Roads and Maritime Services v Khan

Supreme Court of NSW|2013-04-12|Before: Fullerton J

Judgment 1HER HONOUR: By summons dated 28 August 2012 the plaintiff appeals a decision of Coombs LCM in which he upheld an appeal by the defendant against the plaintiff's refusal to grant the defendant an examiner's authority under cl 58 of the Road Transport (Vehicle Registration) Regulation 2007 (the Vehicle Registration Regulation). 2On 28 March 2013 I made the following orders:

The appeal is allowed.
The order of the Local Court made on 18 June 2012 to disallow the refusal of an examiner's authority to the defendant is set aside.
The Local Court (differently constituted) is to resume the hearing of the defendant's application and determine it according to law on an expedited basis.
No order as to costs. What follows are my reasons for that decision.

The legislation 3A motor vehicle in respect of which registration is sought in New South Wales must be inspected to determine its roadworthiness. Under cl 58 of the Vehicle Registration Regulation the plaintiff is empowered to authorise a person who is "suitably qualified and of suitable character" to conduct inspections and tests of registrable vehicles for that purpose and to issue inspection reports. Successfully undertaking an approved course of instruction is a statutory prerequisite to obtaining what is referred to in cl 58 as an examiner's authority. Once issued, the authority remains in force until surrendered, suspended or cancelled. 4Clause 62 of the Vehicle Registration Regulation provides that grounds for suspension or cancellation of the authority include the failure on the part of the examiner to comply with a condition to which the authority is subject or where the plaintiff is of the opinion that the holder is "not a fit and proper person" to continue to hold the authority. 5Suspension or cancellation is subject to the plaintiff affording the examiner an opportunity to show cause why the proposed action should not be taken. The matter is then considered by a committee of review who reports to the plaintiff. The plaintiff is obliged to consider the committee's report, however, in determining whether to suspend or cancel the examiner's authority, it is not bound by the views of the committee. 6An examiner who has received notice of the cancellation or suspension of their authority may appeal that decision to the Local Court pursuant to s 45 of the Local Court Act 2007. An appeal to the Local Court is an invocation of the special jurisdiction of the Local Court under Part 4 of the Local Court Act. The hearing is a hearing de novo, obliging the moving party to adduce evidence in support of the application with a corresponding entitlement in the opposing party to adduce evidence and cross-examine any witness for the applicant.

The cancellation of the defendant's authority as an examiner 7From November 2007 to August 2010 the defendant was an authorised examiner conducting examinations and inspections at his automotive business in Bass Hill. In February 2010 his operations were audited. Of the 24 vehicles inspected during the audit, six inspections were found to be defective and eight featured serious irregularities including misstatement of vehicle inspection numbers (VIN), a number unique to each vehicle under registration. 8A show cause letter was sent to the defendant without response. The committee of review noted the results of the audit and a list of the defendant's current and past breaches of rules which they considered reflected adversely on him. They recommended that his authority be cancelled. 9On 24 August 2010 the plaintiff cancelled the defendant's authority and notified him of the decision. 10On 11 July 2011 the defendant re-applied for an examiner's authority (or its re-issue) on the basis that he was both "suitably qualified and of suitable character" as required by cl 58. The matter was referred to the committee of review. On 6 October 2011, after considering the grounds for the original cancellation and the history of multiple breaches of the rules by the defendant, the application was rejected. The committee recorded its reasons as including the "extremely serious" nature of the previous breaches of the rules, that no reason had been given (by the defendant) as to how his proven behaviour as an examiner would change and that he had "failed to demonstrate suitable character". 11On 9 November 2011 the defendant filed an application in the Local Court for an order that the decision to refuse him an examiner's authority be quashed on the stated basis that he was a fit and proper person to hold an examiner's authority.

The Local Court hearing 12A hearing was convened on 18 June 2012. The plaintiff was represented. The defendant appeared on his own behalf. It was common ground in the Local Court and in this Court that the defendant had the onus of establishing that he was a person entitled to appointment (or reappointment) as an authorised examiner under cl 58 of the Vehicle Registration Regulation. 13The defendant tendered two statements of attainment from TAFE dated 29 March 2013 in what appear to be approved courses in vehicle examination and inspection. He also relied upon a written statement from a person who indicated his preparedness to employ the defendant as a vehicle examiner and inspector if authorised to undertake that work. The defendant also asserted from the bar table that he was "a changed man" and that he had recently had his eyes tested which he suggested was the reason that the audit in July 2010 revealed deficiencies in the vehicles he inspected. 14The plaintiff tendered the report of the committee of review of 6 October 2011 which recommended against the plaintiff's application for reappointment. Clause 13(6) of the Road Transport (General) Regulation 2005 provides that the report is admissible evidence of its contents in proceedings in the Local Court. The plaintiff did not call any oral evidence. 15Although the hearing proceeded on the assumed basis that the defendant would give evidence, in the result he did not. Accordingly, his assertion as to his changed or reformed character, and the impact of his corrected eyesight as an explanation for the defects revealed on audit, was untested. Neither was he called upon to direct submissions to whether he was a person of suitable character - the second statutory prerequisite to appointment under cl 58 of the Vehicle Registration Regulation. 16The plaintiff's solicitor submitted that in the absence of evidence from the defendant directed, inter alia, to demonstrating that the serious deficiencies in the quality of his inspection of vehicles for roadworthiness purposes had been appropriately addressed, and the questions raised in the most recent committee of review report as to his character also acknowledged and addressed, he had failed to discharge the onus of establishing that he was a person who should be appointed (or reappointed) as an examiner. 17Without calling on the defendant to give evidence (should he wish to do so) and without inviting the defendant to respond to the plaintiff's submission in either event, the Magistrate allowed the appeal on the stated basis that he was satisfied that because of what he regarded as the uncontradicted evidence of the defendant's rehabilitation the appeal should be upheld resulting, effectively, in the defendant's appointment (or reappointment) as an examiner. When the plaintiff's solicitor queried whether the Magistrate had taken into consideration the reason the defendant's authority as an examiner was cancelled in August 2010, his Honour said: I have taken into account why he was cancelled and indeed that is not in contest. What is in contest on this appeal is whether or not he is now fit having done what he has done and that has not been contradicted. 18The Magistrate gave no further or more detailed reasons as to why the defendant's recently completed training at TAFE satisfied the statutory requirement that he be "suitably qualified" and, before allowing the appeal, he made no finding at all as to the defendant's character as a further prerequisite to being issued with an examiner's authority. This, it was submitted, reflected both the failure of the Magistrate to appreciate the need for the Magistrate to be affirmatively satisfied that the defendant was of suitable character, and the necessity for the defendant to either tender evidence relevant to that issue or to give evidence of his changed attitude sufficient to discharge both the evidential and persuasive onus of proof. 19On the appeal, no submissions were directed to what might constitute evidence of character for this purpose. What was submitted by the plaintiff's counsel was that where an examiner's authority has been cancelled, the objective behavior which has been found to be deficient, and any explanation for that behavior, will always be relevant to the assessment whether, on a fresh application, that person is of a "suitable character" to be issued with an examiner's authority. I accept that submission.

The appeal to this Court 20The plaintiff relied on four grounds of appeal, each of which, if established, would constitute an error of law sufficient to attract the relief sought by summons. The grounds of appeal are as follows:

Failure to afford the plaintiff procedural fairness by not permitting its representative to adduce relevant evidence;
Failure to take into account relevant considerations and giving undue weight to irrelevant considerations;
The Magistrate purported to determine the appeal without convening a hearing as required by clause 14(1) of the Road Transport (General Regulation); and
Failure to give any, or any proper, reasons. 21Without abandoning reliance upon grounds 2 and 3, in oral submissions counsel for the plaintiff relied principally upon the first and fourth grounds, either or both of which would constitute error sufficient to quash the Magistrate's decision. 22The defendant's counsel did not submit otherwise. He submitted, however, that the operation of s 70(1)(c) of the Local Court Act and cl 14(3) of the Road Transport (General) Regulation deprived this Court of jurisdiction to consider that question. 23Relevantly s 70(1)(c) of the Local Court Act provides: 70 Appeals (1) In relation to any order arising from an application notice: (a) ... (b) ... (c) an appeal to the Supreme Court may be made in accordance with Part 5 of the Crimes (Appeal and Review) Act 2001, in the same way as such an application or appeal may be made in relation to a conviction arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986.. 24The application of s 70(1)(c) is restricted by s 70(2), which provides: An application or appeal may not be made under subsection (1) in relation to an order referred to in that subsection if the making of such an application or appeal is prohibited by the Act or law pursuant to which the order was made. 25Clause 13(1) of the Road Transport (General) Regulation confers jurisdiction on the Local Court to deal with appeals brought by persons aggrieved by a decision of the plaintiff to refuse to issue an examiner's authority under cl 58 of the Vehicle Registration Regulation. 26Clause 14(1) of the same Regulation provides that the Court is to hear and determine any such appeal subject to cl 14(3) which provides: The decision of the Local Court in respect of an appeal made under clause 13 is final and is binding on the appellant and on the Authority. 27Accordingly, so the defendant submitted, cl 14(3) does not allow for an appeal from the Local Court's determination with respect to a dispute concerning the plaintiff's decision to refuse to issue an examiner's authority and, for that reason, this Court has no jurisdiction to hear the appeal. 28The plaintiff's counsel submitted, and I accept, that cl 14(3) does not remove the right of appeal conferred by s 70 of the Local Court Act. Properly construed (and consistent with the operation of a range of its legislative forebears) the finality provided for in cl 14(3) is as to the facts or the merits of an appeal against a refusal to issue an examiner's authority and it should not, and I am satisfied does not, exclude appellate proceedings where an error of law is said to have undermined the integrity of those proceedings. I am satisfied that this Court does have jurisdiction to hear and determine the appeal where each of the grounds allege an error of law.

Has error of law been demonstrated? 29Without extracting at length the exchanges between the Magistrate and the plaintiff's solicitor which preceded his Honour deciding the appeal in the defendant's favour, I am satisfied that on any fair reading of the transcript his Honour both misconceived and did not perform the judicial function he was obliged by statute to perform and in that way denied the plaintiff procedural fairness. This is exemplified in the following extracts. 30When the matter was called, and after confirming the Magistrate's enquiry that it could not be resolved by consent, the plaintiff's solicitor, Ms Tiedt, advised: [The matter] has been listed for hearing before and it had been adjourned but no, it's still proceeding. Your Honour, perhaps by way of a very short opening, this is different to most of the AIS [Authorised Inspection Scheme] matters that come before this Court as it is an application for re-entry into the scheme, into the AIS scheme, so the issues before the Court, while similar to a normal AIS in terms of suspension or cancellation the test is slightly different and the issues are slightly different. The Court will need to be satisfied that Mr Khan is of suitable character to be readmitted to the scheme. I will be seeking to call evidence from Inspector Pat Laverato (?) to take your Honour through the course of the audit that was conducted back in 2010 that led to the cancellation of Mr Khan's authorities. I will have some short submissions to tender on that afterwards as well. Obviously I would expect Mr Khan would be giving some short evidence. I do have some case law as well on the issues of fitness, propriety and so on to bring before the Court's attention in due course. So your Honour, at first if I might call Inspector Pat Laverato. HIS HONOUR: Now I take it Mr Khan you don't contest what they say about you? APPELLANT: Sorry? HIS HONOUR: You don't say that what they say... APPELLANT: No. HIS HONOUR: ...was the case in 2010 wasn't so? You're not going to take issue with this evidence, are you? APPELLANT: No, no. HIS HONOUR: What you're going to say is "I'm a changed man". Is that what you're saying? APPELLANT: Changed man and I've done my refresher course and you request. I've got the certificates. I've done my - I'm a changed man now and plus, I've got my eyes tested. I wear glasses now and that was one of the issues. You request to do a fresher course at TAFE, which I did. I've got the certificates here to prove it. Also, I've got a letter here from my employer that will give me a job if I get my licence back again. HIS HONOUR: You see Ms Tiedt, that sort of narrows what we have to deal with. 31While the plaintiff's solicitor accepted that the defendant's stated position narrowed the issues that required resolution for the purposes of the application, it was necessary for the hearing to proceed with appropriate formality including, importantly, for the defendant to give evidence (or call evidence) relevant to the matters he relied upon in support of his application and for his Honour to consider his evidence in the context of the reason for the cancellation of his examiner's authority. On no less than five separate occasions in the course of the hearing, his Honour appeared to acknowledge the need for the defendant to give evidence. In the following exchange it was noted twice: HIS HONOUR: It seems to me that the only way that I can determine on the basis of his application is to hear from him and for you to test it. TIEDT: The difficulty with that your Honour is that the case law suggests that, in my submission, the original conduct still needs to be assessed in the sense of for example, the fact that one of the cases says that the mere passage of time is not good enough. Rehabilitative efforts and so on need to be shown, to show what has changed. And until we can see what happened, it's difficult to assess what's changed. HIS HONOUR: Well we know what happened. I mean it's not in contest. What has to be decided is whether or not what Mr Khan has done since he had his licence taken away, is sufficient. The RMS says "no". TIEDT: That's correct. HIS HONOUR: But principally on the basis that what he did was so unforgivable you'd never forgive him, or something along those lines. I guess we'd need to hear from at least one of the officers, to say why they come to that view, notwithstanding what he's done. TIEDT: Well your Honour the witness... HIS HONOUR: Are we going to get the witness to say that? TIEDT: The witness who is here, is one of the witnesses involved in the initial cancellation. Not in the current decision to refuse him re-entry. HIS HONOUR: Well then how do we proceed? I mean all we can do is put Mr Khan in the box. He gave his evidence and the RMS gives no evidence in response to that and on the balance of probabilities I probably have to find in his favour, don't I? 32In the result, however, his Honour merely asked the defendant to "hand up" the TAFE certificates and the unsworn statement from his prospective employer, after which he immediately moved to allow the appeal on the express basis that the evidence was uncontradicted. Earlier in the hearing, after Ms Tiedt tendered the committee's report and after his Honour sought to have her obtain instructions to allow the matter to be reconsidered by the committee (and, it is assumed, the appeal before him dismissed or stood out of the list), there were further references to the need for the defendant to give evidence. He said: HIS HONOUR: Well let me put it this way. Until such time as the RMS actually addresses what he says, which is that he has done this course and that he is in a better set of circumstances now than he was when he had his licence taken away, we haven't had the matter properly dealt with by the RMS in any event. In that they should address at least what he says about himself. You know because otherwise, the fact that he's paid the penalty of being disqualified for two years, counts for nothing. TIEDT: Your Honour, there are a few things there. The first is that a cancellation doesn't have...(not transcribable)...in it. A cancellation is a cancellation. HIS HONOUR: Yes but he's applying to be reconsidered on the basis of a change of circumstances and re-education and all of those things. TIEDT: Yes. HIS HONOUR: And these committee of review reports don't address that. TIEDT: The course was only done recently. It couldn't have been considered by the committee of review. HIS HONOUR: Do you want to get some instructions about having a further review before the matter gets dealt with? TIEDT: Well your Honour in my... HIS HONOUR: Because as matters stand, there is no evidence from the RMS on the issue of this application. Mr Khan will probably hand up a certificate saying that he's done this course and that will be the only evidence that's relevant. I doubt whether it will be contested by the RMS. They'll have to admit he did the course. TIEDT: Yes, certainly your Honour. HIS HONOUR: And you could conceivably put him in the witness box and reduce him to a blubbering wreck but at the end of the line if he sticks to his guns and says "I'm a different person now", how are you going to prove to the contrary if you haven't got evidence? TIEDT: I understand and that's why in... HIS HONOUR: So would you like to get some instructions about whether or not this matter should proceed today and that perhaps the committee of review ought to deal with what he says. TIEDT: The difficulty is your Honour that after the course was completed, those details have been forwarded to RMS. It's not the committee of review as such, it's RMS and it has determined to proceed with the appeals. So there is little more that can be done in that sense. In terms of another decision being made, that is the beauty of this being a hearing de novo, is that that's the power that your Honour has now. It's not something for RMS to do any more. HIS HONOUR: What I'm saying to you is, on the basis of what's before me, I would have to find in his favour because there is no evidence from the service that he's not what he says. Except that in a period between 2002 and 2010, he was a bit sloppy. [In my view, this would appear to be something of an understatement given that when the basis for the cancellation of the defendant's authority was being discussed earlier in the hearing his Honour took it "as read" that the authority was cancelled either or both because of the defendant's incompetence or his willful failure to comply with the relevant rules.] TIEDT: Your Honour, in my submission Mr Khan bears the onus to demonstrate that he has changed. HIS HONOUR: Well he's doing that. He'll give this evidence and it won't be severely contested I don't think. ... HIS HONOUR: Now he says "I am different. I have done training. I am in better personal circumstances than I was then. I've even improved my performance by getting a set of glasses" and I'll have to accept all that. TIEDT: Well that's for your Honour to determine. HIS HONOUR: Well unless you can take me to evidence to the contrary, it's the evidence. TIEDT: Yes and your Honour will need to be satisfied on the basis of that evidence, namely the evidence in the committee of review report, which indicates character. That in my submission would indicate something otherwise than a suitable character, to then consider what's changed. HIS HONOUR: Yes, all right, I hear what you hear what you say. I'll simply ask you one more time whether you want to get further and better instructions. If you want time to get on the phone or whatever. TIEDT: I can make a phone call your Honour. I don't expect it will achieve very much but I can make a phone call. HIS HONOUR: I think that otherwise I will make a decision in favour of Mr Khan. ... TIEDT: Your Honour my instructions are to leave it in the hands of the Court in terms of... HIS HONOUR: All right, well I'll allow the appeal. [At this time the defendant had "handed up the TAFE documents" and the offer of work but had given no evidence.] TIEDT: Before your Honour does that there are a few cases that I wanted to take your Honour to and some submissions I wanted to hand up. HIS HONOUR: Yes. 33The plaintiff's solicitor then referred his Honour to a body of case law in support of the proposition that the onus was on the defendant to demonstrate he was of suitable character to hold an examiner's authority in light of the reasons for the cancellation of his authority, and to the weight of the decision to cancel it having, as it did, the effect of permanent unfitness under the Regulation (as distinct from cancellation being limited in time), and any evidence of "reform, remorse and rehabilitation" that might serve to displace that decision. 34Without calling on the defendant his Honour then held as follows: On the basis that Mr Khan has provided evidence of his rehabilitation and that the [plaintiff] has not contradicted it but simply relied upon what led to his exclusion I find that I should allow the appeal and that is what I will do. Thank you.

Decision 35Although it is both appropriate and desirable that an unrepresented litigant be given assistance by the Court in presenting their case or addressing the factual or legal issues that arise in order to ensure a fair hearing, it is essential that in affording that assistance the role of the Court as an impartial adjudicator is not compromised and procedural fairness is accorded to the represented party (see Reisner v Bratt & Anor [2004] NSWCA 22). 36In this case, while the Magistrate was apparently moved by the constraints on the defendant's ability to earn an income by reason of having his examiner's authority cancelled, I am satisfied that, perhaps unwittingly, he assumed the role of a de facto advocate for the defendant and in so doing denied the plaintiff its right to have the hearing conducted fairly in recognition of its overarching statutory function and duty under the relevant legislature to protect the public interest by ensuring that vehicles declared to be roadworthy have been inspected by qualified examiners of good repute. I am satisfied his Honour ought to have invited the defendant to give evidence on oath or affirmation relevant to the issues he had the onus of establishing, thereby according the plaintiff's solicitor the opportunity to test his various assertions as to his rehabilitation (elicited from the Magistrate by a series of leading propositions) and to advance submissions as to their weight for the purposes of the appeal. 37At the hearing of the appeal the defendant's solicitor submitted that Ms Tiedt was afforded the opportunity before the Magistrate to "contradict" the defendant's asserted claim to rehabilitation and reform by calling or tendering evidence in reply and that the plaintiff was not denied procedural fairness for that reason. That submission overlooks entirely that it was for the defendant as the moving party to prove his entitlement to reappointment as an examiner in a de novo hearing into that question and that his assertions from the bar table that he was "a changed man" with corrected eyesight carried no weight on that issue in the absence of the plaintiff being afforded an opportunity to test those assertions and advance submissions on the weight that should attach to them. For his Honour to hold that the defendant's claims were uncontradicted serves to highlight the failure on the part of the Magistrate to convene the hearing according to law. 38I am also satisfied that in upholding the appeal the Magistrate failed to provide adequate reasons. In Director of Public Prosecutions (NSW) v Elias [2013] NSWSC 28 at [44] I observed as follows: There is an abundance of authority that a judicial officer is obligated to provide adequate reasons for a decision and that the failure to do so will constitute an error of law. As Basten JA observed in Workers Compensation (Dust Diseases) Board of NSW v Smith, Munro and Seymour [2010] NSWCA 19 at [136]-[138] this obligation derives from the nature of judicial power and the proper means of its exercise. In Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449, Santow JA (with whom Mason P and Sheller JA agreed) said (at [41]): It is clear that the duty to give reasons is a necessary incident of the judicial process. Without adequate reasons, justice has not been seen to be done, so that failure to give adequate reasons may be an error of law: Pettit v Dunkley [1971] 1 NSWLR 376, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278-9 per McHugh JA, Mifsud v Campbell (1991) 21 NSWLR 725, Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430. But the duty does not require the trial judge to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence. It is sufficient if the reasons adequately reveal the basis of the decision, expressing the specific findings that are critical to the determination of the proceedings. 39In this case, it was critical to the determination of the proceedings that the Magistrate was satisfied that the defendant was of a suitable character to hold an examiner's authority in light of the cancellation of his authority in August 2010 and the reasons for the cancellation, and that he make clear his reasons for so finding, including the evidence he relied upon. This was not reflected in his ex tempore reasons and nothing in the exchanges with the plaintiff's solicitor allows such a finding to be divined. For this reason, I am also satisfied that his Honour's reasons for decision are inadequate, amounting to legal error.

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: 12 April 2013

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