Haidary v Director General, Department of Transport (GD)

[2000] NSWADTAP 26

Appeal Panel

CITATION:	Haidary -v- Director General, Department of Transport (GD) [2000] NSWADTAP 26
PARTIES:	APPLICANT Zabihullah Haidary RESPONDENT Director General, Department of Transport
FILE NUMBER:	009029
HEARING DATES:	04/11/2000
SUBMISSIONS CLOSED:	11/04/2000
DATE OF DECISION:	12/13/2000
DECISION UNDER APPEAL:	Principal matter
BEFORE:	Hennessy N (Deputy President); Rice S - Judicial Member; Mapperson K - Member
CATCHWORDS:	opportunity to be heard
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	003150
DATE OF DECISION UNDER APPEAL:	08/16/2000
LEGISLATION CITED:	Passenger Transport Act 1990
CASES CITED:	Director General, Department of Transport -v- Rasheed [2000] NSWADTAP 16 Kioa v West (1985) 159 CLR 550 Haidary v Director General Department of Transport (2000) NSWADT 106
REPRESENTATION:	APPLICANT In person RESPONDENT A Wozniak, solicitor
ORDERS:	1. The appeal is allowed; 2. The decision of the Tribunal in Haidary v Director General, Department of Transport (2000) NSW ADT 106 dated 3 August 2000 is set aside; 3. The case is remitted to be heard and decided again by the Tribunal; 4. When hearing and deciding the matter again, the Tribunal is to comply with the following directions: (a) The matter is to be determined on the basis of the oral and documentary evidence which was before the Tribunal at first instance, with the following exceptions: (i) The applicant is to be given the opportunity to present oral evidence in relation to the circumstances of the offence (ii) The respondent is to be given an opportunity to cross examine the applicant only in relation to matters on which he was not previously cross examined.; (ii) The respondent is to provide to the Tribunal and the applicant, and the Tribunal is to take account of, any evidence of Mr Miller's "version of events" if it is available.

1 This is an appeal by Mr Haidary against a decision of the Tribunal on 16 August 2000. The Tribunal’s decision was to affirm the decision of the Director General, Department of Transport (the Director General) to cancel Mr Haidary’s authority to drive a taxi.

2 The respondent cancelled Mr Haidary’s licence after he was convicted of the offence of assault occasioning actual bodily harm (AOABH). This offence related to an assault on some people who were attempting to get into Mr Haidary’s taxi. Mr Haidary was fined $500 in relation to the offence. The second basis for the respondent’s decision to cancel Mr Haidary’s licence was his traffic record and a complaint about speeding from a passenger.

3 On 5 September 2000 Mr Haidary appealed to the Appeal Panel against the Tribunal’s decision. In his application Mr Haidary submitted that the Tribunal had made an error of law. Mr Haidary expressed the error in the following way:

I have not been given the chance to speak freely at the hearing day. Every time I try to explain my self and the circumstances of the charge against me I was told to shutup.

4 On the basis of this submission, and Mr Haidary’s arguments before the Appeal Panel, we have concluded that the error of law Mr Haidary has claimed is a breach of the right to be heard, which is one of the principles of procedural fairness, or natural justice.

5 The issue to be determined by the Appeal Panel is whether the Tribunal did make such an error and, if so, what orders we should make.

Documentary material

6 The Appeal Panel examined the following documents in determining these issues:

(a) the decision of the Tribunal dated 16 August 2000;
(b) the transcript of proceedings on 3 August 2000; and
(c) the Department’s file in relation to Mr Haidary.
Relevant legislation

7 The Appeal Panel has jurisdiction to hear this appeal as it involves the review of a reviewable decision. (See s 112(1)(b) and s 113(1) of the Administrative Decisions Tribunal Act 1997 (ADT Act.))

Under s 113(2) of the ADT Act, a party may appeal on any question of law and, with the leave of the Appeal Panel, an appeal may extend to a review of the merits of the appealable decision. No application was made for the Appeal Panel to review the merits of the case.
Transcript and decision of Tribunal proceedings

8 The following extracts from the transcript are quoted to provide the context for Mr Haidary’s submission that he was not given an opportunity to present evidence in relation to the circumstances of the offence.

9 On page 7 of the transcript of proceedings, during the introductory submissions, the following exchange took place:

Applicant: First of all I want to say that I shouldn’t be charged, I had many witnesses before ---
Tribunal: Hang on, Are you talking about the assault occasioning actual bodily harm?
Applicant: Yes
Tribunal: No. We’re not retrying that today. Forget that, the conviction has been recorded. You’ve got an application here on the reviewable decision regarding your authority, okay? That is what you’re presenting to me today. Now in reply to what Mr Wozniak has said in regard to you being a fit and proper person to hold a licence what do you have to say, just very briefly?

10 Later on page 7 of the transcript, the Tribunal said:

We’re not going into the circumstances of this again, okay.

11 On page 8 the Tribunal added that:

We’re not going in and we’re not going to retry the assault occasioning actual bodily harm. I can’t say that again, that’s the fourth time. It’s probably better that you don’t mention that to me again, okay. It’s a matter of record, it’s gone down on your record, that’s it. But if you want to say that he wasn’t a passenger driver, could you explain just the – I don’t want to hear all the gory details of what happened. I just want to know, just in so far as you believed he wasn’t a passenger, how was he not a passenger?

12 After Mr Haidary was affirmed to give evidence, the Tribunal said:

Now you present your case to me the best way you know how to let me know the reviewable decision was wrong. So that’s the decision of the Department of Motor Transport, nothing occasioning actual bodily harm, none of that, it’s all been decided.

13 From page 15 of the transcript through to the top of page 18, Mr Haidary was cross examined by Mr Wozniak in relation to the circumstances of the offence of assault occasioning actual bodily harm.

14 In the decision the Tribunal made reference at paragraph 7 to a written document dated 10 September 1999 prepared by Mr Haidary explaining some of the circumstances of the offence. The Tribunal briefly summarised the evidence in that document at paragraph 8 of its decision. At paragraph 22, the Tribunal made the following comment:

In relation to the AOABH conviction, the applicant pleads extenuating circumstances being as he was confronted by 3 inebriated males.

15 Further on in the same paragraph, the Tribunal said that:

In any event, as a magistrate has already recorded a conviction and made findings of fact in relation to the offence the Triubnal does not now intend to reagitate the matter.

16 In reaching its conclusion, the Tribunal referred to various legal tests of what constitutes a “fit and proper person.” The Tribunal referred to one factor in determining that issue, namely the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences. In that context, the Tribunal made the following comment at paragraph 26:

In applying this factor to the present case it is clear that in relation to the AOABH offence the applicant has shown regret and it is improbable that an incident of this type will ever happen again. However, the same cannot be said in respect of his continuing and extensive traffic convictions.
Appellant’s submissions

17 As outlined above, Mr Haidary’s submission was simply that he was not given the opportunity to explain his version of the circumstances of the offence for which he was convicted. He said that the 2 page handwritten letter to the Department was not sufficient because he was not able to meet with Departmental representatives and explain his version face to face. He was deprived of this opportunity in the Tribunal.

Respondent’s submissions

18 Mr Wozniak, put forward several arguments in support of his submission that the Tribunal had not breached the rules of procedural fairness in coming to its decision.

19 The respondent’s first submission was that the comments of the Tribunal quoted above at paragraphs 3, 4 and 5 of these reasons, were made in the context of opening statements, not at a time when Mr Haidary was giving evidence. Secondly, Mr Wozniak submitted that Mr Haidary’s version of events was revealed to the Tribunal through the 2 page handwritten letter which he provided to the Department, through some limited evidence in chief and through Mr Haidary’s responses to questions asked in cross examination.

20 Next, Mr Wozniak submitted that reading between the lines of paragraph 26 of the Tribunal’s reasons it was clear that the Tribunal had not relied on Mr Haidary’s conviction as the reason for affirming the respondent’s decision. In his view, the Tribunal found that it was his traffic convictions that made him unfit to continue driving taxis.

21 Finally, if the Appeal Panel was satisfied that the Tribunal had made an error of law, it should follow the decision Director General, Department of Transport -v- Rasheed [2000] NSWADTAP 16 at 4 where the Appeal Panel said that:

To be successful an appeal must identify an error or errors of law of such significance that it is appropriate for the Appeal Panel to set aside the primary decision of the Tribunal.
Reasoning and decision

22 The “hearing rule” is one aspect of procedural fairness. The content of that rule will vary depending on the type of inquiry, the subject matter and the rules under which the decision maker is acting. (See Kioa v West (1985) 159 CLR 550 per Mason J at 584.)

23 In this case, the Tribunal was conducting an inquiry with one party, the applicant, not legally represented. Section 73(2) of the ADT Act states that:

The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

24 Under s 73(4)(c) of the ADT Act:

The Tribunal is to take such measures as are reasonably practicable:
(c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.

25 In some circumstances, the Tribunal can restrict the right to be heard to written submissions if the issues can be adequately determined in the absence of the parties. (See s 76 of the ADT Act.) But where a matter is determined by an oral hearing, a party must be given a “the fullest opportunity practicable” to give evidence and make submissions about any relevant matter. It is clear from the Tribunal’s reasons that the circumstances of the offence were relevant to the decision.

26 In our view, the Tribunal in this matter did not give Mr Haidary “the fullest opportunity practicable” to present his case. While the Tribunal must accept the fact of a conviction, the circumstances which gave rise to that conviction are relevant to the Tribunal’s decision in cases of this kind. We agree with Mr Wozniak that the Tribunal allowed Mr Haidary to give some oral evidence about the circumstances of the offence, such as his assertion that the people involved were not passengers. The Tribunal also took into account the 2 page written submission that Mr Haidary provided to the respondent. We do not consider these actions to be sufficient to comply with ADT Act or the rules of procedural fairness. The Tribunal made it clear to Mr Haidary, both during his opening submissions and when he began to give evidence, that it was not interested in hearing from him about the circumstances of the offence. Mr Haidary was not given the opportunity to elaborate on his written submissions. In addition, the Tribunal allowed Mr Haidary to be cross examined on the circumstances of the offence and did not invite him to clarify any issues about the circumstances of the offence which were raised in cross examination.

27 Despite its stand in relation to Mr Haidary’s evidence, the Tribunal, quite appropriately in our view, took the circumstances of the offence into account in coming to a decision. Contrary to Mr Wozniak’s submission, that decision was not made on the basis that it was the traffic offences rather than the criminal offence which made Mr Haidary unfit to hold an authority to drive taxis. The Tribunal’s comments at paragraph 26 of the decision, relate to the likelihood of reoffending which, as the Triubnal pointed out, is only one of the relevant factors to be taken into account in determining fitness.

28 In our view the error made by the Tribunal is a significant one which justifies setting aside its decision. The Tribunal may come to the same or a different conclusion when it has considered all the relevant evidence. Either way, it remains a statutory requirement that the Tribunal give Mr Haidary “the fullest opportunity practicable to be heard”.

29 When reading the Department’s file in preparation for this appeal, another relevant matter came to our attention. In a memorandum from Craig Millard to Jennifer Aldred dated 22 September 1999, the following passage appears:

. . . I caused a staff member Mr Tim Dewey to contact the nominated witness to the event Mr Miller, a well respected officer from the NSW Taxi Council who was a direct witness to the events of that night. I have noted that Mr Miller’s version of events differs in some crucial details from the account outlined in the NSW Police Facts Sheet by officers who were not direct witnesses to the event. Mr Miller describes this driver as quiet, well dressed, polite and a driver above the average.

30 This passage refers to “Mr Miller’s version of events.” This version was apparently taken into account by the administrator, Mr Millard, in coming to a decision on the internal review. Mr Wozniak conceded that this “version” was not before the Tribunal in any form.

31 Under s 63 of the ADT Act, the Tribunal must take into account “any relevant factual material.” Mr Miller’s version of events is relevant factual material that was taken into account by the administrator when making his decision but was not available to the Tribunal when making its decision.

Orders and directions

32 Section 114 of the ADT Act sets out the powers of the Appeal Panel when dealing with matters of this kind which are restricted to questions of law:

(1) If an appeal under this Part is restricted to questions of law, the Appeal Panel is to determine the appeal and may make such orders as it thinks appropriate in light of its decision.
(2) The orders that may be made by the Appeal Panel on any such appeal include, but are not limited to, any of the following:
(a) an order affirming or setting aside the decision of the Tribunal (as originally constituted),
(b) an order remitting the case to be heard and decided again by the Tribunal (as originally or similarly constituted), either with or without the hearing of further evidence, in accordance with the directions of the Appeal Panel,
(c) an order made in substitution for an order made by the Tribunal.
Orders and directions
(1) The appeal is allowed.
(2) The decision of the Tribunal in Haidary v Director General Department of Transport (2000) NSWADT 106 dated 3 August 2000 is set aside.
(3) The case is remitted to be heard and decided again by the Tribunal.
(4) When hearing and deciding the matter again, the Tribunal is to comply with the following directions:
(a) The matter is to be determined on the basis of the oral and documentary evidence before the Tribunal at first instance, with the following exceptions:
(i) The applicant is to be given the opportunity to present oral evidence in relation to the circumstances of the offence. The respondent is to be given an opportunity to cross examine the applicant only in relation to matters on which he was not previously cross examined.
(ii) The respondent is to provide to the Tribunal and the applicant, and the Tribunal is to take into account, any evidence of Mr Miller’s “version of events” if it is available.