Kamara v Director-General, Ministry of Transport (GD)

[2006] NSWADTAP 28

Appeal Panel - Internal

CITATION:	Kamara v Director-General, Ministry of Transport (GD) [2006] NSWADTAP 28
PARTIES:	APPELLANT Moses Kamara RESPONDENT Director-General, Ministry of Transport
FILE NUMBER:	059067
HEARING DATES:	31/01/2006
SUBMISSIONS CLOSED:	01/31/2006
DATE OF DECISION:	05/26/2006
BEFORE:	Hennessy N - Magistrate (Deputy President); Fitzgerald K - Judicial Member; O'Neill A - Non Judicial Member
CATCHWORDS:	procedural fairness - reviewable decision - taking into account new material - statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	043237
DATE OF DECISION UNDER APPEAL:	04/13/2005
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Interpretation Act 1987 Passenger Transport Act 1990
CASES CITED:	Applicant A194 of 2003 v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 292 Commissioner of Police, New South Wales Police Service v Brett [2002] NSWADTAP 34 Freeman v Health Insurance Commission [2004] FCAFC 335 Hall v University of New South Wales [2003] NSWSC 669 Kamara v Ministry of Transport (GD) [2004] NSWADTAP 31 Kioa v West (1985) 159 CLR 550 Mond and Anor v Berger and Others [2004] VSC 534 R v Ryan 206 CLR 267 Russell v Duke of Norfolk [1949] 1 All ER 109 S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 451 Saadieh v Director General Department of Transport [1999] NSWADT 68 YG & GG v Minister for Community Services [2002] NSWCA 247
REPRESENTATION:	APPELLANT In person RESPONDENT A Wozniak, solicitor
ORDERS:	The Tribunal's decision is affirmed. The appeal is dismissed.

Introduction

1 Mr Kamara was working part-time as a taxi driver. On 7 August 2003, a delegate of the Director-General, Ministry of Transport, cancelled his authority to drive a taxi. The reasons for the cancellation were that two female passengers had complained about his behaviour and he had been convicted or found guilty in relation to various motor traffic offences. The Local Court disqualified Mr Kamara from holding a driver’s licence for six months. Mr Kamara appealed against his convictions in the District Court. The convictions were affirmed, but the period of disqualification was reduced to three months. Before the appeal to the District Court was heard, the Director-General’s delegate decided that he could not attest that Mr Kamara was of “good repute” and otherwise “a fit and proper” person to be the driver of a taxi.

2 Mr Kamara applied to the Tribunal for a review of the decision to cancel his taxi driver authority. Rather than relying on the complaints from the female passengers and the traffic convictions in the Local Court, the Director-General submitted that the cancellation decision was the correct decision because Mr Kamara had been disqualified from driving, so he could not fulfil one of the mandatory criteria for a taxi driver authority. The Tribunal affirmed the cancellation decision on that basis on 12 March 2004. Mr Kamara appealed against that decision to the Appeal Panel. The appeal was heard on 12 July 2004. The Appeal Panel decided that there was nothing in the relevant legislation which required the Director-General to cancel a person’s taxi driver authority merely because they had been disqualified from driving. The Appeal Panel remitted the matter to the Tribunal to be heard and decided again. (Kamara v Ministry of Transport (GD) [2004] NSWADTAP 31.)

3 The Tribunal listed the matter for hearing on 1 September 2004. Mr Wozniak told the Tribunal on that day that the Director-General wished to rely on further material in support of the decision to cancel Mr Kamara’s taxi driver authority. The Tribunal adjourned the hearing to 17 December 2004 to enable Mr Kamara to be served with the new material. The Tribunal decided the matter again and affirmed the decision to cancel Mr Kamara’s taxi driver authority. (Kamara v Director-General, Ministry of Transport [2005] NSWADT 83.) Written reasons were handed down on 13 April 2005. Mr Kamara appealed to the Appeal Panel against that decision on 24 October 2005. Although the appeal was out of time, the Appeal Panel gave Mr Kamara permission to pursue the appeal: s 113(3)(b) of the Administrative Decisions Tribunal Act 1997 (ADT Act).

Appeal Panel’s jurisdiction

4 Under s 113(2) of the ADT Act Mr Kamara may appeal on any question of law. With the leave of the Appeal Panel, the appeal may extend to a review of the merits of the decision. Mr Kamara applied for leave to extend the appeal to the merits of the Tribunal’s decision.

Grounds of Appeal

5 We have classified Mr Kamara’s submissions into four grounds of appeal. They are that:

(a) the Tribunal erred by taking into account material which was not before the Director-General when he made his initial decision to cancel Mr Kamara’s taxi driver authority;

(b) power to cancel taxi-driver authority;

(c) the Tribunal erred by incorrectly interpreting and applying the statutory provisions relating to the phrases “good repute” and “fit and proper person”;

(d) the Director-General and the Tribunal denied Mr Kamara procedural fairness.

6 We consider each of these grounds in turn below.

Taking into account new material

7 Grounds of appeal. Mr Kamara said that the Tribunal erred by taking into account allegations against him which were not relied on when the original decision cancelling his authority was made. According to Mr Kamara, the Tribunal relied on two further allegations made after the Director-General had made the decision to cancel his taxi driver authority.

8 Tribunal’s Reasons. The Tribunal identified two issues at [12] of its decision. They were:

(a) whether the Tribunal can have regard to allegations that arose after the Director-General had made his decision and after the decision of the Appeal Panel in this matter; and

(b) whether the Director-General can attest that the applicant 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, having regard to the relevant matters relied on by the Director-General.

9 The Tribunal rejected Mr Kamara’s submission that the Director-General could only rely on the material that was before him when he made the original decision to cancel his taxi driver authority on 7 August 2003. The Tribunal said at [14]:

It is well established that the Tribunal, in determining whether an administrator’s decision is the correct and preferred decision, the Tribunal makes such a determination as at the date of the hearing: see YG & GG v Minister for Community Services [2002] NSWCA 247 at [25] and Commissioner of Police, New South Wales Police Service v Brett [2002] NSWADTAP 34 at [44]. As pointed out in these decisions, as a matter of construction, in exercising its merits review role in respect of administrative decisions, the role of the Tribunal is to determine whether the decision of the administrator "is" the correct and preferred decision: see s.63 of the Administrative Decisions Tribunal Act 1997. Its role is not to determine whether the administrator’s decision "was" the correct and preferred decision.

10 Appeal Panel’s conclusions. We agree with the statement of the law set out by the Tribunal at [5] above. In particular, YG & GG v Minister for Community Services [2002] NSWCA 247 at [25] is authority for the proposition that the issue for determination by the Tribunal when conducting a merits review is what is the correct and preferable decision at the time of the determination, irrespective of whether it was or was not the correct and preferable decision at the time it was originally made. Consequently, the Tribunal is able to take into account circumstances that have occurred after the administrator made the decision when reviewing that decision. Mr Kamara did not point to any authority to the contrary. The Tribunal has not made an error of law in relation to this issue.

Power to cancel taxi driver authority

11 Wrong provision. Having dealt with the first issue, the Tribunal went on to set out the provisions relevant to the Director-General’s power to cancel a taxi driver authority. The Tribunal Member wrongly referred to s 34F(1) of the Passenger Transport Act 1990 which relates to authorisations to operate a taxi cab network. That provision states that:

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

12 The Tribunal should have referred to s 33F(1) which relates to authorisations for taxi drivers. That provision states that:

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.

13 Although the Tribunal quoted the wrong section, the provisions are virtually identical and it was obvious from the Reasons for Decision that the Tribunal understood that Mr Kamara’s taxi driver authority had been cancelled. There was never any suggestion that he had an authorisation to operate a taxi cab network. The Tribunal made an inadvertent error which does not amount to an error of law and had no effect on the decision.

Good repute and fit and proper person

14 The purpose of an authority is set out in s 33(3):

The purpose of an authority under this Division is to attest:

(a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a taxi-cab, and

(b) that the authorised person is considered to have sufficient responsibility and aptitude to drive a taxi-cab:

(i) in accordance with the conditions under which the taxi-cab service concerned is operated, and

(ii) in accordance with law and custom.

15 The Tribunal proceeded to make findings in relation to each incident of alleged improper conduct by Mr Kamara which was relied on by the Director-General. These findings were as follows:

1. There is insufficient evidence to make a finding that Mr Kamara knowingly made a false declaration on a driver authority application form in 1999. (See [26].)

2. There is insufficient evidence to make a finding in relation to alleged inappropriate conduct by Mr Kamara towards a female passenger on 10 December 2002. However, the Tribunal found that Mr Kamara had been warned that if the Ministry of Transport received further complaints of a similar nature, that could result in the suspension or cancellation of his driver authority. (See [30].)

3. There is sufficient evidence to make a finding that Mr Kamara spoke inappropriately to a female passenger, Ms Jordan, on 13 July 2003 by asking personal questions and requesting that she accompany him for coffee while he had a break as well as asking whether he could come in when he dropped her off.

4. The Tribunal rejected Mr Kamara’s submission that he has never jeopardised the safety of his customers. The Tribunal found that on 3 February 2004, Mr Kamara’s driver’s licence was cancelled and that he has not re-applied for a driver’s licence since that date which means that he has been unlicensed to drive a vehicle since 3 February 2004. (See [36], 38, and [44].)

5. The Tribunal was satisfied that Mr Kamara drove a taxi on numerous occasions during the period from 23 March 2004 to 23 July 2004 despite not having a driver’s licence.

16 The Tribunal concluded on the basis of these findings that it could not attest to Mr Kamara being of “good repute”. Despite that finding which was sufficient to dispose of the matter, the Tribunal went on to consider whether or not Mr Kamara is considered to be a fit and proper person to be the driver of a taxi-cab. The Tribunal’s conclusions are set out at [67]:

In my opinion, the applicant’s conduct in respect to the convictions following his driving of an unregistered and uninsured taxi-cab followed by his conduct of driving taxi-cabs after his licence and driver authority were cancelled are of sufficient seriousness to find that it cannot be attested that the applicant is a fit and proper person to be a driver of a taxi-cab. His conduct was not isolated but occurred over a significant period of time and during which the applicant placed the safety of his passengers at risk. It also demonstrates an intention to disregard the law, in particular the requirement that he be the holder of a taxi-cab driver authority under the Passenger Transport Act 1990, when he drives a taxi-cab. In this case, not only did he fail to have such an authority he was also not licensed to drive any vehicle. Having done so he has placed the safety of his passengers at risk and he did so on an ongoing basis. In my opinion, this conduct together with the applicant’s inappropriate conduct on 13 July 2003, when Ms Jordan was his passenger, are such that it cannot be attested that the applicant is a fit and proper person to be the holder of a taxi-driver authority.

17 Grounds of appeal. In relation to the findings and conclusions about whether he is of good repute and a fit and proper person to be the holder of a taxi driver authority, Mr Kamara submitted that the Tribunal made two errors of law and two errors of fact. Mr Kamara’s first ground was that the use of the word “may” in 33F means that the Director-General has a discretion to cancel a taxi driver authority. He went on to refer to the meaning of “may” and “shall” in s 9 of the Interpretation Act 1987:

(1) In any Act or instrument, the word may, if used to confer a power, indicates that the power may be exercised or not, at discretion.

(2) In any Act or instrument, the word shall, if used to impose a duty, indicates that the duty must be performed.

18 We accept Mr Kamara’s submission that s 33F gives the Director-General a discretion to cancel a taxi driver authority. We do not accept his submission that the Tribunal decided the case on the basis that it was mandatory for the Tribunal to cancel his taxi driver authority. The Tribunal’s reasons, and in particular paragraph [67] quoted above, make it abundantly clear that the Tribunal was aware that cancellation of a driver authority is a discretionary matter.

19 The second error of law Mr Kamara said the Tribunal made was that it misinterpreted the expression “good repute”. The Tribunal set out its understanding of that term at paragraphs [55] to [57]. Mr Kamara cited R v Ryan 206 CLR 267. That was a case where the High Court (McHugh, Kirby and Callinan JJ (Gummow and Hayne JJ dissenting) decided that when sentencing a priest who had been convicted of a number of sexual offences against young boys, the court should give some leniency because of good character. We are unable to see the relevance of this decision about sentencing principles in criminal matters to any issue in dispute in the present case. Mr Kamara also said that the fact that a person has a traffic record does not mean that they are not a fit and proper person to hold a taxi-driver authority. Mr Wozniak pointed to the decision of Saadieh v Director General Department of Transport [1999] NSWADT 68 at [17] which is contrary to that proposition. The Tribunal made no error of law in relation to its interpretation or application of the phrases “good repute” or “fit and proper person”.

20 Mr Kamara submitted that the Tribunal had made the following errors of fact:

In relation to the Tribunal’s finding that he drove a taxi on numerous occasions during the period 23 March 2004 and 23 July 2004 despite not having a driver’s licence, Mr Kamara says he has evidence to the contrary. Firstly, a taxi sign-on report printed by John Viglone of Taxis Combined dated 2/7/03 to 17/8/03 shows no log-on records for Mr Kamara. He says this indicates that he is an occasional driver and sometimes does not drive for up to a year or more. He also said that the signature on the alleged work-sheets is fake.

The Tribunal said that Mr Kamara had committed numerous traffic offences on 25 April 2004. In fact those offences were committed on 2 September 2003.

21 We will deal with these matters when we consider whether to extend the appeal to the merits of the Tribunal’s decision.

Procedural fairness

22 Procedural background. The remainder of Mr Kamara’s grounds of appeal relate to procedural fairness issues. Before setting out those grounds, we pause to outline the procedural background to the hearing before the Tribunal on 17 December 2004. That background is summarised at [5] to [10] and [62] of the Tribunal’s reasons:

5. The re-hearing of the matter was set down for 1 September 2004. On this date, Mr Wozniak, who appeared on behalf of the Director-General, informed the Tribunal that there were additional factual matters, which the Director-General would be relying on at the re-hearing. These additional matters being charges for offences, committed by the applicant, of driving a taxi-cab while he was disqualified from holding a driver’s licence. In this regard, the Ministry of Transport had issued Court Attendance Notices on 20 August 2004 alleging numerous offences under ss.25(1)(a) and (3)(a) of the Road Transport (Driver Licensing) Act 1998 and s.33(2) of the Passenger Transport Act . A copy of these Court Attendance notices were mailed to the applicant under the cover of a letter dated 27 August 2004.

6. In light of these additional matters, and at the request of the Director-General, the Tribunal adjourned the hearing of the matter to 17 December 2004. The applicant said this was the earliest date suitable to him as he had university exams. On 1 September 2004, directions were made for the filing of written submissions. In particular, written submissions by the Director-General that set out the grounds that were to be relied on at the re-hearing and identified the material, which supported those grounds.

7. On 23 November 2004, the applicant sent a request, by facsimile, that the Tribunal and the Ministry of Transport produce certain documents. The Registry of the Tribunal responded, in writing, on 25 November 2004 by providing the applicant with pro forma forms of summons, Practice Note 7 and the Administrative Decisions Tribunal (General) Regulation 2004. The Registry sent a more detailed reply to the applicant’s request on 1 December 2004.

8. On Friday 10 December 2004, at 5.52pm, the applicant sent by facsimile, to the Tribunal, a written request for the adjournment of the hearing from 17 December 2004 to 24 December 2004. Attached to the applicant’s request for an adjournment was a summary of his submissions, which were to have been filed on 30 November 2004. The basis of the request for an adjournment was that the transcript of the hearing before the Appeal Panel, on 12 July 2004, would not be available prior to the hearing. The Tribunal had made a request for a copy of the transcript for this particular day, following the applicant’s request on 23 November 2004 and it was anticipated that it would be available at the hearing of the matter. The Tribunal refused the adjournment application and the applicant was advised, in writing, of this decision on 13 December 2004.

9. On 16 December 2004, the applicant telephoned the Registry and stated that he would participate in the hearing on 17 December 2004 by telephone. In accordance with his request, at the commencement of the hearing, the applicant was contacted by telephone. From the commencement of the hearing the applicant’s participation was very disruptive and after a relatively short period of time he hung up his mobile phone. Registry contacted the applicant and asked if he wished to continue to participate in the hearing of his application. The applicant responded in the affirmative and the Tribunal telephoned him again. While the applicant confirmed that he wished to participate further in the hearing his participation became even more disruptive. He spoke continuously and when he failed to respond to a request that he participate in an orderly manner, I formed the view that the applicant had demonstrated an on going unwillingness to participate in the hearing in an acceptable and orderly way and that his conduct was of no assistance to the Tribunal. Accordingly, the applicant’s participation by telephone was dispensed with and the Tribunal continued to hear the matter, without the applicant’s participation. It was noted that the applicant was familiar with the procedures of the Tribunal and that he had been provided with the Ministry’s file relating to his driver authority, which was relied on by the Director-General in making his original decision, well before the re-hearing date. It is also noted that the Director-General provided the applicant with the additional material well before the re-hearing, that the applicant returned this material and insisted that Mr Wozniak, who acted for the Director-General, was not to send any material to him.

10. At the conclusion of the hearing, the Tribunal reserved its decision and gave the applicant an opportunity to file and serve any additional submissions he wished to make on or before 28 January 2004. These directions were conveyed to the applicant, in writing, on the same day. On 7 January 2005, the applicant filed additional submissions with the Tribunal.

. . .

62. In his written submissions the applicant contends that he has not had the opportunity to be heard in respect of the complaint made by Ms Jordan. As I have already noted, the applicant has had the material on which the Director-General relied and which sets out the nature of the allegation for some considerable time and the re-hearing was his opportunity to be heard in regard thereto. However, he chose not to avail himself of that opportunity.

23 Appeal Panel’s findings. These excerpts from the Reasons for Decision, together with the transcript satisfy us that the following events occurred:

(a) The hearing date was set for a date approximately two months in advance to accommodate Mr Kamara’s university examinations.

(b) One week before the hearing Mr Kamara sought an adjournment of the hearing date which was refused.

(c) The day before the hearing Mr Kamara contacted the Tribunal registry and agreed to participate in the hearing by phone.

(d) At the hearing, Mr Kamara was contacted by phone to participate.

(e) During the hearing Mr Kamara interrupted the Tribunal and after a relatively short time he hung up the phone.

(f) The Tribunal rang back shortly afterwards and Mr Kamara agreed to be reconnected but said that he was not willing to participate and requested that the matter be adjourned. The Tribunal Member reminded him that she had said on numerous occasions that she was not adjourning the hearing. Mr Kamara continued to insist on an adjournment and persistently interrupted. The Tribunal Member asked him whether he was going to participate in the hearing. Mr Kamara replied that he didn’t have materials that he needed. The Tribunal Member then said that she would cut off the phone and reminded him that she had given him the number to call if he wanted to participate.

(g) The hearing proceeded and Ms Jordan, a witness who was a passenger in a taxi allegedly driven by Mr Kamara, gave evidence by phone. Mr Wozniak then made final submissions.

(h) At the end of the hearing the decision was reserved and Mr Kamara was given an opportunity to file and serve any further submissions.

24 Non-compliance with procedural fairness by Director-General. Mr Kamara submitted that the Director-General or his delegate, had not complied with the rules of procedural fairness when deciding to cancel his taxi driver authority. He mentioned that they had not interviewed him about one of the allegations relied on when making the decision to cancel his taxi driver authority.

25 Appeal Panel’s conclusions. In general, the Tribunal’s role is to review the merits of the administrator’s decision, not the process by which he or she came to that decision. Defects in the process by which the Director-General came to his decision do not necessarily lead to the conclusion that the decision should be set aside. The Tribunal “stands in the shoes” of the administrator and makes the decision again. Consequently, we do not intend to examine the issue of whether or not the Director-General denied Mr Kamara procedural fairness when coming to the decision to cancel his authority. The relevant issue is whether the Tribunal denied him procedural fairness.

26 Mr Kamara’s grounds of appeal in relation to procedural fairness. Mr Kamara submitted that the Tribunal had denied him procedural fairness in the following ways:

(i) The Tribunal took into account a new allegation that he had made a false declaration in an application for a taxi driver authority in 1999, and he was not aware of the allegation.

(ii) The Tribunal proceeded to conduct the hearing despite the fact that Mr Kamara had not received any submissions from the Director-General, any documents he requested under summons from the Director-General or a copy of the transcript of the first Appeal Panel proceedings.

(iii) The Director-General did not comply with summons for two female passengers to attend and give evidence.

27 The issue also arises as to whether the Tribunal denied Mr Kamara procedural fairness by hanging up the phone which meant that he did not hear the evidence that Ms Jordan gave by phone or Mr Wozniak’s final submissions. Although Mr Kamara did not articulate this as a ground of appeal, it deserves consideration. Before considering each of these grounds, we set out below the general principles of procedural fairness to be applied in Tribunal proceedings.

28 Principles of procedural fairness. Section 73(2) of the ADT Act obliges the Tribunal to comply with the rules of natural justice, otherwise known as procedural fairness. The rules of natural justice are found in the common law, that is, in cases dealing with those issues. The main principles which can be derived from those cases which are relevant to these proceedings are set out below.

29 When an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit:

“…he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it …” Kioa v West (1985) 159 CLR 550 per Mason J at 582.

30 What is appropriate will depend on the circumstance of the case. Considerations include the nature of the inquiry, the subject-matter of the hearing and the rules under which the decision maker is acting: Kioa v West (1985) 159 CLR 550 per Mason J at 582.

31 The “right to be heard”, which is one element of procedural fairness, was summarised by McClellan J in Hall v University of New South Wales [2003] NSWSC 669 at [68], as including a reasonable opportunity to make submissions, give evidence and call witnesses in support as well as being given notice of various matters such as the time, date and place of the hearing, the case to be answered and an adequate time to prepare submissions and gather evidence. His Honour also noted that it entails disclosure of material to be relied upon by the decision-maker, particularly disclosure of any adverse conclusion not obviously open from the known material.

32 However, the right is not an absolute one and the rules of natural justice will at times be satisfied once a “reasonable opportunity” to meet the case has been afforded. In Russell v Duke of Norfolk [1949] 1 All ER 109 at 118 the English Court of Appeal found that a race horse trainer had had such a “reasonable opportunity” (and his appeal was dismissed) where:

Throughout this inquiry, he was, at every stage, it seems to me, given the opportunity of presenting his case and of asking questions which he desired to ask. It is true that he was not in terms asked: ‘have you got any witnesses? Do you want an adjournment?

33 Similarly, in Applicant A194 of 2003 v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 292 at [26], the Federal Court found there was no breach of procedural fairness where a female asylum-seeker from India was provided with a “reasonable opportunity” to present certain aspects of her case but declined to do so. In that case the applicant did not give evidence to the Refugee Review Tribunal through a male interpreter on certain sensitive issues, and, although presenting some of the arguments in subsequent written submissions, did not take up an opportunity to return before the Tribunal with a female interpreter.

34 Again, in S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 451 at [23] and [26], Madgwick J found there could be no claim to a breach of natural justice where an asylum-seeker indicated to the Refugee Review Tribunal that he did not wish to give oral evidence but would like the Tribunal to make a decision “on the papers”. In Mond and Anor v Berger and Others [2004] VSC 534 at 565 the Victorian Supreme Court held that for the purposes of the Commercial Arbitration Act 1984 (Vic) the rules of natural justice required only that the “opportunity” to cross-examine witnesses was afforded and did not go so far as to prevent an award being made where that opportunity was not taken up. In that case, a witness left the country mid-way through questioning in a tribunal hearing and the plaintiffs declined to use other methods such as a video link-up to undertake cross-examination.

35 In Australia, to be successful, any claim of procedural unfairness must arise as a result of the decision-maker’s actions. After reviewing the authorities, the Federal Court (Kiefel, Marshall and Downes JJ) in Freeman v Health Insurance Commission [2004] FCAFC 335 concluded at [52] that:

In the context of administrative decision-making there would not appear to be support in Australia for the view that problems which arise in the conduct of the case of the person to be the subject of the decision, through their mistaken view or that of their legal advisers, could amount to procedural unfairness.

36 As well as the common law rules of procedural fairness, s 72(4) of the ADT Act requires the Tribunal to “take such measures as are reasonably practicable”:

(a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and

(b) if requested to do so—to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and

(c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.

37 The decision was based on a new allegation. Mr Kamara submitted that the Tribunal made its decision on the basis of a new allegation against him, which he was not aware of at the time. That allegation was that he made a false declaration in 1999 when lodging his application for a taxi driver authority. Mr Kamara was given a copy of the declaration as part of the Director-General’s file, but he returned those documents to Mr Wozniak. The Tribunal dealt with this issue at [22] to [26] and concluded that there was insufficient evidence to make a finding that Mr Kamara knowingly made a false declaration on a driver authority application form in 1999. The Tribunal added that, “On this basis together with the fact that the declaration was made almost 6 years ago, I find that this allegation of improper conduct is of limited relevance to this application.” In coming to its conclusion at [67], the Tribunal did not include any consideration of the allegation in relation to the 1999 declaration. Mr Kamara is not correct when he says that the Tribunal’s decision was based on a new allegation that he was not aware of.

38 Failure to receive submissions, documents and transcript. Mr Kamara submitted that the Tribunal should have granted him an adjournment because he had not received any submissions from the Director-General, any documents from the Director-General pursuant to a summons or the transcript of the Appeal Panel’s hearing on 12 July 2004.

39 Submissions from the Director-General. The Ministry of Transport filed submissions dated 9 September 2005. Mr Kamara told the Tribunal that he had not received those submissions. Mr Wozniak confirmed that the submissions had been forwarded to Mr Kamara and made the comment that:

... most documents sent to Mr Kamara were returned with a threat that he would seek an injunction against me if I continued to send him material, nevertheless I continued to send it and it keeps coming back. I’ve got his original file here that’s come back as well.

40 Mr Kamara replied that:

I received all the materials he sent to me, that’s right, and I gave him the warning letter, he’s correct on that, but nevertheless he has continued to send the materials and I received them but if he talks about any submission on September, that’s a fabrication, lie, you see. He never responds to any submission.

41 The Tribunal did not make a specific finding as to whether or not Mr Kamara had received the submissions dated 9 September 2004 from the Ministry of Transport. We are satisfied on the basis of the material in the transcript and the evidence before the Tribunal that the Director-General served those submissions on Mr Kamara by letter of 17 September 2004. Section 138(1)(a)(ii) of the ADT Act states that service may be effected by sending a document “by pre-paid post to, the residential or business address of the person last known to the person serving the document.” Mr Kamara also sent material back to Mr Wozniak with threatening letters. On the basis of Mr Wozniak’s documentary evidence we find that he sent the documents to Mr Kamara. Consequently, there has been no breach of procedural fairness since Mr Kamara was aware of the case to be answered.

42 Summons for documents. Mr Kamara requested several categories of documents to be produced under summons. The Tribunal sets out the background to the summons issue at [7] of its Reasons for Decision:

On 23 November 2004, the applicant sent a request, by facsimile, that the Tribunal and the Ministry of Transport produce certain documents. The Registry of the Tribunal responded, in writing, on 25 November 2004 by providing the applicant with pro forma forms of summons, Practice Note 7 and the Administrative Decisions Tribunal (General) Regulation 2004. The Registry sent a more detailed reply to the applicant’s request on 1 December 2004.

43 It is apparent from the material on the file that three summons addressed to the Ministry of Transport were issued on 16 December 2004, the day before the hearing. The first summons was for “the sworn testimony of the first female complainant on or before July and September 2002 and the second complainant of the eftpos transaction of 1 or 7 April 2003.” The second summons was to produce “a receipt of the 1st or 7th April 2003 of an eftpos transaction from Taxis Combined Services that lead to the second complaint.” The third summons was for “a list of all suspended and cancelled drivers in the last four of five years.” Mr Wozniak responded that his client does not hold any such documents. Consequently, there has been no denial of procedural fairness in relation to these summonses.

44 Failure to comply with summons that two female passengers attend and give evidence. The Director-General only relied on the evidence of one of the female passengers, Ms Jordan, so the fact that the other woman did not attend and give evidence does not constitute a breach of procedural fairness. The Director-General issued a summons to Ms Jordan to attend and give evidence on 17 December 2004. It was agreed that Ms Jordan be permitted to give evidence by phone. Given that Ms Jordan gave oral evidence to the Tribunal, there is no failure to comply with the summons issued by the Director-General and no denial of procedural fairness to Mr Kamara in relation to any summons issue.

45 Transcript of Appeal Panel hearing. Mr Kamara requested the transcript of the first Tribunal hearing on 12 March 2004 and the Appeal Panel hearing on 12 July 2004. The transcript of the first Tribunal hearing was sent to him under cover of a letter dated 1 December 2004. The transcript of 12 July 2004 was sent on 16 December 2004, the day before the hearing. Of course, Mr Kamara had the Appeal Panel’s reasons for decision shortly after they were handed down on 23 July 2004. Mr Kamara had a reasonable opportunity to make submissions in response to the material in the transcripts because the Tribunal directed that he be given until 28 January 2005 to make any further submissions in writing. There has been no denial of procedural fairness because Mr Kamara had adequate time to prepare submissions in response to the material in the transcripts.

46 Disconnecting the phone. This was not a ground of appeal that Mr Kamara raised, nevertheless, we have decided to address it. It is unorthodox for a Tribunal Member to deliberately disconnect the phone during the course of a hearing where one of the parties is participating by phone. As we have said, after the phone was disconnected, the Tribunal went on to hear evidence from Ms Jordan about Mr Kamara’s conduct. Mr Kamara did not hear that evidence, nor did he have an opportunity to question her. The issue is whether or not, in all the circumstances, the Tribunal took such measures as are reasonably practicable to ensure that Mr Kamara had the fullest opportunity to be heard or otherwise have his submissions considered: s 73(4)(c). The right to be heard is not an unqualified right. The Tribunal must give parties a reasonable opportunity to understand the case to be answered and “the fullest opportunity practicable” to be heard.

47 Mr Kamara was aware of the hearing date but chose to attend by phone rather than in person. His application for an adjournment had been formally refused prior to the hearing, yet he continued to press that application during the hearing. He hung up the phone at one stage early in the hearing and the Tribunal made the effort to telephone him again to see if he wanted to continue to participate. He made it clear that he was not willing to participate both by the words he used and by the fact that he repeatedly chose to speak at the same time as the Tribunal Member and insisted that an adjournment be granted. While it was the Tribunal Member who eventually disconnected the phone, Mr Kamara had the Tribunal’s phone number and could have rung back if he decided to participate in the hearing. Furthermore, he was given an opportunity to make written submissions after the hearing. Given all these circumstances, we are satisfied that the Tribunal took such measures as are reasonably practicable to ensure that Mr Kamara had the fullest opportunity practicable to be heard or otherwise have his submissions considered. The Tribunal also gave Mr Kamara a reasonable opportunity to understand the case he needed to answer. The fact that Mr Kamara did not avail himself of that opportunity to the fullest extent possible, is not the fault of the Tribunal. The Tribunal did not breach either s 73 of the ADT Act or the common law rules of procedural fairness.

Extension to the merits

48 The Appeal Panel may grant leave to extend the appeal to the merits of the Tribunal’s decision. Mr Kamara pointed to several findings of fact which he says were incorrect. We have reviewed each of those matters. In each case, the Tribunal’s findings were based on logically probative evidence. Nothing Mr Kamara has submitted has persuaded us that we should re-visit those findings. Consequently leave to extend the appeal to the merits of the Tribunal’s decision is refused.

Orders

The Tribunal’s decision is affirmed.

The appeal is dismissed.