Fisher v Transport NSW

Suspension and cancellation of Driver Authority

1. The first defendant wrote to Mr Fisher on 6 June 2011. The letter is relevantly headed "Suspension of Driver Authority Notice to Show Cause to Cancel". It informed Mr Fisher that "The Department of Transport has suspended your public passenger vehicle driver authority … from the date of this notice and is considering cancelling your public passenger vehicle drive authority to drive a bus for the reasons set out in the attached Statement of Reasons." The attached Statement of Reasons referred to ss 11(2) and 14 of the Passenger Transport Act 1990. Those provisions are as follows: "11 Authorities (1) … (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. … 14 Variation, suspension or cancellation of authority Having regard to the purpose of an authority, RMS may at any time vary, suspend or cancel any person's authority."
2. Under the heading "The reasoning process that led to the decision", the Statement of Reasons set out the following matters: "Due to complaints received by the Department of Transport in 2010, alleging that you use a mobile phone while driving a public passenger vehicle and that you left the driver's seat without reasonable cause, an authorised officer attended your residence in Taree on Wednesday 15 December 2010. You were interviewed by an authorised officer in relation to these complaints. During the interview you were reminded of your obligations as a public passenger vehicle driver and that it is an offence to use a mobile device while driving a public passenger service. Since the interview the Department has received a new complaint and video footage dated 28 January 2011 clearly showing you driving a bus while using a mobile device. The footage also shows a further incident of you leaving the vehicle without reasonable excuse. The Department of Transport has a continuing obligation under the Passenger Transport Act 1990 to ensure that persons authorised to drive public passenger vehicles are of good repute and in all other respects fit and proper persons, with sufficient responsibility and aptitude to drive the vehicle in accordance with law and custom. Your continued disregard for law and custom shows that you have insufficient responsibility and aptitude to be the driver of a public passenger vehicle. It is for these reasons that I have decided to suspend and show cause to cancel your authority to drive a public passenger service."
3. The first defendant then wrote to Mr Fisher on 14 July 2011 giving him immediate Notice of Cancellation of his authorisation to drive buses. The attached Statement of Reasons set out in some detail the basis of the decision. Some of the matters set forth in the statement are as follows: "On 14 June 2011 an affidavit signed by you was submitted to the Administrative Decisions Tribunal during proceedings to hear your application for a stay of a decision to suspend your driver authority. … Paragraph 12 of the sworn affidavit states: 'In summary my evidence so far is principally this. In about November 2010 allegations were made about my using a mobile phone while driving a school bus. The respondent addressed the allegations by meeting with me and providing a warning. I heeded that warning and have desisted from any such conduct since the warning and certainly not on 28 January this year when the service didn't operate.' The Department has evidence that contradicts the statements made in your sworn affidavit to the Administrative Decisions Tribunal."
4. The letter to Mr Fisher then proceeded to set forth details of the process by which evidence was collected and collated, including the obtaining and examination of daily vehicle checks, driver log books and telephone records. Cross referencing this material led the Department to conclude that Mr Fisher had used his mobile phone while driving his bus on 28 occasions between 17 November 2010 and 5 April 2011. The letter then proceeded to set out a number of complaints that had been received as follows: "During Semester 2, 2010 on the afternoon bus run a student passenger left the bus approximately 75 kilometres from his home in a remote location requiring the student to walk for approximately half an hour to get mobile service to call for assistance, after you allegedly directed him to do so which contravenes the Passenger Transport Act 1990 Clauses 101(a) and 101(b). On 24 August 2010 at 3.30pm you allegedly threatened to break a child's arm if he opened a bus window after being asked to close it which contravenes the Passenger Transport Regulation 2007 Clause 35(b). In October 2010 you stated falsely to Police Officer Hancock that the bus you were driving was stationary when you were talking on the mobile phone. The officer had viewed footage showing you driving, talking on the mobile phone and not having your hands on the steering wheel for 27 seconds. The footage shows that it was raining at the time. On 15 October 2010 at 3.36pm a student on the bus videoed you when the bus was in motion whilst you were the driver with the door open which contravenes the Passenger Transport Regulation 2007 Clause 40(a). On 15 November 2010 at 3.25pm a student on the bus videoed you leaving the driving seat of the bus for at least 33 seconds to put rubbish into a public garbage bin at Gloucester which contravenes the Passenger Transport Regulation 2007 Clause 97. On 6 December 2010 in the afternoon, a student on the bus videoed you in the driver seat of the bus talking on a mobile telephone. In the afternoon of 21 February 2011 you closed the door of the bus on a student attempting to board the bus at St Clare's High School in contravention of the Passenger Transport Regulation 2007 Clause 35(b). It is alleged that during Term 1, 2011 a year 7 student vomited on the bus and you instructed him to clean it up using a dustpan, broom and rag and then required him to empty the vomit collected at Manning Valley Anglican College which contravenes the Passenger Transport Regulation 2007 Clause 35(b). On 1 March 2011, in the morning, a student on the bus videoed you leaving the driving seat of the bus for at least 30 seconds to buy a newspaper at Gloucester which contravenes the Passenger Transport Regulation 2007 Clause 97. On 1 March 2011, in the morning, a student on the bus videoed you driving the bus with another driver's authority card displayed."
5. The letter then set out what is described as the Reasoning Process that led to the decision. It included the following: "The number, nature and scope of the written complaints that have been received from parents of students and teachers and the ensuing investigation of these together with the information that contradicts your sworn affidavit, casts grave doubt about your fitness to hold a public passenger vehicle driver authority and of your ability to carry out the duties of the position according to law and custom. As a result of your alleged behaviour whilst driving a school bus, the delegate of Director-General can no longer give a positive attestation that you are a fit and proper person for the purposes outlined in the Passenger Transport Act 1990. Based on the above facts and law it has been determined that your driver authority should be cancelled."

Administrative Decisions Tribunal - 25 May 2012

1. Judicial Member Molony published his reasons for judgment on 25 May 2012: see AJO v Director-General, Department of Transport [2012] NSWADT 101. It dealt with a review of decisions made by the Director-General of Transport to suspend and subsequently to cancel Mr Fisher's authority to drive a bus under the Passenger Transport Act. Mr Molony described the background to the dispute in the following way: "[7] AJO and his wife operate a transport business that provides school bus transport under contract with the agency. AJO refers to that business as 'the partnership.' The school bus route in issue is a lengthy run, taking up to an hour and half each way. Drivers on the route include AJO, his wife and employed drivers. [8] Since 2009 there have twelve [sic] complaints lodged by parents with the agency concerning the services on that route. Those complaints were principally directed to the manner in which AJO conducted himself when driving, especially with respect to his management of the children, as well as complaints as the adequacy and reliability of the bus used. AJO responded to those complaints fully and, in some instances, disputed the bona fides of the complainants. [9] There can be no doubt that there have been issues concerning student behaviour on the bus, as one would expect on any school bus route. AJO considers some of the students on the route to be very badly behaved, especially a group of 14 to 16 year old boys. The complaints about his interactions with students principally relate to them, and their siblings. The complaints suggest that he targets particular individuals (and in some cases their siblings) whom he has identified as badly behaved and keeps a rigorous eye on them. [10] References from other parents relied on by AJO show that they do not hold similar concerns and do not have complaints about the service he provides. [11] Whether student behaviour is an equally significant problem for all drivers on the route is an issue of contention. There is evidence that AJO's wife has difficulties. An affidavit from an adult passenger on the bus tells of how perturbed he was by the behaviour he witnessed when she was driving on 25 May 2011 and how he intervened to bring it under control. On the other hand, an employed driver was not disturbed by the students' behaviour on the bus. He commented that apart from crude language, swearing and disobedience, he had not experienced a great deal of misbehaviour. He could set limits, and the students would listen. [12] The situation has been rumbling along for some years. In 2010 some students started filming AJO with their mobile phones: taking pictures of him driving while using his mobile phone, not wearing a seat belt, of rubbish bags on the bus, and of him leaving the bus. There are no films of his interactions with students, or of student behaviour. [13] The situation was brought to a head in May 2010 following the misbehaviour on 25 May 2011. The partnership issued a series of notices to students either suspending them from the bus, or terminating their travel on it. The students who were given notices are those whose parents had complained. They, in turn appealed to the agency. [14] On 6 June 2011 the agency made a decision to suspend AJO's driver authority on the basis that he had used a mobile phone while driving and had left his seat on the bus without reasonable cause. The notice telling him of that decision warned that the agency was considering cancelling his authority. [15] On 7 June 2011 AJO applied for a stay of that decision. On 14 June 2011 a stay was granted. In support of his stay application AJO swore an affidavit. Paragraphs 4 and 12 of that affidavit said: '4. In November 2010 allegations emerged of my use of a mobile phone while driving service N2339 and information was provided by an informant to the local Police. The matter was investigated at the time and while no charges were laid the matter was subsequently referred to the Respondent's Newcastle office and Officers from that Office conducted an investigation which led ultimately to a verbal warning in relation to such conduct during a visit on 15 November 2010. I appreciated at the time the seriousness of the matter and treated the warning a salutary reminder of my obligations while driving generally - not to mention a school bus with children on board. Since that date I have not used my mobile phone while driving the school bus. ... 12. In summary my evidence so far is principally this. In about November 2010 allegations were made about my using a mobile phone while driving a school bus. The respondent addressed the allegations by meeting with me and providing a warning. I heeded that warning and have desisted from any such conduct since the warning ...' [16] On 14 July 2011 the agency made a decision to cancel AJO's driver authority on the basis that he is not a fit and proper person to drive a public passenger transport vehicle. [17] AJO subsequently sought a stay of that decision which was granted on 20 July 2011. At that time it was determined that the reviews of the suspension and cancellation decisions be heard together. [18] The hearing took place over four days between November 2011 and January 2012."
2. Mr Molony proceeded in some considerable detail to state the applicable law and to review the factual material upon which the complaints against Mr Fisher were made. He dealt separately with each complaint and made findings concerning all of them. Under the heading EVALUATION, he concluded as follows: "[122] I have found that when driving a school bus AJO: Put a student off the bus and left him 75 km from home. I agree with the Agency that in the circumstances this can reasonably be viewed as abandonment. When putting the student off the bus AJO did not make contact with any responsible person in the area who could see to his welfare, contact the student's parents, or make inquiries about alternate transport. Threatened a student with physical violence when the student failed to obey his direction to leave a window closed. Threw a bag of rubbish out of the bus as that student alighted from the bus. Falsely, in a letter to the Agency, refuted the allegation that he had threatened violence to a child. Asked for a student(s) to clean up vomit on the floor of the bus while it was proceeding at high speed on a freeway. Failed to make inquiries to identify a sick child on his bus or to ascertain that child's wellbeing. Used his mobile phone when the bus was in motion. Had not read Behaviour Guidelines until they were provided to him by the Department. Imposed his own standards of discipline (and applied his own understanding of procedure) on students. [123] In addition I am satisfied that AJO has not been strictly honest in his dealing with the Agency and the Tribunal with respect to his knowledge of the Behaviour Guidelines and his use of a mobile phone. [124] In the light of those finding [sic] I am not satisfied that AJO is a fit and proper person to hold a driver authority authorising him to drive a school bus. The evidence demonstrates that despite driving and operating school buses for some years, AJO's knowledge of an essential facet of those duties, the Behaviour Guidelines, was ill-informed and wrong. In all his years of driving (and acting as an operator) he has failed to inform himself of that highly relevant and applicable guideline. He has also demonstrated ignorance of the provisions of the PT Regulation applicable to the operations of school buses, and had breached them on a number of occasions. This reflects poorly on his ability to undertake his duties as a driver. [125] While AJO outlined the high standards of behaviour he sought to impose on students on his bus, it is apparent that he had not imposed similarly high standards on himself. He has not informed himself of the laws and policies applicable to the management of student behaviour, nor sought assistance or training in regard to them. He has enforced and proclaimed strategies for the management of student behaviour which are at odds with both the Behaviour Guidelines and the PT Regulation. [126] Worryingly, he has demonstrated an active disregard for the consequences his own actions have on his student passengers. More generally, his continued use of a mobile phone while driving the bus on the road disregards the risks to their welfare and demonstrates a disregard for them, and the concerns of their parents who entrust the children's safety to him. Specifically, his conduct in putting a student off the bus 75 km away from home, and in failing to inquire after the welfare of an [sic] sick boy on the bus, point to a lack of understanding of his responsibilities as a driver and a disregard for their welfare. [127] These factors point to AJO not having the insight, knowledge or understanding, necessary for me to certify that he has the ability to undertake his duties as an authority holder. It also [sic] relevant that in his dealings with the agency and the Tribunal he has denied adverse matters going to his conduct as a driver, albeit he has later conceded them. This does not reflect well on his honesty when dealing with regulatory matters. [128] It follows that I am not satisfied that AJO has the basic knowledge and ability required of an authority holder. I am also not satisfied that he will deal honestly with the Agency unless constantly policed. He is therefore not a fit and proper person to hold a drivers authority. [129] Further, his record and conduct over the past years also persuades me that, if he continues to hold an authority, I could not be satisfied that he has sufficient responsibility and aptitude to fulfil the demands of the role. [130] Similarly, I am not satisfied that he has sufficient responsibility to drive a bus in accordance with law and custom. His ignorance and/or disregard of applicable Regulations and Guidelines, and his demonstrated breaches of applicable regulations, gives me no confidence that he has sufficient responsibility to drive in accordance with law and custom. [131] I make no finding in respect of AJO's repute. There is contradictory evidence in that regard, and given the findings I have already made, it is not necessary to resolve them. CONCLUSION [132] It follows that that [sic] the correct and preferable decision is to affirm the decisions to suspend and cancel AJO's driver authority."

NSW Civil and Administrative Tribunal - 21 May 2014

1. Deputy President Hennessy published her reasons for judgment on 21 May 2014: see AJO v Roads and Maritime Services [2014] NSWCATAP 21. The proceedings in that Tribunal concerned Mr Fisher's application for leave to appeal out of time against the decision of Mr Molony affirming the decisions to suspend and cancel his school bus driver authority. Mr Fisher originally appealed within the 28 day time limit but withdrew that appeal.
2. The Deputy President dismissed the application upon two bases. They are referred to in her conclusion as follows: "[52] I have decided not to accept this appeal out of time. AJO originally appealed within the 28 day time limit but that appeal was withdrawn and dismissed on the first day of hearing. The current appeal was lodged more than 12 months later. While AJO provided evidence explaining the delay, his explanation does not adequately account for the entire period. I appreciate that the consequences to AJO of refusing to allow him to bring a second appeal are significant. But I must also take into account the fact that the respondent would have to bear the expense of defending an appeal which it assumed had been finalised in October 2012. Finally I have taken into account the prospects of success of the appeal which I regard as poor."
3. In considering the merits of the proposed appeal, the Deputy President took account of Mr Fisher's specific submissions with respect to his contention that Mr Molony had erred. Those matters included a misapplication of clause 101 of the Passenger Transport Regulation 2007, the denial of procedural fairness, a failure to take account of all relevant considerations and errors in the fact finding process. These complaints were to some extent re-agitated in this Court.

Submissions

1. Mr Fisher provided over 200 pages of written submissions detailing his concerns with the proceedings to date. These submissions include excerpts from media coverage, email exchanges with the Department of Transport, complaints from parents, transcripts, and correspondence with lawyers. These submissions were supplemented by oral submissions to the following effect.
2. Mr Fisher contended that Mr Molony failed to take into account a relevant consideration, namely, the effect upon him and his family that resulted from the cancellation of his driver authority. He contended that Mr Molony chose the most severe option available under the legislation and failed to consider alternatives under s 14 of the Passenger Transport Act either to suspend or vary his driver authority. He argued that a consideration of the catastrophic consequences for him would and should have led Mr Molony to choose some less severe option that would still have satisfied the need to protect the public. For example, Mr Fisher suggested that it would have been equally open to Mr Molony temporarily to suspend his driver authority while he attended mandatory counselling. Mr Fisher pointed to material in his 18 June 2017 affidavit that he contended demonstrated that his evidence regarding significant financial harm in a difficult period for him was rejected. He contended that by rejecting such evidence Mr Molony put it beyond his ability to balance the subjective considerations against the wider imperative of protecting the community.
3. Counsel for the first and second defendants maintained that evidence of hardship was not relevant to the exercise of judicial discretion. On the contrary, s 14 of the Act called for regard to be had to the purposes of the Authority. The issue was whether Mr Fisher was a fit and proper person, which was a determination that had to be made upon relevant evidence and not upon the consequences of an adverse finding. Moreover, Mr Averre submitted that there never was any specific evidence or submissions articulated before Mr Molony concerning Mr Fisher's personal circumstances or hardship. Mr Molony considered the options available to him under the legislation and was ultimately guided to the conclusion that cancellation was the only outcome.
4. Mr Fisher also argued that the defendants had acted with some improper and extraneous purpose. He contended that in making the original decision, the first defendant was influenced by external pressure from the media and that it failed properly to carry out the required investigative process. Mr Fisher maintained that the Department supported him throughout the 12 months during which the students' parents waged a campaign against him, but that it very quickly changed its approach in the face of adverse media attention. In support of this, Mr Fisher took me to various pieces of correspondence from Transport NSW, from concerned parents and media sources. Mr Fisher maintained that the Department's change of attitude between 2 June 2010 and 6 June 2010 was "more than just a coincidence", and suggested that the Department succumbed to building pressure to appease the media and the public rather than reaching a conclusion based on the merits.
5. Mr Averre accepted that there was intense media scrutiny of the Department's position at that time. He contended, however, that Mr Fisher had not produced evidence to support the contention that the decisions to suspend or cancel his bus driver authority had been improperly influenced by such matters or that there was some error in the decision making process. He contended that the decision to cancel the authority was ultimately entirely open to the Department, and that it provided reasons to justify the decision. Whilst external pressure may have been evident, no error could be demonstrated.
6. Mr Fisher also submitted that the Department made the decision to cancel his driver authority in contempt of stays that were then in place granted by Deputy President Hennessy on 14 July 2010 in relation to the decision to suspend the authority and a further stay granted on 14 July 2010 in relation to the cancellation. Mr Fisher argued that the subsequent cancellation of his driver authority was therefore made in error and was unlawful.
7. Mr Averre responded by pointing out that the stays related to Mr Fisher's ability to drive buses, and did not simultaneously constrain the Department from considering or investigating the complaints against him. The stays simply operated to permit Mr Fisher to continue to drive pending a final determination by the Tribunal, upon which his authority to drive came to an end.
8. Mr Fisher's written arguments in this Court can be conveniently considered in a series of categories. These are referred to in turn.

Extraneous or improper purpose

1. Mr Fisher maintained that throughout the chain of decision making there were several occasions upon which the authorities "exhibited contempt for the law" and "engaged in abuse of public trust and resources". That included the suspension of his driver authority in the wake of adverse media coverage, the cancellation of the driver authority the following day, the cancellation of the partnership's school bus contract, the attack upon his character as a fit and proper person, and the consideration of certain information and material as part of a "dirt finding exercise". Mr Fisher's written submissions include transcripts from a Today Tonight segment that went to air on 6 June 2011, which Mr Fisher says "solidified the Authority's resolve" and sealed his fate. Ultimately Mr Fisher contends that the first and second defendants fell into error by acting in a "prejudiced and predetermined way to remove the driver with the purpose of appeasing the media".
2. The defendants' response to these contentions emphasises that Mr Fisher has not provided any evidence sufficient to support the existence of any improper purpose on the part of the decision maker. In order to make out such a ground, Mr Fisher would have to demonstrate that the improper purpose complained of was a substantial purpose in the sense that the decision or act complained of would not have occurred but for the improper purpose: Warringah Shire Council v Pittwater Provisional Council (1982) 26 NSWLR 491.
3. In my opinion, there is material from which it is reasonable to conclude that the first and second defendants were aware of escalating external pressure at the time when suspension and cancellation of Mr Fisher's driver authority was being considered. So much is accepted by those defendants. However, Mr Fisher is unable to establish the existence of a causal link between the adverse attention and pressure on the one hand and the decisions ultimately reached on the other hand. The evidence simply does not demonstrate that the defendants were improperly motivated or improperly influenced. The decisions to suspend and to cancel were well within power and the limits of the applicable law.

Failure to apply the relevant standards - repute

1. Mr Fisher contends that there was an express failure by the ADT and NCAT to make a finding regarding his "good repute". That is one of the matters that can be taken into account in relation to holding a driver authority. However, this "issue" was considered both by Mr Molony and Deputy President Hennessy. Mr Molony said this at [131]: "[131] I make no finding in respect of AJO's repute. There is contradictory evidence in that regard, and given the findings I have already made, it is not necessary to resolve them."
2. Deputy President Hennessy said this at [34]: "[34] The nature, seriousness and frequency of any complaints made against AJO was the main basis for the Tribunal's decision. AJO submitted that the Tribunal did not take into account his good record in reaching its decision. If AJO had a good record, and there was evidence of that record before the Tribunal, that does not necessarily overcome or discount the complaints about him and the findings in relation to those complaints."
3. It is to be noted that Mr Molony gave a very detailed exposition of the applicable law. Part of that related to the different questions of fitness and propriety and reputation: "[32] As was made clear by Toohey and Gaudron JJ in Bond, issues of character and reputation may play a determinative role in deciding whether a person is fit and proper. Their Honours also clearly highlighted that there is a difference between the two. They explained that an assessment of character is relevant because it is an indicator of a person's likely future conduct when considering how a person might act in the context of the role they are seeking to undertake. Reputation on the other hand, provides an indication of the public perception of future conduct in that role. In Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392, Waddell J explained, at 393: 'A distinction must be drawn between "repute" or "reputation" and "character" or "disposition". The word "character" is sometimes used as meaning a person's reputation, but "reputation" is not ordinarily used to mean character. The distinction has been referred to in many decisions of the courts.' In Melbourne v The Queen [1999] 198 CLR 1 at 15 McHugh J explained: '... character refers to the inherent moral qualities of a person or what the New Zealand Law Commission has called "disposition - which is something more intrinsic to the individual in question". It is to be contrasted with reputation, which refers to the public estimation or repute of a person, irrespective of the inherent moral qualities of that person.' [33] In Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 Walsh JA, at 450, said that in determining questions of character: '... the court is required to consider matters affecting the moral standards, attitudes and qualities of the Applicant and not merely to consider what is his general reputation.' That case was concerned with an application for registration of a medical practitioner. His Honour went onto explain that the Court was entitled to inquire into personal misconduct, as well as professional misconduct, in considering whether the applicant was a man of good character: '... whilst recognizing that there may be some kinds of conduct deserving of disapproval which have little or no bearing on whether or not it shows the applicant for registration as a medical practitioner is a person of good character. In this respect, I think, that some assistance can properly be obtained as to the mode of approach to be made from the observations made in cases where the was whether or not that a person was fit and proper to be a barrister, such as those in Ziems v Prothonatory of the Supreme Court of NSW (1957) 97 CLR 279.' Thus, as with fitness and propriety, assessment of character is to be made in the context of the nature and purpose of the activities that the person is seeking to undertake. In Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 the Appeal Panel explained: 'Good repute' refers to the way reasonably-minded people assess an individual's current reputation, with reasonably precise knowledge of those matters that put the person's reputation in doubt. The fact that the person produces evidence from witnesses who vouch in general terms for the person's reputation cannot be conclusive. Equally, care must be taken, as we see it, not to use the 'good repute' requirement as a way of bringing into consideration stereotypes or assumptions which offend, for example, against human rights or anti-discrimination standards."
4. In my opinion, Mr Fisher's concerns are ill founded. Consideration of Mr Fisher's "good repute" became irrelevant once a determination had been made that he was not a fit and proper person to be a driver. Mr Molony put it this way: "[19] Section 52(1) of the PT Act confers jurisdiction on the Tribunal to review a decision to cancel an authority. Section 63 of the ADT Act says that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. [20] In determining a review of a decision to cancel an authority the Tribunal's focus is not on disciplining or punishing the authority holder, but on protecting the public interest. As Kirby P explained in Pillai v Messiter [No.2] (1989) 16 NSWLR 197 at 201, albeit he was concerned with a medical practitioner:- '... The public needs to be protected from delinquents and wrong-doers within professions. It also needs to be protected from seriously incompetent professional people who are ignorant of basic rules or indifferent as to rudimentary professional requirements. Such people should be removed from the register or from the relevant roll of practitioners, at least until they can demonstrate that their disqualifying imperfections have been removed ...'"
5. Mr Molony's finding that Mr Fisher was not a fit and proper person was open to him and obviated any requirement to consider the separate question of whether Mr Fisher was a person of good repute. As he acknowledged at [32], issues of character may play a determinative role in deciding whether a person is fit and proper. However, there is a difference between the two. Mr Molony did not fall into error in declining to consider what he regarded as the contradictory evidence concerning Mr Fisher's reputation.

Failure to take into account relevant consideration

1. This has already been discussed. Mr Fisher's point centres upon the contention that Mr Molony failed properly to consider the adverse impact upon Mr Fisher and his family of a decision that prevented him driving a bus. Mr Fisher contended that the decision was "unreasonably and unnecessarily harsh to the extent that no reasonable person would have made the decision".
2. It is not in contest that the decision to cancel Mr Fisher's driver authority had severe consequences for him and his family. He suffered adverse personal and financial difficulties as a direct result. That was in fact acknowledged during the decision making process. However, s 14 of the Passenger Transport Act requires that, when assessing what action to take, a decision maker is to have regard to the purposes of the authority, which are set out in s 11(2). Section 12(2) also provides as follows: "12 Criteria and procedure (1) … (2) Applicants must meet any criteria set forth in the regulations and must satisfy RMS as to any matter RMS considers relevant. (3) …"
3. Relevantly, the Passenger Transport Regulation provides that a driver must be of good repute and a fit and proper person, as well as have sufficient responsibility to drive the vehicle concerned in accordance with law and custom. That regulation, together with the Agency's Guidelines for Managing School Student Behaviour on Buses, clearly set out the necessary standards to which drivers are expected to adhere. It was open to Mr Molony to assess Mr Fisher's conduct in light of the required behavioural standards, and to draw the conclusion that Mr Fisher did not have sufficient responsibility or aptitude to fulfil the demands of the role. As was said in Lal v Director General, Department of Transport [2001] NSWADT 74 at [47]: "[47] In his 'show cause' submissions, Mr Mayell stated that cancellation would cause Ms Lal considerable hardship. He referred to the considerable financial investment she has put into taxis over 20 years in support of this submission. Hardship to Ms Lal is not a factor which the Tribunal can take into account in determining whether or not the Director General has made the correct and preferable decision."
4. The decision of which Mr Fisher complains may well have had dire consequences for him. It was made with the need to protect the safety and wellbeing of school students who travelled on buses driven by him. It was a decision that the original decision makers were entitled to make. It was later affirmed without jurisdictional or procedural error.

Denial of procedural fairness

1. Mr Fisher contends that there was an "act of obfuscation by the Authority", an abuse of the merits review jurisdiction and a failure by Mr Molony properly to case manage the matter. Specifically, Mr Fisher submits that "the Authority's attempts to import operator material were a corrupt attempt to widen the net beyond assessment of [him] as a bus driver". This relates to an allegation that Mr Fisher's role as the operator of a bus service was inappropriately taken into consideration upon the question of his fitness and propriety to retain a bus driver authority. He contends that this allowed the case to become "unduly expensive, onerous and obscure". It can be inferred that, whilst Mr Fisher does not specifically allege this in his submissions, he felt that including "the bus operator material" also unfairly altered the standards to which he was held accountable.
2. Mr Molony referred to several behavioural guidelines regarding the requirements for bus operators. These references were however substantially referable to the standards set out for bus drivers. These formed the basis of his decision. Any reference to Mr Fisher's role as a bus operator may have been instructive as to the surrounding circumstances, but did not in my view lead to any error. As Deputy President Hennessy mentions at [30] of her decision, the fact that certain evidence considered was relevant to Mr Fisher's role or conduct as an accredited bus operator does not necessarily mean that it was not also relevant to the question of whether he was a fit and proper person to be the driver of a school bus. Mr Fisher was legally represented before Mr Molony and no objection to the admissibility of the material would appear to have been taken in any event.

Misapplication of procedural fairness

1. Mr Fisher alleges that he had no real prospect of obtaining a fair hearing and that there was a "constructive failure by Judicial Member Peter Molony to properly case manage the case". Mr Fisher makes reference to s 3(b) of the Administrative Decisions Tribunal Act 1997, which ensures that "the Tribunal is accessible, its proceedings efficient and effective and its decisions are fair". Further, Mr Fisher makes reference to an attempt by opposing counsel to introduce fresh allegations "through the back door".
2. The defendants in response maintained that Mr Fisher, who was legally represented, was given every proper opportunity to be heard on all issues and every aspect of the evidence.
3. I do not consider that there is any material to support or to suggest that the decision making process was inaccessible or inefficient. I do not understand the contention that there was some kind of case management failure.

Finding of abandonment

1. This ground relates to the incident in 2010 when Mr Fisher allegedly demanded that a misbehaving child get off the bus, only then to drive away without him after he wandered away to find shelter from the rain. The child had walked to a nearby town in order to telephone his father. Mr Fisher submitted that he did not intend to abandon the child but that it was in any event an isolated incident in a decade of driving. Mr Fisher contended that Mr Molony's findings about this incident were "clearly hyperbole" and that his conduct had not amounted to a breach of the behavioural guidelines. Further, Mr Fisher submitted that he was denied the opportunity to give evidence about the matter, which itself amounted to a denial of procedural fairness.
2. The relevant portion of Mr Molony's decision about this incident is as follows: "The circumstances surrounding an incident when the bus left a student, AJQ, far from home [49] In semester 2 of 2010 AJO was driving the bus home when an incident occurred at a school when the bus stopped to pick up students. AJQ, who is now 16, told me AJO caught him mooning another bus. AJO told AJQ to get off the bus while he called the Police. AJQ said that he complied with the instruction and had wandered off, because it was raining and there was no shelter. He said he had not run away. The bus then departed: he did not see it go. He walked into a nearby town, phoning his father to tell him he had done something silly and had been kicked off the bus. He had to walk a considerable distance before he could get a signal on his phone. [50] AJQ's father gave evidence. He confirmed that AJQ had phoned him to say that he had been put off the bus. AJQ sounded distressed and was wet. He had walked some distance in order to get a signal on his phone. AJQ's father then rang AJO, but the call went to message bank. He obtained a number for AJO's wife, and rang her. She was elsewhere at the time and was not aware of what occurred. He explained what had happened and she just said '[AJO] doesn't know how to handle children; he shouldn't be doing the bus.' [51] In his affidavits AJO did not directly address this issue. In cross examination he agreed that driving off and leaving a student in such circumstances was not an appropriate way for a driver to respond. He said he had not apologised to AJQ or to his parents for doing so. When it was suggested he had simply driven off, he said, 'I couldn't find the child.' In re-examination, he was asked whether he thought his conduct in leaving was reasonable. He explained: I thought under the circumstances no, because I had a bus load of kids on. I got off the bus and went to look for him, and I could find no trace of him anywhere and, you know, I had - went to the back of the bus and I looked around and couldn't - there was no sign of him anywhere, and I had a walk around the immediate area in the school, and I - I had a bus load of kids and I thought well, what do I do. Do I drive round [the area] with a bus load of kids looking for him, or do I, you know? And I attempted to ring my wife [name] on the mobile and I - I - and I can't remember if I actually got through to her that day or not, but anyway, I tried to ring her on my mobile and at - at that - point I just thought, well, I've got to get these kids home, I've got to keep on route, and he was a high school aged boy, he wasn't a juvenile, he was, you know, fourteen or fifteen, he with his own mobile phone, so um -- [52] It is to be noted that there is no evidence verifying that AJO either attempted to or did ring his wife. This is to be contrasted with the fact that AJQ's father had no difficulty contacting her around the same time. AJO did not attempt to ring AJQ's parents, despite the fact that he had contact details for them on his phone. He gave no evidence of speaking with the authorities at the school he was picking up from, or ringing the Police and reporting a missing child. [53] AJQ's evidence as to where he went when he was ejected from the bus, and saw AJO making a phone call he believed was to the Police, is unclear. While AJQ denied running away, I think it probable that he made himself scarce: a not an unexpected action from a 15 year old boy threatened with Police. [54] I am satisfied from AJO's own evidence that he made a cursory examination of the area before driving off; leaving AJQ stranded some 75km from home. AJO did not make contact with any responsible authority, his wife, or AJQ's parents before doing so. [55] This reflects adversely on his fitness to drive a school bus, and on his capacity to conduct himself in accordance with law and custom. Requiring AJQ to leave the bus was a breach of Clause 101 of the PT Regulation and in obvious breach of the Behaviour Guidelines. Threatening the Police to call the Police [sic] is at odds with the Behaviour Guidelines. Both reflect adversely on AJO's ability to appropriately manage children in his bus, and on his understanding of and insight into the expectations cast on a person with the responsibility of driving a school bus. Driving off and leaving an adolescent boy, unsupervised and far from home, is not the conduct expected of a competent school bus driver. [56] I note that there is uncontested evidence that on another occasion AJO called Police to speak with a student who was refusing to comply with a direction as to where to sit."
3. It is apparent that this issue was clearly identified and argued before Mr Molony. Mr Fisher was given the opportunity to respond to it and to give evidence about it. I am unable to conclude that there was any denial of procedural fairness.

Misapplication of mobile phone policy

1. Mr Fisher referred to Mr Molony's finding at [92] that "pulling over to enable him to engage in calls while driving students is at odds with his duties". Mr Fisher submitted that it was not open to Mr Molony to make such a finding given the lack of evidence regarding the nature of the calls and whether the bus was standing or parked when they were made. He submitted further that Mr Molony's considerations went beyond those to which the first defendant had regard.
2. However, as noted by Mr Molony at [19] of his decision, it is well established that in considering an application for review, the Tribunal may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. Deputy President Hennessy also pointed out at [23] of her decision that "it is not a breach of the rules of procedural fairness for the Tribunal to rely on evidence which the Respondent did not rely on when making its decision".
3. Mr Fisher's contention that Mr Molony was not entitled to consider anything beyond that which was considered by the original decision makers is not correct. Mr Molony's reasons include a thorough discussion of the evidence regarding Mr Fisher's use of telephones, and it was open to him to agree with the conclusions drawn by the Agency.

The rubbish throwing incident

1. Mr Fisher contends that Mr Molony's finding that he had conceded that he had thrown a bag of rubbish out the door of the bus was an erroneous finding with no evidence to support it. However, Mr Fisher gave evidence and was cross-examined about this incident before Mr Molony. The transcript of that cross-examination includes the following: "KE: When you got to the stop that Peter regularly got off the bus… BS (Mr Fisher): M'mm KE: It's the case isn't it, that you threw rubbish out of the bus onto the street at that time and you claimed it was Peter's rubbish? BS: I… KE: You remember that? BS: …believe…I believe so. KE: Believe so? BS: Yeah."
2. Mr Fisher's complaint cannot be accepted having regard to this material.

Apprehended bias

1. Mr Fisher contends that Mr Molony "clearly favoured a subset of teenagers because in my mind they were children, closing his mind to all evidence adverse to the subset". He submitted that Mr Molony "perversely made findings…to incriminate [Mr Fisher] for things…not done and/or said". Mr Fisher points to parts of Mr Molony's decisions, such as his statement at [12] that "the situation has been rumbling along for some years". Mr Fisher claims that such language is evidence of apprehended bias and contempt.
2. The test for assessing the existence or otherwise of apprehended bias in a decision maker is well known: Ebner v Official Trustee (2000) 205 CLR 337; [2000] HCA 63 at [6]-[9]. Would a fair minded and informed observer conclude in this case that Mr Molony could not have been impartial or that he could have failed to approach the issues with an open mind? The question is whether the alleged source of bias could or might affect the decision maker's objectivity.
3. I have found it difficult to understand Mr Fisher's complaints in this context to be anything more than an expression of dissatisfaction with Mr Molony's decision. I have examined his very detailed reasons and am unable to discern any evidence of predisposition or prejudgment. Mr Fisher has not identified any matter that could reasonably be thought to qualify as bias or what Mr Fisher refers to as contempt.

Errors in fact finding process

1. Mr Fisher draws attention to several findings made by Mr Molony that he contends are erroneous or lack evidentiary support. These relate to phone calls made by Mr Fisher whilst in his bus, rubbish thrown from the bus and his status as an operator of the bus service. Unfortunately there was significant evidence before Mr Molony on all of these issues and it went unchallenged by Mr Fisher's legal representative.

Failure to inquire

1. Mr Fisher argues that video or mobile camera footage showing him using a mobile phone had been modified to show an earlier date that he submits led the Authority to believe that he had not sufficiently heeded the warning given to him regarding his conduct. He submits further that evidence regarding the misbehaviour and bullying by the students on his bus, as well as the parents' motives in making complaints against him, were not adequately considered. Mr Fisher contends that the first defendant "had a duty to go to those witnesses and interview them in fullness [sic] and call into proceedings both sides of the story". Mr Fisher maintains that enquiries made during the decision making process were deliberately limited, having a prejudicial effect on his prospects of a fair decision.
2. As Deputy President Hennessy pointed out at [40]-[42] of her reasons, the fact that s 73(2) of the Administrative Decisions Tribunal Act provides that the Tribunal "may inquire into and inform itself on any matter", does not translate into a duty to do so or to obtain evidence that neither party has chosen to adduce. There is no statutory duty upon the Tribunal to make the type of enquiries or investigations suggested by Mr Fisher. The Tribunal fell into no error in declining to do so.

Taking account of irrelevant considerations

1. This ground relates to the comment made by Mr Molony in his reasons at [74] as follows: "[74] Also of concern is the fact that AJO, on his own evidence, made no inquiries as to who had been sick, or as to their welfare. In my opinion it is reasonable, and essentially a matter of common decency, to expect a country school bus driver to inquire about the welfare of a student who has been sick; to make sure they are all right and fit to continue travelling. Making phone calls at the conclusion of the trip, in an effort to make such inquiries, is too late."
2. Mr Fisher is concerned that Mr Molony's reference to him as "a country school bus driver" was an irrelevant distinction and that Mr Molony's use of that term somehow inappropriately elevated its significance in this case. I understand Mr Fisher to contend that Mr Molony's deliberations should have been based upon the assessment of his conduct as "a bus driver", not as any particular type of bus driver.
3. Two things need to be said about that submission. First, as I read Mr Molony's decision, his use of the expression "country school bus driver" was no more and no less than a statement of an otherwise anodyne and uncontested fact. Mr Fisher was, at the relevant time, a country school bus driver. It is a fact that is difficult to contest. Secondly, whether or not the fact was irrelevant, Mr Fisher has failed to demonstrate how the allegedly irrelevant matter was taken into account in a way that led to an erroneous result in his case. It would be different if Mr Molony had somehow expressly or by implication purported to apply a different standard to Mr Fisher by reason of his being a country school bus driver than that which would or might have been applied to his metropolitan counterpart. That has not been done and Mr Fisher has not pointed to any material to support the suggestion that it has been.

Wednesbury unreasonableness

1. Mr Fisher submits that the decision to cancel his bus driver authority was "unreasonably and unnecessarily harsh to the extent no reasonable person would have made the decision".
2. Mr Fisher fails to identify which decision or decisions it is that he contends fall into this category, although it is reasonably clear that it relates most significantly to Mr Molony's decision to affirm the cancellation of his bus driver authority. As was explained in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [76]: "[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion 'if upon the facts [the result] is unreasonable or plainly unjust'. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification."
3. It does not seem to me that either Mr Molony's or Deputy President Hennessy's decision lacks an evident or intelligible justification. If I may say so with respect, each decision is thorough and well structured. Upon a fair reading of either decision, one is left in no doubt about what the conclusions are or why they have been reached. There is neither an absence of reasons nor insufficient reasons.

Summary and conclusions

1. It is clear from the detailed evidence given by Mr Fisher, starting with his childhood, through his teenage years and early work experiences, his marriage and family life, and his determined life of hard work that culminated in the acquisition of a successful business, that he now feels an enormous sense of loss. His business is gone. His marriage has failed. He faces an uncertain future. The prospect of resurrecting what he had is both daunting and distant.
2. In Mr Fisher's opinion, this tragic combination of circumstances germinated from what he considers to be insignificant events that were unreasonably and unnecessarily magnified beyond any realistic assessment of their importance. Whatever indiscretions or failure to follow the rules of which Mr Fisher might have been guilty, it was all because of a vindictive group of parents and students that his driver authority was cancelled. The decision was taken, in Mr Fisher's view, in the face of several lesser and preferable alternatives that could have spared him the ruins in which he has now been left.
3. Mr Fisher has never been able to accept, and in my opinion will never be able to accept, that any of this is the legitimate result of his own conduct. Indeed, as far as I can determine, Mr Fisher remains in steadfast denial that the things he is alleged to have done were done. I take him to deny the allegations that he drove his bus while speaking on a mobile phone. I am uncertain what his present response is to the allegation that he put a student off his bus in a remote location. I cannot be sure whether he accepts or rejects the contention that he threatened a student with violence concerning the window incident. The fact that he has suggested a short period of suspension with a course of counselling rather indicates that Mr Fisher accepts that some of what has been said against him may be true. On the other hand, it may be that Mr Fisher merely considered that to have been a preferable option even notwithstanding the false and scurrilous accusations mounted against him.
4. Mr Fisher's approach to these matters has operated in these proceedings to elide his dissatisfaction with a series of decision makers without any apparent or consistent discrimination among them. It has been difficult, therefore, to discern from the summons and Mr Fisher's extensive written submissions, including his additional submissions forwarded to my Associate some months after the conclusion of the hearing before me, precisely what ground is alleged against which party.
5. It is timely to bear in mind that Deputy President Hennessy was concerned with Mr Fisher's belated attempt to resurrect his appeal out of time. The Deputy President did not cancel or suspend Mr Fisher's driver authority and she did not hear evidence from witnesses who spoke against him. She determined the application having regard to the fact that Mr Fisher had earlier made and withdrawn an application for leave to appeal and that his second application was effectively late for reasons that were unsatisfactory. She also assessed his prospects of success in the light of his several proposed appeal grounds, all of which have resurfaced in this Court. The Deputy President said this at [17]: "[17] The application for extension of time was heard on 16 December 2013. Having read the relevant material, I have formed the view that the appeal has very little prospects of success. [Mr Fisher] has either misunderstood the law or the way the law applies to his case…"
6. The Deputy President then proceeded to consider the merits of the main grounds of appeal, including misapplication of the Passenger Transport Regulation cl 101, procedural fairness, relevant considerations and alleged errors in the fact finding process. She also considered Mr Fisher's concern that there was a failure by the Tribunal to make inquiries (referred to above), that evidence was overlooked and that Mr Fisher should be permitted to lead fresh evidence. Her conclusion at [52] of her judgment has already been set forth above at [24].
7. Although Mr Fisher has appeared with counsel or solicitor in other jurisdictions in these long running proceedings, he was not legally represented in this Court. That is both understandable and regrettable. His written submissions attest to the fact that Mr Fisher is preoccupied with a sense of injustice and grievance at the way he has been treated and the position in which he currently finds himself. His affidavit is replete with pejorative references to his accusers and what he refers to as "the subset". I accept that his feelings in that respect are not without a genuine emotional foundation.
8. However, these proceedings are directed, in lay terms, at an assessment of the correctness of decisions made by various decision makers, not at the morality or motives of the parents of students who travelled on his bus, or of the students themselves.
9. The precise terms of the relief sought by Mr Fisher in his Further Amended Summons (Judicial Review) are as follows: 1. The determination of the NCAT Deputy President Nancy Hennessy refusing leave to appeal to NCAT Appeal Panel out of time on the substantive matter is declared invalid and set aside. 2. Decision by the first and second defendant suspending the plaintiff's public passenger driver authority 6 June 2011 declared invalid and set aside. 3. Decision by the first and second defendant cancelling the plaintiff's public passenger driver authority 14 July 2011 declared invalid and set aside. 4. Original decision Administrative Decisions Tribunal P H Molony 25 May 2012 declared invalid and set aside. 5. Damages. 6. Costs from commencement of proceedings 6 June 2011. 7. The first and second defendant issue a public apology by way of the Sydney Morning herald, the Daily Telegraph Sydney, the Canberra Times, Brisbane Times. 8. Such further or other orders as this Honourable Court sees fit. 9. Alternatively, the matter be remitted to the NSW Civil and Administrative Tribunal Appeal Panel for redetermination in accordance with law. 10. Expenses.
10. In my opinion, Mr Fisher has not established that he is entitled to any of the relief that he claims, or indeed any relief at all. It follows that the further amended summons should be dismissed with costs.

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