Welsh v Ministry of Transport

[2006] NSWADT 58

CITATION:	Welsh v Ministry of Transport [2006] NSWADT 58
DIVISION:	General Division
PARTIES:	APPLICANT Christopher Welsh RESPONDENT Ministry ofTransport
FILE NUMBER:	053267
HEARING DATES:	24/02/2006
SUBMISSIONS CLOSED:	02/24/2006
DATE OF DECISION:	03/01/2006
BEFORE:	Wilson R - Judicial Member
CATCHWORDS:	Passenger Transport Act - taxi driver - cancellation of authority - Taxi driver - cancellation of authority
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990
REPRESENTATION:	APPLICANT No appearance RESPONDENT A Wozniak, solicitor
ORDERS:	The decision under review be remitted pursuant to s.65 of the Administrative Decisions Tribunal Act 1997 to the administrator who made it for reconsideration in accordance with the provisions of s.65

1 The Applicant has brought these proceedings seeking a review de novo of a decision to cancel an authority that had been earlier granted to him under the Passenger Transport Act 1990. The matter was listed for hearing this day, but the Applicant did not appear. The Respondent was represented by Mr. Wozniak, who adopted the position that the hearing should proceed in the absence of the applicant.

2 At the directions hearing on 22 November 2005 the Applicant was directed to file and serve evidence and submissions by 10 February 2006 and the proceedings were set down for hearing today. The Applicant appeared in person at the directions hearing, so he was aware that the hearing was listed for today. He has not filed evidence and submissions as directed and Mr. Wozniak advises that no such documents have been served on the Respondent.

3 The Applicant was contacted by telephone shortly after the hearing of the proceedings commenced. He advised the Tribunal that he was then attending hospital for the purpose of obtaining medical treatment for a mental illness of acute onset. After so advising the Tribunal the Applicant stated that he must terminate the telephone call, and he did so. Shortly after that, a telephone message was relayed by an officer of the Registry advising that a Mr. Rowell had called saying that he wished to advise the Tribunal that the Applicant was then seeking medical treatment for an illness.

4 It appears from the evidence before the Tribunal that the Applicant has been charged, by way of Court Attendance Notices, with offences, under the abovementioned Act, of driving without an appropriate authority (Exhibit A). These matters are to come before the Local Court at Parramatta, in the State of New South Wales, on 17 March 2006. Mr. Wozniak indicated that the Respondent would seek to tender in the proceedings before the Tribunal, should they proceed to a determination today, the evidence upon which each of those prosecutions is based, given that the proceedings are a hearing de novo. The Respondent also submits that the outcome of these prosecutions will have a bearing on the Applicant’s ability to hold an authority under the Act no matter what decision the Tribunal should make in the proceedings now before it. If they are determined adverse to the Applicant then any authority that he may acquire in the meantime will be put in issue.

5 In addition, Mr. Wozniak submitted that it would be appropriate for the Respondent to further investigate the possibility that the Applicant was affected by mental illness, as this was a matter that could also affect the Applicant’s ability to hold an authority under the Act.

6 Whenever the Tribunal is informed that an Applicant who is unrepresented has failed to attend a hearing by reason of illness or misadventure, care must be taken in obedience to the rules of natural justice and the entitlement of an Applicant to be given a fair hearing. Normally the Tribunal would adjourn the hearing, provided there is no evidence, which shows that the information in this regard is untrue or incorrect. There is no evidence before the Tribunal to this effect.

7 However, in the circumstances of this case there is an alternative course that is more appropriate. Under s.65 of the Tribunal’s enabling Act a matter like this may be remitted to the Respondent for further consideration as the Respondent may see fit. If this be done, the Respondent will be able to reconsider the original decision and in so doing take into account the recent matters that have arisen as noted before in these Reasons. Upon reflection, Mr. Wozniak did not oppose this course. Section 65 only contains powers of remitter, there being no power granted by this section to otherwise deal with the decision under review..

8 As the Applicant did not file and serve any evidence as he was directed to do, and was not present today, the Tribunal is not in a position where it is able to properly and fairly reach any determination on the substantive issue, namely whether the Applicant’s authority should or should not be cancelled.

9 The Tribunal therefore orders that pursuant to s.65(1) of the Administrative Decisions Tribunal Act 1997 the decision under review be remitted to the administrator who made it for reconsideration in accordance with the provisions of s.65.