Di Benedetto v Transport for NSW

NCAT Occupational|2022-10-18

REASONS FOR DECISION

This is an application for administrative review of a decision made by Transport for NSW ("the Respondent") refusing to grant Mr Di Benedetto ("the Applicant") a Drivers' Authority under s 12 of the Passenger Transport Act 1990 (NSW) (the "PTA").

Background

On 29 May 2019, the Respondent issued to the Applicant a Drivers' Authority to operate a public passenger vehicle, namely a bus. The Drivers' Authority was issued after the Respondent examined the Applicant's driving record and sought submissions from him concerning a number of driving offences. Relevantly, the following offences were considered:

On 20 December 2018, the offence of 'Exceed speed limit by not more than 10 km/h whilst driving a motor vehicle';
On 21 May 2017, the offence of 'Exceed speed limit by not more than 10 km/h whilst driving a motor vehicle';
On 18 August 2016, the offence of 'Exceed speed limit by not more than 10 km/h whilst driving a motor vehicle';
On 19 September 2015, the offence of 'Not stop at red arrow;
On 12 August 2015, the offence of 'Exceed speed limit by not more than 10 km/h whilst driving a motor vehicle';
On 27 February 2015, the offence of 'Exceed speed limit by not more than 10 km/h whilst driving a motor vehicle'; and

Issue to be Determined

The Tribunal is to determine the correct and preferable decision concerning the Applicant's application for a Driver Authority having regard to the relevant factual material before me and any applicable written or unwritten law (see s 63 Administrative Decisions Review Act 1997 ("the ADR Act"). The Tribunal must, therefore, decide whether the Applicant is a person of good repute and in all other respects a fit and proper person to hold a Drivers' Authority as required by s11 of the PTA.

Relevant Legislation

The following provisions of the PTA are apposite.
Section 4 of the PTA sets out the relevant objects of the act: OBJECTS The objects of this Act are: (a) to require the accreditation or authorisation, by TfNSW, of the operators of and drivers involved in public passenger services (other than ferry services), and … (e) to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services, and …
Section 11 of the PTA provides: 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 …
Section 12 of the PTA, 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.

Evidence

The Applicant relied upon the following evidence:
Application with annexure filed 4 July 2022 - A1;
letter from NSW Police 1 July 2022 - A2;
two character references dated 23 and 27 July 2022 - A3.
The Respondent relied upon a bundle of documents filed pursuant to s 58 of the ADR Act on 4 August 2022 - R1.
I note the Applicant and the Respondent filed short written submissions. The Applicant's written submissions are found on pages 7 and 8 of R1, which includes submissions he made in applying for his Driver Authority.

The Evidence of the Applicant

The Applicant gave sworn evidence. He is a 56 year old man who resides in the north-western suburbs of Sydney. He is currently employed by the NSW Police Force as an unsworn employee in an administrative capacity. He said that as part of the application process to be employed with NSW Police he had to undergo a criminal check, which he passed. Given he passed the police criminal check, the Applicant said this should hold favourable weight in this application. I accept this may go to him being of good repute. However, little weight is attached to this evidence as it concerns his driving record and whether he is a fit and proper person to hold a Driver's Authority.
The Applicant acknowledged that he has a poor driving and traffic record. He said that he fully regrets the mistakes he has made during the period he has held a Driver's Licence from 1983. He said his past driving history troubles him deeply and he has made errors in driving. However, he has learnt from his mistakes.
In relation to the more recent traffic offences which are contained in paragraph 5 above, the Applicant explained that those offences were related to him being a new bus driver and he was still in a 'learning stage'. The Applicant said that the company he works for has never had any issue with his performance as a bus driver and apart from the traffic offences he has not come to the attention of his employer, police or others in relation to any criminal matter which might be considered in deciding whether he is a person of good repute or a fit and proper person to hold a Drivers' Authority.
The Applicant first obtained his Drivers' Authority in 2019. He spent 1 year working as a bus driver at the airport undertaking small, simple routes. Following the first year of bus driving he then took employment with Forest Coaches from September 2020 until May 2022. The Applicant in his second role as a bus driver was driving routes from Northern Beaches to Manly, Belrose, the Sydney CBD, St Ives and other areas on the Northern Beaches of Sydney. His passengers would include the general public, charters where he carried schoolchildren on excursions and to sports carnivals, and he said he drove a lot of school pick up and drop off runs for children. The Applicant left a full-time bus driver's role in about November 2021. At that time he undertook full-time employment with NSW Police and continued to work as a bus driver part-time on every second Saturday. Since May 2022 when his Drivers' Authorisation lapsed, and was not renewed, he has not driven a bus.
The Applicant was asked to explain the more recent driving offences which are contained in his driving history. In relation to the two offences which occurred on 19 and 25 November 2020, the circumstances concerned him was leaving a bus stop on Warringah Road. He said, all heavy vehicles had to slow down to 20 kilometres per hour. As he left the bus stop he picked up speed, and he was only made aware of the fines two months after he committed the offences. As he was new to route and because he was on a learning curve he was unaware that the speed limit was limited to 20 kilometres per hour.
Whilst I have sympathy for the Applicant and accept his explanation, I find it does not excuse his ignorance and inability to read speed limit signs and drive a public passenger vehicle in accordance with the law. If these offences were isolated, I may have been persuaded to allow the Applicant to be reissued his Drivers' Authority. However, given the extensive adverse traffic record, I am not inclined to do so for reasons set out below.
I asked the Applicant how he explained the other speeding offences that related to him driving a motor vehicle, particularly, in the context of those offences not being related to him driving a bus. The Applicant said that during the period of Covid-19 he was under considerable stress and he was on Job Keeper payments. It was this stress that led him to exceed the speed limit. Whilst I have sympathy for the Applicant and any other person who underwent the significant period of stress during the Covid-19 pandemic, and in circumstances where his employment was suspended, this in my view does not excuse a blatant disregard for the traffic laws when operating a motor vehicle. I also find that if there was an isolated incident of speeding, the weight I might give to that offending would likely be minimal. However, given the Applicant offended on four occasions whilst driving a motor vehicle during this period, I have given significant weight to his offending in determining this application.
The Applicant was candid in his evidence. He agreed that he had been given at least three warnings concerning his adverse driving record since being granted a Drivers' Authority in 2019. The letter from the Respondent granting the Applicant's Driver Authority clearly set out a warning that if his driving record did not improve, or if there were any further adverse offences, his Drivers' Authority may be cancelled, or suspended, or it may not be renewed when it expires. Despite this warning, the Applicant continued to offend. I place significant weight on the Applicant's offending despite this warning. I have also placed significant weight on the two letters he received from the Respondent warning him about demerit points and the effect that accumulated demerit points may have on him being able to keep his driver's licence which, in my view, are matters evidencing the Applicant's blatant disregard for road traffic rules. His failure to adhere to road traffic rules is particularly disturbing where he is driving a bus and responsible its operation. This is aggravated by the fact that he is transporting members of the public and vulnerable persons in the community such as children.
I accept the Applicant is unable to earn additional income on a part-time basis without a Driver Authority. However, I give this no weight when deciding whether his is of good repute and a fit and proper person to hold a Drivers' Authority. I also accept that the Applicant is remorseful for about his driving offences. However, since the Applicant was granted a licence he has had no less than twenty six speeding offences, which included speeding within school zones, a fine for failing to stop at a stop sign and two offences of disobey traffic lights. His record can only be described as appalling.
I have taken into consideration that most of the Applicant's offending occurred prior to him obtaining a Drivers' Authority in May 2019. However, his repeated offending since that time are serious matters which do not assist the Applicant in this application.
I have also considered that most of the more recent offending occurred within 12 months of him obtaining a Drivers' Authority. This is consistent with the Applicant's submission that he offended during a period where he was new to bus driver. I give this medium weight.
I have considered the Applicant's explanation for the offence of disobey traffic light camera detected on 11 April 2021. The Applicant said this offence occurred where he drove his bus through an amber light. He believes the rear wheels of the bus activated the red light camera. Due to the size and weight of the bus, he was unable to stop safely with passengers onboard. The Applicant said that this explanation was considered by the Magistrate when he pleaded guilty to the offence in Burwood Local Court on 1 March 2022. He contends the Magistrate accepted his explanation when sentencing him to a conditional release order pursuant to s 9(1)(b) of the Crimes (Sentencing and Procedure) Act 1999 (NSW) ("the CSPA") without conviction for 1 year. It is this conditional release order which remains in place until March 2023. I find that the Magistrate would have taken into consideration the Applicant's prior driving history, at least for the past 5 years, when considering his penalty. The Magistrate decided to sentence the Applicant by way of a conditional release order and not under s10 of the CSPA. In my mind this evidences the seriousness of the Applicant's offending, and his lengthy adverse driving record, which is a matter I have given significant weight.

Is the Applicant a person of good repute?

The Tribunal in previous decisions, which include Director-General Transport New South Wales v AIC (GD) [2011] NSWADTAP 65 ('AIC'), recognise that 'good repute' and 'fit and proper character' as described in s 11 of the PTA require 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.
The word 'attest' was considered in AIC, where the Tribunal stated at [12]: '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 … 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.'
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.'
In Saadieh v Director-General Department of Transport [1999] NSWADT 68, Hennessy DP, as she then was, 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, which relevantly include: '… 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.'
At [18], the Tribunal added: "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 rehabilitation himself or herself during that time and; any change in the applicant's circumstances such as increased support from friends, family or professional services."
The first factor in Saadieh is highly relevant. The Applicant's driving record is extremely poor. As I have set out above, the Applicant's driving record includes numerous speeding offences, fail to abide traffic light offences and also stop signs.
The Applicant's driving record is particularly serious where some of those offences were committed whilst driving a public passenger vehicle and also when driving a motor vehicle within school zones. These offences are of significance in that they are potentially dangerous to members of the public but, importantly, children. I have considered the Applicant's evidence that as part of his general driving routes whilst operating a bus he was transporting school children to and from school and on excursions. My overall impression of the Applicant's driving record is that he has a flagrant disregard for the traffic laws.
The next consideration which is listed in Saadieh is the Applicant's reputation in the community. He relies upon two references in support of his application. Those references speak highly of him as a member of the local community and of his church. I accept that the character references attest to the Applicant being of good repute in the community.
The final consideration in Saadieh is the likelihood the Applicant will reoffend or commit further traffic offences. As set out above, the Applicant is 56 years of age. He has no other known criminal offences included in his record, apart from the stated driving offences. There have been no complaints made concerning the Applicant's history whilst driving a public passenger vehicle. He has expressed remorse over his bad driving record and says that he has learnt from his mistakes and will not reoffend. I accept the Applicant is being truthful in his evidence and in his submissions made to the Tribunal.
The Applicant's driving record appears to indicate that he has changed his ways in driving since mid to late 2020 except for the failure to stop at a red light. I have considered his explanation he gave in relation to that particular offence. However, it has taken the Applicant a significant period of time to improve his driving, over 34 years, and it would appear that it is only now that his Drivers' Authority has not been renewed, that his mind has focused on a long and continuous poor driving record. The Applicant has been warned on at least three occasions of the potential outcome that may arise if he continued to offend. Despite the warnings his disregard for traffic laws continued.
Due to a long and continuous bad driving record, the Applicant has shown a flagrant disregard for traffic rules and the law. I am not confident at this stage sufficient time has passed that he can demonstrate the error of his ways. The Applicant has foregone repeated chances to change the way in which he drives to meet community expectations of a person adhering to traffic laws.
I have taken into consideration the Applicant's evidence that he intends to undergo professional training with an organisation that trains drivers of heavy vehicles, including buses. To date he has not undertaken that training. It may be within time, and with training such as that proposed by the Applicant, a different conclusion might be able to be made where the evidence establishes a more acceptable driving record. At this time the decision under review must be affirmed.
Given my findings, it is not appropriate to consider placing conditions on the Applicant's Drivers' Authority, as he contended in oral submissions.

Order 1. The decision of the Respondent made on 31 May 2022 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: 25 October 2022

Crimes (Sentencing and Procedure) Act 1999(NSW)

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Judgment (9 paragraphs)

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