Taylor v Director General, Department of Transport

[2001] NSWADTAP 29

Appeal Panel

CITATION:	Taylor -v- Director General, Department of Transport (GD) [2001] NSWADTAP 29
PARTIES:	APPLICANT Kenneth Allan Taylor RESPONDENT Director General, Department of Transport
FILE NUMBER:	019009
HEARING DATES:	07/06/01
SUBMISSIONS CLOSED:	06/07/2001
DATE OF DECISION:	09/12/2001
DECISION UNDER APPEAL:	Taylor -v- Director General, Department of Transport [2001] NSW ADT 17
BEFORE:	Hennessy N (Deputy President); Hoeben GMM - Judicial Member; Mapperson K - Member
CATCHWORDS:	opportunity to be heard - statutory interpretation - scope of Tribunal Order
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	003045
DATE OF DECISION UNDER APPEAL:	08/30/2001
LEGISLATION CITED:	Administrative Appeals Tribunal Act 1975 Administrative Decisions Tribunal Act 1997 National Health Act 1953 Passenger Transport Act 1990
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 336 Parker v DPP (1992) 28 NSWLR 282 Relic v DPP {2000] NSWCA 84 Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158 Pfening v the Queen (1995) 182 CLR 461 Australian Broadcasting Tribunal v Bond and Others (1990) 170 CLR 321 Hope v. Bathurst City Council (1980) 144 CLR 1 Purnell v Medical Board of Queensland (Supreme Court of Queensland, Court of Appeal, unreported, 15 August 1997 Drake v Minister for Immigration and Ethnic Affairs (1979 2 ALD 60 Fletcher v Commissioner of Taxation of Commonwealth of Australia (1988) 84 ALR 295 Tutugri v Minister for Immigration & Multicultural Affairs [1999] FCA 1785 Re: Secretary, Department of Social Security v Hodgson (1992) 15 AAR 563 Re Gowing and Civil Aviation Authority (1990) 11 AAR 411 PW Adams Pty Limited v Australian Fisheries Management (1996) 39 ALD 339 Mahon v Air New Zealand Ltd [1984] 1 AC 9-9 Bond v ABT (No 2) (1988) 84 ALR 646 Re Australian Railways Union; ex parte Public Transport Corporation (1993) 117 ALR 17 R v Hunt; ex parte Sean Investments Pty Limited (1979) 25 ALR 497 Re T and Anor and the Director of Youth and Community Services ([1980] 1 NSWLR 392 Melbourne v The Queen (1999) 198 CLR 1 Caska v The Director General Department of Transport [2001] NSWSC 205 Re Saverio Barbaro and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 1 House v The King (1936) 55 CLR 499 R v Hunt; ex parte Sean Investments Pty Limited (1979) 25 ALR 497 Plato Films Ltd v Speidel, [1961] AC 1090 Barrett v Director General, Department of Transport [2000] NSW ADT 183 Makin v Attorney General (NSW) [1894] AC 57, 65 Commissioner for the ACT Revenue v Alphaone Pty Limited (1994) 49 FCR 576 Chief Executive, SAS Trustee Corporation -v- Daykin (GD) [2000] NSWADTAP 20
REPRESENTATION:	APPLICANT R Beech-Jones, barrister RESPONDENT D Jordan, barrister
ORDERS:	The Tribunal’s decision to cancel Mr Taylor’s bus driver authority is set aside.

Introduction
1 Mr Taylor was the operator of a bus company in Moree and has had a long career as a bus driver and operator. On 14 December 1999 he was summonsed to appear in the Local Court on a charge of assaulting an 11 year old female passenger. The following day the Department of Transport (the Department) advised Mr Taylor by letter that his authority to drive a bus had been suspended. After requesting an internal review of that decision, the Department wrote to Mr Taylor stating that:
The Department of Transport has conducted an internal review of the decision to suspend your regular passenger and long distance and tourist authorities. The decision to suspend your driver authorities until the criminal proceedings being taken by Police have been finalised has been confirmed . . .


2 Mr Taylor applied to the Tribunal for a review of that decision but requested that the hearing be postponed until after the assault charges had been dealt with by the Local Court.

3 The Local Court dismissed the assault charges. The Tribunal heard the application for renewal of the suspension in November and December of 2000. It decided that the “correct and preferable decision” was that Mr Taylor’s authority should be cancelled, rather than suspended. On 8 March 2001, Mr Taylor lodged an appeal to the Appeal Panel against the Tribunal’s decision.

4 Clause 11 of the Passenger Transport General Regulation 2000 provides for various categories of authority. Two of those categories are:
(a) authorities to drive buses, except those providing long-distance or tourist services,
(b) authorities to drive buses providing long-distance and tourist services,


5 There was some discussion during the hearing of this appeal as to whether the Tribunal had turned its mind to the fact that the Department had suspended two authorities: the regular passenger authority and the long distance and tourist authority. Both these authorities are authorities to drive buses. The Tribunal described the authority that had been suspended as “Mr Taylor’s authority to drive a public passenger vehicle.” This is an accurate, although general, description of the authorities Mr Taylor held. In our view, although the Tribunal did not differentiate between the two kinds of bus authority which had been suspended, his decision encompassed both authorities.

6 In the hearing before the Tribunal, the Department relied not only on the criminal charges but also on complaints from parents and others about Mr Taylor’s conduct when driving school buses.

Jurisdiction of the Appeal Panel

7 The power of the Appeal Panel to hear this matter is found in s 113 of the Administrative Decisions Tribunal Act 1997 (ADT Act). Section 113 of the ADT Act states that:
(1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel.
(2) An appeal:
(a) may be made on any question of law, and
(b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision.
(3) An appeal must be made:
(a) within 28 days after the Tribunal furnishes the party with written reasons for the appealable decision under section 89, or
(b) within such further time as the Appeal Panel may allow.
(4) An appeal is to be made in the manner prescribed by the rules of the Tribunal.


8 The appeal was lodged within time and identified various questions of law. Consequently the Appeal Panel has jurisdiction to hear the appeal. Leave was sought to extend the appeal to a review of the merits of the decision. That question is dealt with below.

9 After outlining the events which led Mr Taylor to make an application, the Tribunal noted that the its role is to conduct a merits review of the Director General’s decision and, in that process, to consider all relevant material, not only the material that was available to the administrator when the decision was made. The Tribunal added that there is no onus on the applicant to prove that the decision is wrong. Before making findings of fact, the Tribunal must be satisfied to the civil standard of proof, that is on the balance of probabilities. While in some matters it may be appropriate to apply the Briginshaw standard, ( Briginshaw v Briginshaw (1938) 60 CLR 336 at 366) that is not always the appropriate standard in relation to any adverse findings about reputation. The Tribunal went on to say at [23] that:
My decision is based on findings of a Local Court magistrate at the conclusion of a hearing conducted by legally represented parties in accordance with the rules of evidence: as I explain below I make no finding as to Mr Taylor’s actual conduct.


10 The Tribunal then set out the relevant legislative provisions, namely sections 14 and s 11(2) of the Passenger Transport Act 1990 (PT Act). Section 14 states that:
Having regard to the purpose of an authority, the Director-General may at any time vary, suspend or cancel any person's authority.


11 That section allows the Director General to vary, suspend or cancel an authority to drive a public passenger vehicle, having regard to the purpose for which the authority is held. Section 11(2) sets out the purpose of an authority:
(2) The purpose of an authority under this Division is to attest:

(a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle; and
(b) that the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates:
(i) in accordance with the conditions under which a public passenger service is operated; and
(ii) in accordance with law and custom.


12 In relation to the question of whether it can be attested that Mr Taylor is considered to be of good repute, the Tribunal stated at [51] that he was “concerned with Mr Taylor’s reputation, and not concerned with the truth or otherwise of Mr Taylor’s conduct which is implied or asserted by those expressing their views as to his reputation.” Similarly, in relation to complaints about Mr Taylor in the Department’s file, the Tribunal made no findings as to the truth of the matters alleged in the complaints, but had regard to the complaints themselves as evidence of Mr Taylor’s reputation. (See [64])

13 The Tribunal concluded that an authority could not properly attest to Mr Taylor being of good repute and that:
That is enough on which to decide that the correct and preferable decision to suspend or cancel Mr Taylor’s authority should be affirmed. (See [86])


14 In relation to whether it could be attested that Mr Taylor is a fit and proper person to be a bus driver, the Tribunal did not make any finding as to whether Mr Taylor committed the conduct alleged in the criminal proceedings. However the Tribunal considered that the Magistrate’s finding that the allegation against Mr Taylor was “tenable” indicates that Mr Taylor is not a fit and proper person to hold an authority. In relation to the complaints lodged against Mr Taylor, the Tribunal made no findings as to the truth of the matters alleged in the complaints. However it concluded at [96] that:
In my view it is improbable that the complaints are all untrue or at least unfounded. They support an inference that Mr Taylor has conducted himself in the manner alleged, that is to say with impatience and aggression towards school children bus passengers, and driving in a manner which is dangerous to the safety of the school children passengers.


15 The Tribunal concluded that the correct and preferable decision was to cancel, rather than suspend, Mr Taylor’s licence.

16 During the hearing the grounds of appeal were clarified and refined. Those grounds can summarised as follows:
· the Tribunal misconstrued s 11 and s 14 of the PT Act by failing to exercise the discretion conferred under s 14;
· the Tribunal misinterpreted the meaning of reputation in s 11(2)(a) of the PT Act;
· the Tribunal drew inferences on the basis of complaints made about Mr Taylor while asserting that he would not make findings as to the truth of the matters in the complaints; and
· the Tribunal’s decision to cancel Mr Taylor’s authority without giving the parties notice of that possibility breached the rules of procedural fairness.

Appeal Panel’s conclusions

17 The Appeal Panel has concluded that the Tribunal did not have power to cancel Mr Taylor’s authorities. The Tribunal’s decision is set aside on that basis. The other questions of law raised by the appellant are dealt with even though they had no effect on our ultimate conclusion. Because the last of the questions of law identified by the appellants is the most fundamental one, we will deal with it first.

Cancellation of authority

18 Appellant’s submissions. At paragraph 102 the Tribunal set out its reasons for cancelling Mr Taylor’s authority, even though the decision under review was to suspend the authority.
Mr Taylor's authority was suspended in December 1999 pending the criminal proceedings, and he applied to this Tribunal for review of that decision. My decision is as to the correct and preferable decision which should now be made, and I have the powers available to me that are available to the Director General. In the circumstances I consider it is appropriate to cancel Mr Taylor's authority rather than to suspend it.


19 Mr Taylor’s representatives submitted that the Tribunal’s decision to cancel Mr Taylor’s authority involved a breach of procedural fairness. During the hearing, the Tribunal did not raise the possibility that Mr Taylor’s authority could be cancelled and Mr Taylor was not given the opportunity to address that possibility. It was the appellant’s submission that the failure of the Tribunal to place Mr Taylor on notice that his authority may be cancelled is a breach of procedural fairness. The appellants cited Parker v DPP (1992) 28 NSWLR 282 and Relic v DPP {2000] NSWCA 84 (unrep, Court of Appeal, 26 April 2000) in support of this proposition.

20 Respondent’s submissions. The Department submitted that the principles enunciated in the criminal cases cited by the appellant are not relevant to merits review decisions in civil cases. These cases relate to sentencing practices which courts have developed to prevent double jeopardy. The Department argued that because the Tribunal has power to “vary” the Department’s decision, it was entitled to cancel Mr Taylor’s authority as part of its task of coming to the “correct and preferable decision” on the evidence then before it.

21 Reasoning and conclusion. Before addressing the question of whether the decision to cancel Mr Taylor’s authority involved a breach of procedural fairness, we intend to address what we consider to be a more fundamental issue not raised directly by the appellant, that is whether the Tribunal had the power to cancel the authority at all.

22 The Tribunal’s powers when reviewing a decision are set out in s 63 of the ADT Act. That section states that:
(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.
(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:
(a) to affirm the reviewable decision, or
(b) to vary the reviewable decision, or
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or
(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.


23 The critical provision when determining the scope of the Tribunal’s powers, is s 63(2). That provision is based on s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) which states that:
For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and:
(i) making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.


24 The “correct and preferable decision” requirement in s 63(1) of the ADT Act does not appear in the federal legislation applicable to the Administrative Appeals Tribunal (AAT) even though the test was first proposed in the federal context: Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158. In Drake v Minister for Immigration and Ethnic Affairs (1979 2 ALD 60 at 68 (Drake (No 1)) Bowen CJ and Deane J adopted the Becker formulation and concluded that it was the Tribunal’s task to reach the correct or preferable decision on the material before it. The change in wording from “correct or preferable” in the federal cases to “correct and preferable” in s 63 of the ADT Act appears to have arisen from a concern of the Administrative Review Council (ARC) expressed in the Better Decisions Report (Better Decisions: Review of Commonwealth Merits Review Tribunals, Report No 39, AGPS). At [2.5] of that Report the ARC referred to the comments of Bowen CJ and Deane J in Drake No 2 and said that:
“. . . their Honours intended to convey the meaning that a decision must be correct, but that if there is a range of decision that could be made, all of which would be correct, the decision maker has a choice as to the preferable decision. However, the phrase ‘correct or preferable’ may give the impression that a decision may be the preferable decision, even though it is not correct. For this reason, the Council prefers the phrase “correct and preferable.”


25 Apart from the inclusion of the “correct and preferable” test in the ADT Act, the provisions of s 43(1) of the AAT Act cited above are virtually identical to the provisions of s 63 of the ADT Act. The critical words which govern the scope of the Tribunal’s powers when reviewing a decision are the words “for this purpose” in s 63(2) of the ADT Act. The Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision, but only for the purpose of reviewing a reviewable decision. Section 43(1) of the AAT Act, is in similar terms.

26 The word “function” is defined in s 4 of the ADT Act to include “a power, authority or duty.” Consequently the term “functions” in s 63(2) includes any “powers and discretions” as defined in s 43(1) of the AAT Act.

27 Because of the similarity between the federal and New South Wales provisions, the Federal Court’s interpretation of s 43(1) of the AAT Act is relevant to the Appeal Panel’s interpretation of s 63(2) of the ADT Act.

28 The classic formulation by the Federal Court of the meaning of s 43(1) of the AAT Act is set out in Fletcher v Commissioner of Taxation of Commonwealth of Australia (1988) 84 ALR 295 at [34]. In that case Lockhart, Wilcox and Burchett JJ state that:
As a matter of principle, it must be correct, as submitted on behalf of applicants, that the powers and discretions referred to by s.43(1) are the powers and discretions vested in the original decision-maker for the purposes of making the decision under review. They do not include any powers and discretions which may be vested in the decision-maker for some other purpose.

29 This means that the Tribunal has the same powers and discretions that the administrator had for the purpose of making the decision under review. This proposition has been developed and refined in subsequent cases. For example, in Tutugri v Minister for Immigration & Multicultural Affairs [1999] FCA 1785 (17 December 1999) the Federal Court made the following comment in relation to the meaning of s 43(1) of the AAT Act:
In carrying out that function (reviewing a decision) the Tribunal may exercise the powers and discretions conferred on the person who made the decision, limited, however, to the purpose of the review. That is not an authority to make a new and separate decision which, had it been made by an officer authorised to make it under the Act, may itself have been subject to review under the Act. The task of the Tribunal was to "address the same question that was before the decision-maker" and not a distinct and separate question and the Tribunal was not able to make any decision an officer may have been authorised to make under the Act, See: Comcare v Burton [1998] FCA 1144; Lees v Comcare [1999] FCA 753; Fletcher v F.C.T. (1988) 19 FCR 442, 453. (Words in brackets added.)

30 In Re: Secretary, Department of Social Security v Hodgson (1992) 15 AAR 563 at 569 to 572, Hill J said that the AAT could consider whether a debt should be waived even though the decision-maker had only addressed the question whether the debt was owing. His Honour said that:
Where the exercise of a power or discretion is relevant to the making of the decision under review then, if requested, the Tribunal may exercise the discretion.


31 In the present case, the decision under review (the internal review decision) is the decision “to suspend your (regular passenger and long distance and tourist) authorities until the criminal proceedings being taken by Police have been finalised . . . ” (Words in brackets added.) That decision was made under s 14 of the PT Act which states that:
Having regard to the purpose of an authority, the Director-General may at any time vary, suspend or cancel any person's authority.


32 The Tribunal’s jurisdiction to review a decision made under s 14 is conferred by s 52(1) of the PT Act. That section states that:
Any person whose application under Part 2 has been refused, or whose accreditation or authority has been varied, suspended or cancelled may apply to the Administrative Decisions Tribunal for a review of the refusal, variation, suspension or cancellation.


33 Under this provision the Tribunal has jurisdiction to review a particular decision, that is a decision to refuse, vary, suspend or cancel an accreditation or authority. In this case the decision under review is a decision to suspend two authorities.

34 Under s 63(2) of the ADT Act, for the purpose of determining an application for review, the Tribunal may exercise all the powers that are conferred or imposed under the PT Act (or other relevant enactment) on the administrator. Cancellation is not a power vested in the administrator for the purposes of making a decision to suspend an authority. Cancellation is a separate decision. Applying the test in Hodgson, the exercise of a power to cancel is not relevant to the making of the decision to suspend. In addition, the Tribunal was not requested to exercise that discretion.

35 Section 63(2) of the ADT Act and the Federal Court authorities cited above persuade us that the Tribunal cannot make any decision an administrator may have been authorised to make. Although the Tribunal must look at all the factual material before it at the time of the hearing, and come to the “correct and preferable” decision, it only has power to review the reviewable decision, that is suspension of Mr Taylor’s authorities. The fact that the administrator could have cancelled the authorities rather than suspended them, does not give the Tribunal power to cancel the decision on review.

36 The Tribunal should have asked itself, in the light of all the material then before it, whether or not suspension of Mr Taylor’s authorities until finalisation of the criminal proceedings was the “correct and preferable” decision. The options were to affirm the decision, vary the decision (for example by making it subject to a definite time period) or set aside the decision and make a decision in substitution for the reviewable decision. In this case the Tribunal could not make a decision in substitution for the decision to suspend because there are no other options available in relation to suspension other than to suspend or not suspend the decision.

37 Once the decision is set aside there is no suspension in force and the applicant is free to rely on any current authorities in seeking or continuing employment. The suspension decision was expressed to be “until the criminal proceedings being taken by Police have been finalised”. We take this phrase to mean that the administrator would decide whether to re-instate or cancel Mr Taylor’s authorities when the criminal proceedings had been finalised. We do not take the administrator to have meant that the suspension would automatically expire on the finalisation of the criminal proceedings. Because Mr Taylor applied to delay the hearing until after finalisation of the Local Court proceedings, the administrator was not given an opportunity to reinstate or cancel Mr Taylor’s authority. The applicant asked the Tribunal to determine whether the suspension decision was the correct and preferable decision at a time when, in the ordinary course of events, his authorities would have been either reinstated or cancelled.

38 There was no utility in reviewing the suspension decision in these circumstances because the Department intended to make a new decision on the completion of the criminal proceedings. When a reviewable decision has lost all practical significance the Tribunal still has power to review that decision. However, the Tribunal may choose not to exercise its powers if the application for review would be a “sterile exercise.” Re Gowing and Civil Aviation Authority (1990) 11 AAR 411.

39 These conclusions mean that the Tribunal’s decision to cancel Mr Taylor’s authorities must be set aside. There is no utility in extending the appeal to a review of the merits of the decision or remitting the matter to the Tribunal to be heard and decided again. The suspension decision was never intended to extend beyond the time when the criminal proceedings were finalised. In similar circumstances to those now before the Appeal Panel, Sackville J chose not to remit a matter to the Administrative Appeals Tribunal on the basis that there was no utility in doing so. (PW Adams Pty Limited v Australian Fisheries Management (1996) 39 ALD 339 at 357.)

40 Mr Taylor’s authorities do not expire until 2 November 2001. The effect of the Appeal Panel’s decision is that unless the Department decides to cancel one or both of his authorities (a decision which would be reviewable by this Tribunal) Mr Taylor can continue to drive buses including long distance and tourist services until his authorities expire.

41 Alternatively, even if the Tribunal did have power to cancel Mr Taylor’s authority, there has been a breach of procedural fairness in the exercise of that power. This breach justifies the Tribunal’s decision being set aside.

42 Section 73(2) of the ADT Act obliges the Tribunal to comply with the rules of natural justice, otherwise known as procedural fairness. Procedural fairness requires that the parties have notice of the decision under review and understand the nature of the assertions made in the proceedings and the legal implications of those assertions: s 73(4)(a) ADT Act. Although the Department did not assert that Mr Taylor’s authorities should be cancelled, if the Tribunal was contemplating such a decision, in our view it should have put Mr Taylor on notice that cancellation was a possibility. As the appellant pointed out in submissions to the Appeal Panel:
Had Mr Taylor been placed on notice that such a step would be taken, he could have either withdrawn his application, sought to argue that only one of his authorities be cancelled . . . or argued that having regard to the time in which he had been suspended a limited suspension should be imposed. All of this was denied to Mr Taylor.

43 Because Mr Taylor was “left in the dark” about the risk of cancellation he did not have the opportunity to put evidence or make submissions that may have deterred the Tribunal from making that decision. (Mahon v Air New Zealand Ltd [1984] 1 AC 9-9 at 820-821 per Lord Diplock; Bond v ABT (No 2) (1988) 84 ALR 646 at 663 and Re Australian Railways Union; ex parte Public Transport Corporation (1993) 117 ALR 17.)

44 In conclusion, even if the Tribunal does have power to cancel Mr Taylor’s authorities, there has been a breach of procedural fairness which justifies the decision being set aside.

45 The other questions of law raised by the appellants will not affect our conclusions but as they raise important issues we will deal with them in the remainder of this decision.

Construction of s 11 and 14

46 Appellant’s submissions. Another ground of appeal was that the Tribunal misconstrued sections 11 and 14 of the PT Act. Mr Taylor’s representative submitted that the Tribunal interpreted those sections as meaning that an authority should be suspended (or cancelled) if there was a finding either that the applicant was not of good repute or that he was not a fit and proper person. The appellant conceded that it is possible for a person to be a fit and proper person but not of good repute because of mistakenly held views among members of the community as to their personal qualities. But the appellant’s submission was that s 14 obliges the decision maker “to have regard to the purpose of an authority” in determining whether to exercise the discretion to vary, suspend or cancel that person’s authority. According to the appellant, this is not the same as saying, as the Tribunal allegedly did in this case, that if it forms the view that the person is of good repute, then the power should or must be exercised to vary, suspend or cancel the authority. The appellant’s view is that in exercising its discretion under s 14, the Tribunal should take into account all the relevant factors including conduct, reputation, whether the reputation is deserved, whether the applicant is a fit and proper person and the hardship that may arise from cancelling the applicant’s authority.

47 In support of this submission, the appellant relied on R v Hunt; ex parte Sean Investments Pty Limited (1979) 25 ALR 497. In that case the High Court interpreted certain provisions of the National Health Act 1953 (Cth) which allow for the approval of premises as nursing homes. To qualify for approval, the fees charged by the nursing home cannot exceed the scale of fees determined by the Permanent Head of the relevant Department. Section 40AA(7) of the National Health Act 1953 (Cth) provides that:
The Permanent Head shall, in determining the scale of fees in relation to a nursing home for the purposes of sub-paragraph (i) of paragraph (c) of the last preceding sub-section, have regard to costs necessarily incurred in providing nursing home care in the nursing home.


48 The prosecutor in that case had applied for an increase in the scale of fees applicable to a nursing home. The majority of the High Court (Gibbs and Mason JJ) interpreted the words “have regard to” in s 40AA(7) as requiring the decision maker to “take those . . . (matters) into account and to give weight to them as a fundamental element in making his determination.” The majority went on to say, at 504, that:

The sub-section is so generally expressed that it is not possible to say that he is confined to these two considerations. The Permanent Head is entitled to have regard to other considerations which show, or tend to show, that a scale of fees arrived at by reference to costs necessarily incurred with or without a profit factor, is excessive or unreasonable.
The appellant urged the Tribunal to interpret the words “have regard to” in s 14 of the PT Act in the same way as the High Court interpreted those words as they appear in s 40AA(7) of the National Health Act 1953 (Cth).


49 Mr Beech Jones for the appellant submitted that there were at least three matters which the Tribunal was bound to take into account: hardship to Mr Taylor, the fact that the Magistrate acquitted Mr Taylor and that there were two authorities under consideration.

50 Respondent’s submissions. The Department submitted that the terms of s 11 and s 14 support the Tribunal’s interpretation that the notions of reputation and fitness/propriety are distinct and therefore the Tribunal was correct to deal with them separately. A passage from Re T and Anor and the Director of Youth and Community Services ([1980] 1 NSWLR 392 at 395F interpreting a similar provision relating to the character and reputation of parents wishing to adopt a child, was quoted to illustrate this point:
. . . an applicant might be a person of good repute but, unknown to those who hold such an opinion of them, have deficiencies in his moral character which would make him not a fit and proper person to fulfil the responsibilities of a parent. A person might not be of good repute, because of a widespread but mistaken belief that he was dishonest but, in fact, have all the personal qualifies necessary to make him fit and proper to fulfil the responsibilities of a parent. In either case, the Court, if so satisfied, would be obliged to refuse an application by him for the adoption of a child. The policy of the provision, no doubt, is that an adoption order should not be made unless the applicant is both a fit and proper person to fulfil the responsibilities of a parent, and of good repute, even if his bad reputation is totally unjustified.


51 Similarly, the PT Act requires both a good reputation and fitness and propriety before a person can be authorised to drive a public passenger vehicle. In a particular case an adverse finding on reputation may be sufficient to justify a decision to suspend or cancel an authority.

52 In addition, the respondent submitted that the Tribunal did interpret sections 11 and 14 correctly by carefully considering both reputation and fitness and propriety and did not come to the automatic conclusion that if it forms the view that the person is not of good repute, then the power to suspend (or cancel) should or must be exercised.

53 In relation to the three matters the appellant submitted that the Tribunal was bound to take into account (hardship to Mr Taylor, the fact that the Magistrate acquitted Mr Taylor and that there were two authorities under consideration) the respondent submitted that the Tribunal may take these matters into account but was not bound to do so. Financial and other hardship to Mr Taylor was taken into account at paragraphs 10 and 100 of the decision. Finally, the respondent submitted that while the Tribunal focused on the school bus authority, rather than the long distance and tourist bus authority, it was open to the Tribunal to decide as it did, that both authorities should be suspended (or cancelled). Long distance bus services can involve contact with children and that was the basis of the Tribunal’s concern about reputation and character.

54 Reasoning and conclusion. The Tribunal was satisfied that “an authority could not properly attest to Mr Taylor being of good repute.”[85]. The Tribunal went on to conclude at [86] that “That is enough on which to decide that the correct and preferable decision to suspend or cancel Mr Taylor’s authority should be affirmed.” After dealing with the issue of fitness and propriety, the Tribunal concluded that “On that basis, quite apart from a decision as to Mr Taylor’s reputation, the correct and preferable decision to suspend or cancel Mr Taylor’s authority should be affirmed.”

55 The Appeal Panel agrees with the respondent that the notions of being a “fit and proper person” and of “good repute” are distinct concepts which must both be satisfied before an authority can fulfil its purpose. (Re T and Anor and the Director of Youth and Community Services [1980] 1 NSWLR 392; Melbourne v The Queen (1999) 198 CLR 1 at 15.) This proposition was endorsed recently by the Supreme Court in Caska v The Director General Department of Transport [2001] NSWSC 205.

56 In Caska, Simpson J dealt with an appeal from a decision by the Local Court interpreting the same provisions of the PT Act as are currently before this Appeal Panel. Before the creation of the Administrative Decisions Tribunal, a decision by the Director General of the Department of Transport to cancel or suspend an authority was appealable to the Local Court. In Caska Simpson J interpreted s 11(2) of the PT Act (which was then in identical form to the current provision) as follows:
By s 11(2)(a) the holder of an authority is required to have two attributes: he/she is to be considered "to be of good repute" and "in all other respects a fit and proper person to be the driver of a public passenger vehicle". The magistrate was conscious of the concession that Mr Caska's "good repute" was not challenged and was not in issue. The question he correctly identified for himself was whether he was "in all other respects a fit and proper person to be the driver of a public passenger vehicle". He in fact enunciated this test explicitly. [42]

57 These authorities suggest that a Tribunal must be satisfied that a person is both of good repute and a fit and proper person to be a driver of a public passenger vehicle. (Other requirements, not relevant to this case, are that the person must have sufficient responsibility and aptitude to drive buses in accordance with the conditions under which a public passenger service is operated and in accordance with law and custom.)

58 The question then arises as to whether considerations other than good repute and fitness and propriety may or must be taken into account. The High Court’s interpretation of “have regard to” in R v Hunt; ex parte Sean Investments Pty Limited (1979) 25 ALR 497 was that the Permanent Head is not “confined” to the considerations listed in the section and “is entitled” to have regard to other considerations. The appellant’s submission was that it was the “better view” that s 14 “requires” the exercise of a normative judgement that takes into account all the relevant factors concerning the authority holder and their conduct.

59 In our view, s 14 does not “require” the Tribunal to look at matters other than those matters which are relevant to fitness and propriety and reputation. Other matters may be relevant in the exercise of the Tribunal’s discretion, but the Tribunal is not bound to address them. In House v The King (1936) 55 CLR 499 at 504-5) the High Court required an appeal body to consider whether it "appears" that "some error has been made in exercising the discretion":
If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed ...

60 The Tribunal in this case did not act on a wrong principle or fail to take into account some material consideration. The appellant put to the Appeal Panel that the Tribunal did not take into account hardship to Mr Taylor in coming to its decision. Under the heading “Decision” the Tribunal notes that “This decision is regrettable in that it effectively brings to an end Mr Taylor’s life-long career as a driver.” We agree that the question of hardship was not a consideration which the Tribunal took into account in reaching its decision, but in our view, the Tribunal was not bound to do so. The focus of the legislation is on the public interest in ensuring that drivers are reputable and of good character.

61 Despite the appellant’s submission to the contrary, the fact that the Magistrate acquitted Mr Taylor was a consideration relevant to the question of fitness and propriety which the Tribunal took into account. At paragraph 43 of the decision, the Tribunal specifically said “I have regard to the findings of the learned Magistrate.” At paragraph 35 of the decision, the Tribunal quoted the Magistrate’s finding that it was equally tenable that Mr Taylor had either given the child “a clip around the back of the ear” or that the “contact was accidental”. Consequently the findings of the Magistrate, which are a relevant consideration, were taken into account.

62 The third matter which Mr Beech Jones submitted that the Tribunal did not take into account was that the administrator suspended two authorities. We have mentioned above at paragraph 5 that the Tribunal referred generically to the authorities as “Mr Taylor’s authority to drive a public passenger vehicle.” While the Tribunal did not differentiate between the two kinds of authority in his decision, we are satisfied that his decision relates to both authorities and that the same test applies to each authority.

63 On the basis of these conclusions we agree with the respondent’s submission that the Tribunal was correct to proceed on the basis that an adverse finding on the issue of either reputation or fitness and propriety, was a sufficient basis on which to determine whether the administrator had made the correct decision. Section 11(2) states that the purpose of an authority is to attest that the person is of good repute and in all other respect a fit and proper person to be the driver of a public passenger vehicle. If either reputation or fitness and propriety cannot be attested to, the authority will not fulfil its purpose. Other considerations may be relevant in the circumstances of a particular case, but the Tribunal is not bound to take them into account.

Meaning of reputation

64 Appellant’s submissions. The next ground of appeal on which Mr Taylor relied was that the Tribunal erred in the meaning it gave to the term “reputation.” The submission was that reputation generally means “common or general estimate of a person with respect to character or other qualities; the relative estimation or esteem in which they are held” ( Re T and Anor and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 399). Evidence of a particular aspect of misconduct by a person whose reputation is in issue is not admissible to prove the nature of that reputation ( Re T at 401C). Although the ADT is not bound by the rules of evidence, the comments in Re T are still apposite as to whether particular evidence given before it is relevant to the fact in issue, namely Mr Taylor’s reputation. The Tribunal misconstrued the meaning of good repute by considering that material that recounted specific instances of misconduct was probative of Mr Taylor’s reputation.

65 Respondent’s submission. Reference to particular complaints of misconduct are not irrelevant to the issue of reputation. The appellant’s submission is based on the rule for the formal proof of reputation in defamation proceedings drawn from the decision of the House of Lords in Plato Films Ltd v Speidel, [1961] AC 1090. The House of Lords held that evidence of particular acts of misconduct was not admissible to prove bad reputation. In Re T Waddell J considered the rule and took the opportunity to state his own opinion as to whether or not the rule was sound:
These consideration lead me to the opinion that it would be wrong to hold that general evidence of reputation, which must mean reputation in that sector of a plaintiff’s life that has relevance to the libel complained of, cannot include evidence citing particular incidents, if they are of sufficient notoriety to be likely to contribute to his current reputation. Such incidents are, after all, the basic material upon which the reputation rests, and I cannot see the advantage to anyone of excluding the better form of evidence in favour of the worse. It remains true that the issue is not whether the incidents actually happened but whether it is a common report that they did. If it is, that seems to me the best available evidence of a plaintiff’s reputation. (410B)

66 The respondent adopted Waddell J’s analysis in support of their submission that the Tribunal’s use of the evidence in relation to reputation discloses no error of law, and was consistent with the obligation in s 73(3) of the ADT Act, to act without formality and in accordance with the substantial merits of the case.

67 Reasoning and decision. We agree with the analysis and reasoning on this point as outlined in Re T. In cases of this kind, general evidence of reputation can include evidence of particular incidents, if they are of sufficient notoriety to be likely to contribute to reputation. The Tribunal rightly considered that evidence in relation to particular complaints was relevant to, although not determinative of, the applicant’s reputation.

Findings of fact about complaints - breach of natural justice

68 Appellant’s submissions. When considering the “fit and proper person” limb of s 11 the PT Act, the Tribunal had regard to complaints which had been made against Mr Taylor. Although the Tribunal stated at [95] that he makes no findings as to the truth of each of the matters alleged in the complaints, it went on to conclude (at [96]) that it is improbable that the complaints are all untrue or at least unfounded. The Tribunal then states that the complaints support an inference that Mr Taylor has conducted himself in the manner alleged, that is to say with impatience and aggression towards school children bus passengers and driving in a manner which is dangerous to the safety of the school children passengers. It was the appellant’s submission that the complaints could only support such an inference if one or more of them was found to be true.

69 The appellant argued that the Tribunal’s reasoning arose from a misunderstanding of the rule about “propensity” or “similar fact” evidence in criminal cases. (See decision by the same Member in Barrett v Director General, Department of Transport [2000] NSW ADT 183 at [57] and [58].) In general, evidence that an accused has a particular propensity to commit crimes is inadmissible (Makin v Attorney General (NSW) [1894] AC 57, 65). “Similar fact” or “propensity” evidence can be admitted by way of an exception to this rule (Pfening v the Queen (1995) 182 CLR 461). Assertions of similar fact behaviour are only relevant to the ultimate matter in issue if they are accepted as to the truth of what is stated. The appellant submitted that the Tribunal erred by accepting the complaint evidence as some kind of “propensity” evidence. In his view, the evidence could only have that character if the Tribunal had treated the complaints as evidence of the truth of their content.

70 The appellant submitted that the Tribunal erred by drawing an inference from the fact of the complaints and their nature, that Mr Taylor was aggressive and impatient. Those facts do not support such an inference.

71 The appellant also submitted that the Tribunal had breached the rules of procedural fairness. The Tribunal accepted that the complaints were not properly tested before by him ([95]. If Mr Taylor had known that inferences would be drawn from the existence of complaints and their content, he could have addressed the complaints in his evidence or adduced evidence to explain the complaints made against him.

72 Respondent’s submissions. The Department submitted that the Tribunal did not make an error of law by deciding not to make findings of fact in relation to each complaint. If the Tribunal was required to make such findings in every case, proceedings in the Tribunal would be no different from a criminal trial, apart from the standard of proof required. The Department submitted that the Tribunal made an inference on the basis of the number and nature of the complaints and that this inference was open and rational.

73 Reasoning and conclusion. These submissions raise significant questions about the approach which the Tribunal should take in assessing whether a person’s authority to drive a public passenger vehicle should be suspended or cancelled. The practice of the Department in Tribunal proceedings has been to tender their file which often contain several complaints from passengers, records of interview with the driver and an assessment of the appropriate action to be taken. It is rare for the Department to provide signed statements from passengers unless the same complaints have been the subject of criminal charges. Applicants, most of whom are unrepresented, rarely request that a passenger or other complainant be available for cross examination.

74 In the present case, it is our impression that the Tribunal attempted to avoid any unfairness arising from the absence of oral evidence from complainants by stating that he would not make findings about the truth or otherwise of each matter alleged in the complaints. Instead, the Tribunal relied on certain factors to support an inference that “Mr Taylor has conducted himself in the manner alleged, that is to say with impatience and aggression towards school bus passengers, and driving in a manner which is dangerous to the safety of the school children passengers.” The factors on which the Tribunal relied were:

· the regularity of the complaints;
· the period of time during which complaints had been made;
· the consistency of the content of the complaints;
· the range of people making the complaints; and
· the improbability that the complaints were all untrue or unfounded.
75 The questions for the Appeal Panel are:
· was the Tribunal’s implied use of “propensity” or “same fact” evidence justified?
· was it open to the Tribunal to conclude that the applicant acted impatiently and aggressively and drove dangerously without making any findings about the allegations in any particular complaints?
· given the Tribunal’s finding that Mr Taylor acted in that way, was it a breach of procedural fairness not to give him an opportunity to test the complaint evidence.
76 “Propensity” or “same fact” evidence. Although the Tribunal did not mention “propensity” or “same fact” evidence in its decision, there is value in examining those rules of evidence in the context of this case. We agree with the appellant’s characterisation of the rule about “propensity” or “similar fact” evidence. That rule provides an exception to the general rule that “similar fact” evidence cannot be admitted to show that a person has a particular propensity to commit certain crimes or engage in certain conduct. ( Pfening v the Queen (1995) 182 CLR 461). Similar fact evidence is admissible if it has sufficient probative force to be taken into account. As the appellant pointed out, if it is admitted, it goes to the question of whether allegations that a person engaged in particular conduct are proved. Such evidence cannot be used in a general sense to show that a person probably engaged in certain kinds of behaviour.

77 In Zaidi v Health Care Complaints Commission, the Supreme Court (Mason P, Priestley and Powell JA) considered the extent to which “similar fact” or “propensity” evidence could be used in civil matters involving professional discipline. The Supreme Court rejected a submission that such evidence is inadmissible in proceedings relating to medical disciplinary matters. Even though the present case involves a merits review of an administrative decision, rather than an original decision in relation to a disciplinary matter, we take the view that similar fact evidence should be admitted, where appropriate, in merits review cases. In Zaidi, Mason P adopted some relevant comments of the Queensland Court of Appeal in Purnell v Medical Board of Queensland (Supreme Court of Queensland, Court of Appeal, unreported, 15 August 1997, per MacKenzie J at 5-6). Those comments were as follows:
This is a case where identification of the person who allegedly did an act is not in dispute. The issue is whether the act complained of was done. Where this is the issue proof of the commission of an act on a particular person may become more certain if other witnesses testify that a similar act has been committed on them. Provided the complaints of the similar acts are made by witnesses who are truly independent of the complainant whose testimony is in issue . . . can be ruled out, it is unlikely that the various independent accounts are a coincidence. . . . The strength of the inference will depend on the facts of the particular case. The number of complaints is not of itself critical. One similar allegation containing the same peculiar feature or features may have considerable weight in supporting a complainant's evidence. On the other hand where acts alleged do not contain any particularly unusual features but are similar, the fact that there are a number of allegations from different persons may assist in drawing an inference that the act with which the court or tribunal is concerned occurred to the required standard of proof.

78 On the basis of these authorities, “propensity” or “similar fact” evidence can only be used to add weight to an allegation that particular conduct occurred. It cannot be used in a general sense to conclude, as the Tribunal appeared to do in this case, that “it is improbable that the complaints are all untrue or at least unfounded.”

79 Inferences “reasonably open” on the facts. The Tribunal’s finding, which amounts to a finding that at least some of the complaints were true or well founded, was then used to support an inference adverse to Mr Taylor. The question of whether a particular inference can be drawn from facts found or agreed is a question of law. (Australian Broadcasting Tribunal v Bond and Others (1990) 170 CLR 321 [87]; Hope v. Bathurst City Council (1980) 144 CLR 1, at 8-9.) As long as the particular inference is reasonably open on the evidence, there will be no error of law.

80 In Caska v The Director General Department of Transport [2001] NSWSC 205 it was alleged that a taxi driver’s authority had been cancelled following allegations that he masturbated in the taxi when two female passengers were in back seat. It was also alleged that he made various inappropriate remarks, such as “Do you sexy little girls have something big planned this evening?" and "You pretty young girls, looking for a big night out?" The matter proceeded over thirteen (non consecutive) days, between July 1995 and February 1997. Both passengers gave oral evidence and were extensively cross-examined by Mr Caska. The Magistrate, Mr Kearney, found that:
Whilst there is not evidence to establish that each of the expressions complained of were indeed made use of by [Mr Caska], there is evidence which the court accepts that there was overall, inappropriate comment as set out in the formal evidence produced to the Court."

81 In relation to the Magistrate’s comments, on appeal to the Supreme Court Simpson J said, at para 40:
As to the allegation of inappropriate remarks, Mr Kearney did not specify which remarks he found had been made. This may have created a difficulty if the indecency allegation had not been proved and he had relied on the findings of fact in relation to inappropriate comments to support his decision to uphold the cancellation of the authority. But, since the allegation of indecency was proved, the question of the inappropriate remarks can be put to one side, so far as this aspect of the argument is concerned.

82 This passage implies that in the absence of specific findings by the Magistrate about what was said, it was problematic for the Magistrate to draw an inference about the applicant’s reputation or character.

83 On the basis of this analysis, in our view, it was not reasonably open to the Tribunal to conclude that the applicant acted impatiently and aggressively and drove dangerously without making any findings about the allegations in any particular complaints.

84 In our view, the steps which the Tribunal should have taken were as follows:

· examine the evidence from both parties in relation to the conduct alleged in the complaints including “similar fact” or “propensity” evidence if that evidence is sufficiently probative to be taken into account;
· make findings about whether or not the alleged conduct occurred;
· draw inferences which are reasonably open on the basis of these findings, for example that the applicant acted impatiently and aggressively and drove dangerously;
· draw conclusions on the basis of this and other relevant material as to the ultimate question namely whether the applicant is a fit and proper person to be authorised to drive a bus.
85 Procedural fairness aspect. The ADT operates within a similar framework to the AAT in that it is not bound by the rules of evidence and may “inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.” (ADT Act s 73(2); AAT Act s 33(1)(c)). The Administrative Appeals Tribunal decision of Re Saverio Barbaro and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 1 addressed the question of whether a Report of the Royal Commission into Drug Trafficking should be admitted into evidence. Mr Barbaro’s involvement in criminal activities was an issue before the Tribunal. In the Report, Mr Justice Woodward made findings adverse to Barbaro. Because Mr Barbaro did not give evidence at the Commission, these findings were made without him being heard. Justice Davies admitted the Report into evidence and commented at p 4 and 5, that:
In informing itself on any matter in such manner as it thinks appropriate, the Tribunal endeavours to be fair to the parties. It endeavours not to put the parties to unnecessary expense and may admit into evidence evidentiary material of a logically probative nature notwithstanding that that material is not the best evidence of the matter which it tends to prove. But the Tribunal does not lightly receive into evidence challenged evidentiary material concerning a matter of importance of which there is or should be better evidence. And the requirement of a hearing and the provision of a right to appear and be represented carries with it an implication that, so far as is possible and consistent with the function of the Tribunal, a party should be given the opportunity of testing prejudicial evidentiary material tendered against him. It is generally appropriate that a party should have an opportunity to do more than give evidence to the contrary of the evidence adduced on behalf of the other party. He should be given an opportunity to test the evidence tendered against him provided that the testing of the evidence seems appropriate in the circumstances and does not conflict with the obligation laid upon the Tribunal to proceed with as little formality and technicality and with as much expedition as the matter before the Tribunal permits.

86 In the present case, the Tribunal admitted the Magistrate’s findings into evidence despite the fact that there was “better evidence” available, namely re-calling each of the witnesses in the criminal proceedings. This was entirely appropriate and is consistent with the approach Davies J took in Re Saverio Barbaro and Minister for Immigration and Ethnic Affairs. There are circumstances where it is appropriate for material to be admitted into evidence even though it is not the “best” evidence. It is not practical nor efficient for a Tribunal to inquire again into matters that have already been the subject of an exhaustive and expert inquiry, especially where the applicant has had an opportunity to participate in that inquiry. The Tribunal must make a decision in each case as to whether to allow into evidence material which is not the “best” evidence. In some cases, such as the admission of findings by a Magistrate in criminal proceedings, the decision will generally be that the material should be admitted. But where an applicant has not had the opportunity to test the evidence, it may be that procedural fairness requires that an applicant be given an opportunity to test that evidence.

87 In passenger transport cases involving complaints from passengers or other members of the public the Tribunal should start from the position that a party should be given the opportunity of testing prejudicial evidentiary material tendered against him or her. That position may be modified depending on a number of factors including:

· whether and if so to what extent the applicant denies the allegations in the complaints;
· the importance of the complaints in relation to the whole of the respondent’s case;
· whether complaints were made confidentially and the availability of complainants to give evidence;
· the nature and extent of the investigation process that has already been undertaken by the Department and the applicant’s involvement in that process.
88 Depending on all these factors, the Tribunal may decide to admit the complaints, admit the complaints subject to submissions about their weight or not to admit the complaints into evidence.

89 In this case the Tribunal admitted the complaints into evidence, and said that he did not intend to make findings about the truth of the matters alleged in those complaints. Because the Tribunal went on to draw an inference on the basis of the complaints that Mr Taylor had conducted himself with impatience and aggression towards school children, we consider that the Tribunal should have given Mr Taylor an opportunity to test that material.

File note, breach of natural justice

90 Appellant’s submissions. The final ground of appeal was that the Tribunal relied on a file note in the Department’s file (dated 1 June 1998) to draw certain inferences, without allowing Mr Taylor the opportunity to respond. At [97] of the decision, the Tribunal stated that:
Further, the history of correspondence on the Department’s file shows a tendency on Mr Taylor’s part to not take seriously the questions raised about his conduct. I note the result of an Accreditation Audit recorded by a Field Officer in a file memo dated 1 June 1998:
Mr Taylor does not deal with complaints very well. Mostly he does not respond to written complaints and rarely follows up on telephoned complaints.


91 Mr Wozniak representing the Department, cross examined Mr Taylor on the contents of this file note but did not put to him the comment about his poor response to complaints. The appellant pointed out that there is no reference to that comment in the transcript and Mr Taylor was not given an opportunity to put on evidence about how he did deal with complaints. In the appellant’s submission “. . . the failure on the part of the ADT to alert Mr Taylor’s representative as to the use which would be made of this material was a clear breach of the rules of natural justice ( Mahon v Air New Zealand [1984] AC 808, 821.)

92 Respondent’s submission. The file note was in evidence before the Tribunal and Mr Wozniak cross examined Mr Taylor in relation to it. Mr Taylor could have addressed the comments in that file note, either in examination in chief, or re-examination. In addition, the file note was an additional matter which the Tribunal took into account and was not central to its decision. The Tribunal’s comment in relation to the file note was open from the text of the document (Commissioner for the ACT Revenue v Alphaone Pty Limited (1994) 49 FCR 576 at 591.

93 Appeal Panel’s reasoning and conclusion. The file note was admitted into evidence as part of the Department’s file. The applicant had access to this material and had the opportunity to respond to it in any way he chose. The rules of procedural fairness do not require that every adverse comment be put to the applicant in cross examination to seek his or her response. The Federal Court (Northrop, Miles and French JJ) pointed out in Commissioner for the ACT Revenue v Alphaone Pty Limited (1994) 49 FCR 576 that as long as the Tribunal’s conclusion arises from an “obvious and natural evaluation of the material” procedural fairness does not require that the Tribunal expose its mental processes or provisional views for comment. Their Honours said, at p 592, that procedural fairness requires the decision-maker:
. . . to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.

94 In our view, the Tribunal’s conclusion on the basis of the file note was an obvious and natural evaluation of the material. Mr Taylor had access to the file note and had the opportunity to address the comments in that file note. In these circumstances it was not a breach of natural justice for the Tribunal to draw inferences on the basis of comments in that document. (Cf Chief Executive, SAS Trustee Corporation -v- Daykin (GD) [2000] NSWADTAP 20 at [21] and [23].

Orders

95 The Tribunal’s decision to cancel Mr Taylor’s public passenger authorities is set aside.