Eldridge v Commissioner for Fair Trading

Role of the Tribunal

1. The Tribunal has administrative review jurisdiction over a decision, or class of decisions, of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review: s 9(1) Administrative Decisions Review Act 1997 (ADR Act). Section 45 of the Act confers jurisdiction on the Tribunal to review certain decisions including a decision to revoke a tow truck drivers' certificate or to impose a period of disqualification.
2. In determining an application for administrative review, s 63 of the ADR Act provides that this Tribunal is to decide what "the correct and preferable decision" is having regard to "any relevant factual material, and any applicable written or unwritten law". It is well established that the Tribunal is not restricted to consideration of the material that was before the Commissioner but may have regard to any relevant material before it at the time of the review: see, e.g., Tannous v Commissioner of Police [2011] NSWADT 116 at [25]. In determining an application for administrative review of a decision, the Tribunal may decide to affirm the decision, to vary the decision, to set aside the decision and make a decision in substitution, or remit the matter for reconsideration by the administrator: ADR Act, s 63(3).
3. Under s 38(2) of the Civil and Administrative Tribunal Act 2013, the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. The standard of proof that applies is the civil standard, that is, on the balance of probabilities.

The relevant law

1. Under s 23 of the Act, a driver of a tow truck is required to have a certificate. Section 41 of the Act enables the Commissioner to take disciplinary action against a certified driver for a number of reasons, including that the Commissioner is of the opinion that the driver is no longer a fit and proper person to hold a drivers' certificate (s 42(1)(f)). That is the issue in this case.
2. The expression "fit and proper" is a common statutory term and has been considered by this Tribunal and in other jurisdictions in numerous cases.
3. In Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 at 156-7 the High Court said "fit" with respect to an office is said to involve three things, honesty, knowledge and ability and that each case must depend on its own circumstances.
4. These sentiments have been echoed in cases before the Tribunal and it is generally accepted that what is fit and proper needs to be determined by reference to the activities in issue and is to be gauged in light of the nature and purpose of the activities that the person will undertake: AJO v Director-General of Transport [2012] NSWADT 101 at [26]; Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [82].
5. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said: In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.
6. As was pointed out in Saleh v Commissioner of Fair Trading [2015] NSWCATOD 68 at [17], the nature of the industry in which the person concerned wishes to operate affects a consideration of whether a person is a fit and proper person to hold a licence in that industry. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65 at [37].
7. In Eskander v Department of Fair Trading [2019] NSWCATOD 49 the Tribunal stated: In the context of the tow truck industry, any consideration of the public interest must take account of the industry's history of crime and violence that created a need for the present legislation. A review of the industry commissioned by the then State government found a pervasive culture of violence, intimidation, unconscionable conduct and dishonesty (Review of the Tow Truck Industry in New South Wales by the Hon. Peter Anderson, Final Report December 1998). Mr Anderson's interim report provided the basis for the Tow Truck Industry Bill 1998. In his second reading speech, the Minister for Transport said that the report had "described an industry infiltrated by criminal elements and pervaded by fear of intimidation, physical harm and property damage". In his final report, Mr Anderson noted that the reforms adopted in that Bill (now the TTI Act) represented a unanimous commitment on the part of the government, the opposition, other parties and all independent members of the Legislature. The reforms included measures to "Increase the standards for entry to and removal from the industry" (para 1.3), and the second reading speech referred to the bill's provisions to "tighten fit and proper requirements for those who can be involved in the industry" as being among the legislation's primary objectives.
8. In Grenfell v Director General Department of Finance and Services [2013] NSWADT 57 the Tribunal considered the effect of a past criminal record on a person's fitness and propriety and stated at [15]: The issue of whether a person is fit and proper due to past criminal conduct is a matter of judgment. In considering that issue the Tribunal is required to take into account the nature and seriousness of the original misconduct, any events relevant to an assessment of the applicant's fitness which have occurred since then, the candour with which the applicant has approached the issue of past misconduct, the applicant's explanation of the misconduct, the impact of the effluxion of time, and the applicant's present circumstances and reputation.
9. In Trombetta v Commissioner for Fair Trading [2018] NSWCATOD 167 the Tribunal was considering the application by Mr Trombetta for a tradesperson's certificate as a motor mechanic in circumstances where Mr Trombetta had been found guilty in April 2017 of several serious offences. The Tribunal stated that the convictions were relatively recent but noted that there is no necessary period before a person convicted of serious offences can be considered to be a fit and proper person. The Tribunal went on to say: The licensing requirements of the Act are not imposed by way of punishment for those convicted of crimes. They are imposed for the protection of the public.

Evidence before the Tribunal

1. The Commissioner submits that there are two matters which go to Mr Eldridge's fitness and propriety to hold a tow truck drivers' certificate:

• his criminal history; and
• the fact that he did not disclose his full history when applying for the certificate.

1. I note that under s 36 of the Act it is an offence if a person applying for a certificate makes any statement which the person knows to be false or misleading in a material particular.
2. The application form filled out by Mr Eldridge required him to provide a national criminal history records check as he had lived outside NSW within the past ten years. The form stated that acceptable criminal history checks must be issued by police or an Australian Criminal Intelligence Commission accredited body.
3. Mr Eldridge disclosed on the form that he had been convicted of an offence involving possession or supply of a prohibited drug and an offence involving fraud, dishonesty or stealing. He supplied the National Crime Check as noted above which disclosed one conviction in 2015 for "obtain services by promise to pay". He also provided a copy of his traffic record from the Queensland Police for the period 4 April 2017 to 4 April 2022 which showed he had several speeding fines and had been disqualified from driving on two occasions in 2018 for driving while a drug was present in his blood.
4. As noted above, Mr Eldridge (under that name and the name of Kristopher Warren) has a much lengthier criminal history than was disclosed on the form. That information was provided to the Commissioner by the Queensland Department of Transport and Main Roads. That Department also advised Fair Trading that Mr Eldridge had been refused accreditation in Queensland as a tow truck driver because of his criminal and traffic history. At the hearing Mr Eldridge said his Queensland accreditation had been cancelled about five years ago. He has since been refused accreditation and has sought review of that decision by the Queensland Civil and Administrative Tribunal.
5. Queensland traffic records from 2011, also provided to the Commissioner, show that Mr Eldridge had a significant number of offences prior to the period for which he had been required to submit records and that he was suspended from driving on five occasions.
6. Mr Eldridge states that he supplied the national criminal check through an on-line process as he was required to do and does not believe he misled the Commissioner. He said he contacted National Crime Check and asked why all convictions were not recorded and was advised that he had received what was required. Mr Eldridge has provided a copy of an email sent to him on 19 October 2022 from an officer at the Police Information Centre, Queensland Police Service. The officer states that in relation to the check for Mr Eldridge conducted via National Crime Check the correct information had been provided for employment purposes. The officer goes on to state that for more intensive checks a Queensland criminal history could have been obtained from a police station, although this is most often sought for court-related purposes. She goes on to state that as Mr Eldridge advised he was to obtain a national police check, he had followed the instructions by applying through National Crime Check.
7. Mr Eldridge has also provided a copy of an email dated 21 November 2022 from Queensland police which states that what will be released in a criminal history check for employment will depend on which legislation applies to the employment. For general employment, the only matters that would be disclosed would be charges that resulted in a recorded conviction in the last five years. Matters that are older (other than serious matters that were heard in the District/Supreme Court) are not disclosed as the individual is deemed to be rehabilitated.
8. Mr Eldridge states that he never applied to the Queensland authorities for mutual recognition of his NSW certificate, but this was something that he was offered by the Queensland authorities. He seems to indicate that Queensland should never have provided information about him to NSW.
9. Mr Eldridge insists that he has provided everything that he was asked to do. He also states that the problems in the tow truck industry stemmed from violent crimes and that he has never been convicted of any such offence.
10. In relation to his offending, Mr Eldridge states that he is very remorseful and that he was "young and dumb" at the time of his offending. He states that he has grown up in a lot of ways and is now the father of a 17 year old boy with a disability. Mr Eldridge states that he has been a tow truck driver his whole life and is now in a position where he cannot support his family.
11. Amanda Eldridge has provided a letter in support of Mr Eldridge. She states that losing the licence has had a big impact on his life as he cannot support his family. She states that he is also been suffering depression as a result.
12. Mr Eldridge has also provided a letter from Matt Cowton of Midcoast Towing Pty Ltd which is based in Queensland. Mr Cowton states he employed Mr Eldridge because the company has a lot of work in NSW removing cars for scrap metal. He states he strongly believes Mr Eldridge is a fit and proper person to do the job.

Consideration

1. There is no suggestion that Mr Eldridge does not possess the necessary skills and qualifications to be a tow truck driver. At issue is whether he is a fit and proper person to hold a tow truck drivers' certificate. The relevant matters for consideration are his offending and his dealings with the Commissioner, along with general considerations of his character and rehabilitation.
2. The Commissioner argues that Mr Eldridge failed to provide relevant information by not disclosing his full criminal history on the application form. The Commissioner states that the application form is not ambiguous and clearly states that interstate offences over the past ten years must be disclosed. On the one hand, at the hearing, the Commissioner seemed to accept that Mr Eldridge did not deliberately withhold information but on the other suggested he should have known that he had to disclose all offences.
3. I do not consider that Mr Eldridge set out to deliberately mislead the Commissioner. The application form required him to provide a national criminal history records check issued by police or an Australian Criminal Intelligence Commission accredited body. The check he provided was from National Crime Check which, from the form supplied, seems to be accredited with the Australian Criminal Intelligence Commission. The advice he received from the Queensland police was that he was provided with what was required. I do note, however, that it is not clear whether Mr Eldridge advised National Crime Check that the record was required for a tow truck drivers' certificate.
4. The Commissioner points out that the 19 October 2022 email from the Queensland police states that a Queensland criminal history could have been obtained from a police station for a more comprehensive history and suggests that this is what Mr Eldridge should have done. That may be so, but as Mr Eldridge states, he was told that he had obtained what was required and that the police station check was usually only for court purposes, which was not the case here. While Mr Eldridge was clearly aware that the check he had provided did not include all offences within the past 10 years, I do not believe he knowingly made a false or misleading statement.
5. As to Mr Eldridge's criminal and traffic history, both are extensive. Mr Eldridge does not deny his past but states he was young and foolish at the time of the offences. As the Commissioner points out, however, some of the offences are relatively recent and were committed by Mr Eldridge as a mature adult. The offences are not minor and include producing dangerous drugs, various breaches of bail and dishonesty offences. His traffic history discloses that as recently as 2018 he committed drug driving offences. In my view it is also noteworthy that Mr Eldridge has been refused accreditation in Queensland. As was noted by the Commissioner at the hearing, significant steps have been taken to regulate the tow truck industry which had previously been infiltrated by criminals in NSW.
6. I accept that his employer regards him positively and would like him to retain a NSW certificate. I also accept that being without his usual employment causes Mr Eldridge and his family considerable hardship, particularly as his son is disabled. Hardship to an applicant, however, cannot be treated as a relevant factor in matters of this nature: Lal v Director-General, Department of Transport [2001] NSWADT 74.
7. Given the extent and seriousness of Mr Eldridge's past offending, particularly the offences in relation to honesty along with drug offences (including driving with drugs present in his system), I am not satisfied that sufficient time has passed which would demonstrate that Mr Eldridge has turned a corner and is not at risk of reoffending. I am therefore not satisfied that at the present time he is a fit and proper person to hold a tow truck drivers' certificate.
8. That is not to say that at no point should Mr Eldridge be granted the certificate. If after a further period in the community he is able to demonstrate good behaviour and positive engagement it may well be that a further application would be considered favourably (see Cooper v Commissioner for Fair Trading [2016] NSWCATOD 15).

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: 21 March 2023