Bryant v Transport for New South Wales

NCAT Occupational|2024-04-16

Introduction

The Applicant, Mr Bryant, seeks a review of a decision by the Respondent, Transport for NSW, made on 5 December 2023 to refuse him an application for a renewal of a bus driver authority under the Passenger Transport Act 1990 (NSW), s 12. The refusal was confirmed on an internal review notified to Mr Bryant on 22 December 2023.
The Respondent's reason for the refusal was that it was not satisfied that Mr Bryant was a person of good repute and, in all other aspects, a fit and proper person. This was based on the fact that, between May 2021 and March 2022, Mr Bryant had been issued six traffic infringements for speeding less than 10 km/h over the speed limit and had been charged with one offence of speeding in excess of 20 km/h over the speed limit.

Issue to be determined

At issue in these proceedings is whether the Tribunal, exercising the same powers as the Respondent, is able to attest that the Applicant is of good repute and, in all other respects, a fit and proper person to be the driver of a public passenger vehicle.
For the reasons that follow, I have determined that the Tribunal should be able to so attest with the consequence that Mr Bryant should have his bus driver authority renewed.

Jurisdiction of the Tribunal and Onus

The Tribunal has jurisdiction to review the Respondent's decision pursuant to the Passenger Transport Act, s 52 and Administrative Decisions Review Act 1997 (NSW), s 9.
In determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material then before it, and any applicable written or unwritten law: Administrative Decisions Review Act, s 63. In doing so, it may exercise all of the functions conferred or imposed by any relevant enactment.
Neither party bears the onus of proof in proceedings such as this: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 [28]-[30], [34].

Substantive provisions

The objects of the Passenger Transport Act are set out in s 4 and include: (a) To require the accreditation or authorisation, by Transport for NSW, of the operators of and drivers involved in public passenger services; and … (e) to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services
The Passenger Transport Act, s 11 provides that a person can only drive a public passenger vehicle if they hold an authority and that an authority can only be granted if it is possible to "attest" that the person is "of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle". Specifically: 11 Authorities (1) A person who drives a public passenger vehicle (other than a ferry) is guilty of an offence unless the person is the holder of an appropriate authority under this Division. Maximum penalty: 100 penalty units. (2) The purpose of an authority under this Division is to attest: (a) that the authorised person is considered to be of good repute and, in all other respects a fit and proper person to be the driver of a public passenger vehicle, and (b) that the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates: (i) in accordance with the conditions under which a public passenger service is operated, and (ii) in accordance with law and custom. …
In this case, there was no allegation made by the Respondent that Mr Bryant lacked sufficient responsibility and aptitude to drive a public passenger vehicle. The sole controversy was whether Mr Bryant is a person of good repute and, in all other respects, fit and proper to be a driver of a public passenger vehicle.
In determining whether an authority should be issued, the Respondent is to have regard to Passenger Transport Act, s 12 that relevantly provides: 12 Criteria and procedure (1) Having regard to the purpose of an authority, TfNSW may grant authorities to persons applying for them. (2) Applicants must meet any criteria set forth in the regulations and must satisfy TfNSW as to any matter TfNSW considers relevant. (3) Procedures for the purposes of this section may be settled by TfNSW, subject to any provision in that behalf made by the regulations.
As the Appeal Panel noted in Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 at [12]: The first point to note is the use of the word 'attest'. The primary meaning of this word is 'to bear witness to; certify; declare to be correct, true or genuine; declare to the truth of, in words or writing: especially in an official capacity' (Macquarie Dictionary, 4th ed. 2005). The Parliament, in using this word, seeks, we consider, to emphasise the idea that the conferral of an authority involves a declaration of public trust. While this is true of all licensing, the word gives special emphasis to it in the present context.
In Farquharson v Director General, Department of Transport [1999] NSWADT 53, the President of the predecessor Tribunal stated at [27]: The concepts of "good repute" and "fit and proper character" involve different considerations. The former concept goes to the way in which a person is regarded by others in the community (fairly or unfairly), while the latter concept goes to an individual's intrinsic characteristics, whether they are known to others or not: see, for a detailed discussion, Re T and Director of Youth & Community Services [1980] 1 NSWLR 392 (Waddell J).
In submissions, the Respondent referred to Farquharson at [36], in which the predecessor Tribunal stated that members of the travelling public would be likely concerned to know that the driver (of their taxi, in that case) was facing a murder charge. The Respondent contended, by analogy, that members of the travelling public would be concerned to know that a bus driver had committed "numerous road safety offences". While I consider speeding offences to be matters intimately connected with road safety, I do not consider the road safety offences of the kind committed by Mr Bryant to be at all analogous to the charges faced by the Applicant in Farquarson; accordingly, I reject that submission.
In Saadieh v Director-General, Department of Transport [1999] NSWADT 68, the predecessor Tribunal noted that "being a 'fit and proper person' includes being of 'good repute'": at [12]). Then, at [17], the learned Deputy President listed five factors to be considered on the question of suitability in such cases, of which only three are presently relevant, being: 1. The nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted; 2. The applicant's driving record; and 3. The likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences.
The approach taken in Saadieh has been followed in numerous cases before this Tribunal and the former Administrative Decisions Tribunal, see for example, Armani v Director-General, Department of Transport [1999] NSWADT 20; Honyandari v Transport for New South Wales [2021] NSWCATOD 117.
In Bashir v Transport for New South Wales [2023] NSWCATOD 18 at [46], Senior Member Montgomery noted that these considerations were equally applicable to an authority such as that for which Mr Bryant has applied.
Further, in Honyandari, the Tribunal considered a number of authorities that are relevant to the issues in this matter from paragraph [39] and in particular, at [43]-[48], the Senior Member Walker stated: A history of convictions does not itself constitute prima facie evidence of bad repute. It does, however, create a presumption that the person has, among those who know of that history, a bad reputation. It places the onus on the person to establish his or her good reputation ... The difference may be a subtle one, but it is to be given effect to. Whether community members know about the less savoury aspects of the person's past is relevant: "Whether the person's criminal history is known in the community will be a factor in assessing what weight to give to the evidence of repute …. It does not, however, appear to be conclusive. Evidence of a person's repute comes from people who can say what a "specific group of people" think of the person. A person may hold a position in the community from which it is reasonable to infer that the person is well regarded: at [32]. Having a criminal record is not necessarily an absolute and permanent bar to a finding that an applicant is of good repute and a fit and proper person to hold an authority. In Armani v Director-General, Department of Transport [1999] NSWADT 20, the tribunal when setting aside a refusal of a taxicab authority stressed the need for a balancing of the positive and negative aspects of the applicant's record, including evidence of contrition and of a determination to make a new start.

Evidence and factual findings arising

The Respondent relied on the material produced by it as required under the Administrative Decisions Review Act, s 58 and another bundle of documents containing the penalty notices for each of the speeding infringements and offences against Mr Bryant.
There was no controversy between the parties that Mr Bryant had been properly charged with seven traffic speeding offences in the period between May 2021 and March 2022 and that these offences save for two, which I will mention further, involved speed cameras detecting Mr Bryant travelling in excess of 10 km/h over the speed limit but less than 20 km/h over the limit while driving a vehicle registered as a 'tourist vehicle'. There was one offence where Mr Bryant was captured driving a tourist vehicle at 8:09 AM while a school zone was in operation. He was captured travelling at 51 km/h in an area then zoned for a maximum speed of 40 km/h. The most serious offence occurred on 15 March 2022 when he was captured travelling at 68 km/h in a 40 km/hr zone on the Eastern Distributor late at night, travelling in a northerly direction. In respect of that last offence, Mr Bryant went to Court, the charges were found proven but dismissed pursuant to the Crimes (Sentencing and Procedure) Act 1999 (NSW), s 10.
In addition to a short written statement and some further oral evidence, Mr Bryant relied on the following material: 1. A personal reference from his accountant concerning Mr Bryant's good character based on their dealings over a period of nearly ten years; 2. A print out of positive reviews Mr Bryant had received as a tourist vehicle driver from the website "TripAdvisor". Many of these reviews (Mr Bryant said there were over 150) referred to the safe style of driving Mr Bryant exhibited; and 3. An updated certified driving record Mr Bryant had obtained from the Respondent showing his complete traffic record from when he first received his learner's licence in July 1988 until to April 2024. That record showed a number of lower-level speeding and other offences throughout a very lengthy period of being a licenced driver. More relevantly, it showed that after the last of the six traffic offences, in March 2022, on which the Respondent was not satisfied to attest Mr Bryant's fitness to hold an authority, there had been no further offending.
In his written statement which was partly evidence and partly a submission, Mr Bryant stated that all of his income is reliant on his ability to drive as professional passenger vehicle driver, that the speeding offences occurred during periods of lockdown related to COVID when his usual tour operation business was shut down and he was working for a company providing transport for passengers taking flights from the airport and that this work involved some pressure in ensuring his passengers arrived on time to make their flights.
The effect of Mr Bryant's evidence, as reflected in his oral submissions, was that he regretted having committed the speeding offences and had since taken steps to take himself out of the situation where he was likely to commit further offences by changing the type of work he was doing. The result of that reflection and adjustment being that he has not been found to have committed any traffic offences since March 2022.
I accept Mr Bryant's evidence regarding his consideration of his offending, and I am satisfied that he has, in fact, taken appropriate and effective steps to avoid further speeding and other traffic offences.

Consideration

Applying the first of the relevant considerations in Saadieh, it is not disputed that Mr Bryant does not have a criminal record as such; his record relates only to traffic offences. As noted in Honyandari, even a criminal record is not a permanent bar to a finding that an applicant is of good repute and a fit and proper person to hold an authority. That principle applies with even greater force, in my respectful opinion, where the record relates exclusively to traffic infringements and offences at the lowest end of the scale of seriousness.
As to the second relevant consideration arising from Saadieh; being consideration of Mr Bryant's driving record. While, as I note above, the offences are at the lowest end of the scale of seriousness, it is sometimes the accumulation of such offences that can give rise to a finding that a person is not fit and proper; see, for example, Di Benedetto v Transport for NSW [2022] NSWCATOD 133. Nor can I condone or accept that the offences Mr Bryant was charged with can be explained away or trivialised. In its reasons for decision, the Respondent noted the following with which I respectfully agree and adopt: "Speeding contributes to road fatalities and serious injuries on roads. There is no such thing as safe speeding, As you are aware, speed increases both the risk of having a crash and the severity of the crash outcome. Speed limits are designed to protect drivers, passengers, cyclists and pedestrians, and we all need to take responsibility and play our part in making sure our communities are a safe place …"
As to the third relevant consideration in Saadieh, while the traffic offence regime is punitive, there is also an element of that regime that is directed, necessarily, to deterrence and the prevention of reoffending.
The facts presented before the Tribunal, in this case, form a basis on which I am able to conclude that Mr Bryant has reflected on his offending and has made practical changes to ensure he drives in a manner that is safe for himself and his passengers. That is a significant matter since it is Mr Bryant's present circumstances and reputation that are relevant: Grenfell v Director-General of the Department of Finance and Services [2013] NSWADT 57 at [15].

Conclusion and Orders

Having regard to the above matters, I am satisfied that Mr Bryant is a person of good repute and is, in all other respects, a fit and proper person to be the driver of a public passenger vehicle for the purposes of the regulatory regime and in particular the objects of the Passenger Transport Act, s 4 which included the need to meet the expectations of the community for safe, reliable and efficient transport services.
As a consequence, I make the following orders: 1. The decision under review is set aside. 2. The application for renewal of an authority is to be remitted to Transport for NSW to allow it to issue a renewed authority to Michael Bryant under the Passenger Transport Act 1990 (NSW).

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: 08 July 2024

Crimes (Sentencing and Procedure) Act 1999(NSW)

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