Kamara v Ministry of Transport (GD)

[2004] NSWADTAP 31

Appeal Panel - Internal

CITATION:	Kamara v Ministry of Transport (GD) [2004] NSWADTAP 31
PARTIES:	APPELLANT Moses Kamara RESPONDENT Ministry of Transport
FILE NUMBER:	049021
HEARING DATES:	12/07/2004
SUBMISSIONS CLOSED:	07/12/2004
DATE OF DECISION:	07/23/2004
DECISION UNDER APPEAL:	Kamara v Ministry of Transport
BEFORE:	Hennessy N - Magistrate (Deputy President); Rice S - Judicial Member; Blake C - Non Judicial Member
CATCHWORDS:	procedural fairness - statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	033323
DATE OF DECISION UNDER APPEAL:	03/12/2004
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Passenger Transport (Taxi-Cab Services) Regulation 2001 Passenger Transport Act 1990
CASES CITED:	Hopkins v Smethwick Board of Health (1890) 24 QBD 712
REPRESENTATION:	APPELLANT In person RESPONDENT D Jordan, barrister
ORDERS:	The Tribunal's decision is set aside; The matter is remitted to the Tribunal as originally constituted to be heard and decided again in accordance with these reasons

Introduction

1 The appellant, Mr Moses Kamara, has appealed against a decision of the Tribunal made on 12 March 2004. The decision, made in Mr Kamara’s absence, was to affirm the respondent’s decision to cancel his authority to drive a taxi cab. The sole basis for the Tribunal’s decision was that since Mr Kamara was disqualified from driving, he did not satisfy the “mandatory criterion” of having a driver’s licence. Mr Kamara told the Appeal Panel that following the period of disqualification, his driver’s licence had been reinstated.

2 Section 113 of the Administrative Decisions Tribunal Act 1997 (ADT Act) gives the Appeal Panel power to determine this appeal. That provision states that:

(1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel.

(2) An appeal:

(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.

3 Mr Kamara appealed on the ground that there was a breach of procedural fairness because the Tribunal did not confirm with him the date, time and location of the hearing. This is a question of law which we deal with briefly below. Having read the transcript of the reasons for decision, we also consider that another question of law arises from the decision. That question is whether the Tribunal correctly applied the relevant statutory provisions when coming to the conclusion that the cancellation decision was correct. At the beginning of the hearing we invited the appellant to amend the Notice of Appeal to include this ground of appeal. The respondent did not object to that course and came to the hearing apparently prepared to address such an argument.

4 The appellant also applied in the Notice of Appeal for leave to have the appeal extended to a review of the merits of the Tribunal’s decision. We have declined to extend the appeal to the merits.

Procedural fairness

5 Mr Kamara said that he had written in his diary that the matter was listed for hearing on 23 March 2004. He said he recalled that at the Directions Hearing on 9 December 2004 that 12 March had been mentioned as a possible date for hearing but he was adamant that the Tribunal had set down the hearing for 23 March. Mr Kamara said that he had never been notified in writing of the hearing date.

6 The transcript of the directions hearing on 9 December reveals that the matter was set down for hearing on 12 March 2004. Mr Kamara was present at that time and was advised of the time and date of the hearing in unequivocal terms. (See transcript at p 4.) On the following day, 10 December, Mr Kamara applied for a stay of the decision which was refused. At the end of that hearing, the Tribunal Member inquired as to whether the matter had been set down for hearing. Mr Kamara himself volunteered the information that the matter was set down for hearing on 12 March. (See transcript at p 9.) On 18 December 2003 Mr Kamara applied again for a stay of the decision. That application was granted. The Tribunal Member on that occasion inquired as to when the matter was set down for hearing. Mr Wozniak, representing the respondent, confirmed that the hearing date was 12 March. (See transcript at p 10.) Mr Kamara submitted to us that the transcripts contain a typographical error when they refer to 23 March 2004.

7 Despite the existence of a file note from a staff member of the Tribunal, Mr Kamara denies that he rang the Tribunal at 1.40 on 12 March to find out when his case was listed for hearing. The note states that:

Mr Kamara rang at 1.40 pm on 12 March 2004 to find out when his case was listed for hearing. I advised him it was heard this morning at 10 am to which he claimed to have a notice from the ADT with the hearing date listed for 23 March 2004. I have checked the file and there is no letter advising of the hearing date as he was present at the directions hearing when the matter was listed for 12 March 2004.

8 We agree with the submission of Mr Jordan for the respondent that this file note suggests that Mr Kamara claimed that he had a letter from the Tribunal advising him of a later date when he realised that he had missed the hearing. Mr Kamara did not produce to us any letter advising him that the hearing date was 23 March 2004.

9 Mr Kamara pointed out that the respondent had issued a summons to produce documents returnable for 12 March. Although Mr Kamara was under the impression that the summons was directed to him, it was in fact addressed to the Fairfield Local Court and requested the proper officer to produce certain documents relating to Mr Kamara. The respondent had sent a copy of the summons and a covering letter to Mr Kamara for his information. Mr Kamara said that he was under the impression that the note on that summons, saying that no attendance at the Tribunal was required, led him to believe that he did not have to appear on 12 March 2004.

10 We find that Mr Kamara was advised explicitly on 9 December 2004 that the hearing was on 12 March 2004 at 10 am. He volunteered on 10 December that he was aware that that was the date for hearing, and he was again reminded of the hearing date on 18 December. We reject his submissions that he was advised that the hearing date was 23 March 2004, and that the transcripts contain a typographical error.

11 Under s 73(2) of the ADT Act, the Tribunal is bound by the rules of procedural fairness. One aspect of those rules is the “hearing rule” which requires, in part, that parties be given reasonable notice of the time, date and location of the hearing. (Hopkins v Smethwick Board of Health (1890) 24 QBD 712 at 715.) It is the case that the Tribunal did not, in addition to confirming the date with Mr Kamara in person on three occasions, provide him with written notice of that date. In the circumstances of this case, where the appellant attended in person before the Tribunal at a directions hearing, there is no need for written notice to be given.

12 Mr Kamara was advised of the time and date of the hearing on 9 December 2003. The date was repeated on 10 December and 18 December. Although the location was not specified, there could have been no doubt that the hearing would take place at the Tribunal’s premises. He does not say that he attended at another place on that date. The Tribunal has fulfilled its responsibility of giving Mr Kamara adequate notice of the hearing and this ground of appeal fails.

Misapplication of statutory provisions

13 The power to cancel an authority comes from s 33B of the Passenger Transport Act 1990. That sections 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.

14 Section 33(3) sets out the purpose of an authority:

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 Despite the fact that the respondent’s decision was based on a finding that Mr Kamara was not a fit and proper person to hold an authority, Mr Wozniak did not rely on that ground in the proceedings before the Tribunal. Instead, Mr Wozniak submitted only that because Mr Kamara cannot satisfy the “mandatory criterion” of having a driver’s licence, the cancellation decision is correct. Mr Wozniak referred the Tribunal to Clause 33(2)(b) of the Passenger Transport (Taxi-Cab Services) Regulation 2001 (the Regulation) which states that before an application for authorisation to drive taxi-cabs is granted, the applicant “must hold a driver licence.” The Tribunal was ultimately persuaded by submissions that there was a Tribunal case directly on point and a regulation stating that if a person does not have a driver’s licence their authority has no effect. Despite Mr Wozniak’s submissions, neither Mr Jordan nor the members of the Appeal Panel could find a Tribunal decision directly on point or a regulation to the effect of that stated by Mr Wozniak.

16 Mr Jordan conceded that Clause 33(2)(b) relates to the granting of an application for an authority to drive a taxi cab and that there is no express provision empowering the respondent to cancel an authority if a person loses or relinquishes his or her driver’s licence for any reason. Mr Jordan argued that the basis for the Tribunal’s decision was that, pursuant to s 33B, having regard to the purpose of an authority, Mr Kamara’s authority should be cancelled. The purpose of an authority is relevantly set out in s 33(3)(b). Mr Jordan submitted that that provision empowers the respondent to cancel an authority in circumstances where the person concerned no longer holds a driver’s licence because in those circumstances they cannot be “considered to have sufficient . . . aptitude to drive a taxi . . . in accordance with law”. Mr Jordan appeared to be equating aptitude with the ability to lawfully drive a taxi. According to Mr Jordan, the Tribunal’s conclusion was consistent with this construction of the statute and so the decision should not be disturbed.

17 Aptitude and responsibility are measures of a person’s suitability to drive a taxi. Suitability to drive a taxi is a different test from the objective criteria set out in Clause 33(3). Those criteria, including the holding of a driver’s licence, are minimum statutory requirements which must be fulfilled in order to drive a taxi lawfully and safely. Aptitude and responsibility are value judgements that must be made on the basis of a person’s conduct and experience. If a person does not have a driver’s licence, they cannot lawfully drive a taxi, but that does not necessarily mean that they lack the aptitude or responsibility to do so. The circumstances which have led to the disqualification of a person from driving may be relevant to an assessment of that person’s suitability to retain an authority to drive a taxi cab, but the disqualification of itself does not necessarily reflect adversely on a person’s suitability to drive a taxi. In this case the Tribunal did not explore the circumstances that led to the disqualification of Mr Kamara as a driver. Instead it accepted Mr Wozniak’s submission that cancellation was mandatory since Mr Kamara did not have a current driver’s licence. That conclusion is not correct. There is no such mandatory provision. In our view, the Tribunal made an error of law in concluding that cancellation was mandatory rather than examining the circumstances and determining whether the respondent could attest that Mr Kamara met the requirements in s 33(3).

18 In those circumstances we set aside the decision of the Tribunal and remit the matter to be heard and decided again. It is not appropriate for the Appeal Panel to determine the merits of the case because no evidence has yet been led in relation to Mr Kamara’s suitability to drive a taxi cab.

Application for suppression order

19 Following the hearing, Mr Kamara delivered a letter to the Tribunal requesting that his name be anonymised for reasons including that his “reputation will be shattered” if his name is published and because he is fearful that his colleagues will use the decision as a “weapon” against him. While the Tribunal has power to make suppression orders pursuant to s 75 of the ADT Act, there is no persuasive reason to do so in this case and we decline Mr Kamara’s request.

Order

The Tribunal’s decision is set aside.

The matter is remitted to the Tribunal as originally constituted to be heard and decided again in accordance with these reasons.