Director General, Ministry of Transport v Haider (GD)

[2004] NSWADTAP 42

Appeal Panel - Internal

CITATION:	Director General, Ministry of Transport -v- Haider (GD) [2004] NSWADTAP 42
PARTIES:	APPELLANT Director General, Ministry of Transport RESPONDENT Tahir Haider
FILE NUMBER:	049011
HEARING DATES:	22/06/2004
SUBMISSIONS CLOSED:	06/22/2004
DATE OF DECISION:	09/28/2004
DECISION UNDER APPEAL:	Director General, Ministry of Transport -v- Haider [2004] NSWADT (26 February 2004)
BEFORE:	O'Connor K - DCJ (President); Britton A - Judicial Member; O'Neill A - Non Judicial Member
CATCHWORDS:	error as to status of evidence - effect on creditability of another witness - procedural fairness - standard of proof
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	033355
DATE OF DECISION UNDER APPEAL:	02/26/2004
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990
CASES CITED:	Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Briginshaw v Briginshaw (1938) 60 CLR 336 Crompton v Department of Transport North Western Area [2003] EWCA Civ 64 (CA) Devries v Australian National Railways Commission (1993) 177 CLR 472 Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 Farquharson v Director General, Department of Transport [1999] NSWADT 53 Goody v Odhams Press Ltd [1967] 1 QB 333 Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 Irving v Minister of State for Immigration (1996) 68 FCR 422 Minister for Immigration and Multicultural Affairs v Yussuf (2001) 206 CLR 323 Re del Castillo [1998] ACTSC 131 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 77 ALJR 1165 Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 Rosenberg v Percival [2001] HCA 18 Sinha v Health Care Complaints Tribunal [2001] NSWCA 206 State Rail Authority of New South Wales v Earthline Constructions (1999) 73 ALJR 306 Taylor v Director General, Department of Transport [2001] NSWADTAP 29 Woods (No 1) and Migration Agents Registration Authority [2004] AATA 45
REPRESENTATION:	APPELLANT D Jordan, barrister RESPONDENT In person
ORDERS:	1. Decision under appeal set aside; 2. Decision of Appellant to cancel Respondent’s authority restored. That decision to commence operation at a time specified in a notice given by the Appellant to the Respondent ; 3. Leave to extend the appeal to the merits granted; 4. Appeal Panel to determine matter subject to the directions given in para [100].

1 This is an appeal by the administrator, the Director-General, Ministry of Transport against a decision of the General Division of the Tribunal setting aside a decision to cancel the authority of a taxi driver, the respondent, Mr Haider. The authority was issued pursuant to the Passenger Transport Act 1990 (the Act). It was suspended on 3 October 2003 and cancelled on 12 November 2003.

2 The administrator acted after receiving nine complaints about Mr Haider’s conduct as a taxi driver in the period November 2002 to September 2003. Mr Haider drove for the only taxi company in the Central Coast area of New South Wales, Central Coast Cabs. Mr Haider had first been issued with an authority on 29 May 2002. He was then 28 years old.

3 In the notice of suspension the administrator requested Mr Haider to show cause why his authority should not be cancelled. After considering his submissions, on 12 November 2003 his delegate cancelled the authority. Mr Haider applied for internal review and the decision was confirmed. Mr Haider applied to the Tribunal for review. The Tribunal heard the matter on 27 January 2004 and 26 February 2004. It delivered an ex tempore decision setting aside the decision. The Director-General now appeals. The appeal hearing took place on 22 June 2004.

4 The duty of the Tribunal when reviewing a reviewable decision is to make ‘the correct and preferable decision is having regard to the material then before it’: Administrative Decisions Tribunal Act 1997 (Tribunal Act), s 63(1). Section 113(2) governs the right of appeal:

‘An appeal under this Part:

(a) may be made on any question of law, and

(b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision.’

5 In this instance the administrator contends that the decision of the Tribunal was affected by errors of law, and seeks leave to extend the appeal to the merits. Appeal Panels of the Tribunal have consistently indicated that ordinarily it is necessary for an appellant to demonstrate an error of law of sufficient significance that the decision under appeal should be set aside or varied before exercising the discretion to extend to the merits.

6 Of the nine complaints, the most serious alleged that Mr Haider had engaged in harassing conversations of a sexual nature with young female passengers travelling alone. In the notice of cancellation the administrator summarised his concerns as follows:

‘The complaints relating to conversation of a personal nature are considered to be the most serious. Three complainants, three females travelling alone, the dialogue of the driver similar on each occasion. Mr Haider was identified as the driver of the taxi at the time of the alleged behaviour.

Complaint by female of telephone harassment and attending an address when not called, are also of concern.’ [sic]

7 In exercising his powers the administrator is informed by the objects of the Act found in s 4, the one most relevant to this case being:

‘(e) to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services, …’.

8 The power to issue authorities is conferred by s 33 of the Act which provides:

‘(1) The Director-General 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”. …

(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 …’.

9 The power to suspend or cancel is given by s 33 F which provides:

‘ 33F Variation, suspension or cancellation of authority

Having regard to the purpose of authorisation under this Division, the Director-General may at any time vary, suspend or cancel any person’s authority under this Division’.

10 The administrator’s evidence at hearing comprised the Departmental file; in respect of five of the nine complaints, further oral evidence from passengers and, in some instances, the mother or friend to whom they had first complained; and written statements and other documentation provided by the taxi company. The Tribunal made some findings adverse to Mr Haider in relation to some of the complaints, but concluded that no further action was needed in relation to his authority.

11 The administrator contends that the Tribunal’s reasons for decision were affected by the following types of error (see grounds of appeal):

1. The Tribunal failed to take into account relevant considerations

2. The exercise of discretion was manifestly unreasonable.

3. The Tribunal’s concern over the respondent’s livelihood led to an error in the exercise of discretion in s 33F of the Act by failing to have due regard to the purpose of a driver’s authority under s 33(3)(a).

4. The Tribunal asked the wrong question in exercising the discretion under s 33F of the Act.

12 At this point, it is convenient to turn to the reasons of the Tribunal. They need to be dealt with at some length.

The Tribunal’s Decision

13 For convenience in these reasons the five complaints for which witnesses were produced will be described (following the order adopted by the Tribunal) as Complaints (1), (2), (3), (4) and (5).

14 As to the remaining four complaints the administrator relied solely on the documentary evidence contained in the file. Mr Haider admitted being the driver in respect of two of them; but denied the content of those complaints.

15 As to the five complaints the subject of further evidence, Mr Haider admitted to being the driver only in respect of complaints (1) and (3). He rejected the version of his conduct given, sometimes on the basis that the conduct did not occur, sometimes on the basis that the conduct had been misunderstood. As to the possibility of misunderstanding, he referred to his non English speaking background. Mr Haider is from Lebanon. He acknowledged that he is often described as having an ‘Indian’ appearance, a description used by witnesses in connection with some of the complaints.

Complaint (1): 24 November 2002 – trip, sole female passenger, at 11.30pm to go to work (advance booking)

16 The allegation was that Mr Haider had made very derogatory remarks to a young female passenger as to her appearance, her eating habits, causing her to be very upset. A complaint was immediately lodged with the taxi company by the passenger’s mother.

17 The Tribunal found that it is more likely that the passenger misunderstood the conversation. The Tribunal was not satisfied ‘that you [Mr Haider] said what she thinks you did, and so I place no weight on that complaint in assessing whether you are a fit and proper person to hold an authority.’

Complaint (2): 23 December 2002 – undesired attendance at home of family of complainant

18 This complaint is connected to complaint (1). The mother of the passenger in complaint (1) had, a month later, booked a cab for her daughter to go to work at 6.30pm. She specifically asked that cab 039 (Mr Haider) not be sent. As at this date, she had been advised by the taxi company that Mr Haider did not apologise for the behaviour that she had reported in respect of complaint (1) and had threatened to sue her.

19 Her request that 039 not be sent was observed and her daughter left. Then at 7.00pm the mother heard loud horn honking outside her home. She contacted the taxi company operator and was told to see if she could see the number, and to her surprise it was cab 039.

20 Mr Haider’s evidence was that he failed to remember this event. The mother’s evidence was that after finding Mr Haider outside her home, she had contacted the taxi company to complain. The company, she said, had contacted Mr Haider by radio and it reported that he had said that he had made the trip (after hearing the booking being given out) so that he could apologise.

21 The Tribunal found that Mr Haider was the driver on the occasion in question. It said:

‘The problem I have is that you say you have no recollection of it. When there is evidence I accept that you told the operator that you had come to apologise, and we are speaking about an event only a little more than year ago, it is unlikely that you really have no recollection of it. I cannot explain why you are saying you do not remember it. I do not accept that you do not remember it. I think that is unfortunate. It raises some doubts about your reliability as a witness, particularly when the evidence gives you a perfectly good excuse for being there.

I can understand why you would be inclined to say that you do not remember things which on their face, look as if they would be damaging to you, but that is not a very smart way of approaching this Court case – or anything else in the future.

So I make this decision conscious that you have, in front of me, given me some reason to doubt your reliability on a single relatively minor occasion, but it is there.

As to the substance of the complaint, I do not find anything in the substance of the complaint, standing alone, that would render you not a fit and proper person. Your attendance there is explicable in many ways.’

Complaint (3): 23 August 2003 – trip, sole female passenger, 10.15pm from work to home (advance booking)

22 The passenger in this case was a young woman who was a boarder. On arrival home after this trip she complained to her landlady over two matters. Her landlady wrote to the taxi company. Mr Haider was identified later by the taxi company as the driver.

23 The first matter was an incident in which the driver almost reversed the cab into the driver behind and then began abusing that driver using various expletives. This conduct was denied by Mr Haider.

24 The second matter was the main subject of the letter. The letter states that the young woman was asked the ‘most extraordinary personal questions’ such as who did she live with, did she have a boyfriend, was she a virgin, and further ‘lewd and sexual references’.

25 The landlady and the passenger gave evidence.

26 The Tribunal said:

‘This was not a one-off remark about whether McDonalds make you fat [an allusion to complaint (1)]. This was talking about family, and it would appear that you crossed a line, and I am satisfied you did make reference to virginity as part of the discussion. That was an inappropriate thing for you to have done, and I think you know that it was an inappropriate thing for you to have done. I think you are very aware that you crossed a line.

In summary, I think I can see that a large part of that conversation is explicable in the way in which the conversation went, and you took it too far. Now, that is a different thing from your initiating a conversation and making consistent sexual references, or “further lewd and sexual references”. I do not think you did that. But I do think that you took a discussion of a personal nature too far.’

27 We note that the Tribunal made no finding as to the ‘road rage’ allegation.

Complaint (4): Trip, sole female passenger, around 8.15 pm, 3 September 2003 (advance booking)

28 The Tribunal noted that Mr Haider’s defence was simply that he was not the driver though he agreed that he was driving on that night (see ts 123).

29 The complaint had been lodged with the taxi company by the mother of the young female passenger. The passenger gave evidence by telephone link from Gosford. The hearing was being conducted in Sydney at the request of Mr Haider.

30 At the time the passenger lived at Long Jetty. Her mother lived at The Entrance. On the night in question she telephoned her mother and said she was feeling sick. Her mother, who was out at the time, suggested she come home to her place. Her mother phoned for a taxi. Her daughter said the taxi came around 8 o’clock in the evening. She sat in the front of the taxi. She said it then travelled very slowly and took 20-25 minutes rather than the usual 10 minutes or so to get to The Entrance. She said that she felt scared because it was going so slow.

31 She said the driver started asking her questions ‘about what house she had come from, and whose house it was, and where my boyfriend lived, and whose house I was going to, and who was home when I got there’. (ts 104) She said: ‘I didn’t know quite how to respond to it, so I just said that I did have a boyfriend, and I was going to my boyfriend’s house just to try and protect myself. And he started to ask me questions about having oral sex with my boyfriend and …’.

32 The testimony is interrupted by requests from the solicitor for the Department and from the Tribunal asking the witness to use direct quotes. The witness continued:

‘He said, do I like to have – do I like to give head to my boyfriend; he said, do I like it when my boyfriend touches me; and do I like how my boyfriend kisses me; and stuff like that. …

I just ignored him, and I didn’t talk back.’

33 The witness then referred to her feeling scared at how slow he was driving, and said ‘he was driving very, very slowly, and watching me the whole time, and it was just very uncomfortable.’

34 The passenger was then asked about whether they stopped somewhere. She said that they had. This was to get change for the taxi. In the original complaint the mother said that her daughter (the passenger) only had a $50 note, that the company had been informed of that at the time of the booking, but the driver had insisted they stop to change it. The passenger said that this stop had occurred before he had asked the various questions referred to above. She said nothing happened when he dropped her off. She said that normally the taxi fare, because she does the trip a lot, from Long Jetty to The Entrance is about $10, but on this occasion – she said because he drove so slow – he charged $25 (the original complaint from the mother said $20).

35 The Tribunal queried her evidence as to the amount charged and the extent of the disparity as against the usual fare. There was an issue as to identity, given Mr Haider’s denial and compounded by the fact that the passenger was not present in the hearing room (a matter the subject of further comment at para [95] of these reasons). The Tribunal asked whether she had ever been driven by that driver before. The complainant gave evidence by telephone link. The Tribunal asked her to describe the driver: ‘He was, I think, Indian – that’s a guess – and he was dark, dark hair shortish. That’s about all I can explain.’ (ts 105)

36 The mother gave evidence, also by telephone. She explained that she had been at a dinner party with friends, relatively nearby her home, when her daughter had called. She said that she had rung her daughter later, at a time when she thought she would be at her place to find out how she was (she was worried about her being unwell). Her evidence was that her daughter was upset and told her what had happened. She got the details and immediately rang the taxi company; and she came home straightaway to be with her daughter. She said it was possible to identify the driver because an exact pick up address had been given and an exact drop off address. She said that the taxi company knew straightaway who the driver was.

37 The company reported the complaint to the Department as a complaint involving Taxi 474 the taxi driven that night by Mr Haider.

38 The Tribunal made a number of comments at this point as to the reliability of the taxi company records. It referred to the evidence on which the Department relied, at p 37 of the Department file (Ex E before the Appeal Panel). The Tribunal said to Mr Wozniak (representing the administrator) that the complaint was extremely serious, and stated: ‘If I can be satisfied that it was Mr Haider, then you needn’t go any further.’ In the Appeal Panel’s view, such a statement would ordinarily be interpreted as an indication that if identity is resolved adverse to Mr Haider, then the facts as alleged by the passenger would be found proven.

39 Mr Wozniak sought leave to file further material on this point. This material was tendered at the resumed hearing before the Tribunal and is now found in Ex G before the Appeal Panel. The principal item is a detailed statement from Mr Lou Vaughan, Managing Director of Central Coast Taxis, explaining how the company concluded that Mr Haider was the driver in respect of the trip in question. The statement referred to company procedures and attached relevant documents.

40 The Tribunal found that Mr Haider was the driver. Nonetheless it found the account of the conversation given by the passenger not proven to the requisite degree. The Tribunal’s reasons are set out in full:

‘The Ministry called evidence in relation to a fourth complaint, which was the eighth of the complaints made against you, and this is the one that you did not take the shortest route, left the meter running while you got change of $50, and asked personal questions.

The evidence is conflicting, but of the four complaints so far, I think the allegations of what was said are the most serious.

I cannot and I will not rely on what I will call “tendency evidence”. There is nothing in my findings of the first two complaints that would enable me to say anything about the likelihood or not of your having used the language alleged on the third occasion. That is, we are not talking about a pattern of behaviour. I have made findings that indicate that you have not spoken in this manner before.

There is a real question in my mind as to whether this is even the same fare. It was a six-minute trip, on the records. I do not see how an allegation that you did not take the shortest route could arise; I do not see how an allegation that you left the meter running while you got change of $50, and then asked for a $25 fare could arise.

At the same time, it is clear that you took a fare from that address at that hour. I am satisfied that you were the driver at 8.13 or 8.17 who picked up that fare.

A further factor that gives me reason to doubt the fourth complaint, and a problem that runs all the way through this case in terms of identification, because we are not in the same venue as the witnesses, is that there is evidence on the file which raises a real question as to whether your identity has been confused with that of another driver. I think, fairly clearly, there is on the file one occasion where it has been. That raises the possibility that, at least in relation to the fourth complaint, there may have been some confusion of identity. The records are not conclusive.

In that state of the evidence, and with your livelihood at stake, I am not satisfied that the evidence shows that you were the driver who engaged in that conversation. That raises questions about whether and how the conversation took place at all, as you were clearly the driver from that address at that hour, but the state of the evidence is such that I cannot possibly make a finding – with your livelihood at stake – against you on that.’

41 Later in the reasons the Tribunal says:

‘The fourth matter, which is the allegedly long journey to The Entrance, I cannot be satisfied on the evidence that the recollection of the conversation reconciles with the records of the trip being taken, and consequently that I cannot be satisfied that the conversation took place at all, let alone in the terms alleged.’
Complaint (5): trip, sole female passenger, 2 August 2003, 4.30am

42 The complainant, 30 years old, said that she had been picked up from outside the front of a house at about 4.30am. She said that she sat in the front seat next to the driver. The driver asked her to wind the back window up. She said she leant over and did so, and as she turned back she saw him looking up her dress.

43 She said that he then asked her who the man was that had been waiting outside the front of the house, wanted to know if he was her boyfriend and had she kissed him, slept with him and would she be seeing him again. She said he then grabbed her arm and laughed.

44 She complained the following day to the taxi company giving a general description of the driver to the company.

45 She got a taxi six weeks later and found herself with the same driver. She again contacted the taxi company. The driver on the second occasion was Mr Haider. Mr Haider said that he remembered nothing of the event that gave rise to the complaint.

46 While the Tribunal did not make an express finding in terms on the matter of whether Mr Haider was the driver, its reasons proceed on the premise that it is satisfied that Mr Haider was the driver on the occasion in issue, though he had denied that.

47 The question then was what happened during the trip. As to the peering issue, the Tribunal indicated that it was not satisfied on balance that Mr Haider peered up the woman’s dress, and observed that that was the woman’s ‘perception’ of the situation.

48 As to the contents of the conversation, the Tribunal did make a negative finding. The Tribunal said as to this:

‘I am satisfied that you had a discussion with her about her boyfriend and her relationship. It is very similar to a discussion that I am satisfied that you had once before. From the way she gave her evidence, I have no reason to doubt that you had that discussion.’

49 The Tribunal was not satisfied as to what precisely were the specifics of the conversation. It said:

‘Her evidence was that you asked whether they had kissed and whether they had slept together. I am satisfied that you did say something that upset her, and that she was genuinely upset. But again, in light of what I have said before about misunderstood conversations, and of English not being your first language, and of your taking an otherwise unremarkable personal conversation too far, I cannot be satisfied as to exactly what was said or how inappropriate it was.’
Tribunal’s Conclusions

50 The Tribunal concluded its decision as follows:

‘In summary, there are five complaints on which the Ministry has called evidence and on which I am in a position to make findings. The first one, the discussion about McDonalds and getting fat, I am not satisfied that you intended the conversation to be understood as it was, although clearly she was upset by it.

The second matter, where you waited outside the family home, I am satisfied that you were there and you did wait, and that on balance, you had a plausible and defensible reason for being there. However, you have seen fit here to say that you do not remember it.

The third matter, where the complainant was a lodger and you made reference to virginity, I am satisfied that you did go too far in what was otherwise a personal conversation in which she was a willing participant.

The fourth matter, which is the allegedly long journey to The Entrance, I cannot be satisfied on the evidence that the recollection of the conversation reconciles with the records of the trip being taken, and consequently that I cannot be satisfied that the conversation took place at all, let alone in the terms alleged.

And the fifth matter, the 4.30am pick-up, again, I am satisfied that you had what I would call a personal discussion – it is the complainant’s evidence that she answered the questions to a point – and then you went too far. You asked a question that she did not answer, and that you should not have asked, and she was upset by it.

The findings that I make against you are the reference to virginity; some reference to sexual activity; and some evasiveness on your part in this Tribunal.

They are fairly serious findings.

Mr Wozniak is quite right when he says that the test here is whether an ordinary member of the travelling public would consider you to be a fit and proper person to drive a taxi.

I think that if all an ordinary member of the travelling public knew was that there is a driver who has these sort of discussions, they would say, “No, someone who talks like that shouldn’t be a taxi driver”.

I do not think that is a sufficient way of testing the evidence. I think that the ordinary member of the travelling public, before their opinion or assessment is relied on, needs to know more than that. They need to know the context within which the discussions took place; they need to know how long ago they took place.

I think the appropriate question for the ordinary member of the travelling public is whether you are a fit and proper person, know all that I know and hearing all that I have heard, and reading all that I have read, and making a decision now, in February, and not back in October. For the purposes of driving a taxi, which carried considerable responsibility and exposure to the public in intimate situations – two people in a taxi – it is a very serious consideration as to whether you are a fit and proper person.

I am satisfied that, despite my findings, you remain a fit and proper person. That is to say you were a fit and proper person beforehand, as you got your licence on that basis. All that has happened, in my view, from a judicial perspective, since you got your licence and you were fit and proper, is the findings I have made against you, and I am satisfied that in spite of those findings, you are now still a fit and proper person.’

Grounds of Appeal

51 Mr Jordan appeared at the appeal for the administrator. Mr Haider represented himself. During the course of the appeal Mr Jordan referred extensively to the transcript in some of his arguments. Mr Haider did not have a copy of the transcript. Consequently the Appeal Panel directed that Mr Haider be given a copy of the transcript, and an opportunity to file any further written submissions which he did on 6 July 2004.

‘Good Repute’

52 Mr Jordan submitted that the Tribunal had erred in not addressing the question of whether Mr Haider could be said to be of ‘good repute’. The Tribunal had, he said, wrongly confined itself to the question of whether Mr Haider was a ‘fit and proper’ person. Mr Jordan noted that s 33 provides that the ‘purpose of an authority … 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 …’.

53 The reasons lend support to Mr Jordan’s submission. For example in the first substantive sentence of its reasons the Tribunal says: ‘What I have to decide is whether you are now a fit and proper person to hold a licence.’

54 Under the Act the administrator must consider whether the applicant or holder of an authority is a person of ‘good repute’ and is also ‘fit and proper’ to hold an authority. Here both matters were under notice.

55 It is well established that ‘good repute’ refers to the estimate that others possess as to the character of an individual. On the other hand whether a person is ‘fit and proper’ goes to the actual character of the person, a matter to be established objectively. So it is possible that the estimate that the public holds as to the character of a person might be quite different from their actual character. See generally, Wigmore on Evidence (ed Chadbourn, 1974), V, [1608]; Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 (Waddell J); Irving v Minister of State for Immigration (1996) 68 FCR 422 per Davies J at 425 and per Lee J at 431-2; Farquharson v Director General, Department of Transport [1999] NSWADT 53; Taylor v Director General, Department of Transport [2001] NSWADTAP 29 at [64-67]; Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 at [16] ff.

56 In the commentary on this point it is usually assumed that such an estimate will be provided by evidence from members of the public who know the individual. This would usually be done by way of testimonials. The relevant commentary is mainly to be found in the law of defamation. In that area of the law there has been a question as to whether a defendant may, in mitigation of damages for harm to the plaintiff’s reputation, adduce evidence of known misconduct in contradiction of the testimony given as to the plaintiff’s reputation. The traditional view had been that introduction of such countervailing evidence was not allowed.

57 This position was qualified by Lord Denning MR, with whom Salmon and Dankwerts LJJ agreed, in Goody v Odhams Press Ltd [1967] 1 QB 333 at 340-341:

‘I think that previous convictions are admissible. They stand in a class by themselves. They are the raw material upon which bad reputation is built up. They have taken place in open court. They are matters of public knowledge. They are accepted by people generally as giving the best guide to his reputation and standing. They must of course be relevant, in this sense, that they must be convictions in the relevant sector of his life and have taken place within a relevant period such as to affect his current reputation. But being relevant they are admissible. They are very different from previous instances of misconduct, for those have not been tried out or resulted in convictions or come before a court of law. To introduce those might lead to endless dispute. Whereas previous convictions are virtually indisputable.’

58 In Re T Waddell J accepted, applying the above dicta, that an adverse criminal history could be relied upon by the administrator in favour of a prima facie decision that the individual was a person who lacked good repute. The individual was given the opportunity to put evidence in reply. Waddell J was satisfied that although once the individual would properly have been regarded as a person of bad repute it was now the case that he was regarded as a person of good repute.

59 Even an acquittal may leave unresolved in an administrator’s mind questions as to the reputation and integrity of a licensed individual. In Re del Castillo [1998] ACTSC 131 the ACT Supreme Court dealt with an application for admission to the legal profession. The applicant had failed to disclose a serious criminal charge of which he had been acquitted. As to whether such a non-disclosure was relevant to an assessment of his good fame and character, Miles CJ, Gallop and Madgwick JJ observed at [28]:

‘It is true that the bare facts that a person has been tried for a charge, even a very serious one, and acquitted do not logically tend to the detriment of the person’s character nor of his or her fame. But experience shows that matters are often otherwise. The acquittal may be entirely upon unmeritorious grounds or it may occur in circumstances which nevertheless reveal untoward collateral behaviour on the part of the accused.’

60 In regulatory schemes of the present kind the administrator does not ordinarily obtain positive evidence of an applicant’s ‘good repute’ before issuing the licence or authority. Such is usually assumed until information is placed before the administrator which might lead to a contrary view. At that point the administrator may form a view as to what the community’s estimate would be of the person if they knew what the administrator knows. That is the process that has occurred in this case. The complaints against Mr Haider were made confidentially. All were ultimately recorded on his file by the administrator.

61 The administrator’s position is that if the travelling public knew what he knew about the complaints then Mr Haider would be held in low repute. In our view there would be deep concern in the community over a driver acquiring a record of complaints of the kind made against Mr Haider. It will be seen that the four trips the subject of evidence at hearing all involved night time trips where the female passenger was travelling alone. In three instances the females were very young, around 19 or 20. Moreover several of the complaints involved allegations that Mr Haider made highly intrusive remarks of a sexual nature.

62 In our view, it is permissible for administrators of regulatory schemes to form a view as to the repute that would attach to the person were the facts known more widely. This is so, even if the facts fall short of recorded convictions, or pending charges or adverse matters revealed at a trial leading to acquittal. This kind of approach is permitted in an equivalent area of regulation in the United Kingdom (road haulage licences); though there the statute precisely deals with the question being discussed. The statute allows the administrator to have regard, in forming a view as to whether the driver is of good repute, to relevant convictions or ‘any other information in his possession’: see further Crompton v Department of Transport North Western Area [2003] EWCA Civ 64 (CA).

63 In the present case the administrator did rely initially on the entire complaints record. The process undertaken by the Tribunal involved the testing of those complaints. Some adverse findings were made.

64 That process having being undertaken, we do not agree with the position of Mr Jordan that nonetheless the administrator may continue to hold Mr Haider to be a person not of good repute based on the entire complaints history. Once there has been a forensic process of examination, fairness requires that only the facts as found be taken into account in considering whether the view previously held as to good repute should be maintained. This latter approach is, we note, reflected in the way the Court of Appeal dealt in Crompton’s case with the appeal against revocation of licence based on a finding of lack of good repute. It concluded that on the facts as found that lack of good repute was not established.

65 The public adverse findings of the Tribunal provide the ‘raw material’, to use Lord Denning’s term, upon which the reputation of a taxi driver might be built.

66 We agree with Mr Jordan’s alternative submission that the Tribunal should at least have addressed itself to the question of whether in light of its findings Mr Haider could be regarded as a person of good repute. (Had it then formed a prima facie view that the public would not regard him as a person of good repute, it would have then been necessary to give Mr Haider the opportunity to put on testimonial evidence in reply, as the successful individual in Re T had done.)

Assessment of Character

67 We will deal briefly with the grounds of appeal as to the way the Tribunal approached the question of whether Mr Haider was a person of ‘fit and proper’ character. As we have indicated in dealing with the question of ‘good repute’ the assessment required here is one that concerns Mr Haider’s intrinsic character. But there is often a close connection between the two inquiries, as reflected in the following statement of Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond (‘Bond’) (1990) 170 CLR 321 at 380:

‘The expression “fit and proper”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in the activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not a fit and proper person to undertake the activities in question.’

68 The difficulty to which Mr Jordan pointed is that the Tribunal found that the administrator was right to have regarded Mr Haider as not of fit and proper character when the administrator took action against the authority. The Tribunal nonetheless concluded that Mr Haider was now a person of fit and proper character. Mr Jordan pointed to the lack of any reasonable explanation on the part of the Tribunal as to how this transformation in his intrinsic character had come about.

69 Mr Jordan cast his ground of appeal as one of failure to consider relevant considerations. It is perhaps better cast as a failure to give adequate reasons.

70 Mr Jordan noted that there was no evidence of any change of attitude on the part of Mr Haider in the period that had passed between the time of the initial action (October 2003) and the proceedings at which the authority was restored (February 2004). We agree.

71 We agree with Mr Jordan that the Tribunal found that Mr Haider had engaged in conversation of a sexual nature with young women, travelling alone, on two occasions (reasons for decision, page 6); and had given evidence which gave reason to doubt his reliability as a witness (reasons for decision, page 8). We agree with the observations of the Commonwealth Administrative Appeals Tribunal in Woods (No 1) and Migration Agents Registration Authority [2004] AATA 45 at [331] that the statement of Toohey and Gaudron JJ in Bond is ‘perhaps a more contemporary analysis of fitness and propriety’.

72 Here, to use the language of Toohey and Gaudron JJ, improper conduct was found against Mr Haider. Even with the concessions made by the Tribunal, it was seriously improper conduct (comments of a sexual nature visited upon female passengers by a man who was a stranger while they were travelling alone at night). Nor had he been reliable in the giving of evidence.

73 The Tribunal, having concluded that he was not a person of fit and proper character as at October 2003, did not explain how its adverse findings in these proceedings fitted with its view that he was now to be regarded as a fit and proper person.

74 The Tribunal did not adequately explain why the following findings were not conclusive as to its assessment of Mr Haider’s character: his failure to recollect that he had been the driver who had engaged in annoying conduct outside the home of the mother who had complained a month or so earlier about his conduct to the taxi company (complaint (2)); that he went ‘too far’ in making a reference to virginity in a conversation with a young female passenger (complaint (3); that his denial that he was the driver in respect of complaint (4) could not be accepted; and that he went ‘too far’ in a personal discussion with a female passenger, and upset her (complaint (5)).

75 The Tribunal’s overall conclusion was expressed as follows: ‘The findings that I make against you are the reference to virginity; some reference to sexual activity; and some evasiveness on your part in this Tribunal. They are fairly serious findings.’ In our view this summary does not adequately convey the seriousness of the findings made by the Tribunal.

76 The Tribunal failed to provide an adequate explanation for disregarding considerations of great seriousness relevant to its exercise of discretion.

Illogicality in the Fact-Finding Process

77 Mr Jordan’s more fundamental attack goes to the findings of fact themselves. Normally, it not open on appeal as to a question of law to challenge the fact-finding process of the primary tribunal or the way in which it has exercised a broad discretion vested in it. The primary tribunal or judge will often have items of evidence pointing in either way as to the facts; and similarly factors pointing in either way as to the way a discretion would be exercised. This is the ordinary work of the trial process, and is not to be disturbed unless the process can be shown to be affected by an error of law.

78 The notice of appeal (second ground) was that the decision was a ‘manifestly unreasonable’ one. This formulation draws on the well known line of cases beginning with the Wednesbury case (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230 per Lord Greene MR)). The contention is, in essence, that such a decision could only have been reached as a result of misunderstanding how the law applies to circumstances of this kind.

79 At hearing Mr Jordan recast this ground, having regard to the recent High Court decision in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 77 ALJR 1165 (the S20 case); and Minister for Immigration and Multicultural Affairs v Yussuf (2001) 206 CLR 323. The High Court has indicated that decisions are liable to be set aside if the findings of fact are illogical or irrational. Whereas in cases where the ground of challenge is to the exercise of discretion, the decision is only liable to be set aside if it is ‘manifestly unreasonable’ in the Wednesbury sense. (See generally on this development in the grounds of error of law: Aronson, Dyer, Groves, Judicial Review of Administrative Action, 3rd ed (2004) 245-251.)

80 Santow JA observed in Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 at [43] in relation to the exercise of an appellate jurisdiction confined to error of law:

‘[N]either merits review, nor Wednesbury unreasonableness operate as the standard in reviewing what is essentially a fact-finding process. Rather what is required is review based on the criterion of irrationality or illogicality, as now explained by the High Court in Re Minister for Immigration and Multi-Cultural Affairs; ex parte applicant S20/2002 (2003) 198 ALR 59; (2003) 77 ALJR 1165 …’.

81 Mr Jordan, on this basis, challenged a number of the findings of fact, particularly those made in respect of complaint (4).

82 We turn to complaint (4). Mr Haider denied that he was the driver. The Tribunal ultimately found that he was the driver. The only evidence therefore of what occurred during the trip was that given by the daughter. The main evidence it had as to the credibility of the daughter’s account was provided by the mother. It had direct evidence from the mother as to the information she gave to the taxi company when making the booking.

83 In these circumstances ordinarily findings would have been entered that upheld the uncontradicted evidence of the passenger. Indeed the Tribunal in the course of the hearing (as noted earlier in our reasons) in our view gave an indication to Mr Wozniak that its only doubt about the evidence related to whether Mr Haider was the driver in question.

84 However, in its reasons the Tribunal did not accept the daughter’s account of the remarks made to her by Mr Haider on two (interrelated) bases – one, because of the closeness of Long Jetty and The Entrance to each other, the daughter’s estimate of the time it took and the fare charged ($20 or $25) seemed improbable; and the only independent evidence before it (the taxi company computer print out of bookings undertaken by drivers that night) showed a 6 minute duration for the trip. These factors led the Tribunal to conclude that it could not be satisfied, to the requisite degree, of her account of the conversation.

85 The written statement of Lou Vaughan, Managing Director, Central Coast Taxis (Ex G at the appeal hearing) is that:

‘Taxi 474’s meter was activated at 20:17 hours and made vacant at 20:23 hours making the journey 6 minutes.’
The computer job record is attached, and shows ‘meter on’ and ‘meter off’ times in line with Mr Vaughan’s statement.

86 The finding was a critical one. This evidence did not in our view provide a rational basis for the conclusion on the part of the Tribunal that the journey time was 6 minutes. More needed to be known about how these meters are operated. The daughter had given substantial, and detailed evidence, as to the circumstances of the trip and what occurred. One possible explanation for the short recorded duration of the trip was that the meter was turned off before it ended. There was a stop on the journey, which, according to the daughter, was for the purpose of changing the $50 note (her mother’s evidence was that her daughter had told her before the trip commenced that she only had a $50 note). Innocently or otherwise, the meter may have been turned off at that point. Mr Vaughan’s opinion was too flimsy a basis on which to reject allegations of the most serious kind from a witness who otherwise we believe would have been regarded as credible to a high degree. Nor does the Tribunal address the improbability of a passenger paying $20 for a 6 minute trip.

87 The Tribunal did not examine the evidence of the young woman and her mother. Reasons need to be provided for not accepting her uncontradicted account, corroborated by evidence of immediate complaint to her mother. Here an adverse finding was made without adequately addressing significant uncontroverted evidence to the contrary: State Rail Authority of New South Wales v Earthline Constructions (1999) 73 ALJR 306. (See, to similar effect in another context, Sinha v Health Care Complaints Tribunal [2001] NSWCA 206, esp per FitzGerald AJA, the omission there considered to constitute error because of a failure to give adequate reasons, reference there being made to the statutory provision binding the Medical Tribunal.)

88 We have reached these conclusions mindful of the repeated observations of the higher courts that findings based on credibility should not lightly be disturbed by an appellate body. See Rosenberg v Percival [2001] HCA 18 at [38] per McHugh J.

89 The present case, in our view, is an instance that falls within the approach, noted by McHugh J, that was adopted by Deane and Dawson JJ in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 482-483, i.e. ‘consistently with the obligation to make full allowance for the advantage which the trial judge had enjoyed, the Full Court could properly overturn the trial judge's finding only if it was vitiated by some error of principle or mistake or misapprehension of fact or if the effect of the overall evidence was such that it was not reasonably open’ to make the finding that he did. This is in an instance where it was not reasonably open to find that the daughter’s credibility was affected by the taxi company record without further evidence from the taxi company.

The Evidentiary Standard

90 Mr Jordan also submitted that the Tribunal wrongly introduced a consideration – the livelihood of the driver – into the process of making its findings of fact. It referred to the impact of its findings on Mr Haider’s livelihood as influencing its approach to the question of what evidence should be accepted and to what degree.

91 The Tribunal was concerned, as we read the reasons, to apply the Briginshaw principle. While the standard of proof in proceedings other than criminal proceedings is the balance of probabilities, the Briginshaw test emphasises (Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at 362) that greater care must be shown in reaching that state of satisfaction where the allegations made are very serious for the reputation or status of the individual adversely affected by them; and in particular care should be shown not to rely on ‘inexact proof, and indefinite testimony or indirect references’.

92 The Tribunal is not strictly bound by the rules of evidence in its ordinary merits review jurisdiction (as here). Consequently, the Briginshaw standard will operate in a more flexible way than might be the case in a court strictly bound by the rules of evidence. In Briginshaw at 343-4 Latham J noted that the ‘standard of proof required by a cautious and responsible tribunal would naturally vary with the seriousness or importance of the issue’.

93 Recently in Greyhound Racing Authority (NSW) v Bragg (a case involving the governing body dealing with complaints against regulated persons connected with greyhound racing) Santow JA observed that the Briginshaw standard:

‘must be understood in the context of an administrative body operating informally and not as a court of law bound by the law of evidence. The notion of ‘inexact proof, and indefinite testimony or indirect references’ needs to be translated to a comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes appropriate to and adopted by such a body.’

94 We are not satisfied that in its formulation of the standard of proof the Tribunal committed an error of law. It could have expressed itself more clearly, but our view is that it was simply seeking to refer in a short-hand way, in the passages in its reasons referred to by Mr Jordan, to the Briginshaw caution that ‘comfortable satisfaction’ be achieved, and approached its fact-finding task on that basis.

Identity Evidence

95 In its reasons in respect of complaint (4) the Tribunal appeared to equivocate at one point as to whether it was satisfied that Mr Haider was the driver (see above at [35]). This equivocation derives from the way the proceedings were conducted in respect of complaint (4). The daughter and mother gave evidence by telephone from Gosford. They were not present in Sydney. (We note that initially the matter had been set down at Gosford but then relocated to Sydney at the request of Mr Haider.) In many circumstances the giving of witness evidence by telephone will be acceptable, but this was a case where identity was in doubt in three of the five principal matters relied upon by the administrator; and most importantly in relation to Complaint (4).

96 In merits review matters, parties, including government parties, should not be at risk of findings that derive simply from some weakness in the presentation of the case which can easily be overcome by the Tribunal acting inquisitorially. In this case identity was of sufficient importance for the Tribunal to have adjourned the matter in relation to Complaint (4) so as to have the passenger give evidence in the hearing room with Mr Haider present and open to be identified directly. The evidence which would then have resulted could then have been taken into account.

Conclusion

97 For the reasons given, the decision under appeal should be set aside.

98 In our view the case must be reheard. The administrator requested that the Appeal Panel give leave to extend the appeal to the merits, and dispose of the application. The alternative is to remit the application, in the circumstances preferably to a differently constituted Tribunal.

99 In our view it is preferable that the matter be retained by the Appeal Panel, and pursuant to s 114(2)(b) of the Tribunal Act we give the following directions:

1. Application for review to be determined on the basis of the material already filed, the transcript and, if permitted by the Appeal Panel, any additional evidence that the parties which to rely upon.

2. The parties are to notify the Registrar within 14 days of the delivery of this decision as to whether they wish to present any additional evidence.

100 It follows that the decision of the administrator is until further order restored by this decision. The administrator will need to deal with the handing in by Mr Haider of his authority. We have indicated in the Order which follows that this decision is to take effect at the time stipulated by the administrator for the handing in of the authority.

Order

1. Decision under appeal set aside.

2. Decision of Appellant to cancel Respondent’s authority restored. That decision to commence operation at a time specified in a notice given by the Appellant to the Respondent.

3. Leave to extend the appeal to the merits granted.

4. Appeal Panel to determine matter subject to the directions given in para [100].