I accept that the fact of a charge will be relevant when the Committee is considering an interim suspension. As Judge O’Connor held in Farquharson v Director General, Department of Transport[8] a member of the travelling public may be concerned to know that a driver had been suspected of and charged with a serious criminal offence and that fact alone justified a suspension pending the trial of those charges. However, once the trial has occurred [or the charges were withdrawn], the position may be different. In Farquharson, Judge O’Connor held that the administrator in that case was entitled to consider, having regard to extant serious charges against the taxi driver, that the charges may be properly regarded as affecting his good repute, even though judgment may need to be reserved as to whether any negative conclusion should be formed about fitness and character, pending evidence at committal and trial and the verdict.[9]
[8] [1999] NSWADT 53 at [36].
[9] Ibid at [29].
In the present appeal, as there has been no hearing of the charges, there has been no evidence given at the trial from which adverse inferences or conclusion could be drawn about the fitness or character of the appellant. Further, in circumstances where the charge has been withdrawn, I do not consider that the fact of the charge could be considered as a matter that affects the good repute of the appellant. In any event, I note that the appellant was required to apply for reinstatement, after the period of suspension had expired to show his fitness and propriety for accreditation (and it was not a lack of good repute that led to any of the determinations made by the Committee).
The third error made by the Committee relates to its determination that after the expiry of the suspension, the appellant be required to re-apply for accreditation. There has been no finding by the Committee that the appellant engaged in criminal conduct or had acted indecently when touching the passenger. On that basis, I can see no justification for the imposition of a defacto disqualification. The fact that the matter resulted from serious criminal charges, does not, in my view, justify such a determination. The Committee did not address the correct question: what evidence was there that suggested that the appellant was not a fit and proper person to remain part of the taxi cab industry.
The courts and tribunals have recognised the distinction between the power to suspend and the power to cancel an accreditation. In Council of the Law Society of New South Wales v Zhukovska,[10] the issue before the Court was whether an order made by the New South Wales Civil and Administrative Tribunal (the Tribunal) that the practising certificate of the practitioner be cancelled was appropriate or whether she should be struck off the Roll of Practitioners. Leeming J held that there was a distinction between the power to suspend and the power to cancel a practicing certificate and that this was not a technical distinction.[11] Leeming J went on to find that the onus demonstrating unfitness to practice lay with the complainant and further found:
If indeed the Tribunal were satisfied that she would likely become fit to practise after a specified period, then an order suspending her practising certificate for that period would be appropriate. If the Tribunal was not satisfied that she was probably permanently unfit to practise, but was unable to determine when she would become fit to practise, then a cancellation order, not the removal from the roll, was appropriate.[12]
[10] [2020] NSWCA 163.
[11] Ibid at [115].
[12] Ibid at [115].
The distinction between suspension and cancellation was also recognised in Farquharson v Director General, Department of Transport[13] where O’Connor J stated:[14]
Powers of suspension are, by their nature, designed to provide a temporary form of intervention pending further developments or further consideration or action by [the decision maker]. A power of suspension, as compared to outright cancellation, does carry the (marginal) benefit for the licensee in not placing at risk the licence itself.
[13] [1999] NSWADT 53.
[14] Ibid at [30].
The issue of cancellation and suspension was also recognised in Nursing & Midwifery Board of Australia v Roe.[15] In that case the tribunal again recognised the distinction between the cancellation of registration and suspension. In relation to cancellation, the tribunal observed[16] that cancellation is exercised not for the purpose of punishing the relevant practitioner, but for the protection of the public and the reputation and standards of the profession or industry. The tribunal went on to observe that where an order for cancellation is contemplated the ultimate question is whether the material demonstrates that the practitioner is not a fit and proper person to remain part of that industry.[17] In citing A Solicitor v Council of the Law Society of New South Wales[18] the tribunal then observed that suspension is a less serious result and differs from cancellation of a registration because a suspension is for a specified limited period.[19] The tribunal went on to observe that the proper use of suspension is in cases where the practitioner has fallen below the high standards to be expected, but not in a way to indicate that he or she lacks the qualities or character that are the necessary attributes of a person entrusted with the responsibilities of a practitioner.[20]
[15] [2018] WASAT 92.
[16] Ibid at [47].
[17] Ibid at [48].
[18] (2004) 216 CLR 253 at [15].
[19] [2018] WASAT 92 at [51].
[20] Ibid at [52].
I do not consider that the Committee addressed the question whether the appellant was a fit and proper person to remain part of the taxi industry, which on the above authorities, it was required to address. None of the matters relied upon by the Committee provided a basis for a finding that the appellant should be required to re-apply once his period of suspension had expired. The Committee determined that the appellant should be suspended until 13 March 2022 and then, having made that determination, proceeded to determine that he reappear before the Committee to assess his fitness and propriety to hold accreditation. There was no finding by the Committee that the touching of the passenger constituted indecent assault.
The evidence on the CCTV camera showed that the appellant touched the female passenger on the cheek and the thigh for less than a second on each occasion. There was no complaint by the passenger about the conduct. I do not consider that it could be determined from those two acts alone that the appellant was not a fit and proper person to be an accredited driver. I do not consider that the evidence before the Committee could ever justify a decision (even though one was not made) that the appellant had committed an indecent assault.
I therefore consider that the Committee has made a further error in exercise of discretion within the meaning of House v The King in that it has taken into account irrelevant matters and further had acted, in part, upon the wrong principles.
This error provides a further cogent reason for setting aside the decision of the Committee.
The question that remains is whether I should substitute my own decision in lieu of the decision of the Committee or remit the matter back to the Committee for further hearing.
In that regard, I am mindful that the Committee is a specialised committee that deals with regulatory and disciplinary matters against accredited drivers on a regular basis. I accept therefore that it is in a better position to set appropriate tariffs as to penalty.
However, where an appeal is in the nature of a rehearing, the appeal court should determine the matter itself if it can and only remit (or order a re-trial), if it cannot do so.[21] The present appeal is an appeal in the nature of a rehearing.[22]
[21] Fox v Percy (2003) 2014 CLR 118.
[22] Commissioner of Consumer Affairs v McMurray (2017) 128 SASR 1 at [80].
I am also mindful that under s 42E of the District Court Act, I must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. Section 42F of the District Court Act gives me the power to rescind the decision of the Committee and substitute a judgment that I consider appropriate.
In my view, it would be contrary to the principles set out above, if I were to remit the matter in circumstances where I consider that any suspension that would be imposed in accordance with these reasons would be less than the period of suspension that the appellant has already served. The appellant has been suspended since 13 March 2020, a period of approximately 15 months. As the circumstances surrounding the suspension has caused a great deal of financial difficulty to the appellant, it would in my opinion, be against equity and good conscience to remit the matter back to the Committee for further sentence with the consequent delay that would inevitably follow. I observe that the appellant is a refugee from Iraq, has a family and three children to support and has not had any income since his suspension.
In relation to the proposed period of suspension, I observe that on the previous occasion that once the police had withdrawn the charge of indecent assault, the Committee did not impose any further suspension other than the suspension that the appellant had already served (which was about 7 months).
In the present case I consider that a suspension of 12 months is appropriate. If that period was imposed, the period of suspension would have expired on 13 March 2021. I consider that period of suspension is appropriate for two reasons: first, because the period of 2 years was imposed when the Committee took into account the earlier incident, when it should not have done so and also had regard to the serious nature of the offence (even though it had been withdrawn); secondly, on the earlier occasion, the Committee only suspended the appellant during the period prior to the charges against him being withdrawn, for a period of about 7 months.
Conclusion
For the reasons that I have expressed, I make the following orders.
I allow the appeal.
I order that the decision of the Committee and all of the determinations made by the Committee be rescinded save for the determination that there was a cause for disciplinary action against the appellant.
In lieu thereof, I make the following orders:
(1)The appellant’s driver accreditation be suspended for a period of 12 months commencing on 13 March 2020 and expiring on 12 March 2021;
(2)The appellant, if he has not already done so, is to undergo within 60 days of today’s date some form of counselling which addresses his inappropriate behaviour and is to provide proof of that counselling to the Committee as soon as possible thereafter.
For the avoidance of doubt, the appellant is able to drive as a taxi cab driver in the period whilst he is undertaking his counselling provided it is within the period referred to in order number (2).