Gomez v Transport for NSW

Applicable legislation

1. The objects of the Act are set out in section 4 which provides: 4 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, …
2. Section 11 of the Act provides for authorities to drive public passenger vehicles: 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. [Note: 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. Section 12 of the Act 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.
4. Clause 44 of the Passenger Transport (General) Regulation 2017 ("the Regulations") provides: 44 Driver to notify TfNSW of alleged offence (1) The driver of a public passenger vehicle must, in accordance with this clause, furnish TfNSW with written details of the following - (a) any alleged offence (other than a parking offence) with which the driver is charged by a police officer, (b) any penalty notice issued to the driver in respect of an alleged offence (other than a parking offence) that relates to the driving of a motor vehicle. Maximum penalty - 10 penalty units. … (3) In the case of a charge that is laid by a police officer, or a penalty notice relating to the driving of a motor vehicle that is issued, on or after the commencement of this clause (other than a charge or a penalty notice in respect of a parking offence), the details are to be furnished within 7 days after the laying of the charge or the issue of the notice.

The Respondent's case

1. As noted, it is not in dispute that the District Court quashed the Applicant's conviction. However, the facts of the offence to which the Applicant pleaded guilty remain the same. The conviction was not quashed outright, and the Applicant was placed on a Conditional Release Order that does not expire until 23 February 2023.
2. The Respondent submits these facts raise a serious concern as to the impact on community confidence in public transportation should the Applicant be granted a bus driver authority. The Respondent is of the view that it should only authorise a person to drive a bus if it feels the public will show full confidence in the person with respect to their safety and well-being while being transported.
3. The Respondent further submits that the nature of the charge is serious and also notes that the victim suffered serious injuries including a fractured pelvis, fractured ribs, and a fractured clavicle. Those injuries amounted to grievous bodily harm.
4. District Court would have had regard to the full circumstances of the incident in consideration of the sentencing regime. When quashing the conviction, the District Court was of the view that the Applicant should be bound by a condition that he is to be of good behaviour for a period of twelve months. The Respondent submits that this time frame is a factor reflecting the seriousness of the offence with respect to its obligation to only authorise those it can attest are of good repute and otherwise fit and proper, to drive a bus.
5. The Respondent also notes that the Applicant failed to notify the Respondent of the charge as required by clause 44 of the Regulations and that he failed to disclose the offence on his application to renew his bus driver authority.
6. The Respondent submits that members of the public would rightly feel concerned knowing the Respondent had issued an authority to a person who has been the subject of a serious driving offence as recent as July 2021. The Respondent submits that the public would not have confidence that such conduct will not occur in the future.
7. Further, the Respondent notes that the Applicant is still subject to a Conditional Release Order until 23 February 2023.
8. As to the first of these factors, the Respondent submits that the negligent driving offence and the failure to disclose this offence in the application are relevant to the determination of the Applicant's fitness. The Tribunal must take into consideration the nature of the offence and take into account the interests of the public in ensuring that people who are issued with a bus driver authority are able to comply with certain standards as proscribed by the Regulations and any relevant Code of Conduct.

The Applicant's case

1. The Applicant attended the hearing and gave evidence. He provided written submissions in support of his case. A copy of written submissions that the Applicant's solicitor provided to the District Court is also in evidence.
2. The Applicant has held a bus driver authority since 1986. He has driven buses for the NSW Government and with Red Bus on the Central Coast of NSW. He stated that he has ensured that he has carried out his role in a professional manner and at an extremely high standard.
3. It is not in dispute that he has an excellent bus driving record.
4. In July 2021 he was involved in a car accident involving a cyclist in which the cyclist was seriously injured. The Applicant was on his way work in his private vehicle. This accident and the consequences have been extremely stressful for him as he has always held both his driving skills and responsibility driving to the highest of standards. He has been devastated for the injured cyclist. He has been in contact with the cyclist and paid for the repairs to his bike. He is grateful that the cyclist has recovered from his injuries and is back riding.
5. He is extremely remorseful for the accident and the injuries which occurred to the cyclist.
6. He notes that the guilty finding was quashed in the District Court and that no criminal record has been recorded. He was devastated when he was notified that his driver authority had been cancelled.
7. He stated that he has always been aware of the responsibility associated with carrying passengers and driving buses and regards it extremely seriously. He points to several references which show that he is held in high regard within the workplace.
8. He believes that he is an extremely responsible person who has extremely high standards and he believes that his one mistake should not be grounds to take away his driving authority.
9. He has had to resign from his job at Red Bus services and this has caused stress and anxiety for both himself and his family and gaining new employment has been extremely difficult. Red Bus services value his professionalism and work ethic and he will be able to return to work there if his authority is returned.
10. He asks the Tribunal to take all these factors into consideration when a decision is made regarding his authority.
11. In relation to the failure to notify the Respondent and his failure to disclose the District Court finding that he was guilty of negligent driving occasioning grievous bodily harm on his application to renew his bus driver he stated that he had not read the form carefully enough. He was relieved that he had not been convicted of the offence and was keen to return to work. He was not focused on the finding of guilt or the fact that the Court imposed the Conditional Release Order. In the circumstances he failed to read the question carefully. He stated that he did not intend to mislead the Respondent about the District Court outcome.

Consideration

1. The Tribunal has jurisdiction to review the Respondent's decision by reason of section 29 of the Civil and Administrative Tribunal Act 2013 and section 52 of the Act. Section 52 of the Act provides that a person whose application for an authority has been refused may apply to the Tribunal for review.
2. Under section 63 of the Administrative Decisions Review Act 1997 ("the 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. There is no onus of proof and there is no presumption that the Respondent's decision is correct.
3. In Honyandari v Transport for New South Wales [2021] NSWCATOD 117, Senior Member Walker considered a number of authorities that are relevant to the issues in this matter from paragraph [39] of his decision.
4. An authority can be granted only if it is possible 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". As the Appeal Panel noted in Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 at paragraph [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.
5. In Farquharson v Director General, Department of Transport [1999] NSWADT 53 the Tribunal's President stated at paragraph [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).
6. In Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 Waddell J stated 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".
7. In Honyandari v Transport for New South Wales Senior Member Walker stated: 43. 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. 44. 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]. 45. 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. 46. In Saadieh [v Director-General, Department of Transport [1999] NSWADT 68], 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. 47. 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". 48. Also relevant, as was stated in Keane v Roads and Maritime Services [2015] NSWCATAD 114, [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 of the Supreme Court of New South Wales v P [2003] NSWCA 320, [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.

1. The approach taken in Saadieh has been followed in numerous cases before this Tribunal and the former Administrative Decisions Tribunal.
2. In the present matter the Applicant has no prior record that is relevant to the issue for determination. As noted, he does not have a conviction in relation to the incident that occurred on 14 July 2021. However, there is a finding of guilt, and the Applicant is currently the subject of a Conditional Release Order that does not expire until 23 February 2023.
3. I agree with the Respondent that this was a serious accident as is evident from the injuries suffered by the victim.
4. I also agree with the Respondent that the District Court would have had regard to the full circumstances of the incident and that the imposition of a Conditional Release Order for a period of twelve months reflects the seriousness of the offence. I agree that this time limit is consistent with the Respondent's obligation to only authorise those it can attest are of good repute and otherwise fit and proper, to drive a bus.
5. The Applicant has indicated that he does not believe that he was totally at fault in the accident, but he has accepted responsibility for what occurred. He has included correspondence from the victim which refers to the Applicant's apology and his acceptance of responsibility. This is a consideration in the Applicant's favour.
6. The Applicant has provided references from several individuals who clearly hold him in high regard. There is also material before me that includes some unsolicited comments from passengers on buses driven by the Applicant which indicate that those individuals also held him in high regard.
7. I do not think that the Applicant's failure to notify the Respondent of the charges and his failure to declare the District Court finding in his application form was intended to mislead the Respondent. I am satisfied that it was because of a lack of attention to detail. I do not think that this failure is likely to be repeated should he reapply in the future.
8. In my view, the likelihood that the Applicant will reoffend or commit further traffic offences of a similar nature is low. Nevertheless, I agree with the Respondent that the length of time since the offence was committed is not sufficient to allow me to attest that the Applicant is of good repute and otherwise fit and proper to drive a bus.
9. In my view, the period of the period of the Conditional Release Order is a reasonable guide to time limit that would need to pass before the Respondent could attest that the Applicant is of good repute and otherwise fit and proper to drive a bus.
10. If the Applicant were to reapply after 23 February 2023, the Respondent may form a different view to that taken in the decision that is under review in this matter.
11. However, at this time, on the material that is before me, I am not able to attest that the Applicant is of good repute and otherwise fit and proper to drive a bus.
12. That being the case, the correct and preferable decision is to affirm the decision to refuse the application.

Order 1. The decision under review 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: 09 August 2022