Birch v Commissioner of Fair Trading [2017] NSWCATAD 166
Director-General, Department of Transport v AIC [2011] NSWCATAP 65
Health Care Complaints Commission v Litchfield [1997] NSWCA 264
Keane v Roads and Maritime Services [2015] NSWCATAD 114
Source
Original judgment source is linked above.
Catchwords
Birch v Commissioner of Fair Trading [2017] NSWCATAD 166Director-General, Department of Transport v AIC [2011] NSWCATAP 65Health Care Complaints Commission v Litchfield [1997] NSWCA 264Keane v Roads and Maritime Services [2015] NSWCATAD 114Lal v Director-General, Department of Transport [2001] NSWADT 74Loye v Director-General, Department of Transport [2000] NSWADT 145Mielczarek v Commissioner of Police [2016] NSWCATAP 255
Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10
Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 320
Re T and Director of Youth and Community Services [1980] 1 NSWLR 392
Saadieh v Director-General, Department of Transport [1999] NSWADT 68
Judgment (6 paragraphs)
[1]
REASONS FOR DECISION
The applicant Mr Sang Il Cho applied to this tribunal on 19 May 2020 for review of a decision by the respondent on 29 April 2020 affirming a decision to refuse his application for a bus driver authority.
The applicant had applied for the authority on 1 April 2020. On receipt of the application, the respondent examined his criminal history and had identified an offence against him. On 10 October 2019, he had been convicted of the offence of common assault (DV) - T2, which resulted in a conditional release order for 12 months commencing on 10 October 2019 and concluding on 9 October 2020.
The application was then rejected on the ground that the respondent could not attest either to the applicant's good repute or that he is a fit and proper person to be the driver of a public passenger vehicle in accordance with law and custom, in accordance with s 11(2) of the Passenger Transport Act 1990. The applicant applied for an internal review, which was dismissed on 29 April 2020 on the same grounds. The applicant then applied to this tribunal for review of that decision.
[2]
Applicable legislation
Under s 12 of the PT Act, the Director-General may grant authorities to persons applying for them:
12 Criteria and procedure
(1) Having regard to the purpose of an authority, RMS may grant authorities to persons applying for them.
(2) Applicants must meet any criteria set forth in the regulations and must satisfy RMS as to any matter RMS considers relevant.
(3) Procedures for the purposes of this section may be settled by RMS, subject to any provision in that behalf made by the regulations.
Pursuant to s 11(1) of the PT Act, a person who drives a public passenger vehicle other than a ferry is guilty of an offence unless holding an appropriate authority. Section 11(2) explains the purpose of such authorities:
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.
(3) The regulations may create categories or grades of authority.
The issue in this application is therefore whether the respondent (and by derivation this tribunal) 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.
[3]
The evidence
The respondent called no oral evidence but relied on the s 58 documents (exhibit R1) and certain other written material (exhibit R2). The applicant also called no oral evidence but tendered written character references (exhibit A1).
The applicant's first reference was an undated letter from his wife, Kyung Van Park, which began by saying that "The husband, and his long trouble caused him to make some mistakes [and so] adding a lot of stress, hard work and economic difficulties". The episode of domestic violence was the first time in 17 years that anything of that nature had occurred and the applicant deeply regretted his conduct. He had apologized and continues to do his best for his family. Her husband had been a taxi driver for 16 years. He sincerely likes to drive and is honest and kind to guests. Sometimes he was specially asked to drive for guests.
He had graduated from the Department of Education in Korea and had a good education. The unfavourable result caused by his mistake was very unfortunate for him and she asked that he be given another chance. The family was in difficulties without his income.
The reference has a kind of appendix which appears to have been written by one of the applicant's two daughters, although no name is given. It states that his criminal conviction was "just a small mistake" and he had reflected on his actions. He was and is always a reliable and hard-working person who works very hard to support the family, even rising at 4 o'clock and heading for work. He had never taken a break.
Ms Rebecca Yan Liu, manager of Bennelong Cabs Pty Ltd, wrote on 24 June 2020 that she had known the applicant for 13 years and he was one of the best drivers, and a hard-working family man. He was a careful driver who had no accidents and had no troubles in his relationships among drivers. She felt sorry that he could not drive any more by his mistake due to cultural differences. She hoped he would return to work.
Mr Byong Man Kwong, senior pastor at Sydney Korean Evangelical Holiness Church, wrote on 13 April 2020 that the applicant was currently attending his church as a devoted believer who actively participates in the men's adult group and serves as a choir member, as well as serving as director for the Kids Ministry for several years. He is a faithful Christian who has been dedicated to their church for a number of years, even long before Mr Kwong began officiating as senior pastor.
[4]
Applicant's submissions
Both parties made oral submissions by telephone. Mr Cho submitted that he had worked for 16 years as a taxicab driver without any trouble, as the Bennelong Cabs reference showed. His conditional release order had been complied with without incident and only two months of it remained.
Referring to Mr Wozniak's query about the meaning of "long trouble" in his wife's reference, he said that she maintained that it was a misunderstanding. (Ms Park appeared to express agreement with that proposition on the telephone, but she did not give evidence.) She had meant that there had been personal differences of the kind that any couple would have in a marriage. At the time of the offence there had been some personal differences that had resulted in his displaying threatening behaviour, but there had been no violence. His wife had been shocked when he had been arrested and brought before the Local Court. Both his wife and the Minister had said that the portrayal of him in connexion with that incident was not correct.
He had been a good taxi driver for 16 years, with no complaints from customers. He submitted that once his conditional release order had expired, there would be no basis for refusing him a licence. He was his family's only earner.
[5]
Consideration
This tribunal has jurisdiction to review the respondent's decision refusing to grant the applicant an authority by reason of s 29 of the Civil and Administrative Tribunal Act 2013 (CAT Act) and s 52 of the PT Act. The latter permits a person whose application for an authority has been refused to apply to the Civil and Administrative Tribunal for review.
Under s 63 of the Administrative Decisions Review Act 1997 (ADT Act), the tribunal is to decide what is the correct and preferable decision having regard to the material then before it and the applicable law. In doing so it may exercise all of the functions conferred or imposed by any relevant enactment. There is no onus of proof as that term is generally understood: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [30], [34].
The respondent's case under s 11(2) of the Act was based on the applicant's not being a person of good character and repute. An authority under that provision can be granted only 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". As the Appeal Panel noted in Director General, Transport New South Wales v AIC [2011] NSWADTAP 65, [12], "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".
The Appeal Panel went on to explain that 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" (at [27]).
Taking it a little further, Waddell J in Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 393 said: "A person's reputation, in fact and in law, is to be found in the estimate of his moral character entertained by some specific group of people, such as those who live in the neighbourhood of his residence, those who work with him or those with whom he associates in his occupation or profession".
Further, his Honour continued, evidence of conviction for a criminal offence is admissible as evidence, indeed most cogent evidence, of bad reputation. Such convictions are the raw material upon which bad reputation is built. They have taken place in open court and are matters of public knowledge. They are acted on by people generally as the best guide to a person's reputation and standing: Loye v Director General, Department of Transport [2000] NSWADT 145, [25]
[6]
Order
1. Decision under review 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: 02 March 2023
He had come to know the applicant over the past several years, and throughout that time has found him to be a person of integrity who has a Christian character as a believer. He also has a warm heart, takes responsibility and cares for his neighbours as a good citizen. Mr Kwong believed that the applicant is really striving to resolve his family problem with his wife that happened a few months before. He has been earning his living through his driving job and it is crucial for him to get his bus driver licence. The referee believed he would be very careful after this serious occasion and had learned much through that failure.
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: id., at [27] - [29]. 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": id., at [31]. 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.
In Saadieh, Hennessy DP pointed out that "being a 'fit and proper person' includes being of 'good repute'" (at [12]). At [17] her Honour listed five factors to be considered on the question of suitability in such cases:
The nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted;
The nature, seriousness and frequency of any complaints made against the applicant;
The applicant's driving record;
The applicant's reputation in the community; and
The likelihood that the applicant will reoffend, be the subject of further complaints or commit further traffic offences.
The tribunal then added (at [18]), "In assessing the last factor, several considerations are relevant. These include: the length of time since the offence/s were committed or the complaint/s made; the circumstances in which those offences or complaints occurred or are alleged to have occurred; whether the applicant admits responsibility for the offences or complaints and shows genuine remorse; the efforts the applicant has made to rehabilitate himself or herself during that time and; any change in the applicant's circumstances such as increased support from friends, family or professional service providers".
Also relevant, as was stated in Keane v Roads and Maritime Services [2015] NSWCATAD 114 (at [53]) where a refusal was set aside, is whether the offences related to taxi (or, by analogy, bus) driving and whether they involved any sexual misconduct: see also Prothonotary v P (at [14]) On the other hand the court in the latter case noted that conduct not occurring in the course of the respondent's professional activities could, if sustained over a long period, show a systematic non-compliance with legal and civic obligations. The application to strike the practitioner off the roll was, however, dismissed.
As set out in Saadieh, the first matter to be considered in connexion with repute, fitness and propriety is the seriousness and frequency of criminal convictions. The applicant has one conviction, on 10 October 2019, for common assault against his wife, Ms Park, which resulted in his 12-month conditional release order. The police fact sheet for that offence (part exhibit R2) recounts how on 8 October 2019 Ms Park and their daughter Helen, aged 14, were in the living room of their home speaking about Helen's forthcoming trip to Melbourne for an audition. The applicant was also present and took exception to the trip on cost grounds, and had said that Helen was not good enough to get in.
He became aggressive, shouting and swearing at Ms Park. Helen began recording the incident on her mobile telephone. The applicant continued to shout and swear before pacing up to the victim and slapping her with his right open hand approximately three times on her shoulder and arm. Ms Park did not suffer any injuries. She was distressed, however, and called the police. When they arrived they found the applicant sleeping in the bedroom, where they arrested him and took him to Ryde police station. He was invited to take part in a recorded interview, which he did, during which he made full admissions about slapping Ms Park.
Ms Park did not suffer any injuries, but domestic violence is viewed very seriously. While Ms Liu suggested that his "mistake" was "due to cultural difference", the law of New South Wales does not recognize cultural difference as a mitigating factor.
Mr Wozniak submitted that the reference to "long trouble" in her character reference suggested an underlying tendency towards aggressive behaviour that would be very concerning in the case of someone driving public buses.
The applicant maintained, and Ms Park appeared to agree, that she had been misunderstood and had only been referring to the types of disagreements that all couples would have been a marriage. Be that as it may, there have been no other reports or complaints about acts of violent or threatening behaviour on the applicant's part. His driving record is unblemished.
The next Saadieh factor to be considered is his reputation in the community. Ms Park wrote that he had good relations with the public and had been specifically asked for by intending passengers. Ms Liu stated that his relations with other drivers were harmonious. Mr Kwon paid tribute to his long-standing and active involvement in the Korean church activities such as the men's adult group and the choir, as well as serving as director for the Kids Ministry for several years.
Neither Ms Liu nor Mr Kwon specifically refers to his assault conviction, and as Loye points out, a criminal conviction creates a presumption that the offender does not enjoy high repute. But Bennelong Cabs, as his employer, must have been aware of the reason why he could no longer drive taxicabs, while Mr Kwon refers to what happened a "a few months before" and opines that he has "learned a lot through this failure". His referees indicate that he feels remorse over the incident and has learned a lesson from it.
Given that he has no other criminal convictions or arrests and drove a cab for 16 years without being the subject of any customer complaints, the likelihood of any further offending conduct appears to be low. His misconduct did not arise in connexion with his work as a taxi driver and involved no sexual misconduct or dishonesty.
The fact remains, however, that his conviction is relatively recent and he is still subject to the conditional release order and will remain so until 9 October. Related to that is another important factor bearing on fitness and propriety and good repute. Among the objects of the PT Act as stated in s 4 is "(e) to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services".
In Mielczarek v Commissioner of Police [2016] NSWCATAP 255, [162] the Appeal Panel noted that "occupational regulatory schemes such as the TP Act not only directly protect the public from harm, but also help to preserve public confidence in the regulated activity and its members" (see also Birch v Commissioner of Fair Trading [2017] NSWCATAD 166, [80] - [81]). Part of that involves preserving public confidence in the licensing regulatory system itself.
In the present context, it should be borne in mind that as the holder of a bus driver authority, the applicant could be driving school buses or other vehicles carrying children or adolescents. While the evidence does not suggest that the applicant is in any way a danger to children or young people, one could understand parents of young children being troubled by the thought that their offspring were in the charge of someone who is still subject to a sentence for assault.
The applicant submitted that he could be issued with a driver authority subject to suitable conditions. That option has not found general favour in occupational licensing law. In Health Care Complaints Commission v Litchfield [1997] NSWSC 297, the Court of Appeal was concerned with the case of a doctor who had been suspended from practice because of sexual impropriety with women patients. The medical tribunal had decided to restore his registration subject to conditions including that the doctor submit to psychiatric assessment. The court thought (citing Richter v Walton NSWCA 15 July 1993, unreported) that the necessity for imposing such conditions demonstrated that the appellant was unfit to practice.
While the evidence may show that the applicant stands in reasonably good repute among those who know him, that is not the end of the matter. Good repute is not the same as fitness and propriety. Under the statutory scheme the concept of fitness and propriety goes to an individual's intrinsic characteristics (AIC, [27]) and is to be assessed in the context of the nature and purposes of the activities that the person is seeking to undertake: Sodiki v Roads and Maritime Services [2013] NSWADT 145, [38]. The question before the tribunal is thus whether the applicant is a fit and proper person to drive a public bus.
The evidence falls short of enabling the tribunal positively to attest to his being a fit and proper person to drive a bus at the present time. As was pointed out above, members of the public could well take exception to the issuance of a bus driver authority to a person who is still subject to a sentence for a significant offence of violence.
The applicant and his referees explained that Mr Cho is the sole financial support for his family. Questions of possible hardship to an applicant cannot, however, be taken into account in determining whether RMS has made the correct and preferable decision: Lal v Director-General, Department of Transport [2001] NSWADT 74, [47]
As the respondent pointed out, there is nothing to prevent the applicant from lodging a new application once the conditional release period has expired, but I express no opinion about the view that the respondent or the tribunal could or should take in those circumstances. The decision under review must therefore be affirmed.