Ratay v Director General, Department of Transport

[2003] NSWADTAP 32

Appeal Panel - Internal

CITATION:	Ratay v Director General, Department of Transport [2003] NSWADTAP 32
PARTIES:	APPLICANT Peter Ted Ratay RESPONDENT Director General, Department of Transport
FILE NUMBER:	039015
HEARING DATES:	01/07/2003
SUBMISSIONS CLOSED:	07/01/2003
DATE OF DECISION:	07/23/2003
DECISION UNDER APPEAL:	Ratay v Director General, Department of Transport [2003] NSW ADT 40
BEFORE:	Hennessy N - Magistrate (Deputy President); Conley J - Judicial Member; Blake C - Member
CATCHWORDS:	Passenger Transport Act - cancellation of authorities
MATTER FOR DECISION:	Principal
FILE NUMBER UNDER APPEAL:	023257
DATE OF DECISION UNDER APPEAL:	03/04/2003
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990
CASES CITED:	Farquharson v Director-General, Department of Transport (1999) NSWADT 53 Maythisathit v Registrar of Motor Vehicles (1996) ACT 165 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Saadieh v Director-General, Department of Transport [1999] NSWADT 68 Minister for Aboriginal Affairs v Peko-Walsend Pty Limited (1985/86) 162 CLR 25
REPRESENTATION:	APPLICANT J Brent, solicitor RESPONDENT D Jordan, barrister
ORDERS:	Appeal dismissed

1 Our decision is that the appeal is dismissed and the reason for that is that it doesn't identify an error of law.

2 I will just give a brief background to the appeal, the factual background, and that is that, on 28 March 2003, the appellant, Peter Ratay, appealed against a decision of the Tribunal which affirmed the respondent's decision to cancel his taxi operator's accreditation and his taxi driver's authority.

3 The background to the application to the Tribunal is set out in the Tribunal's decision at paragraphs 1 to 5, but, essentially, the appellant has been in the taxi business for 16 years and, on 5 November 2002, he pleaded guilty to making 50 statements that were false in a material particular. The statements were Department of Veterans Affairs taxi dockets which the appellant admitted altering, increasing the fares payable.

4 The Tribunal found on the appellant's own admission that he had altered a minimum of 140 Department of Veterans Affairs dockets. The appellant had repaid agreed amount of $5983. The appellant had been a director of Central Coast Taxis, the regional taxi co-operative he works with, and its chairman for the last four years, and he had also been a taxi enforcement officer, a position which the Appeal Panel understands is no longer in place but which did give that person the power to issue enforcement notices - or infringement notices against taxi drivers.

5 The Appeal Panel's jurisdiction comes from section 113 of the Administrative Decisions Tribunal Act 1997 and there was no dispute that the circumstances of this case constitute an appealable decision. It is worth just briefly highlighting the provisions of section 113 (2) which says that an appeal can be made on a question of law and, with leave, be extended to the merits of the appeal.

6 The legislative background isn't set out in detail in the Tribunal decision but it is quoted. Section 31F of the Passenger Transport Act 1990 gives the respondent power to cancel a person's accreditation to operate a taxi and, in making such a decision, the administrator must have regard to the purpose of the accreditation. That purpose is set out in section 31(2) and, for the purpose of these proceedings, the relevant section is 31(2)(a) which states that:

The purpose of accreditation under this Division is to attest: (a) that the accredited person is (or in the case of an accredited person that is a corporation, the designated directors and managers of the corporation are) considered to be of good repute and, in all other respects fit and proper to be responsible for the operation of a taxi cab service.

7 Similar provisions in relation to a driver authority are set out in paragraphs 33(3)(a) of the Passenger Transport Act.

8 There were essentially four grounds of appeal in this matter and I will go through each of them together with the respondent's submissions and the Tribunal's findings.

9 The first ground of appeal arises from comments made by the Tribunal in paragraphs 26 and 27 of the reasons. The appellant's submission was that the Tribunal came to a conclusion that a notional member of the travelling public would object to Mr Ratay operating or driving a taxi. The appellant said that that was contrary to the evidence before the Tribunal and, in particular, to four letters which were produced in evidence to the Appeal Panel, that members of the public would not object to driving or being in a taxi operated by Mr Ratay, notwithstanding that they knew of his dishonest conduct.

10 The appellant submitted that the Tribunal didn't mention this evidence in the context of its findings about whether the appellant was a fit and proper person. We note that it wasn't submitted that the Tribunal applied the incorrect test; in fact, there was no submission throughout the appeal that an incorrect legal test was applied. The submissions all related to the use that the Tribunal made of the evidence and, of course, that does not generally constitute an error of law. However, in this case, the appellant said that the inference was not open to the Tribunal that a member of the travelling public would object to Mr Ratay driving or operating a taxi, given the evidence in the four letters.

11 The respondent's submission was that paragraph 26 and 27 read together and in context refer to all the character evidence submitted by the applicant, including the four letters the appellant referred to, and there doesn't seem to be any dispute that that was the case. The Member said, and I quote, at paragraph 26:

Mr Ratay produced a large number of character references from persons who, I accept, were aware of the nature of the offences he had committed. Each asserts his trustworthiness and reputation within his local community. While I accept that these are evidence going to the issue of ‘good repute’ they do not, in my view, assist him in overcoming the difficulties he faces when the issue of whether he is a ‘fit and proper’ person is considered.

12 According to the respondent, the Tribunal did identify the character evidence and take it into account in coming to its ultimate conclusion that the appellant is not a fit and proper person. The Tribunal also applied the correct test in paragraph 27 which is that a notional member of the public would object to riding with Mr Ratay. The respondent said that the Tribunal's finding was entirely open on the evidence.

13 The test that was set down in the decision came from the decision in Farquharson v Director-General, Department of Transport (1999) NSWADT 53 where President O'Connor quoted a decision of Professor Curtis, President of the ACT Administrative Appeals Tribunal in Maythisathit v Registrar of Motor Vehicles (1996) ACT 165 and it is worth just quoting the passage:

One must put oneself, so far as possible, in the position of a member of the public who might travel in a taxi driven by the applicant and ask whether that member of the public, knowing of the applicant's criminal record and what he has done in the past year to rehabilitate himself, would object to the applicant as the driver of the taxi.

14 There was no dispute that this was the correct test and it clearly is a test about a notional member of the public rather than a test that must solely consider direct evidence from members of the public.

15 In brief, we agree with the respondent's submissions in relation to this ground of appeal and highlight the passage in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 388 which was quoted by the Tribunal at paragraph 19. That quote is:

The question whether a person is ‘fit and proper’ is one of value judgment. In that process, the seriousness or otherwise of particular conduct is a matter for evaluation by the decision-maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.

16 In our view, that quote makes it clear that it is always a value judgment for the decision-maker to determine whether a person is a fit and proper person. That, of course, must be based on all the relevant evidence and by taking all relevant matters into consideration, but it is nevertheless a value judgment and no one factor is determinative of the outcome.

17 Our conclusion is that the Tribunal did give weight to the references, particularly in the context of whether the appellant was of good repute, but found that they did not "assist him in overcoming the difficulties he faces when the issue of whether he is a fit and proper person is considered". In other words, in the face of all the evidence, these references were insufficient to satisfy the Tribunal that the applicant was a fit and proper person and, in our view, that reasoning did not involve any error whatsoever.

18 The second ground of appeal is that the member concluded at paragraph 22 of the reasons, that:

His explanation for this conduct, as arising from his frustration with the Department of Veterans Affairs, does not justify or explain the fact that he engaged in a targeted and deliberate fraud of a significant client.

19 The appellant submits that this conclusion is incorrect because, while the appellant's explanation does not legally justify his actions, it does explain his actions. The appellant also referred to the evidence given by the psychologist at paragraph 25 which repeats Mr Ratay's explanation but does not point to any underlying social, health or psychological problems which might make Mr Ratay's actions easier to understand.

20 According to the respondent, the Tribunal recognised the appellant's explanation but concluded that it didn't assist him in understanding his motivation for the conduct. We agree with the respondent's view that the Tribunal's reasoning does not disclose any error of law. In our view, the reference to "explain" or "justify" in paragraph 22 is a reference to the Tribunal being at a loss to understand why somebody in the appellant's position would have engaged in such conduct, and it really is merely a semantic exercise to try to differentiate between the meaning of "justify" and "explain" in paragraph 22 of the Tribunal's reasoning.

21 We should just interpolate here to say that we also agree with the respondent's submission that it is not the Appeal Panel's role to go through the reasoning with a fine tooth comb, but rather to look at the decision as a whole and to interpret the reasoning in the context in which it is provided.

22 The third ground of appeal flows from the second ground and that was that the Tribunal failed to come to a conclusion as to the likelihood that the appellant would re-offend. In particular, the appellant noted that, while the Tribunal pointed in paragraph 21 to "the likelihood that the applicant will re-offend", it did not make a finding in relation to re-offending or weigh the likelihood of re-offending against other relevant factors that should be taken into account and, in particular, paragraph 23 of the Tribunal's decision was said by the appellant to be insufficient. That paragraph states, in part, that Mr Ratay is insistent that "These offences represent a once off event and will not be repeated."

23 It was the appellant's submission, as we understand it, that the Tribunal was bound to take into account the likelihood of the applicant re-offending, that it did not do so, and that constitutes an error of law. The respondent made two points in relation to that ground: the first was that the Tribunal did take the likelihood of re-offending into account, firstly, by referring specifically to it and quoting the decision in Saadieh v Director-General, Department of Transport [1999] NSWADT 68 in paragraph 21 of the decision, and, secondly, by attempting to understand the appellant's motivation for the dishonest conduct. According to the respondent, the Tribunal was unable to understand the appellant's motive and that made it difficult, if not impossible, to predict whether or not he would re-offend.

24 Again, we agree with the respondent's submissions on this point. The Tribunal did advert to the likelihood of re-offending as a relevant matter to be taken into account at paragraph 21 of its reasons, and also mentioned the evidence given by Mr Ratay on that point in paragraph 23. So, on one view, if it was a relevant consideration which the Tribunal was bound to take into account, it did take that matter into account both overtly in paragraph 21 and indirectly by attempting to understand what Mr Ratay's motivation was and therefore the likelihood that he would re-offend. The Tribunal was unable to make any finding on that point.

25 Our alternative reasoning on this ground is that, even if the Tribunal did not take into account the likelihood of re-offending, it was not bound to do so. It's a fundamental principle of law that, in exercising discretionary power, a decision-maker must take into account relevant considerations and must not take into account irrelevant considerations. The leading Australian case in this area is Minister for Aboriginal Affairs v Peko-Walsend Pty Limited (1985/86) 162 CLR 25. Mason J summarises the important principles at page 39. There are no factors set out in the Passenger Transport Act which the Tribunal is to take into account in determining whether a person is a fit and proper person to operate or drive a taxi.

26 The question of the likelihood of re-offending is listed in Saadieh as one of the factors that needs to be taken into account but, given the subject matter, scope and purpose of the Passenger Transport Act, it is not a factor which, in accordance with the reasoning in Peko-Walsend, the Tribunal is bound to take into account. Consequently, that provides an alternative basis for our conclusion that there is no error of law.

27 Finally, the applicant submitted that the Tribunal erred in apparently placing on the applicant a higher level of conduct to be a fit and proper person than someone who did not have "positions of responsibility and respect in the local taxi industry". At paragraph 28, the Tribunal said:

Further, it needs to be borne in mind that Mr Ratay committed these offences while holding positions of responsibility and respect in the local taxi industry. He was expected to be an example of probity and best practice to others. He was not. That, in my opinion, highlights and broadens the nature of the dishonesty and breach of trust inherent in his conduct and is a further reason why a member of the public would not wish to deal with him. The fact that he is contrite would not, in my view, change that assessment.

28 According to the appellant, the offence did not occur in his capacity as a member of the board of the local taxi industry or other voluntary or trustworthy positions, but only as an operator of his own taxi business, and, by implication, it was the appellant's submission that this was an irrelevant consideration to be taken into account when determining fitness and propriety. The respondent's submission was that the appellant's positions were not irrelevant considerations, and that his conduct has to be considered in the light of all the circumstances.

29 The Appeal Panel's view is that the positions he held are relevant because he should have been fully aware of his responsibilities and the consequences of his actions. Alternatively, the Tribunal notes that his positions were merely a further reason why a member of the public would not wish to deal with him. That part of the reasoning was not essential in our view to the Tribunal's conclusion and, as they could be regarded as obiter remarks, do not constitute an error of law.

30 Our conclusion is that as no error of law has been identified, the Appeal Panel does not give leave to extend the matter to an appeal on the merits and the appeal is dismissed.