Fisher v Transport NSW

1. [1]

   HIS HONOUR: By his further amended summons dated 16 March 2017, Brian Stanley Fisher seeks a review of a series of administrative decisions as follows:

   1. (1)

      The original decisions of Transport NSW and the Roads and Maritime Services to suspend and cancel his driver authority.

   2. (2)

      The decision of Judicial Member P H Molony in the Administrative Decisions Tribunal affirming the suspension and cancellation.

   3. (3)

      The determination by NCAT Deputy President Hennessey refusing leave to appeal from Mr Molony’s decision out of time.

2. [2]

   Mr Fisher’s claims arise out of a relatively long and involved series of events. A proper consideration of his claims requires an understanding and appreciation of those events.

Background

1. [3]

   In June 2003, Mr Fisher and his wife Elizabeth Fisher obtained their Public Passenger Driver authorities and Public Passenger Bus Operator accreditation. Using funds from the sale of their house and Mr Fisher’s redundancy payment from 17 years’ service with the NSW Government Railways, they purchased two school bus runs in 2003 in Cowra for $290,000. The purchase included the benefit of government contracts and buses sold as a going concern.

2. [4]

   In 2004, Mr Fisher completed a certificate in Transport Management at Sydney University.

3. [5]

   In 2005, Mr Fisher and his wife purchased land at Cowra upon which they constructed a bus depot. In the same year they purchased the Canowindra to Orange service together with the bus operating on it. They had by then four school bus runs in the Canowindra to Cowra area.

4. [6]

   In 2007, Mr and Mrs Fisher travelled to Forster to purchase a 1980 Leyland Leopard bus for use in their business. While in that area, they determined to move their operations to the Manning Valley. They purchased a school bus run in the Gloucester to Taree area that was for sale at that time. In 2008 they purchased the Gloucester to Taree service and the existing bus operating on it for $240,000. They moved their family to the Taree area.

5. [7]

   Mr and Mrs Fisher had by now acquired a fleet of eight buses and coaches, in which they took great pride. They had a good reputation as providers of bus and transport services of a high standard and quality. They acquired an increasing amount of charter work as far afield as Port Macquarie, Newcastle and Sydney. Mr and Mrs Fisher purchased a brand new coach for use in their business on 2 June 2011 for $330,000.

6. [8]

   As a driver of public passenger vehicles, Mr Fisher was required by law to hold an authority under the Passenger Transport Act 1990. In mid-2011, Mr Fisher’s driver authority was suspended and then cancelled by the first defendant. Mr Fisher’s application in these proceedings for judicial review relates to the series of decisions that followed or were generated by the cancellation.

7. [9]

   Although it will be necessary in more detail to consider the circumstances that led to this cancellation, it followed upon a series of complaints lodged by parents of children being carried on a school bus run operated by Mr and Mrs Fisher. These complaints were directed to the manner in which Mr Fisher had allegedly conducted himself, especially in the management of children on his bus. In 2010, some children are said to have filmed Mr Fisher driving whilst using his mobile phone, not wearing a seat belt and leaving the bus without reasonable cause. There were also said to be issues regarding inappropriate student behaviour on the bus. In May 2010, Mr and Mrs Fisher issued notices to some students, suspending or terminating their use of the school bus service following continual misbehaviour. The parents of these students appealed against this action.

8. [10]

   On 6 June 2011, the first defendant made a decision to suspend Mr Fisher’s driver authority on the basis that he had used a mobile phone while driving and had left his seat on the bus without reasonable cause. The notice informing Mr Fisher of that decision warned that consideration was being given to the cancellation of his driver authority. On 7 June 2011, Mr Fisher applied for a stay of that decision. On 14 June 2011, a stay was granted. On 14 July 2011, a decision was made to cancel Mr Fisher’s driver authority on the basis that he was not a fit and proper person to drive a public passenger transport vehicle. Mr Fisher thereafter sought a stay of that decision, which was granted on 20 July 2011.

9. [11]

   A review of the suspension and cancellation decisions was then heard by Judicial Member Molony over four days between November 2011 and January 2012. Evidence was given by a number of students who travelled on the bus, as well as by parents and teachers, and also by Mr and Mrs Fisher. On 25 May 2012, Mr Molony found that Mr Fisher was not a fit and proper person to hold a driver authority authorising him to drive a school bus. He affirmed the decisions both to suspend and to cancel Mr Fisher’s driver authority.

10. [12]

    Mr Fisher thereafter appealed against the decision to cancel his driver authority. He originally did so within the 28 day time limit applying to such appeals. However, Mr Fisher subsequently withdrew that appeal and it was dismissed on the first day of the hearing. Mr Fisher later proceeded to lodge a further appeal more than 12 months later. On 16 December 2016, Deputy President Hennessey refused to accept that appeal out of time.

11. [13]

    Mr Fisher became bankrupt in April 2015. The Registrar dismissed the present proceedings. That decision was set aside by McCallum J on 22 December 2016. The effect of that decision was that Mr Fisher was entitled to continue these proceedings in his own name.

12. [14]

    The proceedings came before me for hearing on 29 June 2017. I sought clarification at that time concerning the precise nature and extent of the relief claimed. This was because it appeared that Mr Fisher was seeking a review of each of the decisions in a chain of administrative decisions. Mr Averre of counsel for the first and second defendants had emphasised that any successful challenge to the ADT decision would render the NCAT decision invalid. Alternatively, an unsuccessful challenge to the ADT decisions would obviate the utility of any appeal against the later NCAT decision and render it unsuccessful.

13. [15]

    Mr Fisher did not accept that the high water mark of any relief to which he might become entitled, if successful, was that a decision maker at the level of Mr Molony would re-hear the case. Rather, Mr Fisher contended that all of the issues could be dealt with finally by me instead of remitting them to a lower tribunal to be dealt with according to law. Given the lengthy period of time during which these matters have been on foot, and the extent to which they have consumed Mr Fisher’s personal and business life, it is unsurprising that he seeks to have a final and conclusive determination by me. He emphasises s 83 of the Civil and Administrative Tribunal Act 2013 which provides that a court hearing an appeal from an administrative decision may affirm, vary or set aside the decision of the Tribunal, remit it to be heard and decided again or substitute its own decision for that of the Tribunal from which the appeal is brought.

The decisions

1. [16]

   The first defendant wrote to Mr Fisher on 6 June 2011. The letter is relevantly headed “Suspension of Driver Authority Notice to Show Cause to Cancel”. It informed Mr Fisher that

2. [17]

   Under the heading “The reasoning process that led to the decision”, the Statement of Reasons set out the following matters:

3. [18]

   The first defendant then wrote to Mr Fisher on 14 July 2011 giving him immediate Notice of Cancellation of his authorisation to drive buses. The attached Statement of Reasons set out in some detail the basis of the decision. Some of the matters set forth in the statement are as follows:

4. [19]

   The letter to Mr Fisher then proceeded to set forth details of the process by which evidence was collected and collated, including the obtaining and examination of daily vehicle checks, driver log books and telephone records. Cross referencing this material led the Department to conclude that Mr Fisher had used his mobile phone while driving his bus on 28 occasions between 17 November 2010 and 5 April 2011. The letter then proceeded to set out a number of complaints that had been received as follows:

5. [20]

   The letter then set out what is described as the Reasoning Process that led to the decision. It included the following:

6. [21]

   Judicial Member Molony published his reasons for judgment on 25 May 2012: see AJO v Director-General, Department of Transport [2012] NSWADT 101. It dealt with a review of decisions made by the Director-General of Transport to suspend and subsequently to cancel Mr Fisher’s authority to drive a bus under the Passenger Transport Act. Mr Molony described the background to the dispute in the following way:

7. [22]

   Mr Molony proceeded in some considerable detail to state the applicable law and to review the factual material upon which the complaints against Mr Fisher were made. He dealt separately with each complaint and made findings concerning all of them. Under the heading EVALUATION, he concluded as follows:

8. [23]

   Deputy President Hennessy published her reasons for judgment on 21 May 2014: see AJO v Roads and Maritime Services [2014] NSWCATAP 21. The proceedings in that Tribunal concerned Mr Fisher’s application for leave to appeal out of time against the decision of Mr Molony affirming the decisions to suspend and cancel his school bus driver authority. Mr Fisher originally appealed within the 28 day time limit but withdrew that appeal.

9. [24]

   The Deputy President dismissed the application upon two bases. They are referred to in her conclusion as follows:

10. [25]

    In considering the merits of the proposed appeal, the Deputy President took account of Mr Fisher’s specific submissions with respect to his contention that Mr Molony had erred. Those matters included a misapplication of clause 101 of the Passenger Transport Regulation 2007, the denial of procedural fairness, a failure to take account of all relevant considerations and errors in the fact finding process. These complaints were to some extent re-agitated in this Court.

Submissions

1. [26]

   Mr Fisher provided over 200 pages of written submissions detailing his concerns with the proceedings to date. These submissions include excerpts from media coverage, email exchanges with the Department of Transport, complaints from parents, transcripts, and correspondence with lawyers. These submissions were supplemented by oral submissions to the following effect.

2. [27]

   Mr Fisher contended that Mr Molony failed to take into account a relevant consideration, namely, the effect upon him and his family that resulted from the cancellation of his driver authority. He contended that Mr Molony chose the most severe option available under the legislation and failed to consider alternatives under s 14 of the Passenger Transport Act either to suspend or vary his driver authority. He argued that a consideration of the catastrophic consequences for him would and should have led Mr Molony to choose some less severe option that would still have satisfied the need to protect the public. For example, Mr Fisher suggested that it would have been equally open to Mr Molony temporarily to suspend his driver authority while he attended mandatory counselling. Mr Fisher pointed to material in his 18 June 2017 affidavit that he contended demonstrated that his evidence regarding significant financial harm in a difficult period for him was rejected. He contended that by rejecting such evidence Mr Molony put it beyond his ability to balance the subjective considerations against the wider imperative of protecting the community.

3. [28]

   Counsel for the first and second defendants maintained that evidence of hardship was not relevant to the exercise of judicial discretion. On the contrary, s 14 of the Act called for regard to be had to the purposes of the Authority. The issue was whether Mr Fisher was a fit and proper person, which was a determination that had to be made upon relevant evidence and not upon the consequences of an adverse finding. Moreover, Mr Averre submitted that there never was any specific evidence or submissions articulated before Mr Molony concerning Mr Fisher’s personal circumstances or hardship. Mr Molony considered the options available to him under the legislation and was ultimately guided to the conclusion that cancellation was the only outcome.

4. [29]

   Mr Fisher also argued that the defendants had acted with some improper and extraneous purpose. He contended that in making the original decision, the first defendant was influenced by external pressure from the media and that it failed properly to carry out the required investigative process. Mr Fisher maintained that the Department supported him throughout the 12 months during which the students’ parents waged a campaign against him, but that it very quickly changed its approach in the face of adverse media attention. In support of this, Mr Fisher took me to various pieces of correspondence from Transport NSW, from concerned parents and media sources. Mr Fisher maintained that the Department’s change of attitude between 2 June 2010 and 6 June 2010 was “more than just a coincidence”, and suggested that the Department succumbed to building pressure to appease the media and the public rather than reaching a conclusion based on the merits.

5. [30]

   Mr Averre accepted that there was intense media scrutiny of the Department’s position at that time. He contended, however, that Mr Fisher had not produced evidence to support the contention that the decisions to suspend or cancel his bus driver authority had been improperly influenced by such matters or that there was some error in the decision making process. He contended that the decision to cancel the authority was ultimately entirely open to the Department, and that it provided reasons to justify the decision. Whilst external pressure may have been evident, no error could be demonstrated.

6. [31]

   Mr Fisher also submitted that the Department made the decision to cancel his driver authority in contempt of stays that were then in place granted by Deputy President Hennessy on 14 July 2010 in relation to the decision to suspend the authority and a further stay granted on 14 July 2010 in relation to the cancellation. Mr Fisher argued that the subsequent cancellation of his driver authority was therefore made in error and was unlawful.

7. [32]

   Mr Averre responded by pointing out that the stays related to Mr Fisher’s ability to drive buses, and did not simultaneously constrain the Department from considering or investigating the complaints against him. The stays simply operated to permit Mr Fisher to continue to drive pending a final determination by the Tribunal, upon which his authority to drive came to an end.

8. [33]

   Mr Fisher’s written arguments in this Court can be conveniently considered in a series of categories. These are referred to in turn.

9. [34]

   Mr Fisher maintained that throughout the chain of decision making there were several occasions upon which the authorities “exhibited contempt for the law” and “engaged in abuse of public trust and resources”. That included the suspension of his driver authority in the wake of adverse media coverage, the cancellation of the driver authority the following day, the cancellation of the partnership’s school bus contract, the attack upon his character as a fit and proper person, and the consideration of certain information and material as part of a “dirt finding exercise”. Mr Fisher’s written submissions include transcripts from a Today Tonight segment that went to air on 6 June 2011, which Mr Fisher says “solidified the Authority’s resolve” and sealed his fate. Ultimately Mr Fisher contends that the first and second defendants fell into error by acting in a “prejudiced and predetermined way to remove the driver with the purpose of appeasing the media”.

10. [35]

    The defendants’ response to these contentions emphasises that Mr Fisher has not provided any evidence sufficient to support the existence of any improper purpose on the part of the decision maker. In order to make out such a ground, Mr Fisher would have to demonstrate that the improper purpose complained of was a substantial purpose in the sense that the decision or act complained of would not have occurred but for the improper purpose: Warringah Shire Council v Pittwater Provisional Council (1982) 26 NSWLR 491.

11. [36]

    In my opinion, there is material from which it is reasonable to conclude that the first and second defendants were aware of escalating external pressure at the time when suspension and cancellation of Mr Fisher’s driver authority was being considered. So much is accepted by those defendants. However, Mr Fisher is unable to establish the existence of a causal link between the adverse attention and pressure on the one hand and the decisions ultimately reached on the other hand. The evidence simply does not demonstrate that the defendants were improperly motivated or improperly influenced. The decisions to suspend and to cancel were well within power and the limits of the applicable law.

12. [37]

    Mr Fisher contends that there was an express failure by the ADT and NCAT to make a finding regarding his “good repute”. That is one of the matters that can be taken into account in relation to holding a driver authority. However, this “issue” was considered both by Mr Molony and Deputy President Hennessy. Mr Molony said this at [131]:

13. [38]

    Deputy President Hennessy said this at [34]:

14. [39]

    It is to be noted that Mr Molony gave a very detailed exposition of the applicable law. Part of that related to the different questions of fitness and propriety and reputation:

15. [40]

    In my opinion, Mr Fisher’s concerns are ill founded. Consideration of Mr Fisher’s “good repute” became irrelevant once a determination had been made that he was not a fit and proper person to be a driver. Mr Molony put it this way:

16. [41]

    Mr Molony’s finding that Mr Fisher was not a fit and proper person was open to him and obviated any requirement to consider the separate question of whether Mr Fisher was a person of good repute. As he acknowledged at [32], issues of character may play a determinative role in deciding whether a person is fit and proper. However, there is a difference between the two. Mr Molony did not fall into error in declining to consider what he regarded as the contradictory evidence concerning Mr Fisher’s reputation.

17. [42]

    This has already been discussed. Mr Fisher’s point centres upon the contention that Mr Molony failed properly to consider the adverse impact upon Mr Fisher and his family of a decision that prevented him driving a bus. Mr Fisher contended that the decision was “unreasonably and unnecessarily harsh to the extent that no reasonable person would have made the decision”.

18. [43]

    It is not in contest that the decision to cancel Mr Fisher’s driver authority had severe consequences for him and his family. He suffered adverse personal and financial difficulties as a direct result. That was in fact acknowledged during the decision making process. However, s 14 of the Passenger Transport Act requires that, when assessing what action to take, a decision maker is to have regard to the purposes of the authority, which are set out in s 11(2). Section 12(2) also provides as follows:

19. [44]

    Relevantly, the Passenger Transport Regulation provides that a driver must be of good repute and a fit and proper person, as well as have sufficient responsibility to drive the vehicle concerned in accordance with law and custom. That regulation, together with the Agency’s Guidelines for Managing School Student Behaviour on Buses, clearly set out the necessary standards to which drivers are expected to adhere. It was open to Mr Molony to assess Mr Fisher’s conduct in light of the required behavioural standards, and to draw the conclusion that Mr Fisher did not have sufficient responsibility or aptitude to fulfil the demands of the role. As was said in Lal v Director General, Department of Transport [2001] NSWADT 74 at [47]:

20. [45]

    The decision of which Mr Fisher complains may well have had dire consequences for him. It was made with the need to protect the safety and wellbeing of school students who travelled on buses driven by him. It was a decision that the original decision makers were entitled to make. It was later affirmed without jurisdictional or procedural error.

21. [46]

    Mr Fisher contends that there was an “act of obfuscation by the Authority”, an abuse of the merits review jurisdiction and a failure by Mr Molony properly to case manage the matter. Specifically, Mr Fisher submits that “the Authority’s attempts to import operator material were a corrupt attempt to widen the net beyond assessment of [him] as a bus driver”. This relates to an allegation that Mr Fisher’s role as the operator of a bus service was inappropriately taken into consideration upon the question of his fitness and propriety to retain a bus driver authority. He contends that this allowed the case to become “unduly expensive, onerous and obscure”. It can be inferred that, whilst Mr Fisher does not specifically allege this in his submissions, he felt that including “the bus operator material” also unfairly altered the standards to which he was held accountable.

22. [47]

    Mr Molony referred to several behavioural guidelines regarding the requirements for bus operators. These references were however substantially referable to the standards set out for bus drivers. These formed the basis of his decision. Any reference to Mr Fisher’s role as a bus operator may have been instructive as to the surrounding circumstances, but did not in my view lead to any error. As Deputy President Hennessy mentions at [30] of her decision, the fact that certain evidence considered was relevant to Mr Fisher’s role or conduct as an accredited bus operator does not necessarily mean that it was not also relevant to the question of whether he was a fit and proper person to be the driver of a school bus. Mr Fisher was legally represented before Mr Molony and no objection to the admissibility of the material would appear to have been taken in any event.

23. [48]

    Mr Fisher alleges that he had no real prospect of obtaining a fair hearing and that there was a “constructive failure by Judicial Member Peter Molony to properly case manage the case”. Mr Fisher makes reference to s 3(b) of the Administrative Decisions Tribunal Act 1997, which ensures that “the Tribunal is accessible, its proceedings efficient and effective and its decisions are fair”. Further, Mr Fisher makes reference to an attempt by opposing counsel to introduce fresh allegations “through the back door”.

24. [49]

    The defendants in response maintained that Mr Fisher, who was legally represented, was given every proper opportunity to be heard on all issues and every aspect of the evidence.

25. [50]

    I do not consider that there is any material to support or to suggest that the decision making process was inaccessible or inefficient. I do not understand the contention that there was some kind of case management failure.

26. [51]

    This ground relates to the incident in 2010 when Mr Fisher allegedly demanded that a misbehaving child get off the bus, only then to drive away without him after he wandered away to find shelter from the rain. The child had walked to a nearby town in order to telephone his father. Mr Fisher submitted that he did not intend to abandon the child but that it was in any event an isolated incident in a decade of driving. Mr Fisher contended that Mr Molony’s findings about this incident were “clearly hyperbole” and that his conduct had not amounted to a breach of the behavioural guidelines. Further, Mr Fisher submitted that he was denied the opportunity to give evidence about the matter, which itself amounted to a denial of procedural fairness.

27. [52]

    The relevant portion of Mr Molony’s decision about this incident is as follows:

28. [53]

    It is apparent that this issue was clearly identified and argued before Mr Molony. Mr Fisher was given the opportunity to respond to it and to give evidence about it. I am unable to conclude that there was any denial of procedural fairness.

29. [54]

    Mr Fisher referred to Mr Molony’s finding at [92] that “pulling over to enable him to engage in calls while driving students is at odds with his duties”. Mr Fisher submitted that it was not open to Mr Molony to make such a finding given the lack of evidence regarding the nature of the calls and whether the bus was standing or parked when they were made. He submitted further that Mr Molony’s considerations went beyond those to which the first defendant had regard.

30. [55]

    However, as noted by Mr Molony at [19] of his decision, it is well established that in considering an application for review, the Tribunal may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. Deputy President Hennessy also pointed out at [23] of her decision that “it is not a breach of the rules of procedural fairness for the Tribunal to rely on evidence which the Respondent did not rely on when making its decision”.

31. [56]

    Mr Fisher’s contention that Mr Molony was not entitled to consider anything beyond that which was considered by the original decision makers is not correct. Mr Molony’s reasons include a thorough discussion of the evidence regarding Mr Fisher’s use of telephones, and it was open to him to agree with the conclusions drawn by the Agency.

32. [57]

    Mr Fisher contends that Mr Molony’s finding that he had conceded that he had thrown a bag of rubbish out the door of the bus was an erroneous finding with no evidence to support it. However, Mr Fisher gave evidence and was cross-examined about this incident before Mr Molony. The transcript of that cross-examination includes the following:

33. [58]

    Mr Fisher’s complaint cannot be accepted having regard to this material.

34. [59]

    Mr Fisher contends that Mr Molony “clearly favoured a subset of teenagers because in my mind they were children, closing his mind to all evidence adverse to the subset”. He submitted that Mr Molony “perversely made findings…to incriminate [Mr Fisher] for things…not done and/or said”. Mr Fisher points to parts of Mr Molony’s decisions, such as his statement at [12] that “the situation has been rumbling along for some years”. Mr Fisher claims that such language is evidence of apprehended bias and contempt.

35. [60]

    The test for assessing the existence or otherwise of apprehended bias in a decision maker is well known: Ebner v Official Trustee (2000) 205 CLR 337; [2000] HCA 63 at [6]-[9]. Would a fair minded and informed observer conclude in this case that Mr Molony could not have been impartial or that he could have failed to approach the issues with an open mind? The question is whether the alleged source of bias could or might affect the decision maker’s objectivity.

36. [61]

    I have found it difficult to understand Mr Fisher’s complaints in this context to be anything more than an expression of dissatisfaction with Mr Molony’s decision. I have examined his very detailed reasons and am unable to discern any evidence of predisposition or prejudgment. Mr Fisher has not identified any matter that could reasonably be thought to qualify as bias or what Mr Fisher refers to as contempt.

37. [62]

    Mr Fisher draws attention to several findings made by Mr Molony that he contends are erroneous or lack evidentiary support. These relate to phone calls made by Mr Fisher whilst in his bus, rubbish thrown from the bus and his status as an operator of the bus service. Unfortunately there was significant evidence before Mr Molony on all of these issues and it went unchallenged by Mr Fisher’s legal representative.

38. [63]

    Mr Fisher argues that video or mobile camera footage showing him using a mobile phone had been modified to show an earlier date that he submits led the Authority to believe that he had not sufficiently heeded the warning given to him regarding his conduct. He submits further that evidence regarding the misbehaviour and bullying by the students on his bus, as well as the parents’ motives in making complaints against him, were not adequately considered. Mr Fisher contends that the first defendant “had a duty to go to those witnesses and interview them in fullness [sic] and call into proceedings both sides of the story”. Mr Fisher maintains that enquiries made during the decision making process were deliberately limited, having a prejudicial effect on his prospects of a fair decision.

39. [64]

    As Deputy President Hennessy pointed out at [40]-[42] of her reasons, the fact that s 73(2) of the Administrative Decisions Tribunal Act provides that the Tribunal “may inquire into and inform itself on any matter”, does not translate into a duty to do so or to obtain evidence that neither party has chosen to adduce. There is no statutory duty upon the Tribunal to make the type of enquiries or investigations suggested by Mr Fisher. The Tribunal fell into no error in declining to do so.

40. [65]

    This ground relates to the comment made by Mr Molony in his reasons at [74] as follows:

41. [66]

    Mr Fisher is concerned that Mr Molony’s reference to him as “a country school bus driver” was an irrelevant distinction and that Mr Molony’s use of that term somehow inappropriately elevated its significance in this case. I understand Mr Fisher to contend that Mr Molony’s deliberations should have been based upon the assessment of his conduct as “a bus driver”, not as any particular type of bus driver.

42. [67]

    Two things need to be said about that submission. First, as I read Mr Molony’s decision, his use of the expression “country school bus driver” was no more and no less than a statement of an otherwise anodyne and uncontested fact. Mr Fisher was, at the relevant time, a country school bus driver. It is a fact that is difficult to contest. Secondly, whether or not the fact was irrelevant, Mr Fisher has failed to demonstrate how the allegedly irrelevant matter was taken into account in a way that led to an erroneous result in his case. It would be different if Mr Molony had somehow expressly or by implication purported to apply a different standard to Mr Fisher by reason of his being a country school bus driver than that which would or might have been applied to his metropolitan counterpart. That has not been done and Mr Fisher has not pointed to any material to support the suggestion that it has been.

43. [68]

    Mr Fisher submits that the decision to cancel his bus driver authority was “unreasonably and unnecessarily harsh to the extent no reasonable person would have made the decision”.

44. [69]

    Mr Fisher fails to identify which decision or decisions it is that he contends fall into this category, although it is reasonably clear that it relates most significantly to Mr Molony’s decision to affirm the cancellation of his bus driver authority. As was explained in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [76]:

45. [70]

    It does not seem to me that either Mr Molony’s or Deputy President Hennessy’s decision lacks an evident or intelligible justification. If I may say so with respect, each decision is thorough and well structured. Upon a fair reading of either decision, one is left in no doubt about what the conclusions are or why they have been reached. There is neither an absence of reasons nor insufficient reasons.

Summary and conclusions

1. [71]

   It is clear from the detailed evidence given by Mr Fisher, starting with his childhood, through his teenage years and early work experiences, his marriage and family life, and his determined life of hard work that culminated in the acquisition of a successful business, that he now feels an enormous sense of loss. His business is gone. His marriage has failed. He faces an uncertain future. The prospect of resurrecting what he had is both daunting and distant.

2. [72]

   In Mr Fisher’s opinion, this tragic combination of circumstances germinated from what he considers to be insignificant events that were unreasonably and unnecessarily magnified beyond any realistic assessment of their importance. Whatever indiscretions or failure to follow the rules of which Mr Fisher might have been guilty, it was all because of a vindictive group of parents and students that his driver authority was cancelled. The decision was taken, in Mr Fisher’s view, in the face of several lesser and preferable alternatives that could have spared him the ruins in which he has now been left.

3. [73]

   Mr Fisher has never been able to accept, and in my opinion will never be able to accept, that any of this is the legitimate result of his own conduct. Indeed, as far as I can determine, Mr Fisher remains in steadfast denial that the things he is alleged to have done were done. I take him to deny the allegations that he drove his bus while speaking on a mobile phone. I am uncertain what his present response is to the allegation that he put a student off his bus in a remote location. I cannot be sure whether he accepts or rejects the contention that he threatened a student with violence concerning the window incident. The fact that he has suggested a short period of suspension with a course of counselling rather indicates that Mr Fisher accepts that some of what has been said against him may be true. On the other hand, it may be that Mr Fisher merely considered that to have been a preferable option even notwithstanding the false and scurrilous accusations mounted against him.

4. [74]

   Mr Fisher’s approach to these matters has operated in these proceedings to elide his dissatisfaction with a series of decision makers without any apparent or consistent discrimination among them. It has been difficult, therefore, to discern from the summons and Mr Fisher’s extensive written submissions, including his additional submissions forwarded to my Associate some months after the conclusion of the hearing before me, precisely what ground is alleged against which party.

5. [75]

   It is timely to bear in mind that Deputy President Hennessy was concerned with Mr Fisher’s belated attempt to resurrect his appeal out of time. The Deputy President did not cancel or suspend Mr Fisher’s driver authority and she did not hear evidence from witnesses who spoke against him. She determined the application having regard to the fact that Mr Fisher had earlier made and withdrawn an application for leave to appeal and that his second application was effectively late for reasons that were unsatisfactory. She also assessed his prospects of success in the light of his several proposed appeal grounds, all of which have resurfaced in this Court. The Deputy President said this at [17]:

6. [76]

   The Deputy President then proceeded to consider the merits of the main grounds of appeal, including misapplication of the Passenger Transport Regulation cl 101, procedural fairness, relevant considerations and alleged errors in the fact finding process. She also considered Mr Fisher’s concern that there was a failure by the Tribunal to make inquiries (referred to above), that evidence was overlooked and that Mr Fisher should be permitted to lead fresh evidence. Her conclusion at [52] of her judgment has already been set forth above at [24].

7. [77]

   Although Mr Fisher has appeared with counsel or solicitor in other jurisdictions in these long running proceedings, he was not legally represented in this Court. That is both understandable and regrettable. His written submissions attest to the fact that Mr Fisher is preoccupied with a sense of injustice and grievance at the way he has been treated and the position in which he currently finds himself. His affidavit is replete with pejorative references to his accusers and what he refers to as “the subset”. I accept that his feelings in that respect are not without a genuine emotional foundation.

8. [78]

   However, these proceedings are directed, in lay terms, at an assessment of the correctness of decisions made by various decision makers, not at the morality or motives of the parents of students who travelled on his bus, or of the students themselves.

9. [79]

   The precise terms of the relief sought by Mr Fisher in his Further Amended Summons (Judicial Review) are as follows:

   1. (1)

      The determination of the NCAT Deputy President Nancy Hennessy refusing leave to appeal to NCAT Appeal Panel out of time on the substantive matter is declared invalid and set aside.

   2. (2)

      Decision by the first and second defendant suspending the plaintiff’s public passenger driver authority 6 June 2011 declared invalid and set aside.

   3. (3)

      Decision by the first and second defendant cancelling the plaintiff’s public passenger driver authority 14 July 2011 declared invalid and set aside.

   4. (4)

      Original decision Administrative Decisions Tribunal P H Molony 25 May 2012 declared invalid and set aside.

   5. (5)

      Damages.

   6. (6)

      Costs from commencement of proceedings 6 June 2011.

   7. (7)

      The first and second defendant issue a public apology by way of the Sydney Morning herald, the Daily Telegraph Sydney, the Canberra Times, Brisbane Times.

   8. (8)

      Such further or other orders as this Honourable Court sees fit.

   9. (9)

      Alternatively, the matter be remitted to the NSW Civil and Administrative Tribunal Appeal Panel for redetermination in accordance with law.

   10. (10)

       Expenses.

10. [80]

    In my opinion, Mr Fisher has not established that he is entitled to any of the relief that he claims, or indeed any relief at all. It follows that the further amended summons should be dismissed with costs.