Former taxi driver, Wahyu Sasterawan applies for an order under cl 9 of the Civil and Administrative Tribunal Regulation 2013 (NSW) that a decision made on 9 August 2016 by the Tribunal (differently constituted), be set aside (the set aside application).
While the set aside application relates to proceedings with a long and colourful history, whether the order sought by Mr Sasterawan can be made, turns on two simple factual matters: whether the parties consent to the setting aside of the 9 August 2016 decision, and whether that decision was made in the absence of Mr Sasterawan. Having found the answer to each question is "no", the power to set aside the 9 August 2016 decision cannot be exercised.
[2]
Background to dismissal decision
In May 2015, the respondent in these proceedings, Roads and Maritime Services (RMS), decided to refuse to grant Mr Sasterawan a taxi driver authority under the Passenger Transport Act 1990 (NSW). That decision was affirmed on internal review. The stated reason for the decision was the finding that Mr Sasterawan was "not a person of good repute … and a fit and proper person to be the driver of a taxi-cab". That finding was primarily based on Mr Sasterawan's conviction in 2005 for offences under the Crimes Act 1900 (NSW) for claiming moneys by fraudulently altering Cab charge dockets. (A useful summary of the background to the conviction and the subsequent appeals is set out in Sasterawan v Morris [2010] NSWCCA 91 at [6]-[10].)
In August 2015, Mr Sasterawan made an application to the NSW Civil and Administrative Tribunal (NCAT) for review of the decision made by RMS to refuse to grant him a taxi driver authority (the substantive application). In his application, Mr Sasterawan gave these reasons for making that application:
1. Inhumane cruelties of uncivilised nature.
2. Miscarriage of justice
3. Certain information and/or certain firsthand evidence had not been disclosed together with certain truths were untold to by the prosecution.
4. Abuse of process to take personal revenge
5. Misuse of the public office for personal reasons
6. Prosecution run privately for want of prosecution for personal reasons
7. Organised misleading in various time in various form or shape failing to be honest and sincere in the administration of justice.
In the course of the proceedings relating to the substantive application (the original proceedings), Mr Sasterawan made a number of interlocutory applications, seeking among other things: (i) that the Member listed to determine the substantive application recuse himself on the ground of bias, and (ii) that RMS be directed to provide NCAT various documents said to relate to the 2005 conviction for offences relating to the altering Cab charge dockets (the 2005 conviction).
At a directions hearing on 12 March 2016, the Tribunal foreshadowed its intention to consider whether a person should be appointed to act as Guardian ad Litem for Mr Sasterawan based on "medical evidence provided by Mr Sasterawan". Mr Sasterawan was invited to comment and provide material about the proposed appointment.
On 12 May 2016, the Tribunal appointed Dr Ainsworth to act as Guardian ad Litem for Mr Sasterawan under s 45(4)(a) of the Civil & Administrative Tribunal Act 2013 (NSW) (NCAT Act).
During the course of the original proceedings, it transpired that Mr Sasterawan had applied to the NSW Supreme Court for various orders, including that the 2005 conviction be overturned and that RMS and its solicitors be found guilty of contempt.
At the directions hearing on 9 August 2016, the solicitor for RMS informed the Tribunal that the proceedings in the Supreme Court initiated by Mr Sasterawan were next listed on 24 October 2016. The solicitor advised that RMS opposed adjourning the proceedings before NCAT until the concurrent application before the Supreme Court was determined, and urged the Tribunal to dismiss the substantive application. The solicitor asserted that the 2005 conviction represented an "irresistible barrier" to the success of the substantive application and unless and until the 2005 conviction was overturned, there would be no useful purpose in proceeding to determine the substantive application. (See Transcript of the proceedings, Sasterawan v Roads and Maritime Services, 1620209, NCAT, SM McAteer, 9 August 2016) (the Transcript) P 7, L 19-27). In addition, RMS's solicitor pointed out that if Mr Sasterawan's application to have the 2005 conviction quashed was successful, it would be open to him to make a fresh application for the grant of a taxi driver authority.
The Tribunal canvassed with the parties a number of options in light of Mr Sasterawan's application to the Supreme Court. After conferring with Mr Sasterawan, the Guardian ad Litem decided to withdraw the substantive application. Mr Sasterawan opposed that application and urged the Tribunal to grant an adjournment.
The Tribunal exercised its power to dismiss the substantive application under s 55(1)(a) of the NCAT Act and gave oral reasons for that decision (See Transcript, P 10, L 24 - P 11, L 31.) Section 55(1)(a) states that the Tribunal may dismiss at any stage, any proceedings if the applicant withdraws the application.
This decision, which I will refer to as "the dismissal decision", is the subject of Mr Sasterawan's set aside application.
[3]
Should the power to dispense with a hearing be exercised?
On 5 September 2016, the Tribunal (differently constituted) invited the parties to provide submissions about whether the set aside application should be granted and whether that application should be "determined on the papers".
In submissions filed on 4 October 2016, the RMS urged the Tribunal to exercise its power to dispense with a hearing. The RMS contended that the issues raised by the set aside application were neither factually nor legally complex. In addition, the RMS asserted that Mr Sasterawan would not suffer any prejudice if the set-aside application was determined without a hearing.
In submissions filed on 26 September, 5 October and 7 October 2016, Mr Sasterawan canvassed many issues but not whether the set aside application should be determined on the papers. The Guardian ad Litem made no submissions on either issue.
A hearing is generally required for proceedings in NCAT: s 50 of the NCAT Act. An exception to that rule is where the Tribunal makes an order dispensing with a hearing: s 50(1)(c) of the NCAT Act. The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material provided to the Tribunal: s 50(2). The Tribunal may not make an order dispensing with a hearing unless it has first afforded the parties an opportunity to make submissions about whether the hearing should be dispensed with, and has taken any such submissions into account: s 50(3).
Whether the issues for determination can be adequately determined in the absence of the parties requires consideration of, among other things, the nature and complexity of the issues to be determined, and an assessment of the capacity of each party to address those issues in written submissions and material.
The determination of the set aside application turns on two discrete factual issues, namely whether RMS consents to the setting aside of the dismissal decision and whether the decision was made in the absence of one of the parties. Those issues were squarely identified by the RMS in its submission filed on 20 September 2016. Neither party has suggested that the proper determination of these issues requires any person to give evidence or be made available for cross-examination.
Given their narrow scope and simple nature of the issues to be determined I concluded that they adequately in the absence of the parties by considering their written submissions and the material provided. In reaching that view I took into account that the submissions provided by Mr Sasterawan were silent about the issues required raised by the set aside application.
Being satisfied that the issues can be determined adequately in the absence of the parties, I must consider whether the power to dispense with a hearing should be exercised. In making that decision I must have regard to any substantial or procedural prejudice that any party is likely to suffer if a hearing was not held. In addition, I must have regard to the "guiding principle" that must be applied to practice and procedure in NCAT, namely the just, quick and cheap resolution of the real issues in dispute: s 36(1) of the NCAT Act.
A review of the history of the original proceedings reveals that Mr Sasterawan has a tendency in both oral and written submissions to agitate a great many issues largely irrelevant to the issue at hand. That tendency was reflected in his submissions provided in answer to the directions made on 5 September 2016. I formed the view it was unlikely Mr Sasterawan would be able or willing to address the narrow issues raised by the set aside application, if given the opportunity to make oral submissions. In my opinion, Mr Sasterawan would not be prejudiced if the set aside application was determined without a hearing. Further, dispensing with a hearing would facilitate the just, quick and cheap resolution of the real issues in dispute.
For these reasons I have decided to exercise the power to dispense with a hearing and to determine the set aside application on the basis of the submissions provided by the parties.
[4]
Power to set aside the dismissal decision
Clause 9 of the Civil and Administrative Tribunal Regulation states:
9 Additional power to set aside or vary decision determining proceedings
(1) In addition to any power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied in either of the following circumstances:
(a) if all of the parties to the proceedings have consented to the making of the order to set aside or vary the decision,
(b) if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal.
The following provisions of the Act are examples of provisions that expressly confer powers to set aside or vary decisions of the Tribunal:
(a) section 45 (3) (which enables the Tribunal to revoke leave granted to a person to represent a party),
(b) section 53 (4) (which confers a power on the Tribunal to set aside proceedings and decisions involving procedural irregularities resulting from a failure to comply with provisions of the Act or the procedural rules in relation to the commencement or conduct of proceedings),
(c) section 63 (which confers a power on the President or a presiding member to correct obvious errors in decisions of the Tribunal),
(d) section 64 (3) (which enables the Tribunal to vary or revoke a non-disclosure order made under section 64),
(e) section 73 (3) (which enables the Tribunal to vacate or revoke an order with respect to contempt of the Tribunal).
(2) The Tribunal may make an order under this clause of its own motion or on the application of a party.
(3) Unless the Tribunal grants an extension under section 41 of the Act, an application for an order under this clause must be made within 7 days after the decision concerned was made.
(4) Except where the parties have consented to the making of the order, the Tribunal may not make an order under this clause unless the Tribunal has first:
(a) afforded the parties an opportunity to make submissions about the proposed order, and
(b) taken any such submissions into account.
(5) A party may not make an application for an order under this clause to set aside or vary a decision of the Tribunal if:
(a) an internal appeal or appeal to a court against the decision has been lodged or determined, or
(b) an application for a judicial review of the decision has been made or determined.
(6) A party may not, without the leave of the Tribunal, make an application for an order under this clause to set aside or vary a decision of the Tribunal if the party has previously made an application under this clause to have the decision set aside or varied.
(7) If the Tribunal sets aside a decision under this clause, it may also set aside any orders that it made consequent on the decision that has been set aside.
Note : An example of such a consequent order may be an order for costs in the proceedings.
(8) Proceedings for the purposes of this clause are prescribed for the purposes of section 50 (1) (d) of the Act.
Note : A hearing is not required for proceedings that are prescribed for the purposes of section 50 (1)(d) of the Act.
(9) This clause does not limit any power of the Tribunal to set aside, revoke or vary its interlocutory decisions or any other decisions that do not operate to determine proceedings.
[5]
Does Mr Sasterawan have standing to make the set aside application?
As noted above, in the original proceedings the Tribunal made an order under s 45(4) of the NCAT Act appointing Dr Ainsworth to act as a Guardian ad Litem for Mr Sasterawan.
My preliminary view is that as the set aside application was brought in proceedings in which a Guardian ad Litem has been appointed, it is not open to Mr Sasterawan to apply on his own behalf to have the dismissal decision set aside. Such application can only be made by the Guardian ad Litem.
Mr Sasterawan did not address this issue in his submissions. For current purposes I will assume, but not decide, that the appointment of the Guardian ad Litem does not operate to prevent Mr Sasterawan from applying to have the dismissal decision set aside.
[6]
Can the dismissal decision be set aside?
Neither the NCAT Act, nor the Passenger Transport Act, gives the Tribunal an express power to set aside a decision made under s 55(1)(a) of the NCAT Act. Accordingly, the power to set aside the dismissal decision can only be exercised if one of the pre-conditions to the exercise of that power listed in cl 9(1) is satisfied.
[7]
Do the parties consent to the making of the order to set aside the dismissal decision: cl 9(1)(a)?
In submissions filed on 20 September 2016, the RMS advised that it does not consent to the making of an order to set aside the dismissal decision.
[8]
Was the dismissal decision made in the absence of Mr Sasterawan and if so did it result in his case not being adequately put to the Tribunal : cl 9(1)(a)?
In his application seeking the set aside of the dismissal decision, Mr Sasterawan wrote that the decision was made in his absence. In that application, under the heading "[W]hy were you absent when the Tribunal made the decision", Mr Sasterawan attacked the decision made by the Tribunal asserting it was "an abuse of process" and that the Member "took unlawful dirty advantage from the cup of bitterness and hatred". The only reference to his alleged absence from the hearing is the statement: "I was restricted to present my case with the likeness of being absent".
In submissions filed on 20 September 2016, the RMS squarely raised the issue of Mr Sasterawan's alleged absence from the hearing and annexed a copy of the transcript of that hearing. The transcript records that Mr Sasterawan and the Guardian ad Litem were present throughout the hearing. In addition, the transcript is replete with comments made by Mr Sasterawan throughout the hearing.
The RMS submits that Mr Sasterawan's claim of being absent from the hearing is "patently false". In his submissions in reply, Mr Sasterawan did not challenge that assertion or suggest that he was present at the hearing. (See Mr Sasterawan's submissions filed 26 September, 5 October and 7 October 2016).
The weight of evidence reveals that Mr Sasterawan was present during the hearing on 9 August 2016 when the dismissal decision was made.
[9]
Conclusion
As the RMS does not consent to the setting aside of the dismissal decision and that decision was not made in the absence of Mr Sasterawan (or the Guardian ad Litem), the power conferred by cl 9(1) of the Civil and Administrative Tribunal Regulation to set aside the dismissal decision cannot be exercised. Accordingly, the application made by Mr Sasterawan to set aside the dismissal decision must be refused.
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: 18 November 2016
Parties
Applicant/Plaintiff:
Sasterawan
Respondent/Defendant:
Roads and Maritime Services
Legislation Cited (4)
Civil and Administrative Tribunal Regulation 2013(NSW)