Birch v Commissioner of Fair Trading [2017] NSWCATAD 166
Director-General, Department of Transport v AIC [2011] NSWCATAP 65
Health Care Complaints Commission v Litchfield [1997] NSWCA 264
Keane v Roads and Maritime Services [2015] NSWCATAD 114
Source
Original judgment source is linked above.
Catchwords
Birch v Commissioner of Fair Trading [2017] NSWCATAD 166Director-General, Department of Transport v AIC [2011] NSWCATAP 65Health Care Complaints Commission v Litchfield [1997] NSWCA 264Keane v Roads and Maritime Services [2015] NSWCATAD 114Lal v Director-General, Department of Transport [2001] NSWADT 74Loye v Director-General, Department of Transport [2000] NSWADT 145Mielczarek v Commissioner of Police [2016] NSWCATAP 255
Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10
Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 320
Re T and Director of Youth and Community Services [1980] 1 NSWLR 392
Saadieh v Director-General, Department of Transport [1999] NSWADT 68
The applicant Mr Behzad Safari Honyandari applied to this tribunal on 1 March 2021 for review of a decision by the respondent Transport for New South Wales on 2 February 2021 to refuse his application for an authorization to drive buses. The refusal was based on grounds specified under s 12 of the Passenger Transport Act 1990 (PT Act).
The applicant is an Iranian citizen who has previously held licences in Germany and Norway and is currently in Australia on a bridging visa. He had applied for a bus driver authority on 14 December 2020. It was refused by the respondent on 22 December 2020 on the ground of his traffic record. On 29 December 2020 he applied for an internal review, which affirmed the refusal decision on 2 February 2021.
[3]
Applicable legislation
Under s 12 of the PT Act, the Director-General may grant authorities to persons applying for them:
12 Criteria and procedure
(1) Having regard to the purpose of an authority, RMS may grant authorities to persons applying for them.
(2) Applicants must meet any criteria set forth in the regulations and must satisfy RMS as to any matter RMS considers relevant.
(3) Procedures for the purposes of this section may be settled by RMS, subject to any provision in that behalf made by the regulations.
Pursuant to s 11(1) of the PT Act, a person who drives a public passenger vehicle other than a ferry is guilty of an offence unless holding an appropriate authority. Section 11(2) explains the purpose of such authorities:
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
(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) The regulations may create categories or grades of authority.
The issue in this application is therefore whether the respondent (and by derivation this tribunal) is able 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.
[4]
The evidence
the respondent called no oral evidence but relied on the s 58 documents (exhibit R1). The applicant gave oral evidence and tendered certain written material (exhibit A1). He was also cross-examined by the respondent.
The evidence for the applicant includes a letter dated 16 January 2021 addressed to the respondent in support of his request for an internal review, containing his explanation for a number of the matters raised in his driving record.
In that letter he stated that on 30 October 2018, the panel lights in the vehicle went out while he was driving, making him unable to see his speedometer. The vehicle owner, a company known as Penguin which provides cars to collect and drop off airline pilots and cabin crew, took responsibility for the incident because of the technical fault in the vehicle, and paid the fine.
Another offence occurred when his passenger was an airline pilot who received a call while travelling to the airport and asked the applicant to travel fast because of some emergency. The applicant regrets the speeding and has become wiser from the experience. He had gained a heavy vehicle driver licence on 6 July 2015 and had been driving the maximum hours allowed under the law. He has now learned that he should control his driving for the safety of other vehicles on the road and to look after his own health and safety.
His contravention of using a mobile phone while driving on 31 August 2017 was not correct. He did not use the mobile but did touch it in order to adjust it on the telephone holder fitted in the vehicle. As a new entrant to the country, he did not know that the offence could have been appealed. At the time, he invited the police officer who charged him to check his mobile telephone to see if any calls were made or received at that time, but the officer refused to look into it, saying "I am a police officer I don't have to look at the history" and said to him "Do not argue with me". The officer further said that if he did not accept the fine, he would increase the fine. The applicant had three pilots in his car at the time who witnessed the incident and confirmed that he had not used the telephone, but unfortunately they departed overseas and he could not challenge the offence in court.
On 27 January 2017 he was fined during the early hours when he arrived in front of the Inter-Continental on Macquarie Street an hour before starting time, and therefore decided to sit inside the mini-bus and sleep. The "no stopping" prohibition was after 6 AM. When he awoke he saw the infringement notice on the dashboard. He regrets this incident and has learned the importance of obeying traffic signs and being alert at all times.
[5]
Respondent's submissions
Mr Wozniak pointed out that an authority can only be granted under s 11(2) of the PT Act if it is possible to "attest" that the person 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 New South Wales v AIC [2011] NSWADT AP 65, [12], the Legislature in using that word has sought to emphasize the idea that an authority involves a declaration of public trust. A bus driver authority permits the licensee to drive school buses and for that reason is subject to a higher standard.
Turning to the applicant's traffic record, the respondent pointed out that he had held licences only since 2015, but has accumulated 35 demerit points. He said he had been working 7 days a week, but also said there had been long periods when he did not work, but given his situation it was likely that he would recall when those periods were. On 7 September 2016 he had been suspended for 4 months, on 8 September 2017 for 10 months and on 18 January 2019 for two months. He had been suspended for nearly half of his New South Wales driving career, but had kept driving.
He said he could not recall those periods, but it was clear that he had been driving while suspended. He had also failed to comply with cl 44, which places the onus on the driver to notify the respondent of any traffic infringements. His credit was poor, given his numerous claims of inability to recall. He still held a licence that enabled him to drive trucks, but not buses. The respondent argued that there was currently a strong demand for truck drivers, a proposition which the applicant did not dispute.
[6]
Applicant's submissions
The applicant relied on the detailed written submissions filed by his solicitor on 21 May 2021, which outlined his background and pointed out that he is in a dire financial situation and is very keen to work as a bus driver to support his family and contribute to society. It was not known exactly when he applied for a bus driver authority during 2015, but as it expired on 30 may 2019, it could be assumed that the application was made some time during May 2015. Before applying for the bus driver authority, he was granted a heavy vehicle driver licence with conditions. Before his life in Australia, he had been in Germany and was granted a driving license by the German authorities. He worked as an engineer and was required to have a licence to drive heavy vehicles as part of his general work and requirements, and also during an emergency. In Australia he had worked for six months with Hillsbus, driving buses, and for over four years with several airport transport companies doing shift work on a tight roster.
The applicant worked hard during his rostered timeslots but also took on overtime work, as he needed money to support himself and his family and was ineligible for Centrelink payments. But when the Covid - 19 restrictions stopped air transport, he lost his position with the airport transport companies and for that reason decided to apply for a bus driver authority. He could have renewed his previous bus driver authority before it expired on 30 August 2019, without the scrutiny he is facing at this time.
The original assessment by the respondent under the "fit and proper person" and "good repute" criteria was not conducted in a fair and reasonable manner. The applicant is in fact a person of good repute and a fit and proper person with sufficient moral integrity, in line with the accepted norms of Australian society. He has no criminal record and has had no driving convictions for more than 14 months. That indicates his remorse and that he has learned from his mistakes in the past and taken them on board. Many of his infringements were of a minor nature, with most of the accrued demerit points caused by minor exceeding of speed limits. There are no convictions for dangerous driving, nor for exceeding the speed limit by more than 30 km/h.
Mitigating factors included the failure of the instrument lights that made him unable to read his speedometer on 30 October 2018. Another was his endeavour to help a pilot needing to get to the airport as quickly as possible for an emergency flight. On 31 August 2017 he was not using a mobile telephone while driving and was simply adjusting it on its mount. The attending police officer refused to look at is mobile telephone to see that there had been no calls made or received. The three passengers who witnessed the incident confirmed that he had not used the telephone, but they departed on international flights before the applicant was able to obtain their written testimony.
[7]
Consideration
This tribunal has jurisdiction to review the respondent's decision refusing to grant the applicant an authority by reason of s 29 of the Civil and Administrative Tribunal Act 2013 (CAT Act) and s 52 of the PT Act. The latter permits a person whose application for an authority has been refused to apply to the Civil and Administrative Tribunal for review.
Under s 63 of the Administrative Decisions Review Act 1997 (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. In doing so it may exercise all of the functions conferred or imposed by any relevant enactment. There is no onus of proof as that term is generally understood: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [30], [34].
The respondent's case under s 11(2) of the Act was based on the applicant's not being a person of good character and repute. An authority under that provision can be granted only if it is possible to "attest" that the person 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 New South Wales v AIC [2011] NSWADTAP 65, [12], "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".
The Appeal Panel went on to explain that 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" (at [27]).
Taking it a little further, 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".
Further, his Honour continued, evidence of conviction for a criminal offence is admissible as evidence, indeed most cogent evidence, of bad reputation. Such convictions are the raw material upon which bad reputation is built. They have taken place in open court and are matters of public knowledge. They are acted on by people generally as the best guide to a person's reputation and standing: Loye v Director General, Department of Transport [2000] NSWADT 145, [25]
[8]
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: 18 August 2021
His contravention on 12 September 2019 for standing in a disabled parking area occurred because the disabled sign was obscured by a tree branch. He took a photograph of it and send it to the authorities, but it was not accepted.
Since receiving the respondent's letter [presumably the refusal letter], he had participated in the traffic offenders' program at Blacktown. He would provide the participation certificate as soon as he received it. Through that program, he has understood the need to comply with road rules and being conscious of traffic signs erected for the good of the public. He understands that drivers of public passenger vehicles are responsible for public safety and must be fit and proper persons with a good reputation. He understands the challenges of public transportation and the experience of having his application refused, and he has learned from his mistakes.
In oral evidence by telephone at the hearing he adopted his letter of 16 January 2021 and explained that he is an Iranian citizen and arrived in Australia in 2014. He is currently on a bridging visa which entitles him to work, but he is not eligible for Centrelink benefits. He has a wife and three children aged 3, 4 and 15. His wife is sick and does not work, and is occupied in the care of the children. He is the only provider for the family.
In 2015 he was employed by Hillsbus driving buses, and held an authority for that purpose. He already had a heavy vehicle licence and had driven heavy vehicles in Germany and Norway, where he worked as an engineer but was required to hold a truck licence. With Hillsbus he drove regular routes in the Hills area and had no offences, and no complaints from passengers. He did not recall when he had left the company.
He then worked in ground transport for the international airport for pilots, driving shuttle buses from the end of 2016 with Sydney Ground Transport and Sydney Super Shuttle. Some of the shifts were regular, including Saturdays and Sundays, and he was working over 40 hours a week, five days a week, and sometimes more, up to 58 hours. He drove minibuses, small shuttle buses and buses. He received no passenger complaints but the work ended in March 2020 because of the Covid - 19 restrictions. He has sought that kind of work since then but there has been nothing available.
He has learned much from his past conduct and from the offenders' course, and appreciates that safety comes first for everyone. He stated that he could not survive without his bus driver authority, because he is behind in his rent and has no opportunities for other work.
Cross-examined by Mr Wozniak on behalf of the respondent, he said that he had worked hard, took no holidays and undertook many shifts in order to support his family. It was very important for him to obtain the bus driver authority, and he was unable to survive without it. He was behind in his rent and had no work opportunities otherwise. He had started work with Hillsbus in July 2015 and finished in early 2016. He was not sure if he drove every day but said the most time off he took was one or two days. The frequency of his shifts depended on the roster.
His work as an airport shuttle driver finished in March 2020. He had ceased driving buses after his bus authority expired in 2019, but had driven limousines and cars until March 2020. Asked whether he had driven while subject to a fine default suspension on 2 September 2016 (traffic record exhibit R1, p 40), he said he had not driven during that time he had said he had been driving every day, but he was confused and had not driven after his licence was suspended the longest time during which he did not work was around 4 or five months.
Nor had he driven while subject to the suspension imposed on 25 August 2017, which was fought 10 months. He was confused when he said otherwise. He did not recall what was the longest time he had not worked during the period July 2015 two May 2019, but he had not driven while his licence was suspended. He agreed that he had said it was important for him to work in order to support his family but could not recall the longest period he had of not working, other than when his licence was suspended. He was not sure for how long.
He agreed that he had not written to Roads and Maritime Services (the respondent's predecessor body) to supply details of his traffic contraventions as required by cl 44 of the Passenger Transport (General) Regulation 2017.
Referred to his speeding violation on 30 October 2018 (exhibit R1, p 39) which he had explained as resulting from his speedometer being obscured by a failure of the dashboard lights, it was put to him that he had not slowed down when he was unable to read the speedometer. He replied that he did not know.
The applicant was then asked about the notation dated 26 July 2018 recording that he had been advised on that date by police not to drive as his licence was suspended, which was 5 days before his suspension was not implemented in accordance with good behaviour conditions. It was put to him that he had driven while his licence was suspended, which he denied, saying that he has stopped driving until the good behaviour conditions were imposed. He had not driven buses while subject to the good behaviour conditions but could not recall the circumstances as he had been told he could drive.
When it was pointed out to him that he had said he had been driving buses until his bus authority expired, he replied that he mainly drove limousines, and had been in a bad situation at that time. He denied driving during the suspension imposed on 12 March 2019 and said he could not recall whether he had driven during his 12 September 2019 to 9 May 2019 suspension, although he had written that on 12 September 2019 he had taken a photograph of a disabled parking sign that he had disobeyed that was obscured by a tree branch and sent it to the respondent (exhibit R1, p 32B).
When he had been found parked in a no stopping after 6 PM zone it was because he had arrived early and dozed off in the vehicle. On another occasion he had parked in a disabled parking space because the sign was obscured by a tree branch. The decision to refuse his bus driver authority was weighted disproportionately towards the number of offences, rather than the substantive impact they might have on his standing as a person of good repute or is a fit and proper person. Infringements do not necessarily constitute an automatic negative reflection on a person's good repute or his standing as a fit and proper person. The number of speeding offences should be considered relative to the high number of hours and the intensity of the work he was undertaking.
He has successfully completed the Traffic Offenders Program at Blacktown and acknowledges that he takes responsibility for improving his driving behaviour. Given his background, it would be appropriate to grant him an interim bus driver authority for 6 to 12 months to give him the opportunity of demonstrating that he is in fact a person of good repute and a fit and proper person.
On behalf of the applicant, Mr Lord at the hearing reiterated those points and pointed out that the concept of good repute in this context was summarized in Loye v Director-General, Department of Transport [2000] NSWADT 145, [22] - [34]. The applicant had a consistent work record in Australia until passenger flights were stopped in March 2020 because of the Covid - 19 restrictions.
He had worked for Hillsbus and airport shuttle companies from 2016 to 2020, and had previously worked for an oil company in Germany and Norway. He had been the subject of no complaints from customers and had attended a favourable reference from the assistant rector at Rouse Hill Anglican Church. He had received financial help from the Red Cross on 10 December 2020 and from the Buddhist Compassion Relief Tzu Chi Foundation, which shows that those organizations thought him worthy of support.
His traffic convictions did not mean he was not of good repute. They involved no acts of violence, fraud or sexual misconduct. He could thus be said to have a good reputation.
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: id., at [27] - [29]. 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": id., at [31]. It does not, however, appear to be conclusive.
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].
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.
In Saadieh, 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.
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".
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.
The first two factors set out in Saadieh do not apply in this instance as the applicant has no non-traffic convictions and there is no evidence that there have been any complaints against him. The third factor, however, is his driving record, and here the applicant's record is poor. He has accumulated 35 demerit points in less than 6 years since becoming licensed, including four speeding infringements, one for non-compliance with a traffic light, and also with a stop sign, making a U-turn over dividing lines, disobeying traffic lane arrows, and disregarding no stopping and disabled parking signs. He has plausible explanations for the last two, and also explains two of the speeding counts as resulting from an instrument light failure and exceeding the speed limit to convey a pilot urgently needing to get to the airport. Those are explanations, and not excuses.
He has had three fine default suspensions and one authorization subject to a good behaviour condition. As his counsel pointed out, he has had no infringements for 14 months, but he did receive a demerit points warning letter as recently as 22 October 2020. Further, he has in no instance complied with cl 44 of the regulation, which requires notifying the respondent of any traffic contraventions. On any basis, that is a poor record.
The next Saadieh factor is the applicant's reputation in the community. In that context Mr Lord pointed to his consistent work record in Australia, up until the ending of flights because of Covert - 19 restrictions. He had worked for Hillsbus and two airport shuttle services from 2016 to 2020. He has not been the subject of any complaints from customers.
Mr Lord also referred to the supportive reference from Rev. Richard Mason, assistant rector of Rouse Hill Anglican Church dated 29 December 2020 (exhibit R1, pp 21 - 22). It is quite detailed, but consisting mainly of contentions seeking to place the applicant's traffic violations in the most favourable light possible, and stressing his difficult financial position. The reference asserts that Mr Honyandari has learned from his experiences and is committed to complying with the traffic laws in future. It does not, however, say how long the author has known the applicant or in what capacity. It says nothing about his repute in the community.
The applicant also contends that the financial support extended to him by the Australian Red Cross and the Buddhist Foundation shows that those organizations consider him worthy of support. That may well be so, there is no indication of the criteria that they apply when making financing decisions. They could be based solely on considerations of need. Further, the documents make no reference to his reputation in the community.
The final Saadieh factor is the likelihood that the applicant will reoffend, be the subject of further complaints or commit further traffic offences. That consideration is discussed below.
Turning to the fitness and propriety criterion, it would be difficult for the tribunal to "attest" favourably on that point in the case of the applicant when he has such a poor driving record accumulated over a relatively short period. He has completed the Traffic Offenders Program and maintains that he has gained new insights into the requirements of responsible driving and consideration for the safety of all. The fact remains, however, that his record has been accumulated in relatively recent times, with a demerit point warning letter as recently as 22 October 2020. Insufficient time has elapsed to permit the tribunal to attest to the applicant's being fit and proper to drive a public passenger vehicle.
Related to that is another important factor bearing on fitness and propriety and good repute. Among the objects of the PT Act as stated in s 4 is "(e) to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services".
In Mielczarek v Commissioner of Police [2016] NSWCATAP 255, [162] the Appeal Panel noted that "occupational regulatory schemes such as the TP Act not only directly protect the public from harm, but also help to preserve public confidence in the regulated activity and its members" (see also Birch v Commissioner of Fair Trading [2017] NSWCATAD 166, [80] - [81]). Part of that involves preserving public confidence in the licensing regulatory system itself.
In the present context, it should be borne in mind that as the holder of a bus driver authority, the applicant could be driving school buses or other vehicles carrying children or adolescents. While the evidence does not suggest that the applicant is in any way a danger to children or young people, one could understand parents of young children being troubled by the thought that their offspring were in the charge of someone with such a disturbing traffic history.
The applicant submitted that he could be issued with a conditional bus driver authority on an effectively probational basis for a period of 6 or 12 months to give him the opportunity of proving that he is now a fit and proper person to be a bus driver. That kind of option has not found general favour in occupational licensing law. In Health Care Complaints Commission v Litchfield [1997] NSWSC 297, the Court of Appeal was concerned with the case of a doctor who had been suspended from practice because of sexual impropriety with women patients. The medical tribunal had decided to restore his registration subject to conditions including that the doctor submit to psychiatric assessment. The court thought (citing Richter v Walton NSWCA 15 July 1993, unreported) that the necessity for imposing such conditions demonstrated that the appellant was unfit to practice. The same reasoning applies by analogy in this case.
The applicant and Assistant Rector Mason stress that the applicant is the sole financial support for his family and is in difficult financial straits, being in eligible for Centrelink benefits. Questions of possible hardship to an applicant cannot, however, be taken into account in determining whether Transport for New South Wales has made the correct and preferable decision: Lal v Director-General, Department of Transport [2001] NSWADT 74, [47]. In any event, the applicant still has his heavy vehicle licence, which is not suspended and should remain current until 2025. The respondent asserted, and it was not disputed, that there is currently a strong demand for the services of truck drivers.
On all the evidence, the tribunal cannot attest to the applicant's being of good repute, or a fit and proper person to drive a public passenger vehicle. The decision under review should be affirmed.