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) 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) |
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”. The Original Tribunal gave reasons for its decision: 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). An internal appeal was dismissed on 7 June 2021. Reasons were given by the Appeal Tribunal on 15 October 2021: Applicant OR202019 v Commissioner for Fair Trading; Applicant OR202023 v Road Transport Authority (Appeal) [2021] ACAT 99. In substance, the Appeal Tribunal affirmed the reasoning on the Original Tribunal.
The Original Tribunal’s reasons
The effect of the Original Tribunal’s decision was to conclude that there were no prospects of success on the application for merits review of each of the decisions. There were no prospects of success because the statutory framework prevented the granting to the applicant of a public vehicle licence and that given the only purpose of the working with vulnerable people registration was to facilitate the driving of a taxi pursuant to the public vehicle licence, there was no prospect that even a conditional working with vulnerable people registration would be granted.
The Original Tribunal reached this conclusion after a detailed and thorough examination of the relevant statutory provisions. In order to assess the application for leave to appeal, it is necessary to briefly outline the Original Tribunal’s reasoning.
The Original Tribunal described the applicant. He is a middle-aged male who immigrated to Australia over a decade ago. He is from a poor rural background. Before emigrating to Australia, he worked for many years in a skilled trade. In Australia, he has worked primarily as a taxi driver to support his family. He has a long-standing injury that limited his employment options. In mid-2018, he uploaded a single video file to Facebook containing child exploitation material. He was charged with using a carriage service to transmit child pornography material contrary to s 474.19(1)(a)(iii) of the Criminal Code 1995 (Cth); and possession of child exportation material contrary to s 65(1) of the Crimes Act 1990 (ACT).
The applicant pleaded guilty, was convicted and sentenced. The Original Tribunal’s reasons do not accurately record the sentences imposed. On the Commonwealth offence, there was a wholly suspended sentence of nine months with a recognisance to be of good behaviour for a period of 15 months. On the Territory charge, there was a sentence of six months’ imprisonment with a good behaviour order for a period of 18 months.
In sentencing the offender, Burns J noted that the explanation that the applicant had given to police was that his possession and transmission of the video was because he was concerned to show others what can happen to children if they are not properly cared for. While his Honour had difficulty in accepting the submission, he did note that there were some unusual features of the case, namely that the applicant had only one file in his possession and that it was disseminated so openly on the Facebook platform using his own name. That, his Honour said, “gives a degree of credence to the proposition that in effect your motive for possession and dissemination of the video was not sexual”: R v Singh [2020] ACTSC 35 at [12].
10. In relation to the public vehicle licence, the Road Transport Authority contended that the application for a public vehicle licence was doomed to fail because of the statutory regime.
11. Section 87(3)(a) of the Driver Licensing Regulation provides:
(1)Without limiting subsection (1)(c), the road transport authority may suspend or cancel a person’s public vehicle licence under section 88 because the person is not a suitable person to hold a driver licence or a driver licence of the class or kind held by the person if—
(a)the person has been convicted or found guilty of an offence that the road transport authority considers is relevant to the person’s suitability to hold the licence or the class or kind of licence; or
Note The road transport authority must comply with any guidelines approved by the Minister under s 90A (Public vehicle licence guidelines—relevant offences)
12. Section 90A of the Driver Licensing Regulation provides:
90A Public vehicle licence guidelines—relevant offences
(1)The Minister may approve guidelines about the exercise of the road transport authority’s functions under the following sections:
(a)section 70 (3) (a) (When applications for issue and certain variations of driver licences can be refused);
(b)section 87 (3) (a) (When authority may vary, suspend or cancel driver licences).
(2)Without limiting subsection (1), the guidelines may make provision about—
(a)the offences that are relevant in relation to—
(i) an application for a public vehicle licence; and
(ii) the suitability of a person to continue to hold a public vehicle licence; and
(b)the matters or circumstances that may or must be considered, in deciding whether—
(i) an application for a public vehicle licence may or must be refused; or
(ii) a public vehicle licence may or must be suspended or cancelled.
Examples for par (b)
1 whether a person has been convicted for a single offence or multiple offences and the nature and seriousness of the offence
2 the age of the person when the offence was committed
3 the time elapsed since the offence was committed
(3) The road transport authority must comply with any guidelines approved under this section.
(4) Approved guidelines are a disallowable instrument.
NoteA disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act.
13. Guidelines have in fact been made. They are the Road Transport (Driver Licensing) Public Vehicle Licence Guidelines 2006 (No 1) (the Guidelines). Relevantly, those guidelines provide:
PART A Sexual Offences
(i) Sexual offences against children
Under section 126 of the Crimes (Child Sex Offenders) Act 2005 (the Act), a person who is a registrable offender is prohibited from applying for child-related employment. Section 124(1) of the Act provides that a registrable offender is prohibited from, among other things, providing public or private transport services for the transport of children.
A registrable offender is defined in the Act as a person who has been sentenced by a court for a registrable offence, is the subject of a child sex offender registration order, or is a prescribed corresponding offender. A registrable offence is defined as being any class 1 or class 2 offence, as outlined in table 1 or table 2 of the Act.
If a person is a registrable offender, the person is not a suitable person to hold a public vehicle licence authorising the person to drive a taxi, and any application for the issue or variation of a public vehicle licence to drive a taxi must be refused. Similarly, if a holder of public vehicle licence authorising the person to drive a taxi becomes a registrable offender, the person’s public vehicle driver licence must be cancelled.
…
14. In light of the terms of s 87(3)(a) of the Driver Licensing Regulations and the terms of the Guidelines quoted above, the Original Tribunal reasoned that “if a holder of a public vehicle licence becomes a registrable offender, that person is not a suitable person to hold a public vehicle licence, and that licence must be cancelled.”
15. The Original Tribunal then referred to the fact that s 126 of the Crimes (Child Sex Offenders) Act 2005 (ACT) defines a “registrable offender” to include a person convicted of possessing child exploitation material. The Original Tribunal concluded that there was no doubt that the applicant was a registrable offender within the meaning of that definition: schedule 2 part 1. As a consequence, he was within the category of persons referred to in the Guidelines. This had the consequence that “whatever ameliorating factors apply in the applicant’s case, the law operates to prohibit him from holding a public vehicle licence”. For that reason, the Original Tribunal had no option but to confirm the original decision that the applicant’s public vehicle licence be cancelled.
16. The Original Tribunal then turned to consider the working with vulnerable people registration. It identified that driving a taxi was a regulated activity under the WWVP Act. Once the Commissioner for Fair Trading became aware of the applicant’s conviction, a delegate conducted a risk assessment and his registration was cancelled pursuant to s 59(1) of the WWVP Act. That decision was confirmed on internal review.
17. On 9 October 2020 when the applicant lodged his application with the tribunal, the Original Tribunal noted that it had some discretion. However, it also noted that the legislation had changed since that time.
18. The Original Tribunal identified that under the amended legislation where a person had committed a “class A disqualifying offence” that person was not eligible to be registered to engage in “a regulated activity involving children”: s 17(2). A “class A disqualifying offence” included the offence of “possess child exploitation material” contrary to s 65(1) of the Crimes Act, which was one of the offences that the applicant was convicted of. As a consequence, the applicant was not eligible for registration to engage in a regulated activity involving children. That was the case “no matter what the ameliorating factors of his offence or his personal circumstances”: [37]. Even if such a registration was granted it would automatically be cancelled under s 56A of the Act, a decision which was not reviewable by the Tribunal.
19. Therefore, the only question became whether or not the applicant was engaged in a regulated activity involving children when driving a taxi. The Original Tribunal considered the submission that the applicant rarely transports children and that he was prepared to accept a condition of his registration that he collect passengers only from the airport and that he not carry children in his taxi. The Commissioner argued that that was not practicable as it would not be possible to monitor those arrangements. The Original Tribunal accepted that it this issue could be subject to further evidence and submissions and that fact would provide a basis to dismiss an application to strike out the application. However, the Original Tribunal identified what is considered to be a more significant problem, namely that the applicant was no longer eligible to hold a public vehicle licence and therefore not permitted to drive a taxi at all. In those circumstances, to proceed with a review process with a view to achieving a conditional registration in an activity that he is prohibited at present from engaging in would be an exercise in futility. As a result, the Original Tribunal considered that it was appropriate to dismiss the application.
20. The Original Tribunal made it clear that the decision did not mean that she was persuaded that the applicant was not a suitable person to hold a taxi licence or a WWVP registration. The Original Tribunal said “the evidence before me, such as it is, indicates that the applicant did an incredibly foolish and indeed inexplicable thing, but there is nothing to suggest that he is likely to repeat the action. However, that is not the test before me and I need not consider it”: [47].
21. The Original Tribunal dismissed both applications pursuant to s 32(a) of the ACAT Act.
The Appeal Tribunal
22. The Appeal Tribunal treated the appeal as one dependent upon the establishment of error rather than as a hearing de novo: [35]. The Original Tribunal referred to the terms of s 32 of the ACAT Act which permits the Tribunal to dismiss an application if it is “frivolous or vexatious” or “lacking in substance”. The Original Tribunal referred to the statement of Roden J in Attorney-General (NSW) v Wentworth (1988) 14 NSWLR 481 (Wentworth) at 491 that identified three categories of cases which may properly be regarded as vexatious. The third category was: “they are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless”. The Appeal Tribunal identified the reasoning of the Original Tribunal. It identified the ground of appeal as follows:
It is my humble request to consider my appeal for my poor health and family circumstances because it is my unknown unaware emotional mistake. I have no interest with this bad criminal actions. I need my WWVP card and taxi licence for my family help and my life. Please help me. I hope from you. Thanks.
23. The Appeal Tribunal summarised (at [38]) the applicant’s approach as follows:
It seemed that the applicant hoped that if he applied to a higher authority than the original decision-makers, he would ultimately come before an entity with the power to grant him a more satisfactory outcome. I tried to explain to the applicant that the original tribunal, and the Appeal Tribunal, each have the same powers and that the Appeal Tribunal, in particular, does not have powers available to it that the original tribunal did not have.
24. The Appeal Tribunal identified that dismissal of an application under s 32 of the ACAT Act on the basis that the proceedings satisfied the third articulation of the test for being vexatious in Wentworth “is unlikely to be appropriate where the matter turns on contested facts, the meaning of the law is uncertain, or there are discretionary elements to the reviewable decision”: [40].
25. In relation to the RTA decision, the Appeal Tribunal was satisfied that the legislative scheme operated in the manner that the Original Tribunal had identified and that the RTA was mandated to cancel the applicant’s public vehicle licence. Therefore, the application for the review of that decision “had simply no prospects of success”, which brought it within the definition of frivolous and vexatious for the purposes of s 32 of the ACAT Act: [43].
26. In relation to the WWVP decision, the Appeal Tribunal noted the change in the relevant law. Under the law as in place at the time of the Original Tribunal decision, the Appeal Tribunal considered that cancellation of the WWVP registration “was both mandatory and not reviewable” as s 56A mandated cancellation of the applicant’s general registration and that cancellation decision was not reviewable. If the previous law still applied, then it would have been open to the decision maker to mitigate the risk posed by the conviction by the imposition of conditions on the WWVP registration. Adopting that approach, the Appeal Tribunal was satisfied that the Original Tribunal was correct in concluding that the conduct of a full merits review was futile because the obtaining of a conditional WWVP registration to drive a taxi would be of no practical effect because of the cancellation of the applicant’s public vehicle taxi licence.
27. For those reasons, the Appeal Tribunal dismissed each appeal.
Application for leave to appeal
28. The application for leave to appeal does not identify any errors on the part of the Original Tribunal or the Appeal Tribunal. Rather, it is styled as an “Appeal of Mercy”. The draft notice of appeal seeks to articulate why the outcome of the proceedings in the ACAT is not a good one. It includes the following:
(a)The legal system is focusing on only one video which was transmitted to his phone and he tried to post to Facebook “to help a child and warn everyone for the safety of our children”.
(b)As a result of the single error on his part, all his family members are being punished.
(c)He respected the laws during the 18 months of his good behaviour order.
(d)The motive of the judicial system should be to assist an “unaware naïve person” like himself, not just punishing him.
(e)The purpose of justice is to make good and enlightened human beings but he is not seeing any humanitarian behaviours toward him in the justice system.
(f)Cancellation of his WWVP card and taxi driver licence is a significant punishment for him while “presentence report and Justice Burns assessed me as a minimum punishment”.
(g)He emphasises the significance of being able to work and the impact on his capacity to live a life with dignity. He says “I truly want to be a good citizen and I feel a lot of regret my actions”.
29. In a letter annexed to his affidavit in support of the application, he pursues similar themes. He emphasises that he is seeking a merciful decision:
I am not arguing challenging to anyone about it, this is my Appeal of Mercy to Supreme Court only because It is my Unaware Unknown Unintentional Accidentally happened mistake.
30. The outcome the applicant seeks is set out as follows:
Considering the above, I would request the Supreme Court to hear my case and show humanity considerations for my mitigating circumstances by reducing the number of punishments.
I would request the Supreme Court to forgive help to me as a human to be a good citizen to restart my happy family life again.
31. Having regard to the reasoning adopted by both the Original Tribunal and the Appeal Tribunal, none of these matters give rise to an arguable ground of appeal. They do not identify any arguable error of fact or law on the part of the Appeal Tribunal. As a result, they do not identify any basis upon which leave to appeal from the decision of the Appeal Tribunal should be granted.
32. The approach of the applicant has been that identified in the reasons of the Appeal Tribunal, namely to appeal to a higher authority in order to come before an entity with the power to grant him a more satisfactory outcome. In the circumstances of this case, the law is such that this is not a course which is open to him because the effect of the law is to deny him a public taxi driver licence and thereby render any conditional WWVP registration of no practical effect. For those reasons, the application must be dismissed.
33. I note the final comments made by the Original Tribunal which are reproduced at [20] above. I observe that in the rather unusual circumstances of this case the outcome appears to be a harsh one because of the broad net cast by the child sex offenders registration regime and the lack of discretion given under the Road Transport (Driver Licensing) Regulation in relation to persons subject to that regime. It is notable that the provisions of the Guidelines relating to sexual offences generally (as opposed to sexual offences against children) and in relation to drivers of buses and hire cars are less absolute than in relation to taxi licences. The potential for injustice to an individual to arise under that regime because of the absence of any discretion is, however, not a matter that can be addressed by the court.
Orders
34. The order of the Court is:
1. The application for leave to appeal dated 30 June 2021 is dismissed.
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop Associate: Date: 31 January 2022 |
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