Kokou v Roads and Maritime Services and Local Court of New South Wales

1. [1]

   By amended summons filed on 14 March 2018, Jack Kokou, the plaintiff in these proceedings, appeals against the decision of Magistrate Still on 6 December 2017 to dismiss his appeal against a decision of the Roads and Maritime Service (“RMS”), to cancel his “Authorised Inspection Scheme (“AIS”) Examiners Authority”. The amended summons describes the proceedings as both an appeal and judicial review in the alternative. The relevant statutory provision relied upon for the appeal is not stated in the amended summons.

2. [2]

   A threshold issue arises in this matter as to whether any statutory appeal lies to this Court or whether, in order for the plaintiff to succeed, he needs to establish jurisdictional error such as to invoke this Court’s supervisory jurisdiction as regulated by s 69 of the Supreme Court Act 1970 (NSW).

3. [3]

   The material placed before the Court in this matter comprised: the transcript of proceedings in the Local Court on 6 December 2017; the application to the Local Court filed 10 October 2017; the instrument of appointment appointing Rod Flynn as an Authorised Officer under the Road Transport Act 2013 (NSW) dated 28 May 2015; the transcript of a record of interview between the plaintiff and Mr Flynn dated 24 July 2017; an audit report prepared by Mr Flynn dated to August 2017; a letter from the RMS to the plaintiff dated 7 August 2017 requiring him to show cause; an undated response from the plaintiff to the notice to show cause; a letter from the RMS to the plaintiff dated 19 September 2017 cancelling his authorisation; a statement of Mr Flynn dated 1 December 2017; a ”History status” of the plaintiff dated 15 September 2017; a “Committee of Review” document and other RMS records.

4. [4]

   At the commencement of the hearing before me I enquired as to whether the parties had made any attempts to obtain the transcript of the submissions made to the Magistrate in the Local Court at the conclusion of the evidence. That transcript was central to the plaintiff’s allegation of procedural unfairness. Neither party had sought the relevant transcript. It was accepted by both parties that the transcript would need to be obtained before I could determine this matter. I indicated that I would hear the matter and reserve my decision until the transcript was obtained.

5. [5]

   After I reserved my decision in this matter, I was subsequently provided with the transcript of the submissions. Both parties indicated that they did not wish to make any supplementary submissions concerning that transcript. I deal with this additional transcript at [86] below.

6. [6]

   The following background is taken from the above documents.

7. [7]

   As at July 2017, Rod Flynn was a member of staff at the RMS and an Authorised Officer under the Road Transport Act. His duties included undertaking audits and reviews for schemes administered by the RMS. One of those schemes is the AIS. That scheme involves authorising qualified people of a suitable character to inspect and test vehicles for registration purposes (“authorised examiners”) and to operate premises where those services can be provided (“authorised proprietors”). They must carry out their functions in compliance with the AIS Business Rules for Authorised Proprietors and Proprietor’s Nominees (“AIS Rules”). The responsibilities of an authorised proprietor are set out in rules 1.01 to 1.54 and the responsibilities of an authorised examiner in rules 2.01 to 2.60.

8. [8]

   On 11 July 2017, an audit was undertaken in relation to the business “Empire Body & Mechanical Repair” (“Empire”) situated on Kings Road at Five Dock. Empire was an authorised AIS station. An audit was initiated following a complaint by a member of the public that a vehicle was passed for inspection despite having significant rust damage. That allegation was directed at the business and not the plaintiff but it led to matters being discovered in relation to the plaintiff. At that time the plaintiff was, as an authorised examiner, authorised to inspect and test vehicles for registration purposes.

9. [9]

   On 10 July 2017, Mr Flynn sat in his parked vehicle on Kings Road in Five Dock opposite the Empire premises and made a number of observations. It was a requirement of Empire, as an AIS station, that any brake tests be undertaken on Kings Road, which was the authorised brake testing route for the station, before any vehicle could be passed for inspection. Mr Flynn remained on Kings Road for a period of one-and-a-half hours, from 10:30am to 12:00pm. No vehicles exited the premises onto King Road during that time. Mr Flynn inferred from this that no brake tests had been undertaken. Despite this, the AIS records showed that nine vehicles had been passed for inspection by Empire in that period.

10. [10]

    The following day at 9:30am, Mr Flynn attended Empire and spoke to the proprietor of the business, Mr Patrick Nakhl. The plaintiff was also present at that time. The other persons who worked at Empire were Chadi Nakhl, who was overseas at the time, Jue Zhou, who was also overseas and Arthur Hanna, who was not present on the premises at that time.

11. [11]

    The records produced by Empire showed that 407 inspection reports had been issued by Empire in the previous five weeks of which the plaintiff was responsible for 107.

12. [12]

    At 1:00pm on 24 July 2017, the plaintiff was requested to attend the RMS premises at Parramatta to participate in a record of interview. He was cautioned and then participated in an interview. That interview was before the Court. During the interview, the plaintiff explained that he was also an authorised examiner at another AIS station in Fairfield, “J & J Pit Stop Automotive Repairs”. In response to questions concerning discrepancies in the reports, the plaintiff responded that he must have “mixed” it up. In relation to an inspection report for an unregistered Kawasaki motorcycle “QPM81” (“the motorbike”), the plaintiff was asked why he passed that vehicle at Fairfield when the records show he was working at Five Dock that day. The plaintiff admitted that he didn’t “sight” that motor bike.

13. [13]

    The plaintiff was also asked about a heavy vehicle that he passed on 27 June 2017. It was noted that the inspection report was issued in Fairfield but the brake test slip showed it had taken place at Empire. The plaintiff responded “same as before I just clicked the wrong one”. He went on to state that he would not let a truck through that he had not seen. Empire was not accredited to inspect heavy vehicles at that time, although the Fairfield premises were. The plaintiff indicated that he had passed heavy vehicles at Five Dock probably two or three times.

14. [14]

    When it was established that the plaintiff had passed two vehicles at Fairfield that morning as well as passing them at Five Dock at the same time, the plaintiff responded that “someone at J & J must have logged on with my pin which is visible and comes up automatically then signed the brake slip and report under my number.”

15. [15]

    When it was put to the plaintiff that, in the 90 minutes Mr Flynn was outside Empire on 10 July 2017, 10 vehicles were pass without a brake test (and thus none of them were properly inspected) he responded, “I’m not sure I can’t recall.”

16. [16]

    On 7 August 2017, a “notice to show cause” was sent to the plaintiff (“the show cause letter”). It notified him that breaches of eight different rules in relation to his authority had been identified by the RMS. The breaches were set out in table form as follows:

17. [17]

    An undated and unsigned response to the show cause letter was subsequently provided by the plaintiff. It was in these terms:

18. [18]

    On 19 September 2017, a letter was sent to the plaintiff informing him that his authorisation as an examiner had been cancelled. He was informed in that letter that he had a right of appeal to the Local Court under cl 127 of the Road Transport (General) Regulation 2013 (NSW), that the appeal must be lodged within 28 days from the date of the letter and that the grounds of appeal must be specified. He was informed that the cancellation would take effect if he failed to lodge an appeal within 28 days.

19. [19]

    On 10 October 2017, the plaintiff filed an application to the Local Court under s 45 of the Local Court Act 2007 (NSW). The grounds of the application asserted that the decision of the RMS was “unreasonable” and “harsh and out of proportion with the alleged breaches”. The application came on for hearing before Magistrate Still on 6 December 2017.

20. [20]

    Although it was clear that the audit in relation to which the notice to show cause was issued covered a large number of breaches, the solicitor for the RMS conceded that the hearing only concerned the eight matters referred to in the notice to show cause document referred to above.

21. [21]

    Mr Flynn gave evidence for the RMS and was cross-examined at length by counsel for the plaintiff.

22. [22]

    The plaintiff then gave evidence. He stated that he did not believe that all of his interview with Mr Flynn on 24 July 2017 was contained in the typed document. He stated that, during the exchange with Mr Flynn concerning whether there had been brake testing on Kings Road, he had explained to Mr Flynn that it is too difficult to do brake testing on Kings Road so they would do it out the back of the business (in a position that could not be seen by Mr Flynn at the time of his inspection). This was relevant to the breach of rule 2.13. (It had been put to Mr Flynn that Mr Kokou told him in the interview that he conducted test in the carpark. His response was that Mr Kokou had not mentioned that in the record of interview. The first time he had heard about this was from reading Mr Kokou’s response to the notice to show cause).

23. [23]

    Counsel for the plaintiff then asked the plaintiff what his response was to the allegation that he had passed a vehicle between 10:30am and 12:00pm on 10 July 2017 without conducting a brake test, that is, the alleged breach of rule 2.13. The following exchange then took place:

24. [24]

    Counsel then went on to ask the plaintiff about the allegation concerning the motorbike to which he responded that somebody at Fairfield had probably logged into his account. In relation to the alleged breach of rule 2.37, he was asked about passing the two heavy vehicles and admitted that, although he signed off saying that the work had been done at Fairfield, he had in fact inspected these trucks at Five Dock. He responded in these terms:

25. [25]

    In relation to the fact that his name appeared on documents at Fairfield when he had been at Five Dock, he explained that everybody would use the same computer and everyone’s passwords were automatically saved so anyone could accidentally sign in on someone else’s name.

26. [26]

    At the conclusion of his evidence in chief the Magistrate asked the plaintiff a number of questions in relation to the motorbike. The plaintiff agreed that he had told Mr Flynn that he had seen that bike but now accepted that he had never inspected that bike. He told the Magistrate that he does not know where the bike was at the time that he said he examined it. He explained that he believed that someone may have logged in at Fairfield and passed that bike under his name. He stated that he thought the bike was at Empire but agreed that the examination appears to have been done it Fairfield.

27. [27]

    The plaintiff was then cross-examined. He explained that Kings Road is a very busy road and difficult to conduct brake testing on. He agreed that there is no way of passing a car if you do not use the equipment. He stated, “I don’t know whether I didn’t use it. I had to have used it.”

28. [28]

    He was then asked about the heavy vehicle incident and agreed that he passed that inspection because they were good clients and he accepts that he did the wrong thing there. He agreed that he used his authority to “do a favour for a good client.” He also accepted that that was a serious breach of the AIS Rules. He accepted that not all the persons working at Five Dock were AIS examiner certified but that any of those six persons could have been using his status to pass inspections. Although initially stating that he thought that the passwords were saved automatically, he later indicated that he could not recall whether it was saved automatically or it was an option.

29. [29]

    Counsel then both gave addresses and his Honour adjourned briefly before delivering ex tempore reasons for dismissing the appeal.

30. [30]

    After setting out the procedural background to the matter, his Honour observed that the show cause letter only related to discrete events and vehicles. He went on to observe:

31. [31]

    His Honour then went on to address the matters which were contained in the show cause letter. In relation to the breach of rule 2.13 his Honour noted that the plaintiff had acknowledged that Kings Road was the approved testing area but states that he told Inspector Flynn at the time that he was using a carpark as an alternative brake testing area. His Honour went on to note:

32. [32]

    His Honour next considered the allegation in relation to the breach of rule 2.17, which was the allegation concerning the motorbike. His Honour noted that, whereas the plaintiff told Inspector Flynn that he had never sighted the motorbike, there was an entry on that day using his number where he signed a brake test document indicating that it had been conducted at Five Dock. His Honour noted that his response in the show cause letter was unclear but that his Honour’s “impression” is that in fact no examination was done. His Honour then observed:

33. [33]

    His Honour next addressed the breach of rule 2.24 relating to vehicle “TRY89P”. He noticed that there was no observed brake test conducted but that a brake test was signed by the plaintiff said to have occurred on 10 July 2017. He noted the evidence that, although a brake test was signed by the plaintiff, the brake test bears a different examiner’s number belonging to a person who was overseas at the time.

34. [34]

    In relation to the breach of rule 2.37 pertaining to the vehicles being inspected at the Five Dock premises, his Honour noted the plaintiff’s response in the show cause letter and stated the following:

35. [35]

    His Honour then went on to note the responses given by the plaintiff to Inspector Flynn where he acknowledged that he signed the brake test and acknowledged that Empire was not accredited. The printouts appear to show a brake test conducted at Five Dock whereas the inspection certificate was issued a Fairfield. His answers were the same in relation to the second vehicle.

36. [36]

    His Honour went on to refer to the plaintiff’s responses that he had “clicked the wrong one”. He then referred to the plaintiff’s answer that he “wouldn’t let a truck go through” without checking it and also that he knew that Five Dock was not accredited. His Honour then went on to observe the following:

37. [37]

    His Honour went on to dismiss the appeal. Counsel for the plaintiff then made an application for a stay of the decision for 28 days so that the applicant could appeal. After further discussion in relation to that, his Honour indicated that he did not believe he had the power to grant such a stay. The solicitor for the RMS then made an application for costs. Counsel for the plaintiff submitted that the Magistrate was “functus officio”. After hearing submissions, his Honour indicated “the figure is not, I would have thought, unreasonable in the circumstances if it is said to cover both preparation and attendance. Appellant to pay RMS cost of $1200 within 28 days.”

38. [38]

    Four grounds are relied upon by the plaintiff in the amended summons:

Threshold question: does a statutory appeal lie to the Supreme Court in this matter?

1. [39]

   A threshold question arose as to whether a statutory appeal lies from the Local Court to the Supreme Court in this matter.

2. [40]

   The plaintiff contended that such an appeal lay given the decision of Fullerton J in Roads and Maritime Services v Khan [2013] NSWSC 331 (“Khan”).

3. [41]

   Counsel for RMS submitted that, as the plaintiff’s matter was heard in the special jurisdiction of the Local Court, there was no statutory right of appeal. It was submitted that s 70(1)(c) of the Local Court Act does not allow an appeal from a Magistrate’s decision as it does not involve a criminal conviction or sentence and that, when s 70(2) of the Local Court Act is read with the privative clause contained in s 270 of the Road Transport Act, statutory appeals of this nature are excluded. The RMS conceded that there is authority for the proposition that such an appeal does lie given the decision of Fullerton J in Khan and that this Court has taken an inconsistent approach on this issue in the past.

4. [42]

   I am satisfied that no statutory appeal lies in this matter for the following reasons.

5. [43]

   Section 267(1) of the Road Transport Act provides that a person may appeal to the Local Court under Part 7.8 of that Act against an “appealable decision”. “Appealable decision” is defined in s 266(1) of the Road Transport Act and includes any decision “under the road transport legislation made in relation to the person… that belongs to a class of decisions prescribed by the statutory rules…” (s 266(1)(l)). Clause 127(a) of the Road Transport (General) Regulation renders as an “appealable decision”:

6. [44]

   In this matter the RMS informed the plaintiff in its letter of 19 September 2017 that it had determined to cancel his AIS examiner’s authority under cl 72 of the Road Transport (Vehicle Registration) Regulation 2017 (NSW). That decision took effect on 23 October 2017. In accordance with cl 127(a) of the Road Transport (General) Regulation (extracted above at [43]), that decision was an “appealable decision” under s 266(1)(l) of the Road Transport Act. Consequently, the plaintiff’s “Application to the Local Court” filed on 10 October 2017 was made under cl 127 of the Road Transport (General) Regulation 2013 (NSW) and therefore pursuant to s 267(1) of the Road Transport Act (2013).

7. [45]

   Section s 267(1) of the Road Transport Act confers jurisdiction to determine appeals against “appealable decisions” on a general basis to the “Local Court”. It does not specify which jurisdiction of the court such appeals are to be heard. The Local Court has three jurisdictions: civil; special and criminal: s 9 of the Local Court Act. The civil jurisdiction is comprised of the General Division and the Small Claims Division (s 10 of the Local Court Act) and consists of the jurisdiction conferred on it by Part 3 (ss 29 to 42) of the Local Court Act (s 9(a)). Section 30 sets out the types of proceedings that fall within the civil jurisdiction and it is in these terms:

8. [46]

   I am satisfied that the plaintiff’s s 267 appeal to the Local Court was not heard in the General Division. The only head of jurisdiction under s 30(1)-(2) that could apply to a s 267(1) appeal is s 30(1)(c) which provides that the Local Court sitting in its General Division has jurisdiction to hear “proceedings that, pursuant to any other Act, are required to be dealt with by the Court sitting in that Division.” The Road Transport Act does not assign s 267(1) appeals to the General Division. Consequently, s 267(1) appeals do not fall within the General Division and thus the civil jurisdiction of the Local Court.

9. [47]

   Nor do such matters fall into the Local Court’s criminal jurisdiction: see s 9(c) and the definition of “criminal proceedings” under s 3.

10. [48]

    Section 44 in Pt 4 (“Special Jurisdiction”) of the Local Court Act provides that:

11. [49]

    It follows that s 267(1) appeals are properly determined in the special jurisdiction of the Local Court. Section 43 of the Local Court Act provides that proceedings brought in the Local Court’s special jurisdiction are called “application proceedings” which are to commence by the issuing and filing of an “application notice” in accordance with Pt 4, Div 2: see s 45 of the Local Court Act. Consistent with this, the plaintiff commenced his appeal proceedings in the Local Court by filing an “application notice” in accordance with s 45 of the Local Court Act on 10 October 2017. It is clear that the plaintiff’s Local Court appeal was brought in the special jurisdiction.

12. [50]

    The right of a statutory appeal to this Court from the Local Court depends on which jurisdiction of the Local Court the decision was made.

13. [51]

    Section 39 of the Local Court Act provides a statutory right of appeal to the Supreme Court from decisions made in the General Division of the Local Court. Section 39(1) provides that a party to proceedings before the Local Court “sitting in its General Division” may appeal to the Supreme Court without leave on a question of law alone. Such a party may also appeal on a question of mixed law and fact, provided leave is granted: s 40(1).

14. [52]

    Appeals concerning decisions made in the criminal jurisdiction of the Local Court can be made to, inter alia, the Supreme Court under the Crimes (Appeal and Review) Act 2001 (NSW).

15. [53]

    Appeals from the special jurisdiction of the Local Court to the Supreme Court are provided by s 70(1)(c) of the Local Court Act which is, relevantly, in these terms:

16. [54]

    Section 70(2) of the Local Court Act provides that an appeal under s 70(1) may not be made “if the making of such an… appeal is prohibited by the Act or law pursuant to which the order was made.” It is to be noted that no such restriction is to be found in either ss 39 or 40 of the Local Court Act. In the present case, such an appeal is limited by s 270 of the Road Transport Act which provides that:

17. [55]

    An appeal against a Magistrate’s determination under s 267(1) of the Road Transport Act is a decision to which s 270 applies and thus this privative clause prevents an appeal to this Court under s 70 of the Local Court Act.

18. [56]

    I do not accept the RMS’ contention that the reason that the plaintiff has no right to appeal to this Court under s 70(1)(c) is because the Magistrate’s decision did not involve a conviction or a sentence. The effect of s 70(1)(c) is that an appeal to the Supreme Court from a decision in the special jurisdiction of the Local Court may be made “in the same way” that an appeal in relation to a conviction arising from a court attendance notice dealt with under Pt 2 of Ch 4 of the Criminal Procedure Act 1986 (NSW) is made, and in accordance with the rules under Pt 5 of the Crimes (Appeal and Review) Act 2001. In other words, s 70(1)(c) renders the right of appeal against convictions and sentences applicable to appeals brought under that provision. Section 115A of the Crimes (Forensic Procedures) Act 2000 (NSW) is in similar terms.

19. [57]

    It is not the terms of s 70(1)(c) of the Local Court Act which preclude a statutory right of appeal to this Court in this matter. Rather, it is the interaction of s 70(2) of the Local Court Act with s 270 of the Road Transport Act which precludes the plaintiff from appealing against the Magistrate’s decision to this Court.

20. [58]

    Counsel for RMS drew my attention to three decisions where this Court has considered appeals against Local Court decisions in circumstances where the RMS had cancelled an AIS examiner’s authority. In addition to the decision of Fullerton J in Khan, the other two decisions were of Bellew J in Dee Why Auto Clinic v Roads & Maritime Services [2017] NSWSC 377 (“Dee Why Auto Clinic v Roads & Maritime Services”) and of RS Hulme J in RTA v Love [2011] NSWSC 987 (“RTA v Love”).

21. [59]

    Khan concerned an appeal brought under s 70 of the Local Court Act. That appeal was against a Magistrate’s decision to allow an appeal brought against the RMS for refusing to grant an examiner’s authority under the applicable regulations at that time (which have since changed) and was heard in the Local Court’s special jurisdiction. Clause 13(1) of the Road Transport (General) Regulation 2005 (NSW) (the predecessor to s 267(1) of the Road Transport Act) conferred jurisdiction on the Local Court to deal with appeals brought by persons aggrieved by a decision of the RMS to refuse to issue an examiner’s authority. Clause 14(3) (the predecessor to s 270 of the Road Transport Act) provided that:

22. [60]

    During the hearing of that appeal, it was argued that the combination of cl 14(3) of the Regulation and s 70(2) of the Local Court Act did not allow an appeal from the Local Court’s determination and that this Court had no jurisdiction to hear the matter. In rejecting this submission, Fullerton J held (at [28]):

23. [61]

    I am respectfully unable to agree with her Honour’s finding to the extent that it is relied upon by the plaintiff to assert that the privative clause in cl 14(3) (and by analogy, s 270 of the Road Transport Act) does not oust the right to a statutory appeal to this Court conferred by s 70 of the Local Court Act with respect to errors of law, whilst having that effect for merits-based appeals. The proper construction of the combination of s 70(2) and s 270 is that there is no statutory right of appeal from the Local Court to this Court, whether the proceedings brought are merits-based or concern a question of law. It seems to me that what her Honour was intending to convey at [28] in Khan was that, as the High Court recognised in Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531; [2010] HCA 1 (“Kirk”), the Supreme Court enjoys a constitutionally entrenched supervisory jurisdiction for jurisdictional error even when no statutory appeal is available.

24. [62]

    Prior to the decision of Khan, RS Hulme J had considered a similar appeal in RTA v Love. In that matter the Roads and Traffic Authority (as it then was) had cancelled the examination authority of a number of persons. Appeals were made against those decisions to the Local Court by way of cl 13 and 14 of the Road Transport (General) Regulation 2005 (NSW) (the same provisions applicable as at the time of Khan). The appeal proceeded on the basis that an appeal under s 70 of the Local Court Act was available. No reference was made to the relevant privative clause in that matter.

25. [63]

    More recently in Dee Why Auto Clinic v Roads and Maritime Services, the RMS had cancelled the plaintiff’s authority to operate an AIS station under then cl 62 of the Road Transport (Vehicle Registration) Regulation 2007 (NSW) (the predecessor to what is now cl 72 of the Road Transport (Vehicle Registration) Regulation 2017 (NSW)). Although the mechanism of appeal against the decision of the RMS to the Local Court was not set out in the decision, it is to be inferred that it was made under s 267(1) of the Local Court Act. The Local Court appeal was determined (in error) in its General Division which meant that the subsequent appeal to this Court was able to be brought under s 39 of the Local Court Act. There is no indication in the decision of Bellew J that the RMS identified that the Local Court appeal should have been heard in the special jurisdiction of the Local Court rather than the General Division and that, therefore, no appeal lay to this Court.

26. [64]

    Although I am not aware of any decision of this Court which has held that there is no statutory appeal from decisions such as the present brought in the special jurisdiction of the Local Court, I am satisfied that as a matter of statutory construction that is clearly the case. As stated above, I propose to determine this matter as one of judicial review brought in this court’s supervisory jurisdiction.

27. [65]

    As for ground 1(a), it was submitted that the Magistrate had limited the plaintiff’s evidence in chief to those matters contained in his response to notice to show cause. This submission was based on the transcript extracted above at [23]. It was submitted that his Honour was “plainly directing” that the plaintiff should not give any evidence beyond matters which had already been stated in his response to the notice to show cause and that this was a denial of procedural fairness.

28. [66]

    As for ground 1(b), it was submitted that there was a denial of procedural fairness because the plaintiff’s evidence was not challenged in cross-examination by the RMS on all of the matters in the notice to show cause and nor did the Magistrate give any indication that the Court might determine the matters on which he was not cross-examined adversely to the plaintiff. It was submitted that his Honour was not entitled, as a matter of procedural fairness, to make any findings unless the particular matters had been put to the plaintiff in cross-examination.

29. [67]

    It was further submitted that the RMS did not seek to discredit all of the plaintiff’s answers and that, once it had obtained a concession from the plaintiff concerning the incident on 27 June 2017, the cross-examination went no further. It was conceded that the plaintiff’s concession that this was a serious breach of the rules was relevant to an assessment of his overall evidence but that, in order for any findings to have been made about breaches of particular rules, those allegations had to be put to him.

30. [68]

    It was submitted that, following the cross-examination of the plaintiff, the only issues in dispute were those upon which the plaintiff had been cross-examined. That is, it was submitted that the RMS impliedly accepted the plaintiff’s explanation in relation to the other breaches. Despite this, his Honour made findings in relation to all of the breaches adverse to the plaintiff. It was submitted that he also made findings in relation to matters which were not particularised in the notice to show cause.

31. [69]

    As for ground 2, it was submitted that the Magistrate erred by failing to have regard to the notice to show cause and in particular the allegations in that document as to the specific breaches of the AIS Rules. It was submitted that any findings on matters that went beyond that notice were fundamentally unfair. This complaint went beyond a mere failure to comply with the principles of Browne v Dunn (1893) 6 R 67 (“Brown v Dunn”).

32. [70]

    As for ground 3, it was contended that the decision of the Magistrate was unreasonable for the same reasons as outlined above and that in effect, the nub of the complaint was one of procedural unfairness rather than unreasonableness.

33. [71]

    As for ground 4, although it was submitted in the written submissions that there was no evidence to establish that RMS had incurred any costs in having to come to court to defend the application, the ground was not pressed at the hearing.

34. [72]

    Counsel for the plaintiff made detailed oral submissions at the hearing in relation to each of the eight breaches and addressed why certain findings were not open to the Magistrate. Although complaint was made that two inferences were available with respect to some of the findings, no ground of inadequate reasons was asserted. I will address some of these additional submissions in my consideration below.

35. [73]

    It was accepted on behalf of the RMS that a failure to afford procedural fairness during the hearing may amount to jurisdictional error but that the requirements of a fair hearing are flexible and will depend upon all the circumstances of the case: Kioa v West (1985) 159 CLR 550; [1985] HCA 81, 613.

36. [74]

    As for the complaint that his Honour made adverse findings on unchallenged evidence, it was submitted that this was again a mischaracterisation of what his Honour’s findings were. It was put that Magistrate Still did not make any specific finding that the plaintiff was “making up” events or reinventing evidence. Rather, his Honour suggested that this was possible but remained unclear. It was argued that those comments must be understood as part of a broader consideration of the plaintiff’s reliability in the context of the appeal overall.

37. [75]

    It was submitted that a fair hearing did not require the RMS to reassert all allegations of every specific breach because those allegations had already been made and the plaintiff had had an adequate opportunity to respond to them.

38. [76]

    Finally, as to the claim that the finding was unreasonable, it was submitted that the fact that the Magistrate took a view of the evidence unfavourable to the plaintiff does not establish unreasonableness in this regard such as to amount to jurisdictional error. It was entirely open to the Magistrate to make an adverse finding against the plaintiff regarding his credibility generally.

39. [77]

    Although a number of grounds were relied upon in the amended summons, the plaintiff’s complaint was ultimately distilled to a contention that the Magistrate had denied the plaintiff procedural fairness in two respects. The first aspect of the complaint was that the RMS had conceded that it did not press all eight breaches in the notice to show cause and that, by making adverse findings contrary to those concessions, without providing notice of his intention to do so, the Magistrate had denied the plaintiff procedural fairness. The second aspect of the complaint of procedural unfairness was that his Honour made adverse findings which went beyond the eight specified breaches in the show cause letter. Before turning to consider these complaints separately, I will briefly set out the relevant principles.

40. [78]

    A failure to afford procedural fairness to a party constitutes both jurisdictional error and error of law within jurisdiction: Kirk at 569 [60], citing Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at 89 [5], 91-101 [17]-[42], 143 [170]. Thus, if I am satisfied that there was a denial of procedural fairness in this matter, I would remit the matter to the Local Court to be dealt with according to law unless there was one or more discretionary factors militating against that course.

41. [79]

    The particular procedural unfairness alleged by the plaintiff is a breach of the “hearing rule” denoted by the Latin expression, audi alteam partem, which means “hear the other side”. This rule requires the decision-maker (in this case, the Magistrate), to hear a person before making a decision affecting his interests. The High Court recently considered this aspect of procedural fairness in the context of sentencing proceedings in DL v The Queen (2018) 358 ALR 666; [2018] HCA 32. The issue in that matter was whether the Court had failed to accept a concession made by the Crown without informing the appellant that it proposed to do so. The Court (Bell, Keane, Nettle, Gordon and Edelman JJ) relevantly observed the following at 772 [39] (footnotes omitted):

42. [80]

    Although these proceedings are not criminal proceedings, the same principles apply. If the plaintiff can establish that the RMS conceded certain matters and the Magistrate failed to accept those concessions without affording the plaintiff the opportunity to respond, then that would be a denial of procedural fairness.

43. [81]

    As has been discussed, the RMS had sent a notice to show cause itemising eight breaches of the AIS Rules. The plaintiff responded to that letter and his explanations were clearly not accepted by the RMS. As a result, the plaintiff’s authority was cancelled. The plaintiff was on notice from that time that the RMS did not accept his explanations. The plaintiff’s appeal to the Local Court against the RMS’ decision was based on a complaint that the RMS should have suspended his authority rather than cancelling it and thus the result was harsh and disproportionate. The plaintiff’s position in the Local Court was that, although he admitted that he had breached some of the AIS Rules, those breaches were not sufficient to lead to a cancellation.

44. [82]

    When the solicitor for the RMS cross-examined the plaintiff, he did not expressly put to him that each of the eight breaches had occurred. Complaint is made that this breached the rule in Browne v Dunn. That rule requires a party, in relevant circumstances, to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence. The rule was explained by Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) [1983] 1 NSWLR 1 at 26 as follows:

45. [83]

    It is well established that the rule is one of fairness to ensure that witnesses have the opportunity to offer an explanation on a topic if the opposing party intends to later contradict or discredit them on that issue. It does not apply where notice has already been given by the opposing party of its position prior to the hearing. In West v Mead [2003] NSWSC 161 at [97], Campbell J observed that such notice might include the exchange of medical reports, pleadings or affidavits.

46. [84]

    In the present matter the plaintiff was on notice that the RMS alleged the eight breaches in the notice to show cause. He had previously had those allegations put to him in an interview with Mr Flynn. When the plaintiff appealed to the Local Court, he bore the onus of establishing that the decision of the RMS to cancel his authorisation was unreasonable and disproportionate.

47. [85]

    I am satisfied that the plaintiff could have had no doubt that, after the appeal was lodged, the RMS continued to allege that he had breached all eight of the AIS Rules. From the time that his authority was cancelled, he was on notice that the RMS did not accept his explanations. Not only was he on notice of this position prior to the Local Court hearing, Inspector Flynn addressed the breaches in his evidence at the hearing as well.

48. [86]

    I cannot accept the plaintiff’s submission that the RMS did not press those matters which were not the subject of cross-examination of the plaintiff. When I was eventually provided with the transcript of final submissions in the Local Court (after I reserved my decision in this matter) it disclosed that the only submission made by the RMS at the close of the evidence was as follows:

49. [87]

    At the conclusion of this short yet succinct submission, the Magistrate immediately invited counsel for the plaintiff to respond without any further questioning of the solicitor for the RMS.

50. [88]

    In his more lengthy closing submission to the Magistrate, counsel for the plaintiff accepted that there have been some breaches shown, in particular, in relation to the heavy vehicle, but that it had not been established by the evidence that there was a requirement that the brake testing be conducted on Kings Road. It was also conceded that it was possible that there was a breach in relation to the use of the online system. Counsel accepted that the plaintiff was aware of that problem and should have reported it and also accepted that there is an obligation on each examiner using the system to ensure there are no problems in relation to it but submitted that that is not a major transgression.

51. [89]

    As for the documents the plaintiff signed with other examiners' numbers on them, counsel submitted that there was no reason why the plaintiff would be falsifying those documents because he was signing them. That is, there is no reason why he would sign one document with his own signature for a different examiner. There was no fraudulent intent, only a system failure. In response to questions from his Honour, the plaintiff’s counsel accepted that the plaintiff had conceded that it was possible that the plaintiff had signed some other examiner's signature but that did not relate to a specific allegation that there was some fraudulent activity in relation to it. It was conceded that the plaintiff had not shown the amount of care that he should have shown.

52. [90]

    It is most unfortunate that I was not provided with the transcript of counsel’s closing addresses in the Local Court prior to the hearing of the amended summons in this matter. There is nothing in it to suggest that the RMS ultimately did not press all of the eight breaches. Nor do I accept the plaintiff’s submission that the RMS impliedly did so by not cross-examining the plaintiff on all eight breaches. Although it was submitted on behalf of the plaintiff that that is the only inference arising from the fact that there was no cross-examination on every single breach, it is equally likely that the solicitor for the RMS felt it unnecessary to cross-examine any further because of the poor answers to the questions already given such that his credibility was adversely effected generally. This was relevant to all eight breaches. In any event there was no rule of practice or law which required the RMS to cross-examine the plaintiff on all of the eight breaches in the circumstances of this case.

53. [91]

    In circumstances where I am satisfied that there was no concession on the part of RMS that it would not be pressing all of the breaches identified in the notice to show cause, it follows that I am not satisfied that Magistrate Still denied the plaintiff procedural fairness by making adverse findings in relation to specific breaches not pressed by the RMS.

54. [92]

    The transcript shows not only that the RMS did not resile from its position but that at no time did Magistrate Still provide any indication that the plaintiff need not address him on all eight breaches. That is, there is nothing on the transcript to suggest that his Honour had already found in the plaintiff’s favour in relation to any of the breaches. Quite the contrary, the Magistrate was clearly unimpressed with the plaintiff’s answers in response to questions asked of him by his Honour.

55. [93]

    As for the complaint that the Magistrate had prevented the plaintiff from giving evidence of matters additional to those contained in his response to the show cause notice, I am satisfied that this did not occur. Rather, his Honour’s enquiry extracted above at [23] was whether the plaintiff would provide an identical answer to one that had already been given on that particular issue. His Honour intervened to avoid repetition. In any event, it is clear from the transcript of proceedings that the Magistrate permitted additional evidence to be given despite the fact that such evidence was not contained in the plaintiff’s written response to the notice to show cause.

56. [94]

    The second aspect of the complaint that the plaintiff was denied procedural fairness in this matter is that the Magistrate’s findings ought to have been limited to the eight specified breaches of the AIS Rules in the notice to show cause being breaches of rules 2.13, 2.17, 2.24, 2.25, 2.37, 2.43, 2.49 and 2.50. Counsel for the plaintiff spent a considerable amount of time before me addressing each of these specific breaches. On occasion, the submissions went beyond the asserted ground of review of procedural unfairness and descended into a general assertion that the findings were not open to his Honour. It was submitted that, if the Magistrate was going to make serious findings that went beyond the eight breaches, his Honour should have put the plaintiff on notice of this. I propose to address each of the submissions which allege that the Magistrate made such findings on breaches beyond those he was permitted to.

57. [95]

    The evidence in support of these three representative breaches arose from the observations of Mr Flynn on Kings Road on 10 July 2017. The plaintiff’s submission was that the question of whether the brake testing was conducted on Kings Road was completely irrelevant to these breaches, which concerned whether compulsory equipment for brake testing was used, whether brake testing was done at all and whether specific testing such as the use of a decelerometer was used. It was asserted that when the RMS solicitor put to the plaintiff that a breach of 2.13 concerned a failure to use a brake test device, the RMS was confined to that aspect of the breach only and that where such testing took place was irrelevant. It was argued that the question of where the brake testing took place went beyond the eight specified breaches in the notice to show cause and that this was procedurally unfair. I do not accept that submission.

58. [96]

    The evidence of Inspector Flynn is that he waited outside the Empire premises and saw no brake testing being performed on Kings Road. From that observation, it was inferred that there had been no brake testing at all. Implicit in the conclusion that there had been no brake testing at all is the fact that there had been no use of the compulsory equipment brake test device. It is for this reason that the evidence about Kings Road was relevant – not because the Magistrate improperly made another finding that the brake testing had been conducted on the wrong road contrary to a separate AIS rule.

59. [97]

    The Magistrate did not accept that the brake testing was done in the back car park (instead of Kings Road). If he had made that finding then these three breaches could not be established. It was open to his Honour to be satisfied that the brake testing was not done in the back carpark. In the record of interview the plaintiff was asked why no testing was seen on Kings Road and he could provide no explanation. The plaintiff then signed the interview containing that answer as being true and correct. The plaintiff later raised, for the first time, the explanation that he had been conducting the brake testing on the car park behind Empire rather than on Kings Road in his response to the notice to show cause. The sworn evidence of Inspector Flynn at the hearing was that the plaintiff had not mentioned to him when he was first interviewed that the brake testing was being performed in a carpark behind the building rather than on Kings Road. He was not cross‑examined on this issue and thus it was never suggested to him that that was not the case. The plaintiff then gave evidence he had told Inspector Flynn this but it was not in the interview. He was not cross-examined about it either. In light of this evidence, it was open to the Magistrate to be satisfied there had been was no testing at all.

60. [98]

    Both the breach of AIS Rule 2.17 and one of the three particulars for the breach of AIS Rule 2.37 concerned the motorbike (discussed above). Complaint was made that the Magistrate went beyond those breaches to make findings of fraud against the plaintiff. I am not satisfied that this is the case. Magistrate Still cross-examined the plaintiff about the motorbike and was clearly confused by his answers. His Honour’s confusion was understandable. In the show cause response the plaintiff had asserted that he had worked on the motorbike and that the examination was done while the motorbike remained in the workshop but that it was stored in the spray booth due to space constraints. He completely resiled from that version by the time he came to the Local Court and gave evidence that he had never known where the bike was. He stated that he had never checked it but he accepted his name is shown as the authoriser. When his Honour asked the plaintiff where the bike was, the plaintiff indicated that he did not know, although he later stated that it was not at Empire. His Honour suggested to him: “You don't even know where the examination was done, and it wasn't done by you?" The plaintiff replied, "[w]ell, I must have mistaken it" (a different answer to the one that he gave in the interview). The Magistrate found that this was “hopeless explanation for what obviously has occurred."

61. [99]

    The Magistrate found that the plaintiff’s conduct in relation to the motorbike should be assessed on the basis either that he had never seen the motorbike (and he was lying in his response to the notice to show cause), or that his testimony is true, in which case, he is admitting to a serious breach of the rules. Although the Magistrate said that it was not necessary for him to decide this issue, complaint was made that it was open to infer that his Honour had made the more serious of the two possible findings in circumstances where he was required to make a specific finding given the nature of the appeal.

62. [100]

    I am not satisfied that there was a denial of procedural fairness by his Honour suggesting that there may have been no examination done at all. His Honour’s conclusion was that either the plaintiff did not examine the motorbike (which was a “complete abrogation” of his responsibilities) or that he did examine it (in which case, he was lying). I do not accept that such a finding was unavailable to his Honour simply because only one of those two alternatives was one of the eight breaches specified by the RMS. There was no denial of procedural fairness in making findings of this nature.

63. [101]

    The breach of 2.37 involved an allegation that the plaintiff had issued an inspection report that was false and misleading in three respects. In addition to the first particular pertaining to the motorbike, the other two particulars were the passing of the two heavy vehicles at Five Dock rather than Fairfield and the fact that he had signed numerous inspection reports when he was not the examiner. There was no dispute that these had occurred only as to whether the last of the three of them had been intentional.

64. [102]

    The breaches of 2.43, 2.49 and 2.50 all related to compliance with the online computer system. His Honour described it as “haphazard". Again the plaintiff complains that in relation to these particulars the Magistrate made findings of fraud or dishonesty that went beyond the alleged breaches. Complaint is also made that his Honour did not expressly address 2.50 at all. I am not satisfied of these allegations either. His Honour found that the record-keeping was haphazard but made no express findings of fraud. Nor could such a finding be inferred from his Honour’s findings.

65. [103]

    There was evidence that the plaintiff had signed off as the authorising officer on two occasions where it was proved that he was not in fact the person who authorised the vehicle be passed. Two inferences are available from this evidence: either there was a haphazard approach in which each of the employees (not all of whom had the plaintiff’s authority) were using each other’s passwords; or a more serious fraud was being committed. Magistrate Still was satisfied of the first of these two inferences and it was accepted that that was sufficient for a breach.

66. [104]

    Under the AIS Rules, if a person such as the plaintiff becomes aware that there is an issue, he has an obligation to report it to the RMS. The plaintiff’s answer in his response to the notice to show cause was that he was not aware. That answer was not accepted by the RMS and nor was that finding disturbed by the Magistrate. It is to be recalled that the plaintiff’s evidence was that he was aware that everyone’s authorisation number and PIN were accessible by everyone but he was not aware that people were inputting the wrong numbers. Although in cross-examination the plaintiff denied that the computer automatically saves your password, by the end of his cross-examination, he had resiled from this somewhat.

67. [105]

    The fact that the Magistrate was satisfied that the only two inferences available on the evidence both gave rise to breaches of AIS Rules, but that his Honour did not expressly state which breach he was satisfied of, does not disclose a denial of procedural fairness. By appealing to the Local Court, the plaintiff sought to disturb the findings of the RMS. Although it is to be accepted that the appeal was confined to the breaches in the show cause letter and not the large number of other breaches suggested in other material before his Honour, that did not prevent his Honour from finding, where appropriate, that alternate available inferences were even more serious than those that had been asserted by the RMS.

68. [106]

    Throughout the plaintiff’s submissions there was a general complaint about the lack of specific findings on each and every of the eight breaches in the notice to show cause. Despite this, counsel for the plaintiff accepted that it was not necessary for the Magistrate to find each and every of the eight breaches proven in order for the appeal to have been unsuccessful; the RMS is able to cancel an authority based on only one breach. The plaintiff also conceded that it would have been open to his Honour to have expressly stated that he was only satisfied that two of the breaches were proven and still be of the view that those two were sufficient to cancel the authority.

69. [107]

    His Honour was satisfied that the plaintiff had not “disturbed the findings made by the RMS" and that there had been a “total failure” to comply with conditions of the examination authority." Having regard to all of the material before him, his Honour was satisfied that the plaintiff was failed to establish that the RMS had acted disproportionately when it cancelled his authority.

70. [108]

    Although there was a general criticism by the plaintiff concerning his Honour’s reasons, no separate ground of error alleging inadequacy of reasons was raised. This Court has repeatedly observed that, in appeals to this Court, full allowance must be made for the demands on a Magistrate in a busy Local Court. As Johnson J observed in Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd (2006) 67 NSWLR 402; [2006] NSWSC 343 at [15] (albeit in the context of the hearing of criminal charges):

71. [109]

    Those observations by his Honour are apposite. The Local Court proceedings were an appeal from a regulatory decision heard in the special jurisdiction of the Local Court. It was not a prosecution where each offence has to be considered separately. His Honour provided detailed ex tempore reasons. Significant time was spent parsing them during the hearing of these proceedings for judicial review.

72. [110]

    The summons should be dismissed. It was accepted during the hearing of this matter that there was no reason why costs should not follow the event.

73. [111]

    In consideration of the above, I make the following orders:

    1. (1)

       The amended summons is dismissed.

    2. (2)

       The plaintiff is to pay the first defendant’s costs.