Salhab v Roads and Maritime Services - [2014] NSWCATAD 107

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Salhab v Roads and Maritime Services [2014] NSWCATAD 107
Hearing dates: 5 September 2013, 18 November 2013, 20 December 2013, 13 February 2014
Decision date: 23 July 2014
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Montgomery, Senior Member
Decision:
(1) The decision under review is affirmed.
(2) This decision is to take effect 28 days from the date of these reasons.

Catchwords: Overcharging, Good repute, fit and proper person, responsibility and aptitude, allegations of dishonesty
Legislation Cited: Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Passenger Transport Act 1990
Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Caska v The Director General of the New South Wales Department of Transport [2001] NSWSC 205
Chowdhury v Department of Transport and Infrastructure [2010] NSWADT 199
Department of Transport and Infrastructure v Murray (GD) [2011] NSWADTAP 16
Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409
Maythisathit and Registrar of Motor Vehicles [1996] ACT 165
Nasour v Director-General, Transport NSW [2011] NSWADT 91
Re T and Anor and the Director of Youth and Community Services [1980] 1 NSWLR 392
Saadieh v Director General, Department of Transport [1999] NSWADT 68
Category: Principal judgment
Parties: Bill Salhab (Applicant)
Roads and Maritime Services (Respondent)
Representation: M Jools, Agent (Applicant)
A Wozniak, Smythe Wozniak Legal (Respondent)

File Number(s): 133124

reasons for decision

This matter was commenced in the General Division of the Administrative Decisions Tribunal ("the ADT") pursuant to the Administrative Decision Tribunal Act 1997 ("the ADT Act"). On 1 January 2014, the ADT was abolished and its functions were taken over by the Civil and Administrative Tribunal of New South Wales ('NCAT'). The present decision is therefore a decision of NCAT. However, because the proceedings to which it relates are 'part heard proceedings' as defined in clause 6(1) of Schedule 1 of the Civil and Administrative Tribunal Act 2013, they are to be determined as if that Act had not been enacted (see clause 7(3)(b) of that Schedule).

This is an application by Mr Salhab, the Applicant, for review of the decision of the Respondent, Roads and Maritime Services ("RMS"), to cancel the Applicant's authority to drive a taxicab, pursuant to section 33F of the Passenger Transport Act 1990 ("the Act"). The Applicant has been a taxi driver since 2005. His authority to drive a taxicab was cancelled in April 2013. On 30 April 2013 the Tribunal made an order granting a stay of the decision until final determination of the application for review.

Prior to the determination to cancel the Applicant's authority, the Respondent issued a Notice to Show Cause in which it detailed a complaint that had been lodged in regard to overcharging for a journey from the Sydney International Airport to Randwick on the 2 July 2012 ("the 2 July 2012 journey"). The Notice to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NSWCATAD 107
Decision Date: 23 July 2014

CaseChat Overview and Summary

In the case of Salhab v Roads and Maritime Services, the applicant, Mr Salhab, sought judicial review of a decision by the second respondent, which is the Roads and Maritime Services in New South Wales, to terminate his registration as an approved driving instructor. The basis of the termination was due to overcharging students, which the second respondent alleged brought the profession into disrepute and demonstrated that Mr Salhab was not a fit and proper person to hold such a registration. The primary legal issues before the court were whether the second respondent's decision to terminate Mr Salhab's registration was lawful and whether it was open to the tribunal to find that Mr Salhab was not a fit and proper person based on the overcharging allegations.

The court examined the statutory framework governing the registration of driving instructors and the criteria for determining whether a person is a fit and proper person. It noted that the statutory provisions required the tribunal to consider not only the conduct but also the responsibility and aptitude of the applicant. The court found that the tribunal was entitled to consider the overcharging allegations in determining whether Mr Salhab was a fit and proper person. While the court acknowledged that there was no evidence of dishonesty on the part of Mr Salhab, it held that the tribunal was correct to conclude that the overcharging conduct demonstrated a lack of responsibility and aptitude, which was sufficient to justify the termination of his registration. The court also rejected Mr Salhab's argument that the tribunal had failed to consider all relevant material, finding that the tribunal had adequately considered the evidence and made findings on the key issues.

Accordingly, the court dismissed Mr Salhab's application for judicial review and affirmed the decision of the tribunal. The decision of the tribunal that Mr Salhab was not a fit and proper person to hold a registration as an approved driving instructor was upheld. The court ordered that the decision under review be affirmed and that this decision take effect 28 days from the date of the reasons.

Orders

Orders of the court

(1) The decision under review is affirmed.

(2) This decision is to take effect 28 days from the date of these reasons.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Salhab v Roads and Maritime Services [2014] NSWCATAD 107
Hearing dates:	5 September 2013, 18 November 2013, 20 December 2013, 13 February 2014
Decision date:	23 July 2014
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	(1) The decision under review is affirmed. (2) This decision is to take effect 28 days from the date of these reasons.
Catchwords:	Overcharging, Good repute, fit and proper person, responsibility and aptitude, allegations of dishonesty
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Passenger Transport Act 1990
Cases Cited:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Caska v The Director General of the New South Wales Department of Transport [2001] NSWSC 205 Chowdhury v Department of Transport and Infrastructure [2010] NSWADT 199 Department of Transport and Infrastructure v Murray (GD) [2011] NSWADTAP 16 Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 Nasour v Director-General, Transport NSW [2011] NSWADT 91 Re T and Anor and the Director of Youth and Community Services [1980] 1 NSWLR 392 Saadieh v Director General, Department of Transport [1999] NSWADT 68
Category:	Principal judgment
Parties:	Bill Salhab (Applicant) Roads and Maritime Services (Respondent)
Representation:	M Jools, Agent (Applicant) A Wozniak, Smythe Wozniak Legal (Respondent)
File Number(s):	133124