Khan v Roads and Maritime Services

NCAT Appeal Panel|2015-08-12

Solicitors: Milestone Legal for the appellant Smythe Wozniak Legal for the respondent File Number(s): AP 14/58316 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Occupation Division Citation: [2014] NSWCATOD 128 Date of Decision: 11 September 2014 Before: A Scahill, Senior Member File Number(s): 1420158

reasons for decision

The appellant, Mr Muhammad Khan, was the holder of a taxi driver authority under the Passenger Transport Act 1990 (the PT Act). On 2 April 2014, the respondent made a decision, under s 33F of the PT Act, to cancel his taxi driver authority. That decision was made after the respondent had conducted an investigation into a complaint of inappropriate conduct it had received from a young woman who had been a passenger in the taxi the appellant was driving late in the evening and early morning of 4 and 5 December 2013. The appellant denied he had acted inappropriately.
The appellant sought external review of that decision by the Tribunal, in its administrative review jurisdiction, in the Occupational Division: see PT Act subs 52(1), Civil and Administrative Tribunal Act 2013 s 30 and the Administrative Decisions Review Act 1997 s 7.
The appellant's external review application was heard over four days. At the conclusion of the final day of hearing, on 11 September 2014, the Tribunal made the following decision: The tribunal considers that the correct and preferable decision is that Mr Khan's authority should be cancelled. The decision of the Respondent is affirmed.

Jurisdiction

Section 80(1) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) provides that an appeal against an "internally appealable decision" may be made to an Appeal Panel. An "internally appealable decision" is defined in s 32 of the Act to include a decision made by the Tribunal in proceedings for an "administrative review decision." An "administrative review decision" is defined in section 30(5) of the NCAT Act to mean a decision of the Tribunal determining a matter over which the Tribunal has "administrative review jurisdiction".
As we have noted in paragraph 2 above, the applicant's application was made and determined in the Tribunal's "administrative review jurisdiction". Accordingly, the Tribunal's decision the subject of appeal is an internally appealable decision.
Section 80(2) of the NCAT Act provides that an appeal from an internally appealable decision lies as of right on any question of law or, with the leave of the Appeal Panel, on any other ground.

Notice of Appeal

In his Notice of Appeal the appellant relied on three grounds of appeal, which he asserted to be errors of law. The appellant subsequently filed and served an amended Notice of Appeal, which also amended the terms of the three grounds of appeal. The amended grounds of appeal were in the following terms: "Ground 1: In making its decision the tribunal relied upon a finding two findings of fact, namely that (1) Mr Khan at the end of the trip exposed his penis to a passenger; and (2) Mr Khan then pulled her right arm in an attempt to have the passenger touch his exposed penis, but in reaching that finding of fact the tribunal failed to take into account five relevant consideration: namely: that the CCTV footage from the taxi showed that the applicant had his hands upon the wheel, during the journey, and did not appear to show the applicant moving in a way that would be consistent with the applicant exposing his penis. that the CCTV footage from the taxi showed that the applicant had his hands upon the wheel or otherwise engaged with utilities for the payment of the fare at the end of the journey, and did not appear to show the applicant moving in a way that would be consistent with the applicant exposing his penis. that the CCTV footage from the taxi showed that the applicant had his hands upon the wheel or otherwise engaged with utilities for the payment of the fare at the end of the journey, and did not appear to show the applicant grabbing Ms Montalban. that Ms Montalban had not contemporaneously reported the applicant grabbing her, and her contemporaneous text messages made no reference of a grabbing Ms Montalban. that if the applicant may have been recalling, in his evidence, his interaction with a passenger other than Ms Montalban (as is considered at paragraph 59 of the decision), it would have been a relevant consideration to assess the credibility of the applicant in the face of a bare denial of the allegation contrasted against the absence of evidence recorded on the CCTV. Ground 2: The Tribunal failed to take into account a relevant consideration, in their determination of Mr Khan's status as a fit and proper person, a relevant factor as stated in Saadieh v Director General, Department of Transport [1999] NSWADT 68, namely the "likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences." Ground 3 The Tribunal took into account irrelevant considerations, namely: the Tribunal took into account its own observations of the CCTV footage of the CCTV footage of Ms Montalban, namely, the tribunal observed that the she grimaced and brought her hand to her mouth on a couple of occasions during the footage, and the tribunal did so in circumstances where its observations were irrelevant because Ms Montalban specifically stated that she could not recall why she had made that face. "
In her written submissions, counsel for the appellant added an additional consideration to Ground 1 and also Ground 3. The additional consideration to Ground 1 was that the CCTV footage "must be considered when making an assessment of the credibility of the applicant's bare denial of the allegation, and specifically that part of the denial being that he exposed his penis, and he had not grabbed Ms Montalban." And the additional consideration to Ground 3 was that "the Tribunal placed weight upon the complainant's evidence that she had 'zero motivation' to make up the story, in circumstances where the accused bears no onus to prove a motive to lie."
At the hearing, counsel for the appellant amended the terms of consideration a), b) and c) of Ground 1. The amendments involved deleting the word "showed" and inserted the word "demonstrated" and inserting the words "must have" before the words "had his hands upon the wheel".

Reply to Appeal

In its Reply to Appeal, the respondent contended that no error of law had been identified and that the Tribunal at first instance applied the correct law after hearing all the evidence and assessing the credibility of all witnesses. Attached to the Reply was a brief outline of submissions in response to the appellant's grounds of appeal.

Material before the Appeal Panel

In support of his appeal the appellant filed and served a copy of the transcript of the hearing before the Tribunal below on 5 June, 8 July, 4 August and 11 September 2014. A copy of the CCTV footage was also provided to the Appeal Panel. It was copied onto a CD.

The relevant legislative scheme

The PT Act regulates public passenger services within NSW. The objects of the Act are set out in s 4 and include: (a) to require the accreditation or authorisation, by RMS, of the operators of and drivers involved in public passenger services (other than ferry services), … (e) to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services, …
Part 4 of the PT Act makes provision for taxi-cab services. Division 4 in that Part makes provision for taxi-cab drivers, in particular, the application for and issue of an authority to drive a taxi-cab. Subs 33(2) in this Division of Part 4 of the PT Act, prohibits a person from driving a taxi-cab unless he/she is an authorised taxi-cab driver. Subs 33(1), gives the respondent the power to authorise a person to drive taxi-cabs in accordance with the provisions in that Division of Part 4 of the PT Act.
Section 33A makes provision for the making of an application to the respondent for authorisation to drive a taxi-cab. Section 33B makes provision for the basis on which the respondent may grant or refuse an application for the issue of an authority to drive a taxi-cab. That section relevantly provides: 33B Grant or refusal of application (1) Having regard to the purpose of authorisation under this Division, RMS may grant an application and authorise the applicant to drive a taxi-cab, or may refuse the application. (2) …
The "purpose of authorisation" is defined in subs 33(3) of Division 4 of Part 4 of the PT Act as follows: 33 Authorities (1) … (2) … (3) 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 taxi-cab, and (b) that the authorised person is considered to have sufficient responsibility and aptitude to drive a taxi-cab: (i) in accordance with the conditions under which the taxi-cab service concerned is operated, and (ii) in accordance with law and custom. (4) …
Section 33F of Division 4, of Part, 4 of the PT Act makes provision for the variation, suspension or cancellation of an authority to drive a taxi-cab. That section is in the following terms: 33F Variation, suspension or cancellation of authority Having regard to the purpose of authorisation under this Division, RMS may at any time vary, suspend or cancel any person's authority under this Division.

The jurisdiction of the Tribunal below

As we have noted, the jurisdiction of the Tribunal below was administrative review of an administratively reviewable decision.
Section 63 of the Administrative Decisions Review Act sets out the role of the Tribunal in determining an administrative review application. That section provides as follows: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) …
It is well accepted that by reason of this section the Tribunal sits in the shoes of the administrator and decides the matter afresh as at the date of hearing: see YG and GG v Minister for Community Services [2002] NSWCA 247, at [25].

The Tribunal's decision and reasons for decision

In its reasons for decision, at [19] and [20], the Tribunal identified the issue for determination in the following terms: 19. The issue before the tribunal was whether Mr Khan was a fit and proper person to hold a taxi driver authority. The sole matter before the tribunal which brought his fitness and propriety into question was whether he had had an interaction with Ms Montalban in his cab in the early morning of Thursday, 5 December 2013 in which he initiated and conducted an inappropriate sexual conversation and then exposed his penis to Ms Montalban and then pulled her right hand as she was leaving the cab to get her to touch his exposed penis. Ultimately the matter before the tribunal is one of credibility of the witnesses, Ms Montalban and Mr Khan. 20. The alleged behaviour is said to have occurred while Mr Khan was driving a taxi cab. The case law indicates that fitness and propriety is to be measured in terms of the role the Applicant is to perform - that is the role of taxi driver. In these circumstances should the alleged behaviour be proved the Respondent submitted that Mr Khan could not be considered to be fit and proper to hold a taxi driver authority.
At [21] to [26], the Tribunal dealt with the affidavit and oral evidence of the complainant, Ms Montalban. The complainant, we note was overseas at the time of the hearing and, by consent, she gave evidence via Skype on 5 June and 11 September 2014. At [27] to [29], the Tribunal dealt with the evidence of Mr A Louganov, a friend of the complainant who had met with her that evening for dinner and who had received a text message from the complainant while she was in the taxi driven by the appellant. At [30], the Tribunal dealt with the evidence of Ms M Russell, a work colleague of the complainant and with whom the complainant had a conversation, at work, the following morning, 5 December 2013.
At [31] to [45], the Tribunal dealt with the affidavit and oral evidence of the appellant. The Tribunal noted that the appellant had been interviewed by officers of the respondent on 23 December 2013. During the interview he was shown the CCTV footage. The Tribunal noted the appellant had denied that he had made inappropriate sexual remarks about passengers in his taxi cab, or that he had engaged in the conduct otherwise complained of by the complainant. At [47] and [48], the Tribunal dealt with the references and oral evidence of the appellant's referees, Mr Minhas and Mr Zafar.
The Tribunal's findings of fact are contained at [48] to [63]. At [48], the Tribunal noted it had been presented with two conflicting accounts of what had occurred in the appellant's cab on the night and early morning of 4 and 5 December 2013. At [49], the Tribunal noted it was not bound by the rules of evidence. However, given the gravity of the matter, the Tribunal said "it should be satisfied on the basis of section 140 at the Evidence Act 1995 NSW." That is, the Tribunal said in determining the matters in issue, it should be satisfied to the civil standard of proof.
At [51] to [52], the Tribunal found: 51. The tribunal considered both accounts of what occurred in Mr Khan's taxi cab in the early hours of Thursday morning 5th December 2013. The tribunal accepted the evidence given by Miss Montalban. The reason for this was that in giving her evidence Ms Montalban was consistent with her prior statements. She was cross examined by Mr Khan's counsel but was not shaken under cross-examination. She gave her evidence in a calm and measured way. Her account was internally consistent. As she told the tribunal she had "zero motivation" to make up the story. 52. The tribunal does not accept that Ms Montalban was affected by alcohol such that she was mistaken about the events in some way. She had sent two text messages on her mobile telephone during and after the taxi ride. There is CCTV footage of her face during the taxi ride. Neither the texts not the CCTV footage suggest she was affected by alcohol such that she was mistaken about the events in the taxi cab. 53. Ms Montalban's text message to Mr Louganov advising him of what she said occurred in the taxi is consistent with her statement to the RMS officers and her evidence to the tribunal. 54. The tribunal also heard from Ms Montalban's workmate Ms Russell. She reported that Ms Montalban had arrived at work distressed the following morning and had related the event. While these matters do not prove that the incident occurred, they do demonstrate Ms Montalban's making of a complaint about the incident very soon afterwards. 55. Ms Montalban also told the tribunal that she had contacted the New South Wales Police and on their referral she had then contacted Roads and Maritime Services and provided them with a statement. She had persisted in pursuing the matter. 56. The tribunal has also considered the CD of the four security cameras inside Mr Khan's taxi cab. While the trip took some 20 to 25 minutes the footage is reduced to 4 minutes. The footage does not show below approximately shoulder level of Ms Montalban or Mr Khan. However it does show Ms Montalban's facial expressions during the trip. The tribunal observed Ms Montalban to grimace and bring her hand to her mouth on a couple of occasions during the footage. This was referred to during the evidence by the parties as Ms Montalban having a "yucky face". The tribunal considered that this was consistent with Ms Montalban hearing Mr Khan's stories about passengers having sex in his vehicle and feeling uncomfortable about what she was hearing. 57. The tribunal accepts that Ms Montalban asked Mr Khan where he was from. Logically, this is likely to have occurred near the commencement of the journey and the commencement of any conversation. However the balance of Mr Khan's account was not credible. Mr Khan said that the journey had commenced with 6 or 7 minutes of pleasant conversation and that then in sequence Ms Montalban had become hostile about him driving slowly, racist in questioning how he came to be in Australia and dissatisfied with the route he was taking. 58. Ms Montalban denied having asked further questions about Mr Khan's origins, she denied having asked Mr Khan why he was driving slowly or why he was taking the long route. Ms Montalban told the tribunal that she did not consider that Mr Khan had taken the long route and she had not become engaged in a verbal dispute with him. Mr Khan's account of the sequence of the conversation as set out does not make logical conversational sense. 59. It was not clear to the tribunal whether Mr Khan was recalling an interaction with Ms Montalban or another passenger. He indicated in his evidence that it had been Thursday night and very busy with late-night shopping. However it had not been Thursday night but rather Wednesday night which is not a late night shopping night. Mr Khan's facial expressions in the CCTV footage do not illustrate a driver irritated by racist questioning about his origins or complaints about the speed at which he is driving or the route he is taking. 60. Ms Montalban denied having been provided with the Taxis Combined or Roads and Maritime Services complaint card. 61. Mr Khan gave an account of Ms Montalban asking him about his origins, his response "It is no business of yours" and Ms Montalban then complaining he was driving slowly and taking the long route as motivation for saying "you will pay for this" and then making up the story about him. 62. The tribunal does not accept Mr Khan's account of Ms Montalban's motivation for making up the story against him. The tribunal does not accept Mr Khan's account of Ms Montalban disputing the speed at which he was driving, being offended by his terse response to her alleged questions about his origins or questioning the route he was taking. Even if this conversation had occurred, the Tribunal is still satisfied that Mr Khan related stories about sexual matters in his cab to Ms Montalban, that he exposed his penis to her and pulled her hand in an attempt to have her touch his penis.
At [64] to [73], the Tribunal dealt with the issue as to the appellant's fitness and propriety. After citing a number of authorities. At [71] to [73], the Tribunal said: 71. The tribunal has considered the factors set out in Saadieh's case. In this matter Mr Khan has not been convicted of a criminal offence. However Ms Montalban's complaint against him is a serious matter. It is the only complaint of a serious nature against Mr Khan. The other five complaint matters are not in the tribunal's understanding such as to warrant cancellation of his authority. 72. The tribunal is not presented with concerns about Mr Khan's driving record. It was presented with evidence from Mr Minhas and Mr Zafar about their opinion of Mr Khan as being of good repute. 73. As Mr Khan has maintained his innocence of the complaint made by Ms Montalban, the tribunal has not been presented with evidence about remorse or rehabilitation.
At [75], after having cited the objects of the PT Act as set out in section 4(e), the Tribunal said: 75. … [The] tribunal considers that the correct and preferable decision is that Mr Khan's authority should be cancelled. The decision of the Respondent is affirmed.

Error of law

It is well accepted that a question as to whether the Tribunal failed to take into account relevant (i.e. mandatory) considerations is a question of law: see Director General, Department of Finance & Services v Porter [2014] NSWCATAP 6 at [26] to [29] and John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [18].
On a question of law appeal, the exercise of a statutory discretion can only be overturned where in it can be demonstrated "the decision-maker: (a) made an error of legal principle, (b) made a material error of fact, (c) took into account an irrelevant matter, failed to take into account, or gave insufficient weight to some relevant matter, or (d) arrived at a result so unreasonable or unjust as to suggest one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning": see Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297, at [14] per Beazley P, Emmett JA and Tobias AJA and House v The King [1936] HCA 40; (1936) 55 CLR 499, at 505-506 per Dixon, Evatt and McTiernan JJ.
A failure to give weight to particular evidence in making a finding of fact does not amount to a question of law. However, where the Tribunal makes a finding of fact without any probative evidence to support that finding, the decision maker is said to fall into legal error: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156.
The appellant relied on the principles set out in Sean Investments v McKeller (1981) 38 ALR 636 and Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 as support of his contentions. Both decisions related to judicial review of decisions made by an administrator pursuant to powers vested on him/her under a Commonwealth Act. In Sean Investments the relevant statutory provision was subsection 40AE(3) of the (Cth) National Health Act 1977, which relevantly provided that where a review request was made, "… the Minister shall, after such investigation of the matter as he considers necessary, either confirm or vary the decision of the Permanent Head, and advise the proprietor accordingly." At 375, Dean J said the following as to the matters the Minister was required to consider in the exercise of his powers under that subsection: In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide.
In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, at issue were the matters the Minister was to consider in the exercise of his power under s 11 of the (Cth) Aboriginal Land Rights (Northern Territory) Act 1976. At 40-41, Mason J A said the following: The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action. That ground now appears in s 5(2)(b) of the ADJR Act which, in this regard, is substantially declaratory of the common law. Together with the related ground of taking into account irrelevant considerations, it has been discussed in a number of decided cases, which have established the following propositions: (A) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision …. (B) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard …
In this appeal, the powers of the decision-maker (i.e. the Tribunal and the respondent before it) to cancel the appellant's taxi drive authority are those set out in s 33F and subs 33(3) of the PT Act. The relevant power relied on by the respondent in cancelling the appellant's taxi driver authority was whether, in the circumstances of what had occurred on the evening and early morning of 4 and 5 December 2013, the respondent could attest to the applicant being a fit and proper person to be the driver of a taxi cab: see PT Act subs 33(3)(a). This, as we have noted, was also the matter for determination by the Tribunal below.
The phrase "fit and proper person" is not defined in the PT Act. Nor does the PT Act prescribe what matters should be taken into consideration in determining a person's fitness and propriety. In Hughes and Vale Pty Ltd v State of New South Wales [No 2] (1955) 93 CLR 127 at 156, the High Court said the following in regard to this expression as it applies to a regulated activity: … [The] expression "fit and proper" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their purpose is to give the widest scope for judgement and indeed rejection. "Fit" (or "idoneus") with respect to an office is said to involve three things, honesty knowledge and ability ….
The High Court also said "each case must depend on its own circumstances", including having regard to the activity the person is licensed to undertake: see also Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380. The Tribunal referred to both decisions at [64] of its reasons for decision.
For the reasons, set out below, in our view, the appellant's ground 1 and ground 3 do not raise a question of law. That is, they do not raise matters which the Tribunal was bound to consider in its discretion as to whether the applicant was a fit and proper person. This was ultimately a finding of fact, based on the Tribunals findings in regard to the allegation made by the complainant. Hence we find that ground 1 and ground 3 are essentially grounds of appeal that go to the weight of the evidence before the Tribunal.

Leave to appeal - appeal on other grounds

The principles for granting leave were summarised by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17, at [84]. These included: (a) matter involving an issue of principle, (b) a question of public importance or matters of administration or policy which might have general application, (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.

Ground 1

The appellant contended the Tribunal should have broken up the complainant's complaint into three separate allegations and then taken the CCTV footage into account in determining each allegation. The separate allegations were identified as follows: a. … that during that trip Mr Khan engaged in sexual conversation which caused her concern; b. Mr Khan at the end of the trip exposed his penis to her; and then c. pulled her right arm in an attempt to have Ms Montalban touch his exposed penis.
It is the appellant's contention that the Tribunal took into consideration the CCTV footage in regard to (a) above but failed to take it into consideration in regard (b) and (c). The CCTV footage was a relevant consideration, the appellant argued, because what it did depict was inconsistent with the allegations in these paragraphs.
In our view, it was unnecessary for the Tribunal to break up the complainant's allegation as contended. The Tribunal clearly had regard to the entirety of the allegation that was made and specifically referred to each and every aspect of it. As noted by the Tribunal, at [19], it was the allegation which brought the appellant's fitness and propriety into question.
In our view, on a proper reading of the Tribunal's decision, the Tribunal did not fail to take into consideration the CCTV footage in regard to the allegation as a whole. At [56], the Tribunal expressly said it had considered the CCTV footage. The footage, as described in the transcript by the respondent's solicitor was made up of photo snap shots at set intervals during the taxi journey. In this case, of the 20 to 25 minute trip only four minutes of snap shots were recorded. These snap shots, the Tribunal noted, were only of the faces and upper shoulders of the appellant and the complainant.
The Tribunal did not say that the CCTV footage was disregarded, or had not weight in making the findings it made. The CCTV footage was not the only material before the Tribunal in regard to that aspect of the allegation that the appellant had exposed his penis and pulled the complainant's right arm. A failure to specifically refer to it in the context of this aspect of the allegation is, in our view, not an error as there was ample material before the Tribunal to make the finding that the events, as alleged by the complainant, had occurred. How it came to that finding is also adequately explained by the Tribunal in its reasons.
Accordingly, we find that the appellant has failed to establish this ground of appeal.

Ground 2

There is no dispute, that the factors relevant to determining a person's fitness and propriety under s 33(3)(a) of the PT Act, include those identified by Deputy President, Magistrate Hennessy in Saadieh v Director General Department of Transport [1999] NSWADT 68, at [17].
The Tribunal specifically referred to each of these, at [69], in its reasons for decision, including the final factor identified by Deputy President, namely the "likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences".
At [70], of its reasons for decision the Tribunal summarised those matters which Deputy President, Magistrate Hennessy went on to say, at [18], were relevant to assessing this factor. In this regard Deputy President, Magistrate Hennessy said: 18 [The] length of time since the offence(s) were committed and or the complaint/s made; the circumstances in which those offences or complaints occurred or are alleged to have occurred; whether the applicant admits responsibility for the offences or complaints and shows genuine remorse; the efforts the applicant has made to rehabilitate himself or herself during that time and; any change in the applicant's circumstances such as increased support from friends, family or professional service providers.
As we have note, at [71], the Tribunal specifically said it had considered these factors.
During the course of the hearing, counsel for the respondent conceded the Tribunal had given some consideration to this factor. In our view, having regard to what was said at [71] to [73] of its reasons for decision (see paragraph 27 above), the Tribunal did not err in failing to take into consideration the likelihood that the applicant will re-offend, or be the subject of further complaints of a similar nature. However, this factor must also be considered in regard to the finding the Tribunal did make; namely It found that the complainant's allegation had been established, the allegation was "a serious matter", the appellant continued to maintain his innocence and there was no evidence of remorse or rehabilitation. Arising from those findings there can be little, if any, finding that the appellant would not be subject to a similar complaint.
Accordingly, we find that the appellant has failed to establish that the Tribunal erred in failing to take into account a relevant consideration in its determination of the appellant's fitness and propriety.

Ground 3

As we understand this ground, the appellant asserts that the Tribunal Member's own observations of the CCTV footage were an irrelevant consideration as they were not consistent with the oral evidence given by the complainant.
During the course of the hearing on 11 September 2014, the respondent's solicitor asked the complainant a number of questions about a gesture she is seen as having made on the CCTV footage (i.e. putting her hand to her face) and whether she knew what that gesture was in response to. The complainant acknowledged that she had seen the CCTV footage and the gesture she made. As to what the gesture was in response to, the complainant said: "No I can't remember what that was in response to specifically" (T11/09/15, p4 line 46).
Subsequently, the Tribunal Member asked the complainant: "Can you tell the Tribunal what you were either grimacing or frowning in relation to?" The complainant responded: "to be honest, I'm not sure. Given that there's no audio I can't cite a line or, I was grimacing at and what it was in relation to." (T11/09/15, p6 line9).
On a careful reading of the Tribunal's reasoning at [56], the Tribunal does no more than state what is seen on the CCTV footage, namely the complainant's "facial expressions during the trip" which included her "to grimace and bring her hand to her mouth on a couple of occasions." That in the course of evidence this "grimace" etc. was referred to as the complainant having a "yucky face" was not disputed. It is the Tribunal's findings in the last sentence which the appellant appears to take issue with, namely: "The tribunal considered that this was consistent with Ms Montalban hearing Mr Khan's stories about passengers having sex in his vehicle and feeling uncomfortable about what she was hearing."
In our view, this sentence is not a reflection of the Tribunal taking into account her own observations of the CCTV footage, nor is it inconsistent with the evidence of the complainant. The complainant said she did not remember what that grimace related to and this is understandable when the CCTV footage only recorded small sections of the trip. This did not mean that it was not open to the Tribunal to take into account the complainant's grimace, or "yucky face" in the context of assessing the evidence as a whole. It clearly was a relevant factor and not one that arose from the Member's own observations. Accordingly, it was open to the Tribunal to find on the evidence that the grimace, or "yucky face" was consistent with that particular aspect of the complainant's evidence.
In our view, the appellant's further contention that the Tribunal erred in placing weight upon the complainant's evidence that she had "zero motivation to make up the story" was an irrelevant consideration as the appellant bore no onus to prove a motive to lie is also misconceived.
On a proper reading of the Tribunal's reasons, at [51], we consider the reference to the complainant having "zero motivation to make up the story" as being no more than a re-statement of the complainant's evidence. It was not a reference to the appellant bearing an onus to show that the complainant had a motive to lie.
Again, we find that the appellant has failed to establish Ground 3 of his appeal.

Conclusions and orders

In summary, we have found that the appellant has failed to establish that the Tribunal erred in law as contended in his ground 1, ground 2, or ground 3. Nor have we found that there is a basis on which to grant leave to appeal. On this basis the appropriate order is refuse leave to appeal and otherwise dismiss the appellant's appeal.

Order 1. Leave to appeal is refused 2. The appeal is otherwise dismissed.

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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 December 2015

At a glance

Court

Decision date

Source

Judgment (17 paragraphs)

Parties

Cases Cited (13)

Cited By (3)