Hruban v Roads and Maritime Services

NCAT Occupational|2016-03-16

Background

This matter involves an application to the Tribunal by Mr Hruban to review a decision by the Respondent, Roads and Maritime Services (sometimes referred to in these reasons as RMS) on 12 October 2015 (the Decision) to refuse Mr Hruban's 5 June 2015 application for a New South Wales public passenger vehicle driver authority (the Application).

Issues

The issues in dispute were whether the Applicant was of good repute and in all other respects a fit and proper person and of sufficient responsibility and aptitude to be a public passenger vehicle driver and convey members of the public.

Material before the Tribunal

Jurisdiction of the Tribunal

The Application was made pursuant to Part 2 of the Passenger Transport Act 1990 (the Act). There is no dispute that pursuant to s 52 of the Act any person whose application under Part 2 of the Act has been refused may apply to the Tribunal for an administrative review under the ADR Act of that refusal. All references throughout this decision to sections are to sections of the Act unless stated to the contrary.
Section 63 of the ADR Act requires the Tribunal, in determining an application concerning an administratively reviewable decision such as the Decision, to decide what the correct and preferable decision is having regard to the material then before it (including material not previously available to or considered by the administrator) and any applicable written or unwritten law, and authorises the Tribunal to affirm, vary or set aside the administratively reviewable decision. If the Tribunal sets aside that decision the Tribunal is to make a decision in substitution for that decision or remit the matter for reconsideration by the administrator who made the decision.

Legislative scheme

Division 2 of Part 2 of the Act, sections 11 to 14, contains provisions in respect of authorities to drive public passenger vehicles (other than ferries) including provisions concerning the purpose of authorities, the issue and renewal of authorities, relevant conditions and criteria to be satisfied by applicants seeking an authority.
Section 11 provides that a person who drives a public passenger vehicle is guilty of an offence unless the person holds an appropriate authority. The purpose of the authority 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.
Section 12 provides that the Respondent may grant authorities to applicants and s 12 (2) requires that the applicants must meet any criteria set out in the Passenger Transport Regulation 2007 (the Regulations) and must satisfy the Respondent as to any matter the Respondent considers relevant.
Regulation 29 relevantly requires that an applicant for an authorisation to drive a public passenger vehicle must satisfy RMS that he or she: (ii) is of good repute and in all other respects a fit and proper person to be the driver of the vehicle concerned, and (iii) has sufficient responsibility to drive the vehicle concerned in accordance with law and custom.

The Applicant's history

The Respondent submitted that the decision to approve or refuse the Application must have regard to the Applicant's criminal history, driving record, and failures by the Applicant to declare several criminal / traffic convictions as required in the Application for an Authority to Drive form completed by the Applicant.

Offensive behaviour conviction

The court records in evidence in relation to the Parramatta Proceedings state that the Applicant exposed his penis and urinated against a bus shelter at the Argyle Street bus interchange at Parramatta at 4:40 PM on 18 February 2015. The police attended after receiving a complaint from a member of the public including that the Applicant was "heavily intoxicated". The police observed that the Applicant was "extremely intoxicated, smelt of alcohol very strongly", was unable to maintain his balance and unable to understand basic instructions. The police also stated that the incident occurred in a large crowded area. The Applicant was conveyed to his home address.
In June 2015 the Applicant was convicted for behaving in an offensive manner in/near public place/school in respect of the matters referred to in the previous paragraph and was placed on a good behaviour bond for nine months commencing 10 June 2015.
The Applicant's oral evidence was that the conviction should not be taken into account as the behaviour which led to the conviction was out of character and he did not know what he was doing although he did know that he was urinating in a public place; the bond had expired before the date of the hearing; the behaviour was not relevant to driving a bus; he had waived the opportunity to pay a fine and had voluntarily gone to court; he did not offend anyone other than the police who always assume the worst; it was unfair to have regard to that conviction in relation to his application for a bus driver authority because other people also committed offences, and the behaviour arose because he had eaten something which did not agree with him and the only alcohol he had consumed was two beers. He said that the police had not arrested him, they had taken him home. The Applicant also said that although he had pleaded guilty to the charge he had not admitted any of the facts in evidence from the police.
I find that it is highly implausible that the evidence as to what the police observed at the Parramatta interchange came about as a result of the Applicant consuming two beers and eating something which made him unwell. I have also had the opportunity to observe the Applicant giving evidence and, to the extent that they differ, I prefer the evidence of the police as set out in the observations contained in the court records to the oral evidence of the Applicant. I make further observations below concerning the Applicant's oral evidence.
The Applicant submitted that the impugned behaviour did not occur while he was driving a bus. I accept that submission.
The Applicant also submitted that a bond entered into under s 9 of the Crimes (Sentencing Procedure) Act 1999 is similar to a s 10 dismissal of a charge. I reject that submission in so far as s 9 of that Act provides that a court may, after recording of a conviction, make an order directing an offender to enter into a good behaviour bond instead of imposing a sentence of imprisonment while section 10 of that Act enables a court to find a person guilty of an offence without proceeding to a conviction.
I also observe that the period of the good behaviour bond to which the Applicant was subject expired only one week prior to the date of the hearing and there is no evidence of the Applicant's rehabilitation.

Driving history

The Applicant's driving record in evidence discloses that since he first obtained a driver licence in 1979 the Applicant has committed over 30 driving offences, his licence has been suspended on seven occasions for an aggregate period exceeding three years, and he has been placed on a good behaviour bond on several occasions. The driving offences during the last 11 years include driving whilst suspended, driving with a prescribed concentration of alcohol, negligent driving, disobeying traffic lights and on several occasions using an unregistered and uninsured motor vehicle.
The Respondent submitted that: 1. The Applicant had multiple convictions for using unregistered and uninsured vehicles in recent years. This raises questions as to whether the Applicant has sufficient responsibility to drive a public passenger vehicle in accordance with law and custom. 2. In determining "public interest" one has to formulate it in terms of the perceptions of "a reasonable member of the travelling public". It is likely that a reasonable member of the travelling public would regard the Applicant's previous history as sufficient to refuse his application for an authorisation.
The Applicant submitted that the traffic offences had not occurred while he was driving a bus, therefore they were not relevant to his Application.

Failure to declare criminal/traffic convictions as required in the Application for an Authority to Drive

I observe that questions 21, 22 and 23 in the Application require the Applicant to provide information in respect of matters concerning the Applicant's driver licence, traffic infringement notices and traffic offences and being found guilty or convicted of any offence.
Question 21 states "Have you ever had your driver licence suspended, cancelled, disqualified or refused for any reason in NSW or elsewhere?" If so the Applicant must provide relevant details.
The Applicant answered "yes" and provided the following details: 1. demerit points in 1983, 1987 and 2005 in NSW; and 2. PCA lower in 1981 in NSW.
The Applicant did not disclose driver licence suspensions, cancellations or disqualifications in each of July and November 2004, March 1983 and March and October 1981.
Question 22 states "In the last five (5) years, have you been issued with a Traffic Infringement Notice (fine) or have you been before a court for any traffic offence/s OR is there any court action pending against you in relation to a traffic offence?" If so the Applicant must provide relevant details.
The Applicant answered "yes" and stated on 5 June 2015 an offence of "drive in bus lane" was "dismissed section 10."
The Applicant did not disclose that on 17 March 2011 his appeals to Parramatta Court against findings of Ryde Local Court on 11 January 2011 that it had been proven that on 3 August 2010 he drove with a low range concentration of alcohol on 3 August 2010 and was placed on a good behaviour bond for one year pursuant to section 10 and that he was fined for using an unregistered motor vehicle, also on 3 August 2010, were dismissed.
Question 23 states "In the last ten (10) years have you ever been before a court in NSW or elsewhere for any reason where you have been found guilty or convicted for an offence OR are there any charges or court action pending against you for any other offence/s?" If so the Applicant must provide relevant details including all charges in which he has been found guilty and no conviction was recorded.
The Applicant answered "yes" and stated in April 2015 a charge of "Offesive (sic) behaviour" determined by Burwood Court was "Dismissed section 9 with good behaviour 9 MTHS".
The court records in evidence in respect of the Parramatta Proceedings, as referred to above, state that on 10 June 2015 at the Local Court of NSW at Parramatta the Applicant was convicted of the offence of "behave in offensive manner in/near public place/school" and was directed to enter into a good behaviour bond for nine months pursuant to section 9 (1) of the Crimes (Sentencing Procedure) Act 1999.
The Respondent submitted that the Applicant failed to declare several criminal / traffic convictions as required in his Application. Accordingly, he has misrepresented his criminal/traffic history and may have committed an offence in so doing. This provides a strong justification for refusing the Application.
The Applicant's oral evidence in relation to the failure to properly answer the questions asked in his Application was that the form was completed on a very hot day. It was a long day and he was flustered, he had been walking a long way and was waiting for some time. He was worried about having parked his car in an area with a three hour parking limit. He had obtained a printout that day of his driving record and would have attached it to his Application. The Applicant's further evidence was that when he handed in the Application he was informed that he did not need to provide driving details for more than five years.
I note that the Applicant's evidence as to what he was allegedly informed was untested as he did not comply with the Tribunal's direction on 19 January 2016 to file and serve the evidence and other material on which he intended to rely by 8 March 2016. Accordingly, I have regard to the Respondent's submission that it did not have the opportunity to identify locate and take evidence from any RMS officer who received the Application and who allegedly gave relevant advice or information to the Applicant.
I also observe that notwithstanding the Applicant's oral evidence that he was informed that he did not need to provide driving details for more than five years his answers to question 21 in the Application which related to suspension, cancellation, disqualification or refusal of his driver licence selectively referred to demerit points in 2005, 1987 and 1983, respectively 10, 28 and 32 years prior to making the Application and a PCA lower offence in 1981, 34 years earlier. Accordingly, although the Applicant gave evidence that he had obtained a printout of his driver record which he had proposed to attach to the Application he did not disclose licence suspensions and cancellations on four occasions in 2004, 1983 and 1981, during the period covered by his answers.
I find the Applicant's explanation for his failure to accurately answer question 21 highly implausible.

"Good repute" and "fit and proper"

Section 12 and clause 29 of the Regulations require that the Applicant must satisfy RMS that he is of good repute and fit and proper to be the driver of a public bus. The Tribunal stands in the shoes of RMS for the purpose of these proceedings. In order for the Applicant to succeed in this matter it is necessary for him to satisfy the Tribunal that he is a person of good repute.
In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Mason CJ said at [63]: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.
In Saadieh.v Director General, Department of Transport [1999] NSWADT 68 Hennessy DP said at [15] and [17], in a review of a decision to cancel a taxi authority and having regard to ss 11 and 12: 15. … I do not accept the respondent's submission that the applicant is not of good repute merely because his criminal record indicates bad repute and there is no other evidence of repute. Many applicant's (sic) before the Tribunal are unrepresented. They do not understand, nor should they be expected to understand, that references or other evidence of their repute in the community would be useful in counteracting any evidence of bad repute which can be assumed on the basis of a criminal conviction. A person's criminal record alone is not necessarily evidence of bad repute which is sufficient to disqualify that person from holding a taxi authority. All the circumstances of the case must be taken into account in assessing a person's suitability to be obtain or retain such an authority 17. Taking into account the terms of the legislation and the case law interpreting similar provisions, there are a number of factors that need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. These factors include: 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 re-offend, be the subject of further complaints or commit further traffic offences.
In Singh v Director General, Department of Transport [1999] NSWADT 96 Hennessy DP referred to her decision in Saadieh and said in relation to the last factor: 33 I also noted in that case that 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.
Hennessy DP continued: 35 Similarly, his traffic infringements which include several speeding infringements and driving without a licence, have continued despite losing his licence. 36 The applicant's dishonesty is apparent in the fact that he failed to disclose a criminal offence on a departmental form in 1992 and again when he put forward his arguments prior to the internal review. On that occasion he dishonestly stated that he had no traffic offences since 1996.
In Director General, Transport NSW v AIC [2011] NSWADTAP 65 the Appeal Panel of the ADT was dealing with the nature of the power of an administrator to suspend an authority to drive a public passenger vehicle. The Appeal Panel said at [12] in relation to the word "attest" which appears in s 11: … 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.
In relation to the attestation "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 taxi-cab" the Appeal Panel said at [13] the paragraph focuses on general characteristics of the driver relevant to the regulated function and: The expression 'good repute and in all other respects a fit and proper person' is meant, we think, to be expansive in scope allowing for a broad range of personal attributes to be assessed, and for consideration to be given to the person's general standing in the community, especially among those who know the person well and are fully informed as to any matters of concern. It gives greatest weight to 'good repute'. For a recent discussion of the matters to which the terms 'good repute' and 'fit and proper' are addressed see Real Estate and Business Agents Supervisory Board v LJW [2011] WASCA 35 per Newnes JA (Pullin, Buss JJA agreeing). 'Fit and proper' goes to such matters of character as to whether the applicant is possessed of sufficient moral integrity and rectitude of character as to permit him or her to be safely accredited to the public without further inquiry (per Newnes JA at [27] citing with approval remarks of Walters J in Sobey v Commercial and Private Agents Board (1979) 22 SASR 70); and 'repute' goes to the public estimation of the person (at [28]-[29]).
The Respondent submitted that the AIC decision requires that the attestation of good repute involves a declaration of public trust and the Tribunal was not able to make such an attestation having regard to: 1. The conviction in March 2015 for offensive behaviour and the fact that the period of good behaviour required by the bond imposed by the court had only expired one week prior to the hearing. 2. The pattern of repeated offences in relation to driving with the prescribed concentration of alcohol, the repeated traffic offences proven over a lengthy period of time and the fact that those traffic offences in recent times included driving an unregistered and uninsured vehicle; and 3. The several misrepresentations by the Applicant in completing his Application may indicate the commission of an offence by him pursuant to s 54 in that he attempted to obtain an authority under the Act by statements or misrepresentations.
The Applicant submitted that the traffic offences did not relate to driving buses, he only had one criminal conviction which had nothing to do with the authority for which he was applying, he had not tried to be deceitful in relation to the Application, his bus driving record should be taken into account and in representing himself before the Tribunal he had exhibited sufficient intelligence to enable him to drive a bus and care for people.
The only evidence provided by the Applicant in respect of his good repute, other than his oral evidence, is an undated reference by the manager of a business who stated: I have known Andrew Hruban for over 20 years. I have always found him to be a very descent (sic) man. I am aware of the charge against him and find it totally out of character. He has informed me of NCAT hearing & I have seen his RMS printout. I believe him to be a fit & proper person to drive a bus.
I have had regard to that reference and to the fact that it referred to "the charge against him". This does not expressly refer to the charge which was dealt with in the Parramatta Proceedings. To the extent that it refers to that charge it does not refer to the conviction recorded against the Applicant, merely that he has been charged. I also have regard to and accept that the Applicant may not be aware of the benefit which may accrue to the subject of a reference unless the reference fully details all relevant circumstances of which the referee is aware.

Other evidence and submissions by the Applicant

The Applicant gave evidence that from 1995 he had worked part-time as a bus driver for North and Western. Subsequently he owned and operated a second-hand bookshop at West Ryde for some two years. He had tried to obtain various jobs and his preference was for truck driving. In 2005 he carried out 11 months' full-time work for Network Foods a company which subsequently became defunct.
He has carried out bus driving work for small charter companies and has had not been responsible for any accidents. On one occasion a passenger said that riding with him was the "most enjoyable bus ride I ever had". He had never had any complaints from passengers. He had driven schoolchildren and passed the "work with children" check. He had received no infringement notices while driving a bus in the last 10 years. He had not driven a bus for the last 18 months and driving was his only skill and something he enjoyed. It was also hard for him to get a job at his age.

Decision

I observe that in Mahommed Shamsuzzaman v Roads and Maritime Services [2015] NSWCATAP 62 the Appeal Panel said at [17] and [18]: The jurisdiction in this field is protective not punitive. In Khan v Roads and Maritime Services [2014] NSWCATOD 23 at [25] it was said, in terms which we would adopt, that: It was submitted that the applicant is a very simple and honest person. He supports his wife and four children and a parent. They are currently renting a house for $290 per week and they have no savings. The cancellation of his driving authority would create severe financial hardship for him and his family and was unreasonable and excessive. However, possible hardship to the applicant, or his family, cannot be taken into account in determining the correct and preferable decision: Lal v Director-General, Department of Transport [2001] NSWADT 74, [47]. Similarly, the purpose of a driver authority is to have the regulator (that is, the respondent, or on review the Tribunal) "attest" that a driver is of "good repute", is "fit and proper" to be a taxi driver, and has "sufficient responsibility and aptitude" to drive taxis. It is not about giving a driver "another go"." (emphasis added)
I observe that the Applicant has not accepted responsibility for his criminal conviction, nor for any of the numerous traffic infringements on his driver record other than one red light shortly after he started driving, nor has he accepted responsibility for the errors he made in the Application.
Having regard to the undisputed facts, the parties' submissions and my above findings I am not satisfied and I cannot attest that the Applicant is of good repute and is in all other respects a fit and proper person to be the driver of the vehicle concerned in his Application.
In my opinion there is no evidence of a real likelihood that the Applicant will not continue disregarding his obligations under traffic law as has occurred repeatedly for over 30 years. It may well be that at some time in the future it will be possible or appropriate for RMS to attest to the good repute of the Applicant and grant him an authority. However, that time has not yet occurred.
Accordingly, the correct and preferable decision of the Tribunal is that 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: 26 April 2016

At a glance

Court

Decision date

Source

Judgment (12 paragraphs)

Parties

Cases Cited (5)