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[2009] NSWCA 110
appellant. Decision under appeal set aside. Application to extend appeal to merits granted. Registrar to list appeal for a directions hearing.
A taxi driver's authority was cancelled after passengers complained of being charged twice for the same trip and the driver repaid more than $3400. He said the card machine was faulty and printed duplicate receipts without him noticing. The Tribunal heard evidence from the cab company managers about the machines and the driver's meeting with them, but when it gave its decision at the end of the hearing it only said the repayment made it unlikely he was innocent and did not explain why it rejected the faulty-machine story. The Appeal Panel ruled that those short spoken reasons were legally inadequate because they left the driver without any understanding of why his main defence failed. The original decision was cancelled and the appeal will now be heard on its full merits.
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Mr Amit Sikka had held a taxi driver authority issued under s 33(1) of the Passenger Transport Act 1990 since 2009. On 28 April 2012 Roads and Maritime Services (RMS) cancelled that authority after receiving a passenger complaint dated 1 August 2011 concerning a 21 June 2011 trip on which two credit-card dockets were issued within one minute for $25.25 and $58.83 respectively. Investigation revealed that Mr Sikka had already reimbursed his cab company, GM Cabs, a total of $3406 in respect of a larger number of similar duplicate-transaction complaints. RMS also took into account his general complaints and traffic-infringement history.
Mr Sikka sought internal review; the cancellation was affirmed on 10 May 2012. He applied to the Administrative Decisions Tribunal on 28 May 2012 and obtained a stay. The Tribunal granted adjournments so that RMS could investigate his explanation that the duplicates resulted from a faulty in-cab terminal that produced second dockets unbeknown to him. RMS interviewed Mr Mark Diab, the company's accountant with technical responsibility for the terminals, on 21 September 2012. Mr Diab rejected the suggestion of persistent malfunction. The Tribunal conducted a hearing on 17 December 2012 at which Mr Diab gave telephone evidence and was cross-examined by Mr Sikka's agent, Mr Jools. On 31 January 2013 RMS re-interviewed Ms Minerva Mikhael, the fleet manager. The hearing resumed on 11 March 2013. Ms Mikhael and Mr Sikka both gave oral evidence and were cross-examined.
At the conclusion of the second hearing day the Tribunal member delivered short ex tempore oral reasons and affirmed the cancellation. Mr Sikka lodged a notice of appeal and stay application at the registry counter immediately. The Appeal Panel, constituted by President O'Connor, Judicial Member Huntsman and Non-judicial Member Bolt, heard the matter on an expedited basis. The Panel identified the central complaint as the failure of the oral reasons to address Mr Sikka's faulty-terminal defence even though that defence had been the subject of extensive evidence, cross-examination and two adjournments granted at RMS's request.
The Panel set out the six-paragraph oral reasons in full (re-numbered for reference). Those reasons noted the repayment of $3406, found it implausible that a taxi driver would repay such a sum if innocent, concluded that Mr Sikka must have been responsible, and stated that the member could not attest that he was a fit and proper person under s 33(3). The reasons did not refer to the evidence of Mr Diab or the re-interview of Ms Mikhael, nor did they explain why the Tribunal rejected the terminal-malfunction explanation.
The Panel granted leave to extend the appeal to the merits, set aside the Tribunal's order, and directed a directions hearing. The effect was that the original RMS cancellation remained on foot pending the further hearing on the merits.
The Appeal Panel began by restating the well-established obligation that reasons must be adequate for the exercise of the facility of appeal and to avoid a sense of grievance. It quoted at length from McColl JA in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [56]-[59], emphasising that reasons must expose the reasoning on points critical to the contest, do justice to the parties' cases, and enable the parties to understand the basis on which arguments were accepted or rejected. It noted Basten JA's observation in Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48] that appellate review asks only whether the minimum acceptable level for a proper exercise of judicial power has been reached.
The Panel confirmed that these principles apply equally to the Tribunal, citing its own earlier decisions in Battenberg v The Union Club [2005] NSWADTAP 20 and Mouwad v Commissioner of Police, NSW Police Force (GD) [2011] NSWADTAP 50. It then examined the closely analogous criminal appeal in Sasterawan v Morris [2008] NSWCA 70, in which ex tempore reasons of a District Court judge in a taxi-driver Cabcharge docket case were held inadequate because they failed to engage with the driver's specific defences to each count. Tobias JA had stressed that even ex tempore reasons must not leave the reader to speculate and must enable the unsuccessful party to understand why they lost.
Applying those authorities to the present facts, the Panel observed that the Tribunal's task in merits review under s 63 of the Administrative Decisions Tribunal Act 1997 is to reach the correct and preferable decision. In an authority-cancellation case the ultimate question is whether the person can still be regarded as of good repute and fit and proper under s 33(3) of the Passenger Transport Act 1990. The oral reasons resolved that question negatively by relying on two propositions at paragraph (5): the implausibility of repayment without wrongdoing, and the finding that Mr Sikka was "responsible". Neither proposition was accompanied by any further reasoning process. The reasons expressly disclaimed knowledge of how the overcharging occurred and did not mention Mr Sikka's terminal-defect defence.
The Panel held that, while a bare assertion of malfunction might have been dealt with summarily, the way the case had developed required more. RMS had agreed to investigate, the Tribunal had adjourned twice, Mr Diab and Ms Mikhael had been called, and most of the hearing time had been occupied by that evidence. In those circumstances Mr Sikka was entitled to expect his defence to be addressed, even if only briefly. The Panel repeated the Sasterawan-derived proposition that one hallmark of adequate reasons is that they explain to the losing party why they have lost. Because the oral reasons omitted any reference to the central defence that had been investigated, they fell below the minimum standard and constituted an error of law.
The Panel rejected two potential answers that had not been argued. First, it held that a represented party's failure to ask the member to supplement oral reasons on the spot does not cure inadequacy; the changes required would have been substantive, not formal, and Sasterawan itself had rejected a similar acquiescence argument. Second, while s 89 of the Administrative Decisions Tribunal Act 1997 would have permitted a request for written reasons, the oral reasons as delivered purported to be complete and gave no indication that they were provisional. The Panel noted that it would have been open to the member to give short oral reasons and later furnish compliant written reasons under s 89(5), but that had not occurred.
The Panel also recorded that one specific transaction (the 21 June 2011 complaint) could not be explained by identical duplicate dockets and bore an apparently bogus signature. While RMS submitted that this single instance of possible dishonesty was sufficient, the Tribunal had made no finding specific to that transaction. That reinforced the need for proper reasons.
Procedural objections raised by Mr Jools (telephone evidence and absence of all duplicate records) were dismissed as unfounded; the procedures had been fair and the sample evidence sufficient.
Prior to this decision the law on adequacy of reasons was settled at Court of Appeal level. Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 established that reasons must be sufficient to make the decision intelligible and to enable appellate review. Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 clarified that ex tempore reasons are not to be picked over pedantically but must still expose the reasoning on critical points and avoid leaving the parties to speculate. Sasterawan v Morris [2008] NSWCA 70 applied those principles to a criminal appeal involving a taxi driver and docket falsification, holding that failure to deal with specific defences rendered the reasons inadequate even though delivered under pressure of a busy list.
The Tribunal had already accepted that the same principles govern its own decisions: Battenberg v The Union Club [2005] NSWADTAP 20 at [40]-[42] and Mouwad v Commissioner of Police, NSW Police Force (GD) [2011] NSWADTAP 50 at [18]-[22]. Section 89 of the Administrative Decisions Tribunal Act 1997 had long provided a statutory mechanism for parties to obtain a full written statement containing findings on material facts, the applicable law and the reasoning process.
This judgment did not change the underlying legal standard. It applied the pre-existing principles to the particular context of a merits-review hearing into cancellation of a taxi authority where the applicant's defence had been the subject of administrator investigation, adjournments and substantial oral evidence. The decision confirmed that the duty to engage with the main case in reply is heightened in such circumstances. It also clarified that the facilitative provisions of s 89 can be used to supplement short oral reasons without altering substance, and that a party's failure to request supplementation at the time does not waive the right to complain of inadequacy on appeal.
The judgment therefore sits as an illustration rather than a doctrinal departure. It underscores that the "correct and preferable decision" obligation under s 63 of the Administrative Decisions Tribunal Act 1997 cannot be discharged by conclusory statements on credibility or implausibility when a central, investigated defence is left untouched.
Paragraph 17 (quoting McColl JA in Pollard): "The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes 'a sense of grievance' and denies 'both the fact and the appearance of justice having been done', thus working a miscarriage of justice." Plain English: If the judge or tribunal does not explain its thinking properly, the loser feels the process was unfair and the public cannot see that justice was done. That itself is a legal wrong.
Paragraph 29: "Neither of the findings is accompanied by any further reasoning process. They do not refer to Mr Sikka's case in reply. The member chose not to deal with it ('I do not know how it happened and it appears from the evidence that nobody other than Mr Sikka does know'). The Tribunal rested its view on the fact of repayment of the disputed amounts, and impliedly regarded the conduct, to use the language of the criminal law, as reflecting a consciousness of guilt." Plain English: The member said the repayment proved guilt but gave no reasons for rejecting the broken-machine story. Simply saying "I don't know how it happened" is not good enough when the whole hearing had been about that story.
Paragraph 32: "As is noted in the authorities, one of the hallmarks of an adequate set of reasons is that they explain to the losing party why he or she has lost. That entails, as we see it, a need to deal, at least in a summary way, with the main case in reply made by a review applicant, however preposterous or unconvincing it may seem. The extent of the duty increases in circumstances like the present where the case in reply was closely investigated by the administrator, and adjournments were allowed for that purpose by the Tribunal." Plain English: A basic rule is that the loser must be told why they lost. Even if the defence seems weak, the tribunal has to say something about it if the other side spent time and money checking it out and the hearing was delayed for that purpose.
Paragraph 36 (quoting Mason P in Bell v Veigel): "It would in my view be wrong for a judge who has pronounced reasons for final judgment to make a material addition or alteration to those reasons simply because some better idea has come to mind. Sometimes, however, a judge fails to spell out what was in his or her mind referable to a particular argument, simply due to oversight. I see no reason why such an oversight could not be remedied, on application or on the judge's own motion, in a proper case." Plain English: Once reasons are given, you cannot rewrite them to fix a mistake in thinking. But if the judge simply forgot to mention an obvious point, it can be fixed by a short supplementary statement before the formal order is entered.
Paragraph 41: "But in this case the reasons as delivered do not have any indications of the kind mentioned. They purport to be complete, and do not refer to Mr Sikka's case in reply." Plain English: The spoken reasons sounded final and said nothing at all about the broken-machine defence. That is what made them legally defective.
The precedent is triggered by merits-review applications in occupational-regulation matters (especially taxi or public-passenger authorities under the Passenger Transport Act 1990) where three elements coincide. First, the administrator relies on dishonesty or repeated regulatory breaches evidenced by financial repayment or settlement of complaints. Second, the licence holder advances a specific factual defence (here, equipment malfunction) that is not merely asserted but is investigated by the administrator, leads to witness evidence, cross-examination and hearing adjournments. Third, the Tribunal delivers ex tempore oral reasons that resolve the matter on credibility or implausibility without referring to that investigated defence.
The judgment makes clear that a bare or last-minute assertion could be dealt with summarily. The heightened duty arises precisely because the defence became a central forensic issue. The same reasoning would apply to any merits review in which the Tribunal has allowed the administrator time to test the applicant's explanation and then fails to mention the outcome of that testing in its reasons. It is not limited to taxi drivers; any "fit and proper person" or "good repute" test under licensing legislation would engage the same principle.
Although the judgment itself is the present authority, it expressly follows and applies the Court of Appeal authorities in Pollard, Resource Pacific and, most directly, Sasterawan v Morris. The Panel treated Sasterawan as persuasive in the tribunal context even though that case arose in a criminal appeal. It adopted Tobias JA's formulation that reasons are inadequate if they render the decision unintelligible or suggest that defences were not considered. The Panel also followed the Battenberg and Mouwad line of Tribunal authority that the judicial duty of adequate reasons applies without modification to Administrative Decisions Tribunal proceedings.
The judgment's treatment of s 89 of the Administrative Decisions Tribunal Act 1997 as a legitimate route to fuller reasons after short oral delivery has been absorbed into subsequent tribunal practice. The Panel's rejection of any "acquiescence by silence" argument mirrors the Court of Appeal's approach in Sasterawan and Bell v Veigel and therefore strengthens the proposition that inadequacy of reasons is an error of law that cannot be waived by failure to interrupt the decision maker.
The judgment leaves open the precise interaction between s 89 and an appeal lodged before written reasons are requested. It suggests that, had written reasons been furnished under s 89(3) and complied with s 89(5), those reasons could be read with the oral ones provided the substance remained unchanged. It does not, however, decide whether an appeal filed immediately after oral reasons would be stayed or adjourned pending a s 89 request.
Another open question is the level of detail required when the applicant's defence is technically complex. The Panel accepted that Mr Sikka's terminal-malfunction claim had been the subject of expert managerial evidence from Mr Diab and Ms Mikhael. It did not prescribe how a tribunal should record its assessment of conflicting technical evidence in short oral reasons. A future panel might have to decide whether a one-sentence credibility finding is sufficient once the defence has been fully ventilated.
The judgment also notes that the Tribunal made no specific finding about the 21 June 2011 transaction that could not be explained by identical duplicate dockets and bore a bogus signature. It leaves unresolved whether a single clear instance of dishonesty, if properly reasoned, would be sufficient by itself to preclude the s 33(3) attestation. That issue is expressly reserved for the merits hearing that was directed to follow.
Finally, the Panel recorded its provisional view that the merits could be determined on the existing transcript and material without further evidence. Whether that view survives a directions hearing, or whether fresh material on the technical operation of the terminals is permitted, remains for future case management. These residual procedural and substantive questions illustrate that while the adequacy-of-reasons holding is clear, its practical application in the occupational-licensing jurisdiction continues to require careful calibration.
reasons for decision 1After internal review, Roads and Maritime Services (RMS) decided on 10 May 2012 to affirm its decision first advised 28 April 2012 cancelling Mr Sikka's taxi-cab driver authority. 2The authority was issued under s 33(1) of the Passenger Transport Act 1990. Section 33(3) provides: (3) The purpose of an authority ... 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. 3The power to cancel is given by s 33F: 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. 4RMS acted on the basis of four matters. First, it found justified a specific passenger complaint of double charging, made 1 August 2011 in relation to a trip paid for by credit card that occurred on 21 June 2011. Second, it ascertained in the course of investigating that complaint, that Mr Sikka had settled with the company that processes credit card payments a number of complaints to it of double charging by him, in the amount of $3406. Third and fourth, it referred to his complaints record and traffic infringement history in the period since 2009 when he first received his authority. He was then 30 years old. 5Mr Sikka applied to the Tribunal for review of the decision on 28 May 2012, and was granted a stay of RMS's decision pending further order. The hearing time-table was extended in order to allow RMS to investigate an explanation given by Mr Sikka that he was not personally culpable in relation to the instances of double charging because he had been supplied with a faulty terminal that had resulted in second dockets being produced unbeknown to him. 6The Tribunal's principal hearing days were 17 December and 11 March 2013. At the conclusion of the hearing on 11 March 2013 the Tribunal proceeded to make its final order, affirming the decision under review, and delivered short, oral reasons.
The Appeal 7Mr Sikka lodged his appeal at the registry counter immediately after the Tribunal gave its oral reasons, along with an application for a stay of the Tribunal's decision. An appeal may be made on a 'question of law', and, with leave, extended to the merits: Administrative Decisions Tribunal Act 1997 (ADT Act), ss 112, 113. Mr Sikka's notice of appeal did not itemise any questions of law, not surprisingly in the circumstances, as he did not have a text of the reasons at that point, and had no legal assistance. He simply applied for leave to extend the appeal to the merits. 8His immediate object was to have the stay he had enjoyed from 31 May 2012 to 11 March 2013 reinstated so that he could stay working. 9The stay application was listed for 25 March 2013. A stay for a limited period was granted by the Appeal Panel (constituted for this purpose by the President sitting alone) pending provision of a transcript of the oral reasons, with the application re-listed for further consideration once the transcript of the oral reasons became available. The President then vacated the stay order at the next preliminary hearing, 23 April 2013. The appeal hearing was expedited. 10It is plain from what he said at the preliminary hearings that Mr Sikka's primary complaint was that his case in reply was not addressed by the Tribunal in its reasons (that he was innocent, and that a defective in-cab terminal was to blame), and therefore the reasons were unfair and inadequate.
The Tribunal's Reasons 11Background in Summary: GM Cabs supplied the terminal shown as used in the transaction that gave rise to the originating complaint. RMS officers contacted Ms Minerva Mikhael, manager, GM Cabs. She confirmed that the terminal was issued to Mr Sikka on the date in question. In addition, she told them that she had only recently, on 21 July 2011, interviewed Mr Sikka in relation to a large number of complaints from his customers relating to duplicate credit card transactions for single trips. They had involved $3406 in overcharges which Mr Sikka had now reimbursed. Compliance officers proceeded to interview Mr Sikka, and as a result commenced a show cause process resulting in the decision to cancel his authority. 12In his defence Mr Sikka claimed to the Tribunal that his terminal must have been faulty, and claimed that Ms Mikhael had told him that many of the terminals were faulty. His case was that the terminals must have produced second dockets unbeknown to him, and at the end of a shift he simply presented all dockets in his possession to GM Cabs for conversion to cash, without noticing that many of them were duplicates. 13RMS agreed to enquire further into this explanation. The Tribunal adjourned its proceedings pending the result of those enquiries. On 21 September 2012 RMS compliance officers interviewed Mr Mark Diab, GM Cabs accountant. He had a management role in relation to the technical operation of the terminals, and had worked with the programmers in development of the software program. He rejected Mr Sikka's view that a persistent malfunction might have produced the duplicate dockets. 14The Tribunal hearing proper commenced on 17 December 2012. The Tribunal gave leave to Mr Jools, president of an organisation called the Australian Taxi Drivers' Association, to appear as agent for Mr Sikka. Mr Diab gave evidence and was cross-examined. 15On 31 January 2013, partly as a result of Mr Diab's evidence and the matters raised in cross-examination, RMS compliance officers re-interviewed Ms Mikhael as to the way the terminals worked, and some related matters. The Tribunal resumed its hearing on 11 March 2013. Ms Mikhael gave oral evidence and was cross-examined. Mr Sikka also gave evidence and was cross-examined. 16We will now set out the Tribunal's oral reasons (we have numbered the paragraphs for ease of later reference): (1) The order I propose is to give you my decision and just briefly explain how I have arrived at it. (2) This is a matter where Mr Sikka's driver authority has been cancelled as a result of a number of matters. The evidence that we have dealt with has primarily related to issue of dockets. As has been explained that issue arose from a complaint by a passenger and that complaint was by way of letter of 1 August in 2011 and in particular there were two dockets that were issued from a terminal in the taxi under Mr Sikka's control. The first was for an amount of $25.25 and the second was for an amount of $58.83 and those dockets were issued within a minute of each other. (3) The evidence that I have had today from Minerva Mikhael was that these two transactions were only a small proportion of the total number of transactions that were of concern to the taxi company and all the transactions related to the terminal operated by Mr Sikka. The amount that the taxi company had determined was something in the order of $3,400 of overcharging and it is common ground that Mr Sikka has repaid that amount. (4) Mr Sikka has denied any wrongdoing and Ms Mikhael gave evidence that she had a meeting with Mr Sikka in which these issues were discussed. It seems that she pointed out to Mr Sikka that he was responsible for any issues arising from the use of the terminal that was in his possession. She says that he admitted to her that he was responsible for it for the overcharging. He now denies having made that admission. Against Ms Mikhael is the fact that she had previously given a statement that contradicts her present position and she explains that by saying that she had made Mr Sikka a promise that if he repaid the money that the matter would not go any further so that that has some implications for her credit. (5) On Mr Sikka's part we have the fact that he repaid the amount of $3,400 in circumstances where as a taxi driver this would take him three to four months to repay. In my view it is implausible that a taxi driver is going to repay that amount of money in circumstances where he has not done anything wrong and because that is my view the rest must fall into place that something was done by Mr Sikka that warranted the repayment. I do not know how it happened and it appears from the evidence that nobody other than Mr Sikka does know but I am satisfied that whatever has happened Mr Sikka was responsible for it. (6) Under the legislation that governs the taxi authorities, this is the Passenger Transport Act 1990 it is set out that the purpose of an authority is to attest 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 and the authorities that have been produced from this tribunal that deals with these issues makes it clear that the role that a tribunal is dealing with these types of cases comes down to whether or not we could make that attestation. Given the evidence that I have got I do not believe that I could reasonably make that attestation. I cannot find that Mr Sikka is a fit and proper person to hold a taxi authority and that being the case the decision that has been taken to cancel the authority must be the correct and preferable one. In that case I affirm the decision.
Principles 17There are many cases dealing with the requirement that reasons given by a court be adequate, and they often differentiate the ex tempore setting. See, for example, Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 (15 May 2009) per McColl JA (Ipp JA, Bryson AJA agreeing), citations omitted: 56 The Court is conscious of not picking over an ex tempore judgment and, too, of giving due allowance for the pressures under which judges of the District Court are placed by the volume of cases coming before them ... However a trial judge's reasons must, "as a minimum...be adequate for the exercise of a facility of appeal"... . A superior court, "considering the decision of an inferior tribunal, should not be left to speculate from collateral observations as to the basis of a particular finding": ... 57 The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes "a sense of grievance" and denies "both the fact and the appearance of justice having been done", thus working a miscarriage of justice: ... . 58 The extent and content of reasons will depend upon the particular case under consideration and the matters in issue: ... . While a judge is not obliged to spell out every detail of the process of reasoning to a finding ... , it is essential to expose the reasons for resolving a point critical to the contest between the parties: ... . 59 The reasons must do justice to the issues posed by the parties' cases: ... . Discharge of this obligation is necessary to enable the parties to identify the basis of the judge's decision and the extent to which their arguments had been understood and accepted: ... ... [I]t is necessary that the primary judge " 'enter into' the issues canvassed and explain why one case is preferred over another"; ... . 18For a recent discussion of the principles, see Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 esp per Basten JA at [40] ff. Basten JA noted at [48]: When an appellate court is invited to find that a trial judge provided inadequate reasons, it is important to understand the nature of the function being invoked. It is not the function of an appellate court to set standards as to the optimal, or even desirable, level of detail required to be revealed in reasons for judgment. Rather it is to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of judicial power. Transparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality. 19The Appeal Panel has long accepted that the same principles must be observed by this Tribunal. See for example, Battenberg v The Union Club [2005] NSWADTAP 20 at [40]-[42]; Mouwad v Commissioner of Police, NSW Police Force (GD) [2011] NSWADTAP 50 at [18]-[22]. 20In Sasterawan v Morris [2008] NSWCA 70, the Court of Appeal (Beazley, Tobias JJA and McClellan CJ in CL) assessed the adequacy of reasons of a District Court judge who had delivered ex tempore reasons in relation to an appeal against conviction from the local court. As it happens, the underlying circumstances resemble the present case. A taxi driver had been convicted on three counts of altering a Cabcharge docket with intent to obtain a financial advantage contrary to the provisions of s 178BB of the Crimes Act 1900 (NSW) (24 June, 22 July, 27 October). 21The appeal judge's reasons were as follows (we have numbered the paragraphs for ease of later reference): (1) The appellant appeals from three convictions entered by the Local Court at Burwood in respect of three offences that were charged under s 178BB(1) of the Crimes Act of New South Wales. (2) Those offences require the Crown to prove beyond reasonable doubt three propositions, so far as this case is concerned that each cab charge, that is to say that each document is false in a material particular; that the accused published the document and that he did so with intent to obtain a financial advantage. (3) Each of the documents nominates the correct driver authority number and the correct ABN number in three of the three charges. The first in time nominates a fare of one hundred and thirty-six dollars and fifteen cents for a trip from Campbelltown Station to the city. The second nominates a total fare of two hundred and sixty dollars and fifteen cents for a trip described as being from "City-Wollongong to Manly township" and the third nominates a trip fro[m] the city to Chippendale. (4) The fare for city to Chippendale is said to be seventy dollars. Clearly something there is false in a material particular, whether it be the fare or whether it be the ultimate destination. The appellant says that he never drove to Wollongong or from Wollongong, so the appearance of the word Wollongong coupled with his name on the document means the document must either in respect of his name or in respect of the destination be false in a material particular. (5) It does not much matter who wrote the document, it is a question of whether it is false in a material particular. Likewise as I understand the defence case, he never went to Campbelltown Station, but the document asserts that the driver of this vehicle went to Campbelltown. Clearly those two facts cannot live together, so it must be false on the defence case even, in a material particular. (6) I am satisfied beyond reasonable doubt that each of these documents was published in the sense that it was handed in to the owner of the cabs, Mr Halin and I am satisfied from the material that is before me, that the appellant sought a financial advantage in each case, in part because of the written documents that he has generated, for instance to the managing director of Lindany [Landini Associates, the account name printed on one of the dockets] explaining to him that the ladies were travelling various places: 'In the entire journey I have been badly abused by two ladies of your personnel, in addition I have been threatened with sexual harassments that I will be reported to the police and at the end of the journey they forcefully took two hundred dollars cash against this docket from me.' And then the punch line 'I am seeking your mannerly action in this letter' meaning of course the return of at least two hundred dollars. (7) He has given in respect of the first document, three versions which I canvassed in the course of submissions. His evidence was not such as to impress me and this was a case in which in that sense, because of the strength of the Crown case or the Prosecution case, there was this evidential onus on him to raise a reasonable doubt. (8) It is normally said that there is no burden of proof upon the accused to prove his innocence and that is true, but if he accepts an evidential burden by going into the [witness box], the evidential burden was one of at least raising a doubt in the face of the Crown case. That did not occur and I did not accept his evidence on the fundamental propositions and in all the circumstances I find each of the offences proved. 22The taxi driver argued that the reasons were inadequate primarily because they did not deal with his defences to the three counts. Tobias JA gave the principal judgment. He summarised the defences as follows: 22 It would thus appear that the claimant's defence before his Honour was, with respect to the 24 June docket, that he was unaware of its falsity and that he only presented it for payment to the account holder because he had been requested to do so by his taxi operator in circumstances where he mistakenly believed that he had "paid-in" that docket to Cabcharge for payment. He later denied that he had published the docket at all. 23 As to the 22 July docket, his defence was that he had failed to notice that the destination, which was not in his handwriting, was incorrect when he was given the docket by the passenger although it was clear that when he presented the docket for payment he was aware of its falsity (at least in relation to the destination recorded on its face) and endorsed the docket accordingly prior to its presentation to Cabcharge for payment. 24 As to the 27 October docket, his defence was that although he accepted there were problems with the docket which he had endorsed on the docket prior to presentation, nevertheless he had been told by Cabcharge to submit it for payment. 25 Accordingly, at least with respect to the 22 July and 27 October dockets, it would appear that the claimant accepted that each docket was false to his knowledge although he does not appear to concede that it was false in a material particular. Of course, if the trip details on the 22 July docket were incorrect and those on the 27 October docket were incorrect, then each docket was false in a material particular. 26 The claimant submitted that the Prosecutor's case before his Honour was that he had published each Cabcharge docket which was false with respect to the fare entered therein with intent to obtain a financial advantage. He submitted that in taking that approach the Prosecutor appears to have disregarded first, the requirement to prove that the claimant knew the dockets were false in a material particular and, second, his evidence to the effect that he entertained an honest and reasonable belief as to circumstances which made each of his impugned acts innocent. Furthermore, the primary judge had failed to deal with the circumstances relating to each docket separately and to consider and refer to the claimant's defence with respect to each of them. 27 Thus, for instance, his Honour apparently understood the defence case with respect to the 24 June docket to be that the claimant never went to Campbelltown Station as he was not driving on that day. However, he found that, as the docket asserts that the driver of the vehicle (whoever it might have been) did do so, the claimant's defence and the "facts" recorded on the docket could not live together so that the docket must be false in a material particular, even on the defence case. It was submitted that this at least indicated a misunderstanding of the defence case and an inappropriate way to deal with it that was in any event inadequate. Again, with respect to the 22 July docket, his Honour determined that it was false in a material particular as a fare from the City to Chippendale could not be $70 so that, whether the fare or the destination was incorrect, either way the document was false in a material particular. It was submitted that the primary judge had again failed to deal with the claimant's defence with respect to that docket which in essence he had endorsed upon its face. 28 As to the 27 October docket, it was submitted that it was not the claimant's case that he never drove from Wollongong to Manly; in fact, he did, so that again his Honour had misunderstood his defence to the charge based on that docket. 23As to the relevant principles, Tobias JA said at [32]-[34] and [48]-[50]: 32 In the present case there was no right of appeal from the decision of the primary judge, although the claimant did request the judge to submit questions of law to the Court of Criminal Appeal pursuant to s 5B(2) of the CA Act, as mentioned in [6] and [7] above. However, as McHugh JA observed in Soulemezis [i.e. the leading authority, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247] in the passages to which I have referred, the duty to provide reasons can be rested on the wider basis that justice must not only be done but must be seen to be done. Although there are no 'formulae' for determining whether reasons are sufficiently detailed, it is usually sufficient, as Mahoney JA observed in Soulemezis (at 273E), "if by his reasons the judge appraises the parties of the broad outline and constituent facts of the reasoning on which he has acted." 33 This requirement does not necessarily mandate lengthy or detailed reasons. The extent of the duty to give reasons is, as McHugh JA observed in Soulemezis (at 280G), "related to the function to be served by the giving of reasons". 34 In a case such as the present where there was no right of appeal from the decision of the primary judge, the critical determinant as to whether the primary judge's reasons were sufficient was whether they were so inadequate as to render the decision unintelligible to the reader and/or whether the absence of an explicit finding by the primary judge in relation to the defences raised by the claimant suggests that those defences were not considered. ... 48 In my view the primary judge's reasons in the present case were inadequate. I acknowledge that his Honour's judgment was ex tempore and, no doubt, he was under pressure from the considerable workload of the District Court. However, his reasons are disjointed and, although expressing conclusions, do not enlighten the reader as to the reasoning process which led to them. 49 I accept, as did Mahoney JA in Soulemezis at (271C-D), that it is not necessary for a judge to reason or be seen to reason from one fact to the next. Nevertheless, the conclusion to which he or she comes must be sufficiently explained to enable the unsuccessful party to understand why they have lost. 50 In my view, his Honour's reasoning, which extends over only two and a half pages and leads to his conclusions that each of the dockets was published by the claimant, that he sought a financial advantage with respect to each and that each was false in a material particular, did not meet the minimum threshold to satisfy the demands of justice. The resultant inadequacy thus constituted an error of law on the face of the record. 24(The appellant also submitted that there were two errors of law in the reasons as delivered. The Court agreed that the reasons did not correctly state at (2) the elements to be proved: there is a fourth element - knowledge of the accused person of the falsity of the statement published by him. The Court noted that there was an exchange in the transcript that indicated that the judge had been aware of this element, but inexplicably he had failed to refer to it in the reasons as delivered. The Court noted that the prosecutor at the appeal had accepted there was an error of law at (7) and (8) in that the judge had impermissibly reversed the onus of proof.)
Application of Principles 25As is often the case with oral reasons delivered at the close of hearing, the member's reasons in this case did not have any detailed explanation of the background, a summary of the submissions and cases put by either party, a summary of the key points of evidence and the like. The parties are in the room, the final submissions have just been made, much of the evidence has usually just been heard and is fresh in the mind. The decision often truncates or omits the kind of summaries and recitations seen in reserved written decisions and goes straight to the key conclusions. We do not see the absence of these features as presenting any difficulty in the present circumstances. 26While we have drawn Sasterawan to attention, we acknowledge that a merits review hearing does not have features as linear as those seen in criminal prosecutions. In a criminal case the court must identify each element of the offence, satisfy itself that each is proved to the criminal standard and deal with any statutory or common law defences, their elements, and have regard to any burdens in that regard that fall on the accused. 27The task of the Tribunal in a merits review setting is a more general one. It is simply to decide what is the 'correct and preferable decision having regard to the material before it' (ADT Act, s 63). The ultimate question in a case of the present kind is whether Mr Sikka can continue to be regarded as a person of 'good repute and in all other respects a fit and proper person to be the driver of a taxi-cab'. 28The member resolved the issue negatively to Mr Sikka by reference to the two findings that appear at point (5) of his reasons: one, the repayment of all of the disputed payments which he saw as implausible had he not done anything wrong; and, two, the finding that Mr Sikka was 'responsible' for his situation. 29Neither of the findings is accompanied by any further reasoning process. They do not refer to Mr Sikka's case in reply. The member chose not to deal with it ('I do not know how it happened and it appears from the evidence that nobody other than Mr Sikka does know'). The Tribunal rested its view on the fact of repayment of the disputed amounts, and impliedly regarded the conduct, to use the language of the criminal law, as reflecting a consciousness of guilt. 30In the particular circumstances of this case, we think that the Tribunal should have responded directly to Mr Sikka's claim that malfunctioning equipment was the source of the problem. We only take this view because of the way the case developed at hearing. Had Mr Sikka simply made an assertion to this effect, the Tribunal could have dealt summarily with the assertion or disregarded it. 31To its credit, RMS agreed to investigate the assertion further, and interviewed Mr Diab and re-interviewed Ms Mikhael. Their evidence received considerable attention, and took up most of the hearing time on 17 December 2012 and 13 March 2013. In these circumstances, we think that Mr Sikka was left with an expectation that this aspect of his case in reply would be dealt with by the Tribunal. 32As is noted in the authorities, one of the hallmarks of an adequate set of reasons is that they explain to the losing party why he or she has lost. That entails, as we see it, a need to deal, at least in a summary way, with the main case in reply made by a review applicant, however preposterous or unconvincing it may seem. The extent of the duty increases in circumstances like the present where the case in reply was closely investigated by the administrator, and adjournments were allowed for that purpose by the Tribunal. 33What is adequate by way of reasons will vary from case to case. In the particular circumstances of this case, as it developed before the Tribunal, we think the reasons given were not adequate. 34Though these points were not raised at hearing, we have given some consideration to two arguments that might be made to uphold the adequacy of the reasons. 35One, it might be argued that Mr Sikka (or Mr Jools on his behalf) acquiesced in the reasons that were given, and should not now raise the issue of inadequacy. It might be said that each of them had the opportunity at the time the member gave the reasons to ask that they be supplemented to address specifically the malfunctioning equipment point. The member might then have referred briefly to the evidence of Ms Mikhael and Mr Diab, and briefly expressed a view as to whether he preferred it to the evidence of Mr Sikka. Two, it might be said that Mr Sikka should have applied for written reasons, as provided by s 89 of the ADT Act, and by that means he would have obtained a fuller explanation from the Tribunal of its oral reasons. 36The first point was considered at length in Sasterawan. The prosecutor submitted to the Court that the taxi driver had been represented before the appeal judge by a solicitor, and the solicitor could have asked the judge to amplify his oral reasons to deal with the defences raised on his client's behalf. Tobias JA (Beazley JA and McClelland CJ in CL agreeing) responded: 54 A similar argument was advanced recently in this Court in Bell v Veigel [2008] NSWCA 36 at [217]-[221]. The matter was raised in that appeal in circumstances where the successful party invited the losing party to raise the issue of the judge's allegedly inadequate reasons with him when the proceedings were next listed before him for argument on costs. That invitation was not taken up. In that circumstance it was submitted that the failure to request the judge to remedy the perceived inadequacy of his reasons was relevant to the question of any possible miscarriage stemming from that inadequacy, if found. 55 Mason P, with whom Giles JA and myself agreed, responded to that argument in the following terms: "218 Mr Veigel submits that nothing would have been lost by raising the matter with the trial judge before he proceeded to make final orders. The judge may have declined to supplement his reasons. He may have been persuaded that he lacked power to do so or that it would be inappropriate in the circumstances. On the other hand he might, it was submitted, have been prepared to go further. At the very least those appellants now complaining about the adequacy of the reasons ought to have this matter brought into account in determining whether a new trial should be ordered, in the interests of justice. 219 I find this latest submission attractive. It gains some support from an English Court of Appeal decision which the Court drew to the attention of the parties during argument (Adami v The Ethical Standards Officer [2005] EWCA Civ 1754). There are local cases recognising that a court may, in limited circumstances, amend or supplement reasons prior to entry of judgment in order to correct certain categories of mistake (see eg Smith v Australia and New Zealand Banking Group Ltd, [1999] NSW Conv R 56,904 (55-884), [1996] 7 BPR 15, 069). 220 It would in my view be wrong for a judge who has pronounced reasons for final judgment to make a material addition or alteration to those reasons simply because some better idea has come to mind. Sometimes, however, a judge fails to spell out what was in his or her mind referable to a particular argument, simply due to oversight. I see no reason why such an oversight could not be remedied, on application or on the judge's own motion, in a proper case." 56 Of greater significance in the present case is that any changes which the primary judge may have made to his reasons for judgment to cater for inadequacies now alleged would, in my view, have been changes of substance rather than form. Such changes are impermissible: Todorovic v Moussa [2001] NSWCA 419; (2001) 53 NSWLR 463 at 468 [46] and [47]. Accordingly, the Prosecutor's submission should be rejected. 57 I would also add that even if it had been open to the claimant's solicitor to have requested the primary judge to deal expressly with the defences raised by the claimant in his evidence and in submissions and it was permissible for his Honour to have acceded to that request, it does not follow that the solicitor's failure to do so necessarily resulted in what would otherwise constitute an error of law on the face of the record ceasing to be such. His Honour may have declined to supplement the reasons he had given and he would have been right to do so. Further, the claimant's solicitor may understandably not have appreciated at the time that the reasons (delivered ex tempore) were inadequate. In Bell v Veigel the trial judge's reasons had been published in written form after judgment had been reserved so that the complaining party had ample opportunity to consider those reasons and conclude that they were relevantly inadequate. 58 That is not the present case, where his Honour's reasons were delivered ex tempore. There is no information before us as to the experience of the claimant's solicitor in litigating criminal matters. His position can at least be contrasted with that of the experienced senior counsel the subject of discussion in Ramskagler. 59 In any event, the issue can only be relevant, if at all, to the matters to be considered in the exercise of the Court's discretion to grant or withhold relief under s 69 of the SC Act. In all the circumstances, I would have given it no weight in that exercise even if it would have been permissible for the primary judge to have acceded to a request to cure the alleged inadequacies of his reasons as delivered. 37As we see it, the reasons given by Tobias JA apply with even greater force to the work of tribunals, where parties frequently appear in person or have as their representatives someone they have been fortunate to find. In this case Mr Sikka found someone who had some experience in advocacy work but was not legally qualified. 38The second argument relies on s 89 of the ADT Act which provides: 89 Tribunal to give decision determining application (1) If the Tribunal makes an original decision or determines an application for the review of a reviewable decision, the Tribunal is to cause a copy of its decision to be served on each party to the proceedings for the decision. (2) The Tribunal may give reasons either orally or in writing for its decision. (3) If the Tribunal does not give reasons in writing for its decision: (a) a party to the proceedings may, within 28 days after the day on which a copy of the decision of the Tribunal is served on that party, request the Tribunal to give the party a statement in writing of the reasons of the Tribunal for its decision, and (b) the Tribunal must, within 28 days after receiving the request, give the party such a statement. (4) For the purposes of compliance with subsection (3), it is sufficient if the Tribunal gives the party a copy of a transcript of oral reasons previously delivered that complies with subsection (5). (5) If the Tribunal gives the reasons for its decision in writing under subsection (3), the written reasons are to set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made. 39This is a facilitative provision and of a kind seen commonly in tribunal statutes. Arguably, it provides a mechanism through which parties can get full reasons in circumstances where a Tribunal has given short oral reasons for its order at close of a hearing. 40In our view, it would have been open to the member in this case to have given short reasons for his order. The oral reasons might have referred relatively briefly to the review applicant's case in reply, and might have referred briefly to why he rejected that case. Provided the fuller reasons did not alter the substance of what he had said in support of the final order, we see it as for the written reasons to be more detailed. Accordingly if an adequacy of reasons case was brought, we see it as permissible to read the two sets of reasons alongside each other. We note in that regard, Basten JA's comment in Resource Pacific at [48], noted earlier, that: Transparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality. 41But in this case the reasons as delivered do not have any indications of the kind mentioned. They purport to be complete, and do not refer to Mr Sikka's case in reply. 42In opposing any consideration of extending the appeal to the merits, Mr Wozniak for RMS noted accurately that Mr Sikka's lay agent, Mr Jools, conceded before the Tribunal that the only credible explanation for the transaction of 21 June 2011 could be some manipulation involving Mr Sikka. That transaction stands apart from the other instances relied upon because the second docket was in a different amount, and that could not be explained by the technical malfunction that had been alleged, i.e. second dockets being produced in the same amount. Another differentiating feature was the appearance on the second docket of an apparently bogus signature. 43Mr Wozniak submitted that this one item of conduct was enough to justify the action taken against Mr Sikka. A finding of dishonesty and possible fraud was clearly available. That was enough to demonstrate that he lacked the integrity required of a taxi driver. The difficulty, as was reflected in the way Mr Wozniak cast his submission, is that the Tribunal made no finding specific to this transaction.
Other Matters 44In the course of the submissions at the appeal hearing, Mr Jools made a number of other objections to the way the Tribunal dealt with the matter. We will deal with two of them briefly. 45One, it was permissible for the Tribunal to have Mr Diab give evidence remotely by telephone. The Tribunal has wide powers to manage its procedures, under s 73 of the ADT Act. They must be used fairly. The transcript shows that Mr Jools was given the opportunity to cross-examine, and Mr Diab's record of interview had been served in advance of the hearing. 46Two, Mr Jools criticised the Tribunal for not ensuring that it had before it the duplicate records for all the transactions that fell within the repayment of $3406. It had some, but not all. In our view, that was unnecessary. In any event, the member canvassed this matter with Mr Sikka at the original hearing, and he did not ask for them all to be produced. 47There was clear evidence from Ms Mikhael as to her meeting with Mr Sikka over these matters, there was an adequate set of sample records, and there was the fact of Mr Sikka's repayment in full, a critical event from which the Tribunal was free to draw an inference negative to Mr Sikka, as it did.
Disposal of this Case 48We have granted leave to extend the appeal to the merits. In our view, the appeal can adequately be dealt with on the transcript of evidence, and the other material filed by the parties before the Tribunal. Our provisional view is that there is no need for any further material to be filed. The President will hold a directions hearing. 49We shall set aside the Tribunal's order. That means that the administrator's decision (cancellation) remains in place.
Order
Sikka
Roads and Maritime Services
Decision under appeal set aside. Application to extend appeal to merits granted. Registrar to list appeal for a directions hearing.