Hayek v RTA

Local Court of NSW|2005-01-28|Before: Anor Studdert J, Simpson J

This matter proceeded before me on 6 May 2005. Evidence as summarised above was given. The Roads and Traffic Authority presented its case, (as I understand the position by consent) principally through the tender of documents. This was supplemented by oral evidence from Mr. Pino Corvini, who was cross-examined by Mr. Bartley. Neither Mr. Taylor for the RTA or Mr. Bartley for the appellant sought to raise this issue of there being a difference between the expression "fit and proper person" and "…of suitable character" at the hearing before me. Likewise, Mr. Bartley in the hearing before me took no issue with the contents of the letter from the RTA dated 28 January 2005. It was only when I began my own research on the matter that I realised that there may well be a difference the expression "not a fit and proper person" as it appears in the letter of 28 January 2005 advising the appellant the RTA's decision, and "not of suitable character" to use the expression in Regulation 63, which has been set out above. I then indicated that the matter required further argument. The matter came before me on 27 May 2005 when both parties made supplementary submissions.

The issue now arises whether the fact that the RTA in its letter of 28 January 2005 used the expression that the appellant was "not a fit and proper person" to hold the relevant licence is fatal to the RTA given that the test as set out in Regulation 63 is that the applicant must be of "…of suitable character". Not surprisingly, the RTA argues that it is not. Mr. Bartley, for the appellant argues that it is. The RTA further maintain that the expressions "fit and proper person" and "of suitable character" have the same or interchangeable meanings. Mr. Bartley on behalf of the appellant argues differently.

The appellant in lodging his appeal against the decision of the RTA maintained that he was of suitable character to hold the Authorities. The appellant conducted his case when the matter initially came before me on the basis that he was of suitable character. No issue was initially taken before me on the issue of the content of the letter of 28 January 2005. It was only when I raised the issue that the appellant embraced the difference between the letter and the Regulation as a point of contention.

In his supplementary submissions, Mr. Bartley argues that the Regulations provide for two difference tests for two different circumstances. These are that new applicants must be of "suitable character" and that current licence holders must be "fit and proper persons" to continue to hold the licence. Mr. Bartley further argues that the RTA in maintaining in their letter of 28 January 2005 that the appellant was not a "fit and proper person" to hold an authority has applied the wrong test.

A complicating feature of the matter presently under consideration is that the appellant had previously held a licence that had been cancelled by the RTA. Accordingly, although Regulation 63 applied it could not be said, in my opinion, that the appellant was a "new" applicant. The appellant was already well known to the RTA. He was well known to them because of breaches of the Rules. The word "new" in that context, in my opinion, would mean someone who has never held a licence. Even if I were wrong about the meaning of the word "new" my ultimate decision in the present matter would not be different.

Mr. Taylor for the RTA in this regard referred me to the decision of the South Australian Supreme Court in Coombe -v- Wells (1975) 12 SASR 342. In particular, I was directed to the (dissenting) judgment of Bray CJ at pp. 351 to 353 inclusive, and to the judgment of King J. (as he then was) at p.356-7.

However, Mr. Taylor also referred me to Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448. At pp. 451 - 2 Walsh JA said: "I think, further, that we are entitled to inquire into what may be described as personal misconduct, as distinct from professional misconduct, in determining in this case whether or not the applicant is a man of good character, whilst recognising that there may be some kinds of conduct deserving or disapproval which have little or not bearing on the question whether or not it is shown that an applicant for registration as a medical practitioner is a person of good character. Ina this respect, I think that some assistance can properly be obtained as to the mode of approach to be made from observations made in cases where the question was whether or not the person was a fit and proper person to be a barrister, such as those made in Ziems -v- Prothonotary of the Supreme Court of NSW 97 CLR 279 by Dixon CJ at p. 285, by Fullagar J. at pp. 288 and 290 and Kitto J. at pp. 298 and 299 and by Taylor J. at p. 301.

I note that Gummow J. in the decision of Melbourne -v- The Queen cited the decision of Ex parte Tziniolis; re The Medical Practitioners Act with apparent approval - see the judgment of Gummow J. at paragraph [66] at p. 25. My independent researches have not located any decision or authority contrary to Ex Parte Tziniolis -v- The Medical Practitioners Act. It seems that in determining whether someone is of suitable character for the purposes of a particular occupation, regard can be had as to whether that person is a fit and proper person to be a member of that profession, trade or calling.

I have already stated that the various audits conducted on behalf of the Roads and Traffic Authority demonstrate in the plainest of terms a gross dereliction of duty in his work and undertakings as a motor vehicle examiner. The admitted breaches detailed in the audits of October 2003 and March 2004 are serious matters indeed. The individual breaches are within themselves serious. However, their seriousness is aggravated by the course of conduct shown. That same course of conduct of gross dereliction of duty occurred in respect of both the inspections for the pink slips and the blue slips. This conduct of the appellant falls very far short of what the public in general and those who may be on in the vicinity of a roadway have the right to expect.

The appellant was on notice as early as January 2004 that administrative action could be taken by the RTA in respect of the detected breaches. Indeed, the appellant has his authorities cancelled. A magistrate of this court purported to grant a stay of the suspension on 28 May 2004. At the risk of further repetition, the appellant should have been very well aware that the RTA would be keeping careful watch on the manner in which he conducted himself as a motor vehicle examiner. The fact that further serious breaches occurred within the "stay period" beggars belief.

Given the history of the breaches, and the extent of the breaches, and in particular the fact that serious breaches occurred within the stay period the Court cannot in my opinion be the least bit confident of the assurances now given by the appellant that he will be more careful in the future, that he will get special lighting, and that no further breaches will occur. It is remarkable indeed that the appellant maintains that part of the trouble in recording misdescriptions of the vehicles was a problem he was experiencing with his eyesight; but yet he comes to court to prosecute this appeal without having consulted or even having made an appointment to visit a relevant medical practitioner.

Applying the legal principles outlined above, I am of the opinion that the appellant IS NOT a fit and proper person to be authorised to examine motor vehicles for the purposes of the Road Transport (Vehicle Registration) Regulation 1988.

I now turn to the consideration whether or not the appellant is "…of suitable character" for the purposes of Regulation 63. Applying the various matters to which I have referred above, in particular the decision of the High Court in Melbourne -v- The Queen, the decision of the New South Wales Court of Appeal in Ex Parte Tziniolis; Re the Medical Practitioners Act and the decision of Miles CJ in Clearihan -v- The Registrar of Motor Vehicle Dealers in the ACT, the expression character must go beyond the lack of criminal convictions.

For the reasons expressed above, I am of the opinion that character must include matters of general repute. I am further of the opinion that those matters of general repute must be reviewed and considered in the context of the work being undertaken. In all the circumstances, I AM NOT of the opinion that the appellant is "of suitable character" within the meaning of that expression with Regulation 63 of the Road Transport (Vehicle Registration) Regulations. Again, there are very important issues relevant to the safety of the public that need to be considered.

Difference between "Fit and Proper Person" and "…of suitable character"

It is regrettable that the letter from the RTA to the appellant dated 28 January 2005 used the expression "not a fit and proper person" rather than the wording of Regulation 63. Given that the legislation body responsible for creating the Regulations has chosen to use the expression "…of suitable character" in Regulation 63 and has also chosen to use the expression "fit and proper person" in other Regulations (notably Regulation 67) it cannot be that the two expressions have precisely the same meaning.

However, I cannot accept the submission of Mr. Bartley for the appellant that the two expressions have completely different meanings. They both refer to the qualifications of a person to carry out the functions of a motor vehicle examiner. Both expressions must be examined and defined in the context of the type of work or profession being undertaken. Of particular significance is the extract of the judgment of Walsh JA in Ex parte Tziniolis; Re The Medical Practitioners Act at pp. 451-2 as set out above.

Clearly, although the expressions cannot have precisely the same meaning, the meaning of the two expressions must nevertheless be very similar. It is also important to consider the intention of the legislative body responsible for creating the Regulations. This intention, clearly enough, is to ensure that only suitable persons are authorised to undertake the relevant vehicle inspections.

In circumstances where character in the context of the relevant Regulation must, on the authorities to which I have referred include a consideration of and relationship to the work being undertaken, and given the findings of fact I have made, the vast majority being breaches of the relevant Rules admitted by the appellant, it seems to me that it would have been inevitable that had the RTA applied the test of "suitable character", the result would have been the same, and the authority that was sought would have been declined.

The appellant had previously held the relevant authorities. Those licences had been taken from the appellant because of admitted breaches. The substantial part of the proceedings (i.e. those conducted on 6 May 2005) was conducted by the appellant on the basis that the test was that he was of "suitable character". I have come to the conclusion that the appellant is neither a fit and proper person, nor is he of suitable character for the purposes of holding the relevant motor vehicle examiner's licences.

In all the circumstances, I am of the opinion that the wording of the letter from the RTA dated 28 January 2005 using the expression that the appellant was not a "fit and proper person" rather than the expression "not of suitable character" as provided for by Regulation 63 does not mean that the appeal must therefore, and for that reason alone, succeed.

Formal Order THE APPEAL BY MAMDOUH HAYEK AGAINST THE DECISION OF THE ROADS AND TRAFFIC AUTHORITY NOTIFIED BY LETTER DATED 28 JANUARY 2005 IS DISMISSED.

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.

CITATION: Hayek v RTA [2005] NSWLC 9 JURISDICTION: Civil PARTIES: Mamdouh Hayek Roads and Traffic Authority of New South Wales FILE NUMBER: 33849/05/3 PLACE OF HEARING: Parramatta DATE OF DECISION: 06/09/2005 MAGISTRATE: CATCHWORDS: RTA - Application - Authority Cl 63 Road Transport (Vehicle Registration) Regulation 1998. - Inspection Program Services - Suitable character - Fit and proper person - Licenses taken from appellant - motor vehicle examiner's licences - Blue slips - pink slips Road Transport (Vehicle Registration) Regulation 1998 Cl 63 LEGISLATION CITED: Road Transport (Vehicle Registration) Regulation 1998m Regulation 67 Regulation 67 (1) (b) s 413 New South Wales Crimes Act Roads & Traffic Authority of New South Wales v Mamdouh Hayek & Anor Studdert J CVaska v Director General of NSW Dept of Transport [2001] NSWSC 205 Simpson J R v Stalder [1981] 2 NSWLR 9 CASES CITED: R v Young (1999) 46 NSWLR 681 Kingston v Keprose (1987) 11 NSWLR 404 Attwood v The Queen Melbourne v The Queen (1999) 198 CLR 1 REPRESENTATION: Mr R Bartley Solicitor for and with the appellant Mr Hayek Mr Taylor of Messrs Hunt & Hunt Solicitors for the Roads and Traffic Authority ORDERS: The Appeal by Mamdouh Hayek against the decision of the Roads and Traffic Authority notified by letter dated 28 January 2005 is dismissed.

I turn initially to the standard to be applied in this type of matter. In Caska -v- Director General of NSW Dept of Transport [2001] NSWSC 205 Simpson J. at paragraph 51 said: "In argument directed to this ground (the ground under consideration was Failure to apply the Briginshaw standard of proof) of the application Mr Caska acknowledged that the magistrate expressly stated his intention to apply the Briginshaw standard of proof, but contended that he could not have done so or he would not have reached the conclusion that he did."

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