Aouli v Commissioner for Fair Trading [2022] NSWCATOD 194 | Case summary

NCAT Occupational|2022-11-15

The Applicant's submissions

As noted, the Applicant relies on the testimonials that I have referred to above. Mr Jabakhangi submitted that these testimonials suggest generally that the Applicant is a hard-working family man and is presented with an opportunity to support his family through employment as a tow truck driver if granted a certificate to do so.

Discussion

The Applicant's fitness and propriety has been brought into question as a result of his long history of traffic offences. It is my view that insufficient time has passed for those offences to be disregarded.
Other than his traffic offences, there is no suggestion that the Applicant has been charged with any offences or that he has engaged in any unlawful conduct. In my view this is a relevant consideration in these proceedings.
It is also relevant that the Applicant has not been charged with any recent traffic offences. The Applicant's traffic record indicates that he has not committed any traffic offences since June 2021.
However, as Mr Wozniak has correctly pointed out, the Applicant did not give any evidence to explain his circumstances in that 16 month period. For example, it is not clear whether the Applicant was driving during that period or if he was even in the country. In the absence of that evidence I am unable to agree with Mr Jabakhangi's submission that the lack of traffic offences since June 2021 shows a demonstrated improvement in the Applicant's driving.
I also note that as the Applicant did not give any evidence to explain the circumstances of his offences or the police caution, he has also not taken the opportunity to express contrition in regard to his offences. Nor has he indicated a preparedness to comply with the Act and related legislation in the future.
I accept that those who have provided references in support of the Applicant's application are of the view that he is a person of good character. However, any consideration of whether he is a fit and proper person to hold a tow truck drivers certificate requires consideration to be given to the nature of the functions, obligations and duties the Applicant will engage in should he be granted a certificate. Without evidence from the Applicant, these factors cannot be separated from his driving record.
The public interest requires that all tow truck drivers be aware of, and comply with, traffic laws. They must not only understand and comprehend the laws that govern them; they also must act in accordance with them.
Prior conduct can provide some guidance but it is impossible to say with certainty how any individual will behave in the future. My concern is based on the Applicant's traffic record and the lack of evidence to suggest that it is unlikely to continue. The Applicant's extensive history of traffic infringements is not in dispute. It demonstrates a disregard for laws aimed at ensuring public safety. This is a relevant consideration in regard to a determination of whether or not it is contrary to the public interest for the Applicant to hold a tow truck drivers certificate. Given the extensive history of traffic infringements, and the lack of evidence to suggest otherwise, I cannot be satisfied that similar conduct will not be repeated.
In my view, more time would need to pass before I could be confident that the Applicant is likely to comply with the traffic laws in the future. Notwithstanding the Applicant's apparent good character, in my view it is not in the public interest for him to hold a tow truck drivers certificate at this time.

Order The decision under review is affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 February 2023

The Tribunal's jurisdiction

Section 9 of the Administrative Decisions Review Act 1997 ("the ADR Act") provides that the Tribunal has jurisdiction in regard to an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review. Section 45 of the Act provides for an application to the Tribunal for administrative review under the ADR Act of the decision to refuse to grant a licence or drivers certificate.
Section 63 of the ADR Act provides that in determining the application, the Tribunal is to decide what the correct and preferable decision is, having regard to the material then before it. For the purpose of conducting the review, the Tribunal may exercise all of the functions that are conferred or imposed by the relevant legislation on the Respondent.
The standard of proof applying in these proceedings is the civil standard. That is, the balance of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party.
The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at paragraph [23].
The discretion must be exercised keeping in mind the activities which are authorised by a certificate under the Act. Accordingly, the objects and purposes of the Act are relevant.

The Public Interest

As noted, the Respondent contends that it is not in the public interest for the Applicant to be granted a certificate. The Tribunal has considered the concept of 'the public interest' in a number of decisions. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated in regard to a decision to refuse to issue a security industry licence: "25 The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal."
The "public interest" allows issues going beyond the character of the Applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.
"Public interest" embraces standards acknowledged to be 'for the good order of society and for the wellbeing of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The purpose of a reference in legislation to "public interest" is 'to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the decision-maker's consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at page 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals.
The legislative regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum.

Aouli v Commissioner for Fair Trading

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Judgment (3 paragraphs)

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Cases Cited (6)

Cited By (2)