On 18 October 2022, I refused an interim application to restore Mr James Eldridge's ('the Applicant') Tow Truck Driver's Certificate. These are the reasons for my decision.
This application was filed by the Applicant on 6 October 2022. It concerns an internal review decision made by the Commissioner of Fair Trading ('the Respondent') under s42(1)(f) of the Tow Truck Industry Act 1988 on 23 September 2022 ('the internal review decision'). An interim application, called a stay application, was also filed by the Applicant with the substantive application for administrative review.
The internal review decision affirmed a decision made by another Delegate of the Respondent on 13 September 2022. Relevantly, the decision included:
'(i) permanently revoke the Applicant's Tow Truck Driver's Certificate pursuant to s41(2)(b) of the TTI Act (because the Applicant had been charged with an indictable office); and
(ii) disqualify the Applicant from holding a Tow Truck Driver's Certificate for a period of two years pursuant to s41(1)(c) of the TTI Act (because the Applicant supplied information that was false or misleading in a material particular, in, or in connection with, the application for the licence or driver's certificate).'
('the original decision').
The internal review decision took effect from 13 September 2022.
As confirmed by the Applicant in the hearing, his interim application seeks a reinstatement order of the Tow Truck Driver's Certificate pending the outcome of the substantive application for administrative review before the Tribunal pursuant to s60 of the Administrative Decisions Review Act 1997 ('ADR Act').
The Respondent opposes the granting of the interim order.
[2]
Background Facts
The Applicant on 31 May 2022 was advised by the Respondent by SMS, that his application for a Tow Truck Driver's Certificate was granted. On the same day, some 4 hours later, the Respondent sent an email to the Applicant informing him that the Tow Truck Driver's Certificate was granted in error. The Respondent subsequently cancelled the Tow Truck Driver's Certificate. The decision to cancel the Tow Truck Driver's Certificate was made under s26(2)(b), s26(3)(a), s26(3)(d) and 26(4) of the TTI Act and clause 14 of the TTI Regulations. Relevantly, those sections relate to mandatory grounds for refusing to grant an application for a Driver's Certificate concerning previous convictions of an applicant and also discretionary grounds in relation to similar type offences.
The decision made by the Respondent 31 May 2022 specifically related to a criminal conviction contained in the Applicant's criminal history. The details of the conviction are that the Applicant was convicted and fined $1,500 for breaching s 132.6 of the Criminal Code 1995 (Cth); making off without payment in the Queensland District Court at Maroochydore on 16 April 2015.
On 31 May 2022, the Applicant applied for an internal review of the decision.
On 15 June 2022, the internal review set aside the decision on the ground that once a certificate is granted (as it was granted on 31 May 2022 at 8.03 a.m. by SMS), the Respondent can only revoke the certificate by taking disciplinary action against an individual under Part 3: Division 4 of the TTI Act. As such, the Tow Truck Driver's Certificate was reinstated.
On 22 August 2022, the Respondent received correspondence from the Department of Transport and Main Roads (Queensland) in connection with an application submitted by the Applicant under a mutual recognition scheme. I note this hearing the Applicant denied that he had made an application for mutual recognition. In any event, as a result of correspondence from the Queensland authority the Respondent was informed that the Applicant was known by a previous name, Kristopher James Warren. A copy of a National Police Check Records Result dated 20 July 2022 produced by the Queensland Police Service, listed the Applicant's convictions. Without listing all of those convictions, the Applicant has been convicted, fined and sentenced, to terms of imprisonment (which were in some instances his sentence was suspended) for stealing, breach of bail undertaking, possess dangerous drugs, producing dangerous drugs, fraud and dishonesty, breach of order, wilful damage, receiving tainted property and breach of extended orders.
When the Respondent became aware of these additional offences, which were not disclosed in the Applicant's application to the Respondent, it issued on 31 August 2022, a notice for the Applicant to show cause why disciplinary action should not be taken pursuant to s 42(1)(f) of the TTI Act.
On 13 September 2022, the Respondent took disciplinary action against the Applicant which is outlined in the original decision.
[3]
Evidence
The Applicant relied on a 1 page statement dated 9 October 2022. The Respondent filed a bundle of documents on 14 October 2022 and written submissions.
[4]
Tribunal's Jurisdiction to make Interim Orders
Generally, an application for administrative review of a decision does not prevent the decision under review from taking effect. However, s 60 of the ADR Act enables the Tribunal to make an order 'staying or otherwise affecting the operation of the decision under review'.
In AVS Group of Companies Pty Limited v Commissioner of Police [2010] NSWCA 81, Campbell JA (with whom Handley JA agreed) set out the difference between a stay and the power to reinstate a licence at [96] to [97]:
'In the present case (unlike McBride v Walton), the Tribunal has a wider power than merely to grant a stay. It has power, under s60(2) ADT Act, to 'make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application.' That power is one that is wide enough to enable the Tribunal to temporarily reinstate a licence that has been revoked pending the hearing of an application for review of a decision to revoke the licence.'
The Tribunal clearly has jurisdiction to make a reinstatement order as sought by the Applicant.
In considering whether to make such an order under s 60 of the ADR Act, the Appeal Panel in QLD Protection Security Pty Limited v Commissioner of Police, New South Wales Police Force [2018] NSWCATAP 113 at [32] the principles concerning stays:
'(a) whether the order is appropriate to secure the effectiveness of the determination of the application for review;
(b) whether the order is desirable taking into account:
(i) the interests of any persons who may be affected by the determination of the application for review;
(ii) any submission made by or on behalf of the administrator who made the decision to which the application relates;
(c) the public interest;
(d) the applicant's prospects of success on the application for review.'
I address each of those matters below.
In respect of securing the effectiveness of the determination of the application for review, I find that the threshold test of an interim order being required to secure the effectiveness of the hearing is not met in this matter. This is because the decision to cancel the Tow Truck Driver's Certificate has already come into effect.
In s 60(3)(a) of the ADR Act, consideration of the interests of any person who may be affected by the determination of the application is required.
The Respondent submits that the interests of the Applicant would not be inconvenienced or adversely affected in a practical sense if an interim order were not granted. I reject this submission as it is clear in my mind that the Applicant would be adversely affected in his inability to earn an income.
However, whilst I accept on a prima facie basis that the Applicant would be so inconvenienced or adversely affected, there is no objective evidence before me of any cost, liabilities or contractual obligations that are affected by the cancellation of the Tow Truck Driver's Certificate. I have also taken into consideration that until the Tow Truck Driver's Certificate was granted, there is no evidence that the Applicant was earning an income in New South Wales. Nor was he allowed to earn an income in similar circumstances in Queensland given his submissions that he has not held a Queensland licence for some time. The Applicant also said he is involved in an application before the Queensland Civil and Administrative Tribunal concerning the Queensland authority's refusal to grant him a Tow Truck Driver Certificate.
I give minimal weight to this criteria but find that the Applicant is likely to have suffered inconvenience or is adversely affected in this regard.
The primary submission of the Respondent, which I give significant weight, is the public interest. It is of particular importance that the public interest is protected when considering the purpose of the legislative scheme surrounding the issue of Tow Truck Driver Certificates. This is clearly set out in the objects of the TTI Act. The Respondent in written submissions has also set out the second reading speech concerning the TTI Act and the associated regulations which were aimed to comprehensively restructure the tow truck industry, which was in urgent need of reform because it was an industry infiltrated by criminal elements and pervaded by fear and intimidation, physical harm and property damage.
I find given the Applicant's extensive criminal history, which was not disclosed in his original application, would cause concern to the protection of the community and the public interest is significant and outweighs the inconvenience caused to the Applicant in making an interim order.
I have considered the Applicant's submission that he enclosed with his application to the Respondent a National Police Criminal Check. That criminal check did not include the extensive criminal history that was disclosed in the Queensland check. The Applicant said he contacted the National Police Check Registry by telephone and was apparently told that the check he was granted is sufficient for his application for a Tow Truck Driver's Certificate. Despite this, and with the knowledge of extensive criminal offences in Queensland, the Applicant failed to disclose to the Respondent that history. This is problematic and troublesome.
I have also considered the relevant test concerning whether the Applicant has a reasonably arguable case. The Respondent submits that he does not have such a reasonably arguable case. The Applicant's criminal history will likely preclude him from being granted a Certificate. Whilst I make no decisive finding in this regard, at least in terms of the balancing exercise I undertake in deciding the interim application, I am not satisfied given his extensive criminal history since 2014, including dishonesty offences, fraud and breach of court orders, that the Applicant is likely to meet the fit and proper person test required by the legislative scheme.
I have also found that, subject to the Applicant further explaining his failure to disclose his Queensland criminal history to the Respondent, if the Tribunal finds that the Applicant attempted to misrepresent his criminal history in his application for a Tow Truck Driver's Certificate, the effect that may have on the substantive application may be fatal. I am not satisfied in this preliminary application that the Applicant has demonstrated he has a reasonably arguable case based on the preliminary matters and evidence which were before me in this application.
The application for an interim order is refused.
[5]
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
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Decision last updated: 26 October 2022