Dee Why Auto Clinic and anor. v Roads and Maritime Services

THE EVIDENCE

1. The parties prepared a joint Court Book containing all of the relevant evidentiary material which was marked Exh. A.

AN OVERVIEW OF THE CASE

1. The defendant administers what is known as the Authorised Inspection Scheme ("AIS") pursuant to which people who are suitably qualified, and who are of suitable character, are authorised to (inter alia) inspect and test motor vehicles for registration, and to operate premises which provide those (and related) services. The second plaintiff carries on the business of an Authorised Inspection Station under the name of the first plaintiff. The second plaintiff was appointed as an examiner under the AIS on 7 June 1994.
2. The safety standards and business requirements of the AIS are prescribed by the AIS Business Rules ("the Rules"). Those rules are administered by the defendant.
3. On 24 February 2015 the defendant issued the second plaintiff with a Notice to Show Cause why his authorisation should not be cancelled. The second plaintiff responded to that Notice, following which the matter was referred to a Committee of Review ("the Committee") pursuant to cl. 63 of the Road Transport (Vehicle Registration) Regulation 2007.
4. The Committee issued a report on 14 May 2015. The Committee found that a number of provisions of the Rules had been breached, and recommended the cancellation of the second plaintiff's authorisation. A note contained in the report recorded the following: Previous breaches. Note proprietor is examiner. Negligent in his duties as the proprietor in not ensuring vehicles are being inspected in accordance with the Rules. Not a fit and proper person. Numerous previous breaches.
5. The Committee's decision was approved by the defendant's delegate on 28 May 2015. By letter of 3 June 2015 the General Manager (Accreditation) of the defendant wrote to the second plaintiff stating (inter alia): The Roads and Maritime Services have referred the matters raised in the Notice to Show Cause dated 24 February 2016 to a Committee of Review pursuant to Clause 63 of the Road Transport (Vehicle Registration) Regulation 2007. The Committee of Review, having considered the associated material, recommended your Authority to operate an Authorised Inspection Station (AIS) be cancelled as of the 10 July 2015 (emphasis in original).
6. The letter went on to particularise those Rules which the Committee found had been breached. Those particulars mirrored the contents of the Committee's report which included the following table: RULE NO. RULE DESCRIPTION INVESTIGATOR COMMENTS 1.2.1 The Proprietor must ensure that the AIS is operated in accordance with the AIS Rules. The Proprietor did not ensure the AIS was operated in accordance with the AIS Rules. The Examiner engaged by the Proprietor was not conducting inspections in accordance with the sequence as per the AIS Business Rules. See record of interview questions 19A, 19B and figure 1 and 2. 1.2.8 The proprietor must supply any report requested by an authorised RMS officer. The Proprietor was not able to supply all Inspection Reports for the audit period when requested as (sic) has not been printing Inspections Reports for e-Safety Inspection Reports. See record of interview questions 5, 5A and 5B and photographic evidence photo 1. 1.2.10 The proprietor must comply with the terms and conditions of use for the electronic system. The Proprietor did not ensure Inspection Reports and brake tests were signed by the Examiner to verify the reports' accuracy and to ensure the reports' were complete, correct and accurate. See record of interview questions 5, 5A, 5B and photographic evidence photo 2. 1.5.2 All equipment required by the RMS must be in current calibration and maintained in good working order. The headlight test machine was broken at the time of the audit and had been for seven (7) days prior to the audit as per the Proprietor/Examiner of the station and therefore not maintained in good working order. See Record or (sic) interview question 23. 1.8.1 AIS must not charge more than the maximum fee prescribed by the RMS for each inspection type. On three (3) occasions the Proprietor charged more than the maximum fee prescribed by the RMS. Vehicle audits x 3(rego: MH2310, rego: AQF88Q & rego: ALE87Q). 1.9.1 All hard copies of Inspection Reports and current/used Inspection Report books/records must be retained for a minimum period of 12 months from the date the report was issued. The Proprietor did not retain Inspection Reports for the minimum 12 month period from the date that a report was issued. See record of interview questions 5, 5A & 5B and photographic evidence photo 1. 2.1.3 An Authorised Examiner must conduct a thorough inspection of vehicles in accordance with the applicable standard of the AIS Rules, RMS issued publications, technical bulletins and other requirements of the AIS scheme. The Examiner did not conduct a thorough inspection of vehicles during the audit period. Subject vehicle Holden Commodore with registration CA17UR and subject vehicle Toyota Landcruiser with registration ALE-87Q failed vehicle audits. See attached vehicle audits x 2 (forms 1067 and 1415). 2.1.10 An Authorised Examiner must conduct a brake test (where required) as part of the first inspection, unless the Authorised Examiner considers the condition of the vehicle is such that it would be dangerous to use on the road. The Examiner did not conduct a brake test as part of the first inspection prior to certifying the vehicle was compliant with inspection standards of the Rules for Authorised Inspection Stations at the time of inspection. See record of interview questions 17, 18, 19a & 19b. Figures 1,2 & 7, examples of DRIVES Reports & brake tests. 2.1.11 An Authorised Examiner must only use the approved area to test brake performance when required. The Examiner stated that he does not always use the approved brake test route and uses his premises to conduct brake tests. His premises have not been approved by Police or RMS for conducting Brake tests. See record of interview questions 14 & 14A to 14E inclusive and photographic evidence photo 3. 2.2.1 An Authorised Examiner must comply with the terms and conditions of use for the electronic system. The Examiner did not sign one hundred and three (103) e-Safety Inspection Reports to verify the reports' accuracy and to ensure the report was complete, correct and accurate as he stated he does not keep hard copies of Inspection Reports as he stated he does a high volume. See record of interview questions 5 & 5A to 5C inclusive. Inspection Reports - General. * It is an offence under Road Transport legislation for a person to knowingly issue an Inspection Report which is false or misleading. For any breaches of these rules, the RMS may prosecute or infringe any person who knowingly - The Examiner issued false e-Safety Inspection Reports for two (2) vehicles by not conducting an inspection of vehicles in accordance with AIS Business Rules. 2.3 * Issues a false or misleading Inspection Report. The Examiner issued a false and misleading e-Safety Inspection Report for two (2) vehicles by not conducting a brake test. * Breaches a condition of the Authority. See attached vehicle audits x 2 (forms 1067 and 1415) and figure 3. * Breaches these Business Rules. When completing Inspection Reports, the procedures in Appendix 1-K must be followed. The Examiner did not print AIS Inspection Reports. Brake test slips were kept but not attached to the relevant Inspection Reports for audit purposes. (Appendix 1-K) Electronic Inspection Reports: … 2.3.1 If a vehicle passes the first inspection, two reports are printed. The Examiner did not enter the engineering certificate number on two (2) Manual Inspection Reports but charged fee for reviewing certificates. * Customer copy - Pass - Given to customer. See attached photographic evidence, photo 1 and manual inspections reports EB2301001 & EB2301000 * Station copy - must remain at the AIS for audit purposes along with any attachments. 2.3.2 The Inspection Report must be completed by the Authorised Examiner inspecting the vehicle and must not be signed until all details about the vehicle and its inspection have been recorded on the report. The Examiner signed the Inspection Report without verifying all details in the Inspection Report were recorded; "Written-off Vehicle Yes/No" Not ticked See attached manual Inspection Report EB2301000 The Examiner did not sign the brake test slip for one hundred three (103) Brake Test. 2.3.6 Where brake performance tests are required, both copies of the brake test print out must be signed by the Authorised Examiner. One printout must be attached to the customer copy of the Inspection Report and one to the AIS copy. The Examiner did not attach a brake test slip to the Inspection Report on one hundred three (103) occasions. See record of interview questions 5 and 5A-5C inclusive, and photographic evidence photo 1 & photo 2. 10.3.04(a) Any suspension component is broken, insecure, cracked, cut, missing or can be seen to have been repaired or modified by heating or welding. Axel two suspension panhard rod insecure. Mounting bush warn allowing approximately 5mm free play. 10.5.04(b) Visually inspect body panels chassis and sub-frame for dangerous protrusions and rust; any structural member such as a sub-frame, floor panel, door seal, seat or seat belt anchorage is cracked or has advanced rust. Rear boot floor pan/spare wheel well affected by extensive rust. Perforated with holes up to approximately 3mm in diameter over an area approximately 150mm x 50mm. 10.6.01(a) Reflector(s) are damaged, or are not fitted to the rear of the vehicle. Left rear reflector faded allowing white light to be reflected to the rear. 10.6.02(b) Any rear light other than a reversing light is damaged to the extent that white light shows to the rear of the vehicle. Left tail lamp lens cracked and severely faded. 10.2.01(d) Where ADR 62 applies, the towbar does not display the gross mass rating and manufacturer's name or trademark. Towbar identification plate missing (ADR 62 applicable). 10.5.01(a) Any inside or outside door latch, control or hinge is not secure or functional. Left rear outer door handle mounting broken/insecure. 10.5.04(d) Any body damage with protrusions that could cause injury to a person coming into contact with the vehicle. Left rear lamp lens broken. Sharp edges present. 10.6.02(a)(v) Any of the following lights do not work: Front turn signal repeater lamps inoperative (ADR 62 applicable). (v) turn signal indicator lights. 10.6.02(a)(vii) Any of the following lights do not work: Number plate lamp inoperative (1 of 2). (vii) number plate light. 10.6.04(a) The aim of the headlight is adjusted such that, when on high beam, the projected centre of the beam is to the right of the headlight centre and/or is above the headlight centre. Right head lamp misaligned, with high beam selective light projected above the centreline of the headlamp.

1. On 18 June 2015 an appeal was lodged in the Local Court against the defendant's decision. Under the heading "Orders Sought" in the following was stated: I am a fit a (sic) proper person to hold an Examiner Licence.

THE PROCEEDINGS BEFORE THE MAGISTRATE

1. The hearing before the Magistrate extended over 2 days and concluded on 27 April 2016. A number of witnesses gave evidence in the course of that hearing, including the second plaintiff. At the conclusion of the evidence and submissions the Magistrate reserved his decision. In a judgment handed down on 7 July 2016, he dismissed the appeal.

THE MAGISTRATE'S REASONS

1. In light of the principal complaint of the plaintiffs, it is appropriate to go directly to the Magistrate's reasons.
2. Having set out the relevant background, the Magistrate identified the issue before him in the following terms (at [9]): The issue is whether Mr Rostamians is a fit and proper person to continue to hold the authority of an examiner or a proprietor.
3. The Magistrate then proceeded (commencing at [10]) to make reference to the meaning of the term "fit and proper person". In doing so, he set out passages of the judgment of the Full Court of the Federal Court of Australia in Bond v Australian Broadcasting Tribunal (1989) 89 ALR 185, before making reference (at [11]) to the conclusions reached by the Committee. It should be noted that the decision to which his Honour referred was subsequently reversed by the High Court: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33.
4. Commencing at [13] the Magistrate set out the various Rules which were said to have been breached by the plaintiffs. Somewhat curiously, he appears to have done so by reference to the original Notice to Show Cause, as opposed to doing so by reference to the report of the Committee (the Committee's report having been the basis of the defendant's decision which was the subject of the appeal before him). In any event, the Magistrate (commencing at [19]) proceeded to make reference to some (but not all) of the evidence, before making reference (commencing at [39]) to some (but again not all) of the competing submissions of the parties. In the latter respect, the Magistrate's judgment made no reference at all to one of the principal submissions of counsel for the plaintiffs, a matter which I have discussed further at [58] and following below.
5. The Magistrate then made a series of factual findings regarding breaches of the Rules (commencing at [47]): Compliance by Mr Rostamians with his obligations under the Business Rules for the authorised Inspection station scheme [47] Of the rules listed in the notice of cancellation dated 03/06/2015 as rules that RMS was satisfied that Mr Rostamians breached, I am satisfied that he breached the following rules for proprietors: 1.2.1, 1.2.8. 1.5.2 and 1.9.1; and the following rules for authorised examiners: 2.1.3, 2.1.10, 2.1.11, 2.3, 2.3.1 with respect to a failure to print inspection reports, 2.3.2, 2.3.6, 105.04(b) (with respect to extensive rust) (I am satisfied that the Inspector was required to remove the surface rust to determine whether the rust was extensive.) [48] I am not satisfied that Mr Rostamians breached the following rules for authorised examiners: 2.1.10 - whilst satisfied that Mr Rostamians did not conduct two brake tests as described on page 91 of the report, I am not satisfied that he did not conduct the nineteen brake tests as described on page 91 of the report, because it is possible that he did not print out the brake test until he arranged to submit the result online. I treat the four brake tests printed out after the results were submitted online as an anomaly because of lack of evidence of what occurred; 2.2.1 - the terms and conditions of the electronic system do not relate to the signing of the hard copy of inspection reports; 2.3.1 - on the evidence of Mr Snell there was no requirement in relation to an engineering certificate; 103.04(a) - based on the evidence of Mr Karakhanian, who removed the bushes, I am not satisfied they were worn; 106.01(a) - although the reflector was faded, I (sic) not satisfied that it allowed white light to be reflected to the rear, because Mr Snell based his opinion only upon a photograph; 106.02(b) the tail lamp could have been cracked between the time it was examined and the time it was inspected; 102.01(d) - the tow bar identification plate could have become dislodged between the time it was examined and the time it was inspected; 105.01(a), 105.04(d), 106.02(a)(v), 106.02(a)(vii), and 106.04(a) all describe defects that could have occurred between the time the vehicle was examined and the time it was inspected.
6. On the basis of the breaches of the Rules which he had found were established, the Magistrate then found that the second defendant was not a fit and proper person to be a proprietor of an Authorised Inspection Station (commencing at [49]): Conclusion [49] I am satisfied on the balance of probabilities, to the Briginshaw standard that Mr Rostamians is not a fit and proper person to be a proprietor of an authorised Inspection Station because he did not ensure that the station operated within the AIS rules, did not ensure that the head light testing machine was maintained in good working order, and did not retain all hard copies of inspection reports in a secure location for a minimum of 12 months. [50] I am satisfied on the balance of probabilities, to the Briginshaw standard that Mr Rostamians is not a fit and proper person to be an authorised examiner because he did not conduct a thorough inspection of the Holden with regard to extensive rust in the boot and a faded reflector; he did not carry out a brake test with regards two vehicles; he did not only used the approved area to conduct brake tests; he issued a false inspection report for two vehicles by not conducting a brake test; he did not print inspection reports; he signed an inspection report without verifying all details were recorded; and he did not sign brake test slips. [51] I take into account previous failures by Mr Rostamians to comply with the rules in my determination that Mr Rostamians is not a fit and proper person to be a proprietor or an authorised examiner. [52] I am satisfied on the balance of probabilities, to the Briginshaw standard, that Mr Rostamians (sic) authority to operate an authorised inspection station should be cancelled because of his failure to ensure that the station operated within the rules, particularly with respect to safety issues being the failure to ensure that brake tests were conducted in the approved (sic) are in accordance with the rules, and the failure to ensure that the head light testing machine was maintained in good working order, together with a history of non-compliance with the rules. [53] I am satisfied on the balance of probabilities, the Briginshaw standard, that Mr Rostamians (sic) authority to be an authorised examiner should be cancelled due to his failure to conduct a thorough inspection of the Holden with respect to extensive rust and a faded light reflector, his failure to conduct two brake tests, his failure to use the approved area to conduct brake tests and by not carrying out the administrative requirements relating to brake tests and inspection reports, together with a history of non-compliance with the rules.

Submissions of the plaintiffs

1. Counsel for the plaintiffs submitted that the Magistrate had failed to comprehend, and apply, the so-called "Briginshaw standard". Counsel was not able to point to anything said by the Magistrate in his judgment which supported that proposition. Rather, counsel submitted that it was a conclusion which was to be inferred from a reading of the judgment as a whole.
2. The more substantive complaint made by counsel for the plaintiffs concerned what was said to be the inadequacy of the Magistrate's reasons. Counsel submitted that in paragraph [47] of his judgment, the Magistrate had made various factual findings regarding breaches of the Rules, but had failed to expose the reasoning process which had led him to reach such findings. Counsel submitted that this failure occurred in circumstances where there was: 1. an issue between the parties as to whether all of the alleged breaches had been made out; 2. an associated issue as to whether those breaches that were made out justified a finding that the plaintiff was not a fit and proper person to hold the relevant authorisation; and 3. competing evidence in relation to some of those alleged breaches that were in issue.
3. It was submitted that in those circumstances the Magistrate's obligation to give reasons included an obligation to explain why it was that he had apparently preferred some parts of the evidence over other parts.
4. Counsel for the plaintiffs further submitted that a determination of whether some of the alleged breaches had occurred necessarily involved an assessment of the second plaintiff's credit. He also pointed out that in respect of other alleged breaches there was expert evidence adduced before the Magistrate which his Honour (in light of his conclusions) had apparently rejected. Counsel submitted that all of these matters heightened the Magistrate's obligation to provide proper reasons and that as a consequence of his failure to do so, the plaintiffs found themselves in a position where they simply did not know why the Magistrate had found against them.
5. Counsel for the plaintiffs further submitted, in effect, that the Magistrate's failure to provide adequate reasons for his factual findings in respect of breaches of the Rules was compounded by the fact that he had used those findings as the basis upon which to then conclude (at [49], [50], [52] and [53] of his judgment) that the second plaintiff was not a fit and proper person to hold the relevant authorisation. It was submitted that the Magistrate had not explained why he had concluded that the various breaches of the Rules that he had found were established were of a kind which rendered the second plaintiff unfit.
6. In advancing these submissions, counsel for the plaintiffs pointed specifically to the fact that the Magistrate had reserved his decision for more than three months following the conclusion of the evidence, during which period it was to be inferred that he had the benefit of access to a transcript of the evidence. Counsel submitted that in these circumstances, the various observations of this Court (as well as those of the Court of Appeal and Court of Criminal Appeal) which recognise the necessity to make allowance for the circumstances in which ex-tempore judgments are often delivered were of no application.

Submissions of the defendant

1. Counsel for the defendant submitted that the Magistrate had clearly approached his determination of the matter in a way which was consistent with the provisions of s. 140(2) of the Evidence Act 1995 (NSW), and the decision in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 esp. at 361-362. Counsel submitted that the Magistrate was obviously aware of the standard of proof which was to be applied, and that there was nothing contained within his judgment which suggested that such standard was either not applied, or applied other than correctly.
2. Counsel for the defendant submitted that it was clear on a reading of the Magistrate's judgment that his Honour had decided the issue by reference to the evidence before him, and had properly identified the basis of the conclusions that he had reached. It was submitted that it was clearly open to his Honour to conclude that he was not persuaded by the evidence relied upon by the plaintiffs, and that his reasons made clear why this was so. It was submitted that the essential bases of his reasons were properly identified, and that even if a conclusion were reached that aspects of those reasons were "less fulsome" than what might have been desirable, they "did not reflect a lack of appreciation of the judicial task at hand".
3. Counsel for the defendant then made a number of specific submissions regarding the Magistrate's reasons.
4. Firstly, he submitted that it was necessary to have regard to the principle that the standard of reasons which is required can vary markedly according to the circumstances of the case, and the context in which such reasons are given.
5. Secondly, it was submitted that in reviewing the Magistrate's reasons it was necessary to bear in mind that the Local Court operates under a heavy workload which imposes practical limits on the length, and level of detail, of reasons which are delivered. In this regard, counsel submitted that it was not incumbent upon the Magistrate, in determining the matter, to deal with each and every piece of evidence which was before him, and explain at length why he accepted or rejected it.
6. Thirdly, it was submitted that there was an inescapable inference to be drawn from his Honour's reasons that he did not accept the evidence of the second plaintiff in material respects. It was submitted that for the purpose of giving reasons, it was sufficient if such a conclusion could be inferred from the evidence.
7. Finally, it was submitted that in determining whether the reasons were adequate the fundamental question was whether or not the Magistrate had identified the essential basis for his resolution of the issue(s) between the parties. It was submitted that this test had been met.

THE RELEVANT PRINCIPLES

1. In terms of the plaintiff's first complaint, Dixon J made the following relevant observations in Briginshaw (commencing at 361): The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
2. These principles are reflected in s. 140 of the Evidence Act 1995 (NSW) which is in the following terms: (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged.
3. None of the matters of which Dixon J spoke in Briginshaw imposes a test in civil litigation other than proof on the balance of probabilities. What is required is that when loading the scales to conduct the balancing exercise, appropriate weight is given to the matters to which Dixon J referred. The so-called "Briginshaw standard" is not a third standard of proof: Gianoutsos v Glykis [2006] NSWCCA 137 at [48] - [49] per McClellan CJ at CL.
4. As to the plaintiffs' second complaint, a failure to give sufficient reasons will be reviewable for legal error: Inghams Enterprises Pty Limited v Lakovska [2014] NSWCA 194 at [2] per Basten JA, citing Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at [130] and Wingfoot Australia Partners Pty Limited v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [28]. However it is necessary to bear firmly in mind that a complaint that reasons are inadequate, even if made out, is not a basis for re-agitating the decision given at first instance: Berrigan Doube Lawyers Pty Limited v Millar Eagger Pty Limited [2016] NSWSC 235 at [64] per Beech-Jones J.
5. In Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Meagher JA observed (at 443) that reasons need not necessarily be lengthy or elaborate, and that the content of the obligation to give reasons may not be the same in every case. His Honour recognised that no mechanical formula can be applied for the purposes of determining the extent of the obligation to provide reasons. However, he identified what he regarded as three fundamental elements of a statement of reasons (at 443): "First, a judge should refer to relevant evidence. … Secondly, a judge should set out any material findings of fact and conclusions or ultimate findings of fact reached. … Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well."
6. His Honour went on to observe (at 444): "In the end, the balancing act which needs to be undertaken in considering the sufficiency of a statement of reasons involves the adoption of, at the least, a minimum standard which places the parties in a position to understand why the decision was made sufficiently to allow them to exercise any right of appeal."
7. In Pollard v RRR Corporation [2009] NSWCA 110 McColl JA (commencing at [56]) undertook, by reference to a number of authorities, a review of the principles governing the obligation to give reasons. The following propositions may be extracted from her Honour's judgment: 1. a trial judge's reasons must, as a minimum, be adequate for the exercise of a facility of appeal (at [56]); 2. a superior court considering the decision of an inferior tribunal should not be left to speculate, from collateral observations, as to the basis of a particular finding (at [56]); 3. the giving of adequate reasons lies at the heart of the judicial process. A failure to provide sufficient reasons promotes a sense of grievance and denies both the fact, and the appearance, of justice having been done, thus working a miscarriage of justice (at [57]); 4. the extent and content of reasons will depend upon the particular case under consideration, and the matters in issue. While a judge is not obliged to spell out every detail of the process of reasoning leading to a finding, it is essential that he or she expose the reasons for determining an issue which is critical to the contest between the parties (at [58]); 5. the reasons must do justice to the issues posed by the parties' respective cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the decision, and the extent to which their arguments have been understood and accepted. It is necessary that the primary judge deal with the issues canvassed, and explain why one case is preferred over another (at [59]); 6. a failure to refer to some of the evidence does not necessarily indicate that the judge has failed to discharge the duty which rests upon him or her. However, for a judge to ignore evidence which is critical to an issue in the case, and which is contrary to an assertion of fact made by one party but accepted by the judge, may promote a sense of grievance, and give rise to a feeling of injustice in the mind of the most reasonable litigant (at [61]); 7. although it is not necessary to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered, where such evidence is not referred to by the trial judge, an appellate court may infer that the judge has overlooked the evidence, or failed to give consideration to it. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to (at [62]); 8. where there is documentary material arguably supporting a party's case, that material must be considered in the judge's reasons in a satisfactory way (at [63]); 9. bald conclusionary statements should be eschewed. In particular, it is not appropriate for a trial judge merely to set out the evidence adduced by one side, then set out the evidence adduced by another, and then assert that having seen and heard the witnesses he or she prefers or believes the evidence of the one over the other (at [64]); 10. where credit issues are involved it is necessary to explain why the evidence of one witness is preferred to that of another. Bald findings on credit, where there remain substantial factual issues to be dealt with, may not constitute adequate compliance with a judge's duty to provide the parties, and the appellate court, with the basis of his decision (at [65]); 11. because a primary judge is bound to state his or her reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Where it is apparent from a judgment that no analysis was made of evidence which competes with evidence which was apparently accepted, and no explanation is given in the judgment for rejecting the evidence, the process of fact finding will have miscarried. This is because, so far as the reasons reveal, no examination was made of why the evidence which was accepted was to be preferred to that which was not (at [66]).
8. These principles were applied by Gleeson JA in Keith v Gal [2013] NSWCA 339 at [113].

CONSIDERATION

1. An appellate Court should make due allowance for the often pressured circumstances in which ex-tempore judgments are delivered in busy lists, be it in the Local Court or in the District Court: see for example Maviglia v Maviglia [1990] NSWCA 188 at [1] per Mason P; Rose v R [2013] NSWCCA 71 at [41] per Bellew J and the authorities cited therein. However contrary to the submission of counsel for the defendant, those authorities have no application in the present case, given that the Magistrate reserved his decision for more than three months. The Magistrate obviously had a considerable period of time in which to consider the matter with, I infer, the benefit of a transcript of the evidence and submissions.
2. I am not satisfied that the complaint made by the plaintiffs regarding the Magistrate's asserted failure to properly apply the Briginshaw test is made out. The Magistrate's reasons are replete with references to that test. He was clearly aware of it and it is to be inferred that he applied it. There is nothing in his reasons to suggest that he did not do so.
3. However bearing in mind the principles which are set out at [43]-[46] above, the complaint made by the plaintiffs regarding the inadequacy of the Magistrate's reasons is made out on a number of bases.
4. The Magistrate's judgment reflected his having taken what might be described as two steps in reaching his ultimate conclusion that the second plaintiff was not a fit and proper person to hold the relevant authorisation. The first step involved his finding (at [47]) that a number of the Rules had been breached. True it is that some of those breaches which were found to have been committed were conceded by the plaintiffs. So much is clear from what was put by counsel for the plaintiffs in his final address to the Magistrate. Equally however, some of the alleged breaches were in dispute. The basis on which, and the reasoning process by which, the Magistrate found that those disputed breaches were established is simply not apparent from the judgment.
5. A case in point (although not the only example) is the Magistrate's finding that there had been a breach of Rule 1.5.2 which required that all equipment (specifically in this case, a headlight test machine) be maintained in good working order. It is apparent that when interviewed by an officer of the defendant in the course of the Committee's investigations, the second plaintiff maintained that the headlight testing machine remained in good working order and (as he put it) was "doing its purpose accurately as per the RMS Rules". In his affidavit filed in the proceedings before the Magistrate (at paragraph 11(d)) the second plaintiff identified that the machine was missing a screw, but asserted that this had no effect upon its capacity to function properly. The clear effect of the second plaintiff's evidence was to take issue with the assertion that the machine was other than in good working order.
6. It is noteworthy in this regard that to the extent that the Magistrate summarised the second plaintiff's evidence he did so within three short paragraphs of his reasons ([36]-[38]), none of which made reference to any of the second plaintiff's evidence in respect of this particular issue. Why his Honour thought it necessary to refer to those aspects of the evidence he set out in [36]-[38], but not others, is unclear. It is apparent that he rejected the evidence given by the plaintiff in relation to the issue of the headlight testing machine, and found that it was not in good working order. The basis on which he did so is not explained in his reasons.
7. Having found that various provisions of the Rules were breached, the Magistrate then proceeded to the second step and concluded, on the basis of those breaches, that the second plaintiff was not a fit and proper person to hold the relevant authorisation. Once again the Magistrate failed to explain why this was so. In other words, the Magistrate failed to provide reasons for his determination of what he had identified as the issue between the parties.
8. I am left to speculate, in the absence of any reasons, that the Magistrate found that the mere fact of the established breaches of the Rules was sufficient, without more, to support the conclusion that the second plaintiff was not a fit and proper person. The fact that I am left to engage in such speculation is, of itself, reflective of a failure to give adequate reasons: Pollard at [56].
9. In circumstances where his Honour had identified, as the issue in the proceedings, whether the second plaintiff was a fit and proper person to hold the relevant authority, he had an obligation to explain why it was that the breaches that he had found were established led to that result. There may be breaches of the law which do not jeopardise a person's fitness to hold a licence or authority. There is a consequent need to explain why, in a case such as the present, such breaches as are found to be made out render the person in question unfit in the relevant sense. The Magistrate's reasons are bereft of any such explanation. In these respects the observations of Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 388 are apposite: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision-maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.
10. Further, and in light of the submissions made to the Magistrate by counsel for the plaintiffs at the conclusion of the evidence, the Magistrate's failure to explain why the breaches of the Rules led him to conclude that the second plaintiff was not a fit and proper person to hold an authorisation had added significance. One of the primary submissions made by counsel (at T1 L 30 and following on 27 April 2016) was to the effect that even if breaches of the Rules were made out (counsel effectively conceding that there were some such breaches) they were not of such a nature, nor of such gravity, as would support a conclusion that the second plaintiff was not a fit and proper person to hold the relevant authority. In the course of developing that submission, counsel for the plaintiffs took the Magistrate to a number of authorities which dealt with that general issue.
11. In these circumstances, the absence of any reason(s) explaining why the breaches which were found to have been established meant that the plaintiff was not a fit and proper person to hold an authority reflected a failure on the part of the Magistrate to properly engage with the issue which he had identified, and to properly engage with the submissions which had been put to him by counsel. There was an associated failure on the part of the Magistrate to conduct the weighing exercise of which Toohey and Gaudron JJ spoke in Bond.
12. Importantly, these various failures occurred in circumstances where the submissions of counsel went directly to the very issue that the Magistrate had identified, the resolution of which was obviously critical to the resolution of the contest between the parties. It was therefore essential that the Magistrate provide reasons explaining how it was that he determined that issue: Mifsud v Campbell (1991) 21 NSWLR 725 at 728 per Samuels JA (Clarke JA and Hope AJA agreeing; Soulemezis v Dudley Holdings Pty Limited (1987) 10 NSWLR 247 at 259 (per Kirby P) and at 270 (per Mahoney JA). No such reasons were provided.
13. I accept that the content of the obligation to give reasons may vary from case to case. However in the present case, a number of fundamental shortcomings in the Magistrate's reasons can be identified. They lead to the inevitable conclusion that his reasons are inadequate. An error of law has been established on that basis. It follows that the appeal should be allowed and the matter remitted to the Magistrate to be further dealt with according to law.

ORDERS

1. In the circumstances I make the following orders: 1. The notice of motion filed by the plaintiffs on 23 February 2017 is dismissed. 2. The appeal is allowed. 3. The decision of the Magistrate of 7 July 2016 is set aside. 4. The proceedings are remitted to the Magistrate to be dealt with according to law. 5. Each party is to provide to my Associate written submissions as to costs within 7 days, such submissions not to exceed 2 pages in length.

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