Singh v Commissioner for Fair Trading - [2021] ACTSC 324

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Singh v Commissioner for Fair Trading
Citation:	[2021] ACTSC 324
Hearing Date:	10 November 2021
DecisionDate:	10 November 2021
Before:	Mossop J
Decision:	See [34]
Catchwords:	APPEAL – PRACTICE AND PROCEDURE – Application for leave to appeal a decision of the ACT Civil and Administrative Tribunal – no reasonably arguable error of fact or law identified in the Tribunal’s reasoning – no arguable ground of appeal – application for leave to appeal dismissed
Legislation Cited:	ACT Civil and Administrative Tribunal Act 2008 (ACT), ss 32, 86 Crimes Act 1990 (ACT), s 65(1) Crimes (Child Sex Offenders) Act 2005 (ACT), s 126 Criminal Code 1995 (Cth), s 474.19(1)(a)(iii) Road Transport (Driver Licensing) Regulation 2000 (ACT), ss 87(3)(a), 90A Working with Vulnerable People (Background Checking) Act 2011 (ACT), ss 17(2), 56A, 59(1)
Cases Cited:	Applicant OR202019 v Commissioner for Fair Trading; Applicant OR202023 v Road Transport Authority (Appeal) [2021] ACAT 99 Applicant OR202019 v Commissioner for Fair Trading; Applicant OR202023 v Road Transport Authority (Unreported, ACT Civil and Administrative Tribunal, Presidential Member H Robinson, 19 March 2021) Attorney-General (NSW) v Wentworth (1988) 14 NSWLR 481 R v Singh [2020] ACTSC 35
Texts Cited:	Road Transport (Driver Licensing) Public Vehicle Licence Guidelines 2006 (No 1)
Parties:	Jasbir Singh ( Applicant) Commissioner for Fair Trading (First Respondent) Road Transport Authority (Second Respondent)
Representation:	Counsel Self-represented ( Applicant) M Roberts (Respondents)
Solicitors Self-represented ( Applicant) ACT Government Solicitor (Respondents)
File Number:	SCA 21 of 2021
Decision under appeal:	Court/Tribunal: ACT Civil and Administrative Tribunal Before: Presidential Member M-T Daniel Date of Decision: 7 June 2021 Case Title: Applicant OR202019 v Commissioner for Fair Trading; Applicant OR202023 v Road Transport Authority (Appeal) Citation: [2021] ACAT 99

MOSSOP J:

Introduction

The applicant, Jasbir Singh, has applied for leave to appeal from a decision of the ACT Civil and Administrative Tribunal. That application is necessitated by s 86 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (the ACAT Act) which provides that a party to an application may appeal from a decision of the appeal Tribunal on a question of fact or law but only with the Supreme Court’s leave.

Mr Singh had sought merits review of two decisions: a decision of the Commissioner of Fair Trading to cancel his working with vulnerable people registration under the Working with Vulnerable People (Background Checking) Act 2011 (ACT) (the WWVP Act); and a decision by the Road Transport Authority to cancel his public vehicle licence under the Road Transport (Driver Licensing) Regulation 2000 (ACT) (the Driver Licensing Regulation).

The respondent in each case made an interim application to strike out both matters under s 32(1)(a) and (b) of the ACAT Act. Section 32 allows the Tribunal to dismiss an application if it considers that the application is “frivolous or vexatious” or “lacking in substance”.

The Tribunal at first instance (the Original Tribunal) dismissed each application on 19 March 2021 because it considered that it was “frivolous or vexatious”.…

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: [2021] ACTSC 324
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the applicant, Jasbir Singh, sought leave to appeal against a decision of the ACT Civil and Administrative Tribunal (ACAT) that dismissed his applications for merits review of the decisions by the Commissioner for Fair Trading and the Road Transport Authority to cancel his working with vulnerable people registration and his public vehicle licence, respectively. The ACAT had concluded that there were no prospects of success on the applications for merits review because the statutory framework prevented the granting of the public vehicle licence, and the working with vulnerable people registration would have no practical effect in the absence of a public vehicle licence. The court had to determine whether there were any arguable grounds of appeal that identified any error of fact or law in the ACAT’s reasoning.

The court examined the ACAT’s reasoning and found that it had thoroughly considered the relevant statutory provisions and concluded that the applicant was a registrable offender under the Crimes (Child Sex Offenders) Act 2005 (ACT) and therefore not suitable to hold a public vehicle licence. The court also found that the amended Working with Vulnerable People (Background Checking) Act 2011 (ACT) did not permit the applicant to be registered to engage in a regulated activity involving children, such as driving a taxi, and that any registration would be automatically cancelled. The court held that the ACAT’s decision was not in error and that there was no arguable ground of appeal.

The applicant argued that the outcome was harsh and that the court should consider his mitigating circumstances and grant him leave to appeal. The court rejected this argument and held that the law did not permit the court to grant him a more satisfactory outcome because of the mandatory and absolute nature of the statutory regime. The court also noted that the potential for injustice arising from the absence of discretion in the regime was not a matter that could be addressed by the court.

Accordingly, the court dismissed the application for leave to appeal.

The order of the court was that the application for leave to appeal dated 30 June 2021 is dismissed.

Orders