RAJPAL and DEPARTMENT OF TRANSPORT - [2024] WASAT 110

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: MOTOR VEHICLE DRIVERS INSTRUCTORS ACT 1963 (WA)
CITATION:   RAJPAL and DEPARTMENT OF TRANSPORT [2024] WASAT 110
MEMBER:   DR M EVANS-BONNER, SENIOR MEMBER
HEARD:   17 SEPTEMBER 2024
DELIVERED          :   25 SEPTEMBER 2024
FILE NO/S:   VR 54 of 2024
BETWEEN:   SATNAM SINGH RAJPAL
Applicant
AND
DEPARTMENT OF TRANSPORT
Respondent

Catchwords:

Practice and procedure - Abuse of process - Re-litigation of a decided matter - Review of decision to refuse motor vehicle drivers instructor's licence - Previous Tribunal found applicant was not a fit and proper person and not of good character - No change in circumstances since previous review - Proceeding dismissed pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA)

Legislation:

Criminal Code Act Compilation Act 1913 (WA), s 338E(1)(a), s 338E(2)
Motor Vehicle Drivers Instructors Act 1963 (WA), s 7(5)
Restraining Orders Act 1997 (WA), s 61(1)
State Administrative Tribunal Act 2004 (WA), s 9, s 9(b), s 47, s 47(1), s 47(1)(c), s 47(2)

Result:

Proceeding is dismissed because it is an abuse of process

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	B Veloo

Solicitors:

Applicant	:	N/A
Respondent	:	Department Of Transport - Legal and Legislative Services

Case(s) referred to in decision(s):

Cloghan and Shire of Harvey [2019] WASAT 111
Commonwealth of Australia v Snell [2019] FCAFC 57
Erujin Pty Ltd and Western Australian Planning Commission [2011] WASAT 50
Johnson v Gore Wood & Co [2002] 2 AC 1
Van der Feltz and City of Vincent [2017] WASAT 153

REASONS FOR DECISION OF THE TRIBUNAL:

Overview

On 21 May 2024, Mr Rajpal lodged an application in this Tribunal seeking review of a decision of a delegate of the Respondent dated 14 May 2024. That decision refused an application by Mr Rajpal for a motor vehicle driver's instructor's licence (Instructor's Licence).
The Respondent has made an application for the proceeding to be dismissed under s 47(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) on the basis it is an abuse of process pursuant to s 47(1)(c) of the SAT Act. The Respondent says that Mr Rajpal is attempting to re-litigate a matter that was previously decided by the Tribunal on 28 March this year.
I heard the dismissal application on 17 September 2024. Mr Rajpal represented himself and was assisted by a Punjabi interpreter when required. Ms Veloo appeared for the Respondent.
For the reasons set out below, I have decided to dismiss the proceeding because it is an abuse of process.

Mr Rajpal's current application for review

Mr Rajpal made an application to the Department of Transport (Department) for an Instructor's Licence on 26 April 2024.
A delegate of the Director General refused Mr Rajpal's application for an Instructor's Licence because the delegate was not satisfied that Mr Rajpal was a person of good character and a fit and proper person to hold an Instructor's Licence, as required by s 7(5) of the Motor Vehicle Drivers Instructors Act (WA) 1963 (Instructors Act).
In reaching this decision, the delegate considered a National Police Certificate dated 22 April 2024. That certificate showed that:
(1)Mr Rajpal had been convicted by the Bunbury Magistrates Court on 1 February 2022 of:
(a)two counts of 'breached a family violence restraining order' in contravention of s 61(1) of the Restraining Orders Act 1997 (WA), for which he was sentenced to a conditional suspended imprisonment order for 4 months, suspended for 12 months concurrent; and another conditional suspended imprisonment order for 6 months, suspended for 12 months which was cumulative;
(b)one count of 'pursues another to intimidate' in contravention of s 338E(2) of the Criminal Code (WA), for which he was sentenced to a conditional suspended imprisonment order for 12 months, suspended for 12 months, which was also cumulative; and
(c)the sentences started from 1 February 2022.
(2)Mr Rajpal was subsequently convicted in the Bunbury Magistrates Court on 3 November 2022 of:
(a)two counts of 'aggravated stalking' in contravention of s 338E(1)(a) of the Criminal Code (WA), for which he was sentenced to two terms of 6 months concurrent imprisonment from 9 May 2022; and
(b)two counts of 'breached a family violence restraining order' for which he was sentenced to 6 months concurrent imprisonment, and 6 months cumulative imprisonment, from 9 May 2022.
The victim of the offences was Mr Rajpal's ex-wife.
The delegate regarded Mr Rajpal's criminal offending as 'serious' and 'predatory' in nature. The delegate thought that insufficient time had passed since the offences were committed and therefore could not be satisfied that Mr Rajpal had 'modified his behaviour and regained his good character'.
On 21 May 2024, Mr Rajpal lodged an application in this Tribunal seeking a review of the delegate's decision. This is the current application for review.

The Respondent's dismissal application

The Respondent has submitted that Mr Rajpal's application made on 21 May 2024 is an abuse of process under s 47(1)(c) of the SAT Act and that the proceeding should be dismissed under s 47(2) of the SAT Act.
That is because Mr Rajpal's 21 May 2024 application is not the first one that he has made to the Tribunal.
Mr Rajpal had previously applied to the Respondent for an Instructor's Licence on 24 May 2023. He had to apply for this new licence because his existing Instructor's Licence had expired on 15 June 2022 when he was in prison. Mr Rajpal was released from prison on 8 March 2023.
A delegate of the Respondent refused Mr Rajpal's application for an Instructor's Licence on 5 July 2023.
The delegate refused the application on the same ground and for the same reasons as the later 14 May 2024 decision after considering Mr Rajpal's National Police Certificate, the delegate was not satisfied that Mr Rajpal was a person of good character or a fit and proper person to hold an Instructor's Licence.
Mr Rajpal sought review of the 5 July 2023 decision in this Tribunal on 9 August 2023.
His application was heard by Member de Villiers on 26 March 2024.
On 28 March 2024, Member de Villiers dismissed Mr Rajpal's application to the Tribunal and affirmed the delegate's decision dated 5 July 2023. Member de Villiers gave detailed oral reasons for his decision.

The basis for the dismissal application

The Respondent submitted that Mr Rajpal's current application is an abuse of process within the meaning of s 47(1)(c) of the SAT Act because he is seeking to re-litigate a matter that was previously determined by the Tribunal in circumstances where there have been no material changes to his circumstances or to the Instructor's Act.
The Respondent further submitted that Member de Villiers had only made his decision on 28 March 2024, and that insufficient time had passed to reapply for an Instructor's Licence.
Consequently, the Respondent submitted that to permit the proceeding to continue would bring the administration of justice into disrepute and undermine the public interest in the finality of litigation.

The relevant law

It is correct to say that there have been no changes to the relevant criteria in the Instructors Act since Mr Rajpal's initial application for an Instructor's Licence on 24 May 2023. That is, the law concerning the criteria for the grant of an Instructor's Licence remains the same.
Section 47 of the SAT Act concerns the dismissal of a proceeding before the Tribunal. The relevant subsections, s 47(1) and s 47(2) state:
(1)This section applies if the Tribunal believes that a proceeding —
(a)is frivolous, vexatious, misconceived or lacking in substance; or
(b)is being used for an improper purpose; or
(c)is otherwise an abuse of process.
(2)If this section applies, the Tribunal may order that the proceeding be dismissed or struck out and make any appropriate orders.
(My emphasis)
The Full Court of the Federal Court has confirmed that the doctrine of issue estoppel is inconsistent with the constitutional and statutory context of a Tribunal. Consequently, it ought not be applied in a Tribunal context (see for example, Commonwealth of Australia v Snell [2019] FCAFC 57 [at [77]). That observation is, in my view, equally applicable to this Tribunal.
However, in a Tribunal context, re-litigation of a matter that has been finally determined can nevertheless be an abuse of process.
The Respondent has referred me to three relevant decisions of this Tribunal where an attempt by a party to re-litigate a matter already decided by the Tribunal was found to be an abuse of process. Those decisions were:
•Van der Feltz and City of Vincent [2017] WASAT 153 (Van der Feltz);
•Erujin Pty Ltd and Western Australian Planning Commission [2011] WASAT 50 (Erujin); and
•Cloghan and Shire of Harvey [2019] WASAT 111 (Cloghan).
In Van der Feltz, a decision delivered on 3 November 2017, Parry J found that the development approval that was the subject of the proceeding had already been determined in a previous Tribunal proceeding in March that year. Parry J observed, at [25], that in the March proceeding the applicants:
… had the opportunity to present their case and did so, and the Tribunal came to a final determination on the merits of the matter.
Parry J stated, at [23], that:
… to allow the current proceeding to continue would bring the administration of administrative justice into disrepute. This is because it would undermine the important public interest that there should be finality in litigation[.]
Relevantly, in Van der Feltz at [21], Parry J cautioned that:
… any application to dismiss or strike out a proceeding on the basis that it is an abuse of process should be approached with a great deal of caution, particularly where proceedings are brought by unrepresented parties[.]
In the earlier case of Erujin, Senior Member Parry (as his Honour Parry J then was), found that a final decision had been made in previous consent orders. Senior Member Parry observed, at [28], that:
Whatever its reasons, the Tribunal made a final decision in the previous proceeding in terms of the consent orders. The circumstances have not changed in any material way. In my view, therefore, the current proceedings bring the administration of administrative justice into disrepute because they offend the public interest 'that there should be finality in litigation and that a party should not be twice vexed in the same matter': Johnson v Gore Wood & Co [2002] 2 AC 1 at 31 per Lord Bingham of Cornhill[.]
In reaching this conclusion, the learned Senior Member had regard to the main objectives set out in s 9 of the SAT Act which include (in s 9(b)) to:
… to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties.
The learned Senior Member observed, at [34]:
… to allow Erujin to contest the conditions that were imposed by the Tribunal in the consent orders where there is no material change in circumstances would be manifestly inconsistent with the Tribunal's statutory objectives to act as speedily as is practicable and to minimise the cost to the parties. Not only would this set at nought the benefits of a nonadjudicative outcome in the earlier proceeding, but it would require the Tribunal and the parties to expend further resources in the adjudication of the current proceedings.
In the 2019 case of Cloghan, Member Willey (now Senior Member Willey), dismissed the proceeding, finding that it was an attempt to re‑litigate a matter that was previously determined by the Tribunal several years earlier in 2015. The learned Member found, at [91], that the proceeding was:
… an abuse of process as it is an attempt to re-litigate a matter that was previously determined by the Tribunal in circumstances where the applicable planning framework has not changed in any material way[.]

Has there been a change in Mr Rajpal's circumstances?

Member de Villiers handed down his decision on 28 March 2024, and less than a month later, on 26 April 2024, Mr Rajpal had made another application to the Department for an Instructor's Licence.
Given this timing, it was perhaps unsurprising that when the delegate refused his application on 14 May 2024, the delegate did so on the same grounds and gave almost identical reasons as the previous delegate's decision on 5 July 2023.
It appears that Mr Rajpal has made the second application to the Tribunal dated 21 May 2024 because of his interpretation of a comment made by Member de Villiers in his reasons for decision delivered on 28 March 2024.
At the end of his reasons, Member de Villiers stated that:
By way of encouragement, I note to the applicant that this refusal does not permanently disqualify him from being licensed as an instructor. As time progresses and he becomes involved in the community and perhaps in a new relationship and displays insight and [is] remorseful, a new licence application may be lodged with.
Member de Villiers was correct to point out that the refusal of Mr Rajpal's application for an Instructor's Licence does not permanently disqualify him from applying for another Instructor's Licence. I observe that, depending on the circumstances of the individual case and the nature of the offending, character concerns may be alleviated by, for example, time in the community without committing any offences, evidence of rehabilitation, contributions to the community and evidence of genuine remorse and insight.
However, the question is whether Mr Rajpal's circumstances have materially changed or whether he is simply seeking to re-litigate the same proceeding that was before Member de Villiers.
Mr Rajpal claims that his circumstances have changed.
He stated that three years have passed since his wife made false allegations against him that resulted in the convictions. As I explained to Mr Rajpal at the hearing, the relevant timeframe is whether there has been a change in circumstances since Member de Villiers made his decision on 28 March 2024.
Mr Rajpal also stated that his circumstances had changed because he has insight into his offending, he has learnt his lesson, that he has not committed any further offences, and because he has remarried. He said that he is engaged in Family Court proceedings with his ex-wife and will not do anything wrong which might detrimentally affect those proceedings. He stated that he wants to be a taxpayer and to continue with his life. Mr Rajpal stated that his offending was not related to his work, that he was suffering financially and that he needed to be able to work as a driving instructor.
I have had the benefit of reading the detailed reasons of Member de Villiers. Those reasons show that the written and oral submissions that Mr Rajpal has made in this proceeding were substantially before the learned Member and were considered by him. These include that Mr Rajpal has been suffering financial hardship and did not want to be dependent on Centrelink, that the VRO breaches were unintentional because he was living in a small town, that he never committed aggravated stalking, that he was concerned about the welfare of his children and that he missed them, that he was wronged by the system, that the complaints arose from a breakdown of the relationship with his wife and that that the incidents in question did not involve members of the public and did not relate to his Instructor's Licence, that there was no actual violence, that he is a good citizen and that he is of good character.
The transcript of the oral reasons for decision given by Member de Villiers also shows that the learned Member also considered the seriousness of the offending, whether Mr Rajpal had shown genuine remorse, insight, and contrition and the amount of time that had elapsed since the offending. The learned Member further considered whether sufficient time had elapsed since Mr Rajpal was released from prison on 8 March 2023 for Mr Rajpal to demonstrate that he had learned from the experience, that he was remorseful or that he had changed. The learned Member considered the evidence of two character witnesses called by Mr Rajpal, but placed little weight on their evidence because they did not have detailed knowledge of Mr Rajpal's criminal offences.
With respect to remorse and insight, I find that there have been no changes of any significance. In recent written submissions, Mr Rajpal continued to minimise his offending and to blame his wife for making false allegations against him. At the beginning of the hearing on 17 September 2024, Mr Rajpal blamed his wife and sought to minimise his offending conduct. He said his wife, 'put a VRO on me'. He stated that his ex-wife had made false allegations against him and that he had only breached the restraining order because of his 'love and caring nature'. He also stated that his ex-wife was trying to make a commercial agreement through her family lawyers to take family home from him and to get money from him.
Although Mr Rajpal stated that he has insight and that he has learnt his lesson, asserting so is not enough and he was unable to explain what he had learnt. His insight appeared to be limited to realising he should not contact his wife so as not to commit similar offences again.
As the hearing progressed, Mr Rajpal stated that he did not want to say his ex-wife had done anything wrong and that he was not blaming his ex‑wife now. My impression was that this was likely motivated by self‑interest, as opposed to being an acknowledgement that he had done anything wrong, because he further stated that 'it will create trouble for me' if he sought to blame his ex-wife.
I find that there does not seem to have been any change in Mr Rajpal's insight and remorse, and in any event, that issue was before Member de Villiers a relatively short time ago when he made his decision on 28 March 2024. Further, I agree with the Respondent's submission that insufficient time has passed since Member de Villiers’ decision for Mr Rajpal to be able to show that he has now developed remorse and insight.
Mr Rajpal has also remarried, but his wife is in India. He said that he had applied for a visa for her to come to Australia. Mr Rajpal thought this was a significant change in circumstances. That was because Member de Villiers had referred to a new relationship in the future in the context of Mr Rajpal being able to make a new application for an Instructor's Licence if circumstances were to change. I note from the transcript of the hearing before Member de Villiers that there was evidence that Mr Rajpal had remarried. Therefore, that information was already before the Tribunal and is not a material change in Mr Rajpal's circumstances. Further, I am of the view that having remarried a partner who is living in another country is not a sufficiently material or relevant change in circumstances to demonstrate good character in the context of his Instructor's Licence application.
Mr Rajpal also disagreed with findings made by Member de Villiers, including about the weight given to the evidence of his two character witnesses. Mr Rajpal wanted to call the witnesses again because he thought there may have been some language barriers and that the learned Member may have misunderstood their evidence. That is not a change in circumstances, but rather an aspect of Member de Villier's decision that Mr Rajpal disagrees with.
I find that if Mr Rajpal's current application was to progress to a hearing, the issues before me at that hearing would be substantially similar, if not identical, to those that were before Member de Villiers. The same statutory question, and substantially the same evidence and submissions would be before the Tribunal.
Accordingly, I am satisfied, and I make the following findings:
•Mr Rajpal's circumstances have not changed in any material or significant way since Member de Villiers handed down his decision on 28 March this year.
•Nor have there been any changes to the criteria for an Instructor's Licence in the Instructor's Act since that time.
•Consequently, this proceeding is an abuse of process within the meaning of s 47(1)(c) of the SAT Act because Mr Rajpal is attempting to re-litigate a matter that was already decided by Member de Villiers on 28 March 2024, and should be dismissed.

Conclusion

Mr Rajpal was unrepresented and was assisted by an interpreter. I have therefore been especially mindful of the comments by Parry J in Van der Feltz that I should exercise caution in reaching a decision to dismiss this proceeding. I appreciate that Mr Rajpal cannot work in his business as a driving instructor without an Instructor's Licence, and that he may be suffering financially as a result.
However, the matter was finally decided by Member de Villiers who handed down his reasons for decision on 28 March 2024. Member de Villiers considered the same issue, and substantially the same submissions that Mr Rajpal is now making. To allow this proceeding to continue would be an abuse of process because Mr Rajpal is seeking to re-litigate substantially the same case that was decided by Member de Villiers because he does not agree with the outcome.
To allow Mr Rajpal to continue this proceeding in circumstances where there has been no material change in circumstances is likely to bring the administration of administrative justice into disrepute. That is because allowing the matter to proceed to a substantive hearing for a second time would require the Tribunal and the parties to expend further time and resources on the proceeding where there have been no material changes in circumstances since the matter was decided by Member de Villiers. To allow a re-litigation of a matter that was finally decided by Member de Villiers on 28 March 2024 would be inconsistent with the Tribunal's statutory objective in s 9(b) of the SAT Act to act as speedily as is practicable and to minimise the cost to the parties.
To allow this proceeding to continue would also be detrimental to the public interest which requires that there should be finality and certainty in decisions made by the Tribunal. It would also be prejudicial to the Respondent who is entitled to rely on the finality of the Tribunal's decision.
The parties are entitled to rely on a decision of the Tribunal made after a substantive hearing as being final unless there was a material change in circumstances, which in this case, there has not been.

Order

The Tribunal orders:
1.Pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA) this proceeding is dismissed because it is an abuse of process.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR M EVANS-BONNER, SENIOR MEMBER
25 SEPTEMBER 2024