Kornits v Ministry of Transport (GD)

[2007] NSWADTAP 48

Appeal Panel - Internal

CITATION:	Kornits v Ministry of Transport (GD) [2007] NSWADTAP 48
PARTIES:	APPELLANT Josef Kornits RESPONDENT Ministry of Transport
FILE NUMBER:	079005
HEARING DATES:	8 May 2007
SUBMISSIONS CLOSED:	8 May 2007
DATE OF DECISION:	6 September 2007
BEFORE:	Hennessy N - Magistrate (Deputy President); Fitzgerald K - Judicial Member; O'Neill A - Non Judicial Member
CATCHWORDS:	Taxi driver authority - appeal against cancellation - procedural fairness - relevant considerations - Passenger Transport Act
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	063326
DATE OF DECISION UNDER APPEAL:	01/18/2007
LEGISLATION CITED:	Administrative Appeals Tribunal Act 1975 (Cth) Administrative Decisions Tribunal Act 1997
CASES CITED:	Azar v Director General Department of Transport [2001] NSWADT 219 House v The King (1936) 55 CLR 499 Humane Society International Inc v National Parks & Wildlife Service and Ors [2000] NSWADT 133 Kent v Ministry of Transport [2007] NSWADT 37 Lal v Director General, Department of Transport [2001] NSWADT 74 Loye v Director General, Department of Transport [2000] NSWADT 145 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 C L R 25 Powell v DIMA (1998) 53 ALD 228 Re Western Australian International Education Marketing Group (Inc) and Australian Trade Commission (2003) 77 ALD 192
REPRESENTATION:	APPELLANT J Shaw, solicitor RESPONDENT A Wozniak, solicitor
ORDERS:	Leave is refused for the appeal to extend t the merits of the Tribunal's decision; The appeal is dismissed

Introduction

1 Mr Kornits, who was a taxi driver, has appealed to the Appeal Panel against a decision of the Tribunal cancelling his taxi driver authority. He has appealed on questions of law and has also requested leave for the appeal to be extended to the merits of the Tribunal’s decision: Administrative Decisions Tribunal Act 1997 (ADT Act), s 113.

2 The history of this matter, which is not disputed, is set out at [20] and [21] of the Tribunal’s reasons for decision:

19. Based on the material on the respondent’s file, I find that on 25 February 2002 Taxis Combined Services requested a review of the applicant’s fitness to hold a Driver Authority. The schedule of the history of complaints shows a total of 49 customer related and network complaints from November 1992 to February 2002. The customer related complaints relate to a variety of matters, including overcharging, rudeness, and failure to carry out a hire. The respondent directed the applicant to undergo retraining in Module 3 (Rules & Regulations) and Module 4 (Customer Care). On 30 April 2002 the applicant was assessed as competent in these modules. On 13 March 2003 the applicant was convicted of two matters of Fail to Complete Worksheet in contravention of clause 38(1) of the Passenger Transport (Taxi-cab Services) Regulation 2001. On 31 January 2006 the respondent issued a Notice to Show Cause, on the basis of the conviction and 11 further complaints during the period July 2003 to August 2005 relating to a variety of matters, including demanding more than the prescribed fare, failure to complete hiring, and road rage. The applicant responded, contesting the allegations. On 23 March 2006 the applicant was directed to complete Module 2 (Rules & Regulations) of the Taxicare Plus Bronze Level. The applicant completed this certificate on 27 April 2006. On 3 May 2006 the respondent wrote to the applicant, stating:
…I must inform you that should any further matters come to the attention of the Ministry, action may be taken against your authority to drive a public passenger vehicle.
20. The respondent’s file shows that two complaints were received after this warning letter, a complaint dated 10 May 2006 for demanding more than the prescribed fare, and complaint dated 13 May 2006 for demanding more than the prescribed fare and not using the meter. A further complaint dated 6 April 2006, for demanding more than the prescribed fare, was also recorded.

3 On 21 July 2006, the Ministry’s delegate wrote to Mr Kornits requesting that he “show cause” as to why his authority should not be cancelled. By letter of 3 August 2006 Mr Kornits responded. On 28 August 2006, the Minister’s delegate informed Mr Kornits that his driver authority had been cancelled. The Ministry’s power to cancel comes from s 33F of the Passenger Transport Act 1990 which 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.

4 The purpose of authorisation is set out in s 33(3) of the Passenger Transport Act 1990:

(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.

5 The Ministry considered that Mr Kornits was not of good repute and not a fit and proper person to be the driver of a taxi cab given that he had had been the subject of further similar complaints since completing the re-training. The Ministry also said that given Mr Kornits’ complaint history he does not possess the level of responsibility and aptitude required to be the holder of a taxi authority. Mr Kornits requested an internal review which affirmed the original decision. He then applied to the Tribunal for an external review of the Ministry’s decision.

The hearing and the Tribunal’s decision

6 Evidence and submissions of Ministry. Mr Wozniak, representing the Ministry, went through the Ministry’s file highlighting the number and types of complaint that had been made against Mr Kornits, the re-training that Mr Kornits had undertaken and the warning he was given. Mr Wozniak then compared the nature and frequency of the complaints against Mr Kornits with the nature and frequency of complaints against other taxi drivers whose authorities had been cancelled.

7 Evidence and submissions of Mr Kornits. At the Tribunal hearing, Mr Kornits was represented by a solicitor, Ms Gounder. She began her submissions by saying that “No where was I told to comment on the whole file. So, if you think that I should comment on the whole file and whatever Mr Wozniak has said today, then I need time for that, because I didn’t prepare it that way.” The Tribunal Member responded by saying that given the terms of the “show cause” letter, she would have thought Mr Kornits was on notice that it was the “accumulation of the complaints, the opportunity to do the retraining and then the continued complaints” that form the basis of the case against Mr Kornits. Ms Gounder made her submissions but did not call Mr Kornits to give any evidence in relation to particular complaints. The Tribunal summarised the submissions made on behalf of Mr Kornits at [11]:

11. The applicant’s representative submitted that the applicant has been driving taxis for 20 years, and has committed $60,000 for the purchase of a maxi taxi. The applicant has provided references from people who appreciate his work and how he provides services. The three recent complaints arose from a misunderstanding, and the applicant had no intention of being dishonest. In responding to the Show Cause Notice and at the hearing the applicant’s representative stated that the applicant was prepared to have a period of probation.

8 The Tribunal Member then gave Ms Gounder some time to get further instructions from Mr Kornits.

9 Tribunal’s reasoning and decision. The Tribunal discussed the meaning of “good repute” and “fit and proper person” in s 33 of the Passenger Transport Act and set out its findings, reasoning and conclusion at [22]:

22. It is not clear from the respondent’s file when the applicant was first licensed to drive a taxi. However, the respondent did not dispute the applicant’s assertion that he has been driving taxis for 20 years. Since 1992 the applicant has had a significant number of complaints, made both by customers and by the network. Those complaints were sufficiently numerous, and serious, for the network to request a review of the applicant’s fitness in 2002. Since then, the applicant has been given the opportunity to undergo retraining on two occasions. He has continued to attract complaints from customers. The applicant’s representative argued that the recent complaints were not serious, and arose from a misunderstanding. The respondent relied on the history of complaints and the opportunities that have been provided for the applicant to refresh his understanding of the requirements. I am satisfied that the applicant has had ample opportunity to address any issues as to his understanding of the relevant requirements, and I cannot be satisfied that he is unlikely to be the subject of further complaints. There is no provision in the legislation for a period of probation to be imposed. While I accept that the respondent has derived his livelihood from driving taxis, and has entered into a financial commitment for the purchase of a maxi taxi, hardship to the applicant is not a matter that can be taken into account: Lal v Director General, Department of Transport [2001] NSWADT 74. I am satisfied that the applicant is not a fit and proper person to be the driver of a taxi-cab, and that the decision of the respondent to cancel his Driver Authority was the correct and preferable decision.

10 Breach of procedural fairness – no fair notice of the case. The first ground of appeal was that Mr Kornits had been denied procedural fairness because he did not have fair notice of the Ministry’s case. That submission was based on the fact that the Ministry did not file a reply to the application nor did it file written submissions prior to the hearing.

11 Appeal Panel’s reasoning and conclusion. Neither the ADT Act, nor any other legislative or procedural instrument, requires the administrator to file or serve a “reply” or any written submissions in response to the applicant’s material. Section 58 of the ADT Act requires the administrator to lodge a copy of any statement of reasons given to the applicant and a copy of every document that he or she considers to be relevant to the determination of the application by the Tribunal within 28 days of receiving notice of the application. In this case, the Tribunal directed the Ministry to file and serve its s 58 documents by 26 September 2006. Mr Kornits was directed to file and serve any statements or submissions in reply by 17 October 2006. The matter was then set down for hearing on 10 November.

12 The Tribunal’s role is to determine what the “correct and preferable decision is having regard to the material then before it”: ADT Act, s 63. That process is known as a “merits review” of the administrator’s decision. The rules of procedural fairness apply to proceedings in the Tribunal: ADT Act, s 73(2). Indeed, the Tribunal is obliged to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings: ADT Act, s 73(4)(c). In this case, the applicant had been served with the Ministry’s statement of reasons and the supporting documents pursuant to s 58. The statement of reasons set out the history of complaints against Mr Kornits and the opportunities he had been given for re-training. He had been the subject of 49 complaints and network breaches prior to 28 March 2002. Those matters were not itemised but it is clear from the statement of reasons that the existence of those complaints and breaches contributed to the Ministry’s ultimate decision to cancel Mr Kornits’ authority. Similarly, the statement of reasons referred to, but did not particularise, 13 further complaints that had been received since 30 April 2002. The only complaints particularised in the statement of reasons was one complaint made shortly before he completed a further course of re-training and two complaints received shortly after completing that course.

13 Despite the fact that most of the complaints and breaches were not particularised in the statement of reasons, Mr Kornits was on notice that the Ministry relied on the nature and seriousness of those complaints in coming to its decision. It is also apparent, on the basis of Ms Gounder’s comments during the hearing, that she was not aware that any reference would be made to the history of complaints against her client. She did not call Mr Kornits to give evidence and her submissions focused on his age, his financial situation, his driving record and positive character references rather than the history of complaints.

14 Despite Ms Gounder’s understanding of the case against her client, we are not persuaded that the Tribunal denied Mr Kornits procedural fairness. He was clearly on notice of the reasons his authority had been cancelled and had ample opportunity to address those reasons. While it is clear that Ms Gounder did not appreciate that her client’s entire complaint history would be taken into account by the Tribunal, the Tribunal allowed her a short adjournment to obtain instructions from her client on those matters. If Ms Gounder were of the view that she needed to obtain more detailed instructions, she could have requested a longer adjournment.

15 Reliance on material in Ministry’s file. At [21] of the decision (set out above at [9]), the Tribunal gave weight to material on the Ministry’s file. Mr Shaw, representing Mr Kornits in the appeal proceedings, submitted that although the Tribunal is not bound by the rules of evidence, it is not required to accept assertions in the Ministry’s file as conclusive evidence of those matters: Azar v Director General Department of Transport [2001] NSWADT 219 at [28]. Nor, he said, should the Tribunal have taken into account the 49 complaints against Mr Kornits that were made prior to him undergoing re-training for the first time. According to Mr Shaw, the Tribunal regarded these complaints as relevant when only 27 of the 49 were deemed to be justified and only 11 of those resulted in a warning or reprimand. Mr Shaw relied on the following passage from Kent v Ministry of Transport [2007] NSWADT 37 where the Tribunal said at [20] and [21], that:

20. We agree that it would be unfair to Mr Kent for the Tribunal to rely on complaints which are now over 10 years old, especially in circumstances where a decision was made not to cancel Mr Kent’s licence on the basis of those complaints. Nevertheless, it is relevant that the Department advised Mr Kent at that time that should he “come under further adverse notice for any criminal offence, or breaches of the legislation” his “authority will be suspended or cancelled.”

21. The Tribunal is left with the details of the allegations in the summary of the complaints and Mr Kent’s denial of, or failure to recollect, those events.

16 Mr Shaw also expressed this ground of appeal in another way saying that the Tribunal took into account an irrelevant consideration when it relied on the mere existence of complaints against Mr Kornits even though the Ministry had not made a negative finding in relation to some of those complaints.

17 Appeal Panel’s reasoning and conclusion. While we agree that the Tribunal is not required to make findings consistent with material in the Ministry’s file, it will not necessarily amount to an error of law if it does so. In this case the Tribunal did not make any findings of fact as to whether the complaints were justified. It noted that the history of complaints was sufficiently numerous and serious for Mr Kornits to come to the attention of the network and the Ministry. The Tribunal also noted that he had been given the opportunity to re-train on two occasions but continued to attract complaints as well as two convictions for failing to complete worksheets. Ultimately, the Tribunal was satisfied, on the basis of that evidence, that “. . . the applicant has had ample opportunity to address any issues as to his understanding of the relevant requirements, and I cannot be satisfied that he is unlikely to be the subject of further complaints.” Mr Kornits did not give evidence or make any submissions to contradict anything on the Ministry’s file. In that sense this case is distinguishable from the facts in Kent where Mr Kent denied or failed to recollect the relevant events.

18 Although traditionally a ground for judicial review, Mr Shaw’s alternative ground, that the Tribunal took into account an irrelevant consideration, may amount to an error of law. In House v The King (1936) 55 CLR 499 at 504-5) the High Court required an appeal body to consider whether it "appears" that "some error has been made in exercising the discretion":

If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed ...

19 The Ministry’s file detailing the complaints and breaches against Mr Kornits was in evidence. In determining Mr Kornits’ application, the Tribunal was bound to take into account the material then before it, including any relevant factual material: ADT Act, s 63(1)(a). It was not an error of law for the Tribunal to take that material into account.

20 Probationary period request. Ms Gounder submitted to the Tribunal that rather than cancelling his driver authority, Mr Kornits be put on probation for six months and that he undergo further training. The Tribunal’s response to that suggestion was that there is no provision in the legislation for a period of probation to be imposed. On appeal Mr Shaw submitted that the Tribunal had power to impose a period of probation pursuant to s 85 of the ADT Act, which allows it to make orders subject to conditions:

A power of the Tribunal to make an order or other decision includes a power to make the order or other decision subject to such conditions (including exemptions) as the Tribunal specifies when making the order or other decision.

21 Appeal Panel’s reasoning and conclusion. The Tribunal’s powers when conducting a merits review of an administrator’s decision are essentially to affirm, vary or set aside the decision: ADT Act, s 63(3). If the decision is varied or set aside, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision: ADT Act, s 63(2). The Passenger Transport Act 1990 does not give the Ministry the power to grant an authority on condition that the driver not infringe the Regulations or that he attend training. Applying the principles established in relation to comparable provisions in the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal does not have any greater powers than those of the administrator: Powell v DIMA (1998) 53 ALD 228 per French J at 229. If there is a constraint on the way in which the original decision maker is to make a decision, that constraint will also apply to a Tribunal conducting a merits review of that decision: Re Western Australian International Education Marketing Group (Inc) and Australian Trade Commission (2003) 77 ALD 192 at 202. It would undermine the nature and purpose of merits review to interpret s 85 as allowing the Tribunal to exercise functions when conducting a merits review which are unavailable to the administrator. (See Humane Society International Inc v National Parks & Wildlife Service and Ors [2000] NSWADT 133 for a similar view in relation to reviews of decisions under the Freedom of Information 1989.)

22 Hardship is relevant. Mr Shaw submitted that the Tribunal had erred when it said that financial hardship to the applicant is not a matter that can be taken into account. According to Mr Shaw, the statement to that effect in Lal v Director General, Department of Transport [2001] NSWADT 74 is wrong. He said that because the Tribunal is exercising a discretion and must make the “preferable” decision, hardship is a relevant factor. Finally, he submitted that the Tribunal’s role as set out in s 63 of the ADT Act, overrides the test relating to fitness, propriety and good repute in s 33 of the Passenger Transport Act.

23 Relevant provisions and issue. Section 33F of the Passenger Transport Act gives the Ministry power to cancel a person’s taxi 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.

24 As we have said, the purpose of an authorisation is set out in s 33(3). It is essentially “to attest”, among other things, to the person’s good repute and their fitness and propriety to be the driver of a taxi. The issue raised by this ground of appeal is whether it is an error of law, when exercising a discretion under s 33F, not to have regard to hardship.

25 Appeal Panel’s reasoning and conclusion. While the Appeal Panel is not exercising powers of judicial review of the Tribunal’s decision, the cases dealing with relevant/irrelevant considerations provide guidance as to whether the Tribunal has made an error of law in applying s 33F. The leading Australian case in this area is Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 C L R 25. Justice Mason summarised the important principles at p 39 and 40. So far as is relevant to this case, those principles are that:

(a) the ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision;

(b) if the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication the he is bound to do so is to be found in the subject-matter, scope and purpose of the Act;

(c) not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision;

(d) it is generally for the decision maker and not the court to determine the appropriate weight to be given to matters which are required to be taken into account in exercising statutory power.

26 Read in context, the phrase “having regard to the purpose of authorisation under this Division” obliges the Director General to take into account the purpose of an authorisation when deciding whether or not to vary, suspend or cancel a person’s authority. It is a matter that the Tribunal is bound to take into account and it would be an error of law for it to fail to do so. In our view, s 33 does not "require" the Tribunal to look at matters other than those matters that are relevant to fitness and propriety and reputation.

27 Even though the Tribunal said that hardship was irrelevant, it did not act on a wrong principle or fail to take into account a consideration it was bound to take into account. The focus of the legislation is on the public interest in ensuring that drivers are reputable and of good character. The Tribunal must be able to attest to the matters in s 33(3). In this case, the Tribunal could not attest to those matters. In those circumstances, even if it had taken into account hardship to Mr Kornits, it could not have reached a different decision.

Leave to extend to the merits of the Tribunal’s decision

28 Opportunity to tender fresh evidence. One of the reasons Mr Shaw requested leave to extend the appeal to the merits of the Tribunal’s decision was to tender additional character references. Ms Gounder had tendered references in the Tribunal proceedings but only one reference referred to the history of complaints against Mr Kornits. The Tribunal set out its view on the weight to be given to the references at [15]:

In response to the letter of 21 July 2006 the applicant provided five written references, all providing positive endorsements of the applicant as a taxi driver. Only one, the reference by Mr Paul Bolt, Manager Wheelchair Accessible Taxis, refers to “some issues regarding his past performance that the Ministry wish to deal with”. In this reference, Mr Bolt states that Zero200 “will monitor Mr Kornits performance with the WATS Licence conditions and also with Customer Care issues”. Applying the reasoning in Loye , I regard the other four references provided by the applicant has having limited value, as they do not indicate that the provider of the reference was aware that the applicant was at risk of having his driver authority cancelled. However, they do provide some evidence as to the way in which the applicant is regarded as a taxi driver, and I am not satisfied that the applicant cannot be regarded as being of “good repute”.

29 Appeal Panel’s conclusion. The Tribunal in Loye v Director General, Department of Transport [2000] NSWADT 145 gave some weight to evidence of Mr Loye’s reputation but found that the evidence was insufficient, in the face of his history of convictions, to establish that he was of good repute. Applying the reasoning in this decision, the Tribunal gave limited value to the references which did not refer to the fact that Mr Kornits was at risk of having his driver authority cancelled. Mr Kornits was legally represented before the Tribunal and had a reasonable opportunity to tender character references in support of his case. The Tribunal did not make an error in limiting their value to attest to Mr Kornits’ fitness to drive a taxi. Mr Kornits should not be permitted to have his case heard again on the merits because of the inadequacy of his evidence at first instance.

30 Decision is harsh. Mr Kornits said that the Tribunal’s decision was harsh because he has does not have a long history of criminal offences and he has financial commitments.

31 Appeal Panel’s conclusion. The fact that Mr Kornits disagrees with the Tribunal’s decision and considers it harsh, does not warrant extending the appeal to the merits of the Tribunal’s decision.

Orders

Leave is refused for the appeal to be extended to the merits of the Tribunal’s decision.

The appeal is dismissed.