The appellant appeals against the decision of the Tribunal delivered on 8 November 2022 affirming the decision of the respondent, Transport for New South Wales, to cancel his PWC boat licence (FLK v Transport for NSW [2022] NSWCATAD 360).
The appellant is a minor and he was referred to as FLK both at first instance and during the appeal proceedings. We will make orders pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) continuing the prohibition on the disclosure of the name of the appellant.
The Tribunal set out the background to the application at [3] - [8] of the decision as follows:
"3 On 24 December 2021, the Respondent issued FLK a notice to show cause in respect to whether his PWC Boat Licence should not be cancelled or suspended. The show cause notice was sent to FLK because he had committed three offences against the provisions of the marine legislation within a period of 24 months from the date of his last recorded offence. The offences giving rise to the decision to cancel FLK's PWC Boat Licence included:
(i) compliance action details relating to Penalty Notice issued 2 October 2022 [sic, 2021], and NSW Police Force COPS entry:
FLK was charged with not keeping a proper lookout resulting in a collision with another vessel. The COPS report includes 'About 12.50 on Saturday 2nd October 2021 vessel 1 was travelling upstream with a group of other tinnies and a jet ski. This vessel is believed to have been travelling at a speed greater than the signposted 8 knots and on the wrong side of the channel with the vessel's bow raised blocking his view. At the same time vessel 2 was travelling downstream at a speed of about 3 knots on the right hand side of the channel. At a bend in the river, the bow of vessel 1 has collided with the starboard side of vessel 2. Both the driver and passenger of vessel 1 have been thrown into the water. Vessel 2 immediately stopped and assisted both of them onto his vessel.'
FLK was fined and did not challenge the infringement.
(ii) compliance action details relating to penalty notice issued 29 August 2021;
FLK observed operating a PWC on a waterway at a speed 15 knots plus in an 8 knot zone.
FLK was fined and did not challenge the infringement.
(iii) compliance action details relating to penalty notice issued 1 May 2021.
FLK issued with a penalty notice concerning defect notice operating 40 horsepower Mercury with maxim 25 horsepower or less limit.
FLK was also not carrying a whistle. FLK was fined and did not challenge the infringement.
4 On 18 January 2022, FLK responded to the notice to show cause. However, the reply was inadvertently not put before the review panel when FLK's PWC Boat Licence was cancelled.
5 On 18 March 2022, the Respondent wrote to FLK advising him, that his PWC Boat Licence would be cancelled effective from 11 April 2022 for a period of 6 months.
6 On 25 March 2022, the Applicant requested internal review of the 18 March 2022 decision.
7 On 4 April 2022, the Respondent replied to FLK, advising him the decision of the Respondent made on 18 March 2022 was upheld.
8 When the Respondent considers matters such as cancelling a PWC Boat Licence it refers documentation to the Marine Safety Licence Sanctions Panel ('MSLSP'). The Panel reviews the documentation, which includes the offences of the person whose licence is under review, and makes a decision which is implemented by the Respondent. It is this process that was carried out in determining to cancel FLK's PWC Boat Licence."
The decision to cancel the appellant's boat licence was made pursuant to section 78 of the Marine Safety Regulation 2016 (NSW) which, relevantly, provides as follows:
78 Suspension or cancellation of marine safety licence
(1) For the purposes of section 38(1)(c) of the Act, the prescribed circumstances in which the responsible licensing official may suspend or cancel a marine safety licence are as follows -
(a) any information provided by the holder of the licence for the purposes of the marine legislation is found to be false, misleading or inadequate in a material particular,
(b) the holder of the licence is not, in the opinion of the responsible licensing official, a fit and proper person to hold the licence,
(c) the holder of the licence has failed to comply with any condition of the licence,
(d) the holder of the licence has committed an offence against any provision of the marine legislation or section 52B of the Crimes Act 1900 or any provision of the law of the Commonwealth or of another State or a Territory that the responsible licensing official reasonably considers to be similar to a provision of the marine legislation or that section,
(e) if the responsible licensing official determines that it is in the public interest to do so,
(f) the holder of the licence requests that the licence be suspended or cancelled.
"Marine legislation" is defined in s 4 of the Marine Safety Act 1998 (NSW) to include the Marine Safety Act and regulations made under the Marine Safety Act.
Regulation 78 was enacted pursuant to s 38 of the Marine Safety Act, which provides that a licence may be suspended or cancelled in circumstances prescribed by the regulations.
The Tribunal recorded that the appellant relied upon two bundles of documents, and that the respondent had filed documents pursuant to s 58 of the Administrative Decisions Review Act 1997 (NSW) and written submissions. The Tribunal stated, at [18] - [19]:
"18 FLK did not give evidence.
19 The hearing proceeded by way of the above documentation and oral
submissions."
The Tribunal also stated, in the course of summarising the appellant's submissions, at [21]:
"21 FLK relies of his reply to the show cause notice and makes the following
submissions."
The respondent, in submissions to the Tribunal, relied, in addition to the three offences referred to in the show cause notice, upon seven cautions said to have been issued to the appellant between 2 June 2019 and 5 December 2021.
At [28] - [29] the Tribunal recorded:
"28 The Respondent submits that FLK's behaviour and lack of adherence to signposted speed limits and rules, does not demonstrate the responsible operation of vessels on public waterways. In addition to the penalty notices referred to in paragraph [3] above, the Respondent put in evidence seven cautions that were issued to FLK from 2 June 2019 to 5 December 2021. Those cautions included SLK operating a vessel and not displaying a registration number, carrying non-compliant safety equipment, operating a PWC vessel by more than 10 knots or more, contravene condition of marine safety licence not carrying PWC licence, not having a PWC behaviour label affixed as prescribed and drive 10 knots or more with no licence or older person over 16 years present.
29 The Respondent submits that the Applicant's conduct, which includes the cautions, which were not disputed during the hearing by FLK's father, are alarming and demonstrate a consistent failure to adhere to maritime laws."
The Tribunal set out its reasons for decision at [30] - [35] as follows:
"30 FLK was 15 years of age at the time of this hearing. He had been driving a boat for approximately 6 years. He was the driver of both a jet ski and other marine vessel during the period in which he has held his licence and driven boats. In the short period of time in which FLK has held a licence he has incurred three infringements and seven warnings. Significantly, three of the official cautions relate to operating a vessel exceeding the speed limit. The infringement notice he received in (ii) in paragraph [3] above also related to exceeding the speed limit. While the failure to carry a whistle incurred an infringement notice on its own is not significant, when considered in combination with the accumulation of official cautions and infringement notices, it establishes a pattern of flagrant failure to adhere to maritime law.
31 I have given considerable weight to the 2 offences set out in (i) and (ii) in paragraph [3] above. In my mind, perhaps due to the age of FLK, or a simple disregard for the law, speeding and failing to keep a proper lookout whilst driving a vessel poses a real danger to other users of the waterway.
32 I accept FLK has shown remorse in terms of his offending. However, when considering the objects of the MSA, the safe operation of vessels and the responsible operation of those vessels in waters to protect the safety and amenity of other users, those factors must be held paramount.
33 Despite a number of cautions, FLK continued to offend. Indeed, the most serious offence relates to (i) in paragraph [3] above which caused both FLK and his passenger to be thrown into the water and damage to another vessel on the waterway. This was due to the failure of FLK to keep a proper lookout whilst operating his vessel. I do not accept on these facts alone, that the collision was minor as contended by FLK. It must have been of such force that it caused he and his passenger to be ejected from the vessel he was driving into the water. I find that FLK must have been driving the vessel at such a speed, that he could not control the vessel and in doing so he was not keeping a proper lookout for other vessels.
34 In taking into consideration the nature of the offences and the interests of the public in ensuring that people who are issued with a boat driver's licence are able to comply with the law, I find that FLK poses a danger to other users of the waterway.
35 The internal review decision of the Respondent is the correct and preferrable decision. It is affirmed.
[2]
The nature and scope of internal appeals
By virtue of s 80(2) of the NCAT Act, internal appeals from decisions of the Tribunal may be made as of right on a question of law, and otherwise with leave of the Appeal Panel.
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law:
1. Whether there has been a failure to provide proper reasons;
2. Whether the Tribunal identified the wrong issue or asked the wrong question;
3. Whether a wrong principle of law had been applied;
4. Whether there was a failure to afford procedural fairness;
5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations;
6. Whether the Tribunal took into account an irrelevant consideration;
7. Whether there was no evidence to support a finding of fact; and
8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
9. The principles applicable to the grant of leave to appeal were considered by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [82] - [84].
At [84] the Appeal Panel held:
(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];
(2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve:
(a) issues of principle;
(b) questions of public importance or matters of administration or policy which might have general application; or
(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;
(d) a factual error that was unreasonably arrived at and clearly mistaken; or
(e) the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed,
BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];
(3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there.
[3]
Grounds of Appeal
The appellant relied upon an Amended Notice of Appeal filed with his written submissions for the appeal. The Appeal Panel granted the appellant leave to file the Amended Notice of Appeal at the commencement of the hearing.
The grounds of appeal stated in the Amended Notice of Appeal were:
"[FLK]'s typed statement for the hearing was not cross-examined or taken as correct."
The appellant also sought leave to appeal on the ground:
"There was no weight put on [FLK] typed statement that was prepared for the NCAT hearing not cross-examined and had considerable information about infringements that he only found out about once NCAT proceedings started."
Although the ground stated in the Amended Notice of Appeal does not state a question of law, we note that the appellant is not legally represented.
As the Appeal Panel stated in Ros v Commissioner of Police [2020] NSWCATAP 70 at [16]:
The Tribunal has a duty to assist self-represented litigants balanced with the duty to ensure a fair hearing for all parties. More specifically, it may be necessary on occasion for the Tribunal to assist a self-represented litigant to articulate his/her grounds of appeal (see eg Cominos v Di Rico [2016] NSWCATAP 5).
In Cominos v Di Rico [2016] NSWCATAP 5, the Appeal Panel stated, at [13]:
13 It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice."
It is apparent from the appellant's written submissions and from the submissions made on his behalf at the hearing of the appeal, that the gravamen of the appellant's case, both as his ground of appeal and the basis for his application for leave to appeal, is that the Tribunal failed to take into account his evidence, as set out in his statement which was included in the bundles of documents which he filed in advance of the hearing. In particular the appellant takes issue with the fact that the appellant's father, who represented the appellant at the hearing and on the appeal, was informed by the solicitors for the respondent in advance of the hearing that the appellant was not required for cross-examination. The appellant submits that in those circumstances the statement should be taken as unchallenged.
We consider that the appellant's Amended Notice of Appeal potentially raises the questions of law whether the Tribunal failed to accord procedural fairness or failed to exercise its jurisdiction by failing to take into account the appellant's evidence contained in his written statement.
In Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 Gummow and Callinan JJ, with whom Hayne J agreed, held, at [23]-[25], that, for an administrative decision-maker "[t]o fail to respond to a substantial, clearly articulated argument relying upon established facts", was both a constructive failure to exercise jurisdiction and a failure to accord natural justice. Kirby J held, at [88]:
"88 Obviously, it is not every mistake in understanding the facts, in applying the law or in reasoning to a conclusion that will amount to a constructive failure to exercise jurisdiction. But where, as here, the mistake is essentially definitional, and amounts to a basic misunderstanding of the case brought by an applicant, the resulting flaw is so serious as to undermine the lawfulness of the decision in question in a fundamental way."
In Day v SAS Trustee Corporation [2021] NSWCA 71 Meagher JA (with whom Payne and White JJA agreed) stated, at [37]:
"37 … a constructive failure to exercise jurisdiction (or a purported exercise, in the sense that there is an appearance of an exercise of jurisdiction) as alleged by the appellant is not a mere failure to consider evidence or to address an argument or submission, which may be contingent or otherwise insignificant, but a failure to understand and determine a case or claim. The ultimate question is whether a failure to consider and address certain issues or arguments involved a failure to address central or critical elements of the case or claim: compare, in relation to failures to consider evidence, Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [69], [111]. It will be insufficient for the appellant to show that his 'three key issues' were not stated and determined discretely. What he must show is that they raised 'substantial' (in the sense of clearly material) arguments or questions which the primary judge in substance failed to address in determining the appellant's claim ..."
As McCallum J noted in Corcoran v Far [2019] NSWSC 1284, at [64]:
"64 The decision in Dranichnikov is not authority for the proposition that a Tribunal will fall into legal error if it fails to refer to and engage with every argument put (whether clearly articulated or otherwise). Some discernment is required. The present case provides a good illustration as to why that must be so. Mr Corcoran's written submissions are littered with lengthy legal arguments that are simply irrelevant to the task for this Court. It is not necessary to engage with every point and indeed to do so would be inimical to the overriding purpose stated in s 56 of the Civil Procedure Act 2005 (NSW)."
The "overriding purpose" referred to by McCallum J is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings". The Tribunal is not subject to s 56 of the Civil Procedure Act 2005 (NSW), but s 36(1) of the NCAT Act requires the Tribunal to give effect to the "guiding principle" which is stated in identical terms.
As McCallum J stated, the Tribunal is not obliged to refer to and engage with every argument put. The Tribunal is required to address the relevant material, but not every issue raised.
It is not manifestly clear that the Tribunal did not take into account the appellant's written statement. The Tribunal did not make findings which clearly indicate that it did not take into account the written statement. The statement that the appellant did not give evidence (decision para [18]) may be taken to refer to the fact that the appellant did not give oral evidence at the hearing. The statement at [29] that the cautions were not disputed during the hearing by the appellant's father is not inconsistent with the Tribunal having had regard to the written statement.
The fact that the appellant was not cross-examined did not have the consequence that the Tribunal was obliged to accept as undisputed fact everything stated by the appellant in his statement. As Beazley JA (with whom Giles JA and Whealy JA agreed) stated in Hamod v State of New South Wales [2011] NSWCA 375 at [336] to [338]:
336 … Prima facie, a court will accept the unchallenged evidence of a witness, including an expert witness: see Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 at 236 …
337 However, the principle is not absolute. …
338 … even if evidence is unchallenged, a party may be able to demonstrate that the evidence is inherently illogical or unreliable, or that the evidence is based on an incorrect or incomplete history or upon unproven assumptions. These last two factors are particularly relevant where expert evidence is not challenged in cross-examination. However, unless the evidence is shown to be defective in some way, there is usually no reason not to accept evidence that is unchallenged: see M & E M Holt Pty Ltd v Thompson [2001] NSWCA 359 especially at [21].
We have read carefully the written statement included in the appellant's bundle of evidence submitted to the Tribunal. The only matter of substance in that statement which was not also set out in the appellant's response to the show cause notice was a statement that the appellant had not received five cautions relied upon by the respondent and that in respect of a sixth "I did receive after a period of time and my sister said she was driving on that day".
The appellant did not comment on the seventh caution. The explanation may be that the seventh caution, for "Not have PWC behaviour label affixed as prescribed", was issued on 5 December 2021, the same date as a caution for "Under 16 years drive 10 knots or more with no licensee 16 or older present".
The appellant stated:
"I was never told or written to or emailed or been called or knew that I could have my licence suspended or cancelled, until I received the letter dated 24 December 2021, if I did I would of corrected and changed my ways".
The appellant, notably, did not dispute that he had committed the offences the subject of the cautions, save for the one where he suggested his sister may have been driving.
The Tribunal took into account the fact of the cautions in concluding that the appellant had demonstrated a consistent failure to adhere to maritime laws. It cannot be said that the Tribunal erred in failing to address the appellant's evidence that he was not aware of the cautions.
The Tribunal did (in the first sentence of [33]) place some significance upon the failure of the appellant to mend his ways in response to the receipt of a number of cautions, but it cannot be said that that was a substantial reason for the conclusion reached. It is to be noted that three of the cautions were issued after the most serious incident on 21 October 2021 and one of those three cautions involved driving at excessive speed.
It is clear in our view that the failure to heed cautions was a minor factor in the decision and, to the extent that the failure to heed cautions was taken to be indicative of a failure to learn the lessons of repeated warnings, the most substantial indicator of the appellant's propensity in that regard was the fact that he was again caught speeding only two months after the incident which had seen him tipped into the water.
It was the appellant's consistent pattern of offending, rather than any failure to heed warnings, that was the foundation of the Tribunal's decision.
Any failure of the Tribunal to take into account the appellant's denial that he had received the cautions could not amount to procedural unfairness or failure to exercise jurisdiction in the sense referred to in Dranitchnikov. It would not amount to a "fundamental misunderstanding of the nature of the application".
Even if we were to accept that the Tribunal had made an error of fact in failing to acknowledge the appellant's evidence that he had not been made aware of the official cautions, we would not conclude that the appellant had thereby suffered an injustice warranting the grant of leave to appeal. If there was error, it would not be described as central to the Tribunal's decision, rather than merely peripheral.
Accordingly, we find neither an error of law nor any basis for the grant of leave to appeal. The application for leave to appeal must be refused and the appeal dismissed.
[4]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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Decision last updated: 30 May 2023