JBC v Director-General, Department of Transport - [2014] NSWCATOD 82 - NSWCATOD 2013 case summary — Zoe

NSWNSWCATOD

JBC v Director-General, Department of Transport

[2014] NSWCATOD 82

NCAT Occupational|2013-10-25

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Source facts

Court

NCAT Occupational

Decision date

2013-10-25

Source

Original judgment source is linked above.

Judgment (59 paragraphs)

[1]

Introduction 1This is a review of a decision made by the Director-General of Transport for NSW on 22nd May 2013 to suspend JBC's accreditation to operate a school bus service under the Passenger Transport Act 1990 (the PTA). JBC had been the accredited operator of the service in rural NSW for approximately 5 years. 2The reasons provided by the Respondent for this suspension were that "the number of occasions where you have breached the terms and conditions of the contract held between you and the Director General, demonstrate that you do not have the degree of responsibility, aptitude and competence required to operate a public passenger service." 3Much of the material relevant to the Tribunal's consideration concerns events that occurred on 2 school bus services and the management of these services. This traverses the behaviour and affairs of some of the children on the bus, their parents, and teachers, as well as JBC and his wife.

[2]

Orders prohibiting the disclosure of identifying material 4The Application was heard over 5 days in October of 2013 and 2 days in February 2014. Evidence was heard from parents, teachers, a school student, administrators from the Respondent, another accredited bus operator and the Applicant. The proceedings of the Tribunal are generally held in public. The Tribunal was closed to hear evidence from one of the school students. 5In some circumstances orders may be made protecting the identity of parties or witnesses. 6Section 75 of the Administrative Decisions Tribunal Act 1997 (ADTA). relevantly provides:- (1) If proceedings before the Tribunal are to be determined by holding a hearing, the hearing is to be open to the public. (2) However, if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders: (a) an order that the hearing be conducted wholly or partly in private, (b) an order prohibiting or restricting: (i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Tribunal or a witness summoned by, or appearing before, the Tribunal), or (ii) the doing of any other thing that identifies, or may lead to the identification of, any such person, (b1) an order prohibiting or restricting the publication or broadcast of any report of proceedings before the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. 7The names and identifying information of children is protected as matter of course in other jurisdictions (e.g. see s 105 of the Children and Young Persons (Care and Protection) Act 1998) and in the Community Services Division of the Tribunal (see s 126 of the ADTA). There are sound public interests underlying such provisions, grounded in the protection of children and the maintenance of their best interest. 8In this case the Tribunal of its own motion determined to make orders under s 75(2) of the ADTA prohibiting the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of any child who gave evidence before the Tribunal, or whose identity or circumstances were disclosed in the course of the proceeding. 9To that end, the names of the children and of other persons whose identity could lead to their identification, including that of the Applicant, have been anonymised in this decision. The Tribunal has also avoided geographical and other references that could lead to their identification.

[3]

Background 10JBC and his wife operate a transport business that provides school bus transport under contract with the Director General. There are 2 school bus routes which are the subject of JBC's contract with the Director General - XX68 and XX70. While he is in partnership with his wife in the business, JBC is the accredited operator in relation to the 2 routes. Both JBC and Mrs JBC drive the buses and have authorities under the PTA to do so. JBC gave evidence that Mrs JBC does all the computer work associated with the accreditation. 11JBC had first been accredited in NSW from August 1992 to October 1996 to operate Long Distance and Tourist Services. JBC then terminated this accreditation in October 1996 to move interstate. 12JBC was again accredited as a bus operator by the Respondent in July 2008 for 2 buses. The JBCs bought the business from the previous owners in August 2008. They commenced their own business in September 2008. A contract was entered into by JBC and the Director General in December 2008 for the provision of the service. This consisted of the 2 school bus routes each conducted in the morning and afternoon on school days. The 2 different routes carry schoolchildren from outlying properties into town to 2 schools in the morning and return them home in the afternoon from the schools. 13In September 2008 shortly after purchase of the contract the Applicant commenced negotiations with the Respondent to redefine the routes and increase the remuneration payable on the basis of the kilometres covered. 14In December 2008 JBC's accreditation was upgraded to 3 buses. His bus operator accreditation was renewed in July 2011 with expiry in July 2014. 15On 19 July 2011 the Respondent wrote to JBC agreeing to 2 new route service descriptions which effectively extended the kilometres covered by the services and increased the payment to which JBC was entitled. 16A Deed of variation to the Contract was entered by the parties on 27 September 2012. It was agreed that the routes needed to be extended to include students whom JBC reported to be living further away from town. The Respondent also agreed that it was not safe for the Applicant's buses to be turned around at the new last stop on one of the routes because of the road conditions - necessitating the empty bus taking a longer route to come back to town and extending the kilometres covered and payable.

[4]

Legislative and contractual requirements 17There are 3 elements to the governance of JBC's bus service provision. The first is accreditation to operate a bus service which is provided for under section 7 of the PTA. Accreditation can be suspended or cancelled under section 10 of the PTA by the RMS. The RMS suspended JBC's accreditation on 22nd May 2013. 18The second element is the set of requirements under the Passenger Transport Regulation (PTR) which require an operator to do certain things while operating the service. These include clause 19 which requires the operator to provide records and information to the Director General. The Respondent based its decision to suspend the Applicant's accreditation in part on his alleged failure to comply with Regulations - such as declining to provide information. 19The third element is the contract between the RMS and the accredited operator which sets out such things as the routes to be served and the rate of payment. It also requires the operator to provide certain information to the Director General quarterly. The Respondent based its decision to suspend the Applicant's accreditation in part on his alleged failure to comply with aspects of the contract. 20The Tribunal also notes that clause 91(4) of the PTR provides that an operator of a bus service who is the holder of a service contract must not contravene or fail to comply with the terms and conditions of the service contract. The clause provides for a maximum penalty of 50 penalty units for a contravention. The tribunal was not advised whether or not the Respondent had undertaken any prosecution of the Applicant for failure to comply with or contravention of terms and conditions of the service contract. 21The Tribunal was told that the remuneration for the service is paid by the Director General based on a number of factors:

The number of students using the service;
The kilometres covered by the designated routes;
The time taken; and
The size of the buses used. 22The Applicant is required to provide Annual Review Surveys to the Respondent as at 31st March each year setting out such matters as the identity of each student using the service and the pick-up and delivery address for the student. This information is used by Transport for NSW to set time and distance parameters and to work out the amount to be paid to the Bus Operator in the 12 months following the review. 23In practical terms, the Respondent does not monitor the service closely. It relies upon the Bus Operator to comply with the conditions of accreditation, the PT Regulations and the terms of the contract.

[6]

Decision to suspend accreditation 26On 22nd May 2013 the Respondent wrote to the Applicant advising that it had suspended the Applicant's accreditation and asked him to show cause as to why it should not be cancelled. This action appears to have been prompted most immediately by the Applicant's failure to provide business records to the Respondent requested in notices issued on 16 and 17 May 2013. 27In its Statement of Reasons for the Suspension, the Respondent referred to section 10 of the PTA which provides that the Respondent may at any time vary suspend or cancel any person's accreditation having regard to the purpose of an authorisation. Section 7(2) of the PTA sets out the purpose of accreditation as being to attest that the accredited person is considered to be of good repute and in all other respects a fit and proper person to be responsible for the operation of a public passenger service and that the accredited person has demonstrated the capacity to meet the government's standards of the financial viability and safety of passengers and the public and vehicle maintenance. 28The Respondent cited 18 bases for the decision. The 18 bases included alleged instances of breaches of the PTR and the Contract, dissatisfaction with the way in which JBC drove the services and his poor relationship with students, parents and Transport for NSW. The reasoning for the decision was that the number of occasions where the Applicant had breached the terms and conditions of the contract between himself and the Director-General demonstrated that he did not have the degree of responsibility, aptitude and competence required to operate a public passenger service. He had failed on numerous occasions to conduct contracted regular public passenger bus services to the degree and in the manner required by the PTA and the PTR. In addition he had knowingly allowed a person to drive school buses who he knew did not possess the appropriate qualifications to drive a public passenger service. The Respondent was of the view that a reasonable member of the travelling public, being aware of the matters that are the subject of the statement of reasons, would doubt that the Applicant would have sufficient responsibility and aptitude to be the operator of a public passenger service. 29On 28th May 2013 the Applicant lodged an Application for review of the Respondent's decision to suspend his accreditation and an Application for Stay of the decision with the ADT. 30On 31st May 2013 the ADT refused JBC's application for a stay.

[8]

Issues in the Statement of Reasons 34In the Statement of Reasons the Respondent referred to the purpose of accreditation-as set out under section 7(2) of the PTA- is to attest: (a) that the accredited person is considered to be of good repute and in all other respects fit and proper to be responsible for the operation of a public passenger service; and (b) that the accredited person has demonstrated the capacity to meet the government's standards of: (i) financial viability; and (ii) safety of passengers and the public; and (iii) vehicle maintenance, to the degree and in the manner required in respect of services of the kind specified in the accreditation. 35Section 7(3) (a) provides for the PTR to set out the standards referred to above in section 7(2) (b). 36The PTR sets out from clauses 6-13 requirements to be met by Applicants for accreditation. These include requirements for the Applicant to be of good repute, fit and proper, competent and financially capable to carry on the relevant service with access to maintenance facilities and approval from the relevant council to keep the buses at the specified location. 37Clauses 15-18 of the PTR then set out conditions of accreditation once the operator has obtained accreditation. These conditions deal with safety, vehicle condition and maintenance. 38Clauses 19-26 of the PTR set out continuing obligations on the accredited operator concerning such matters as retention and provision of records to RMS, vehicle insurance, continuing financial capacity and driver health. 39JBC's failure to satisfy some of the matters set out in these Regulations form part of the reasoning for the Respondent's suspension of JBC's accreditation. Failure of an accredited bus operator to comply with these conditions of accreditation or with ongoing obligations is in some instances subject to prosecution of the accredited bus operator in the Local Court. 40The Tribunal understands that JBC was issued with an infringement notice in relation to applying the brakes unnecessarily in February 2012. The Tribunal also understands that the RMS has taken action against JBC in relation to allowing an unlicensed and unauthorised person to drive the school services.

[10]

Good Repute and Fitness and Propriety. 43Section 7(2) (a) of the PTA requires an accredited person to be both of good repute and fit and proper. 44The President of the Tribunal, Judge K P O'Connor, considered the issue of good repute in the case of Nasour v Director-General, Transport NSW [2011] NSWADT 91 at 34: "A judgement as to the perception of reasonably-minded members of the travelling public remains, in my view, a relevant consideration for an administrator, when considering the 'repute' of a driver, or the driver's 'aptitude and responsibility'." 45From this the Tribunal understands that an administrator, and hence a substitute decision maker must make a judgement as to the perception of reasonably-minded members of the travelling public as a relevant consideration when considering the 'repute' of a driver, or the driver's 'aptitude and responsibility'. 46In this matter the tribunal is asked to consider the good repute of JBC as an accredited operator - rather than as a driver. The tribunal considers the guidance of the President in Nasour's case as equally relevant to an accredited operator. 47In the matter of Farquharson -v- Director General, Department of Transport [1999] NSWADT 53, O'Connor DCJ, President considered the 2 terms - being of good repute and fit and proper- in relation to the authority of a taxi driver. The Tribunal considers the observations as equally relevant in relation to an accredited bus operator. A taxi driver has a continuing responsibility to ensure that he is of "good repute" and a "fit and proper person". .......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).

[11]

Fit and Proper 48The meaning of the phrase "fit and proper person" was the subject of consideration by the High Court in the matter of Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 94 ALR 11; 64 ALJR 462; 21 ALD 1. In this matter the ABT was required to refuse a licence if it was not satisfied that the applicant or the holder of a licence was a "fit and proper person". Toohey and Gaudron JJ stated (at 380) that: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. 49In the same case, Mason CJ stated at [63] that: 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. 50In the matter of Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 at 156-7 the High Court explained the meaning of 'fit' as: "Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ..." 51In the matter of Department of Transport and Infrastructure v Murray (GD) [2011] NSWADTAP 16, Deputy President Hennessy considered the respective roles of the decision maker and a member of the community in determining fitness and propriety. The Deputy President affirmed the role of the decisonmaker in evaluating the seriousness of the conduct, while determining whether the conduct will not re-occur is to be viewed through the eyes of the general community (at 18 and 20). 20. When deciding whether a person is a 'fit and proper person', the question of whether the community would have confidence that any improper conduct will not re-occur is relevant: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 94 ALR 11. Otherwise, the determination of fitness and propriety is a question of fact for the decision maker to determine objectively on the basis of the all evidence. That question is not to be determined through the eyes of a reasonable member of the travelling public. 52Accordingly the Tribunal understands that it needs to consider JBC's fitness and propriety as it relates to the role of being a bus operator. The Tribunal must determine whether JBC has the requisite honesty, knowledge and ability to be regarded as fit for the role of accredited bus operator. The Tribunal must decide this on the basis of all the evidence before it - both contrary to and in JBC's favour. The Tribunal must consider the viewpoint of a reasonable member of the travelling public to determine whether any demonstrated improper conduct will re-occur.

[17]

Reason 1. Unauthorised driver Permitting a driver without the appropriate licence or authority (Mr Y) to drive the bus on multiple occasions in breach of clause 15 of the PTR 2007. 67The Respondent provided evidence that Mr Y had not obtained the appropriate authorisation to drive a bus until June 2013 - after the suspension of JBC's accreditation. The Respondent relied on the evidence of Mr Y who said he had driven a school bus with students and the Applicant on board, "probably 10 times". One of the schoolteachers had noticed "an elderly man" whom the Respondent submitted was Mr Y, driving the school bus 3-4 times during term 2 of 2013. A parent identified Mr Y as having driven the school bus with students on it on 18 March 2013. A school student also gave evidence that someone other than the Applicant's usual driver had driven the school bus with students on it - without identifying Mr Y. The school student's evidence was that the JBC had sat down the rear of the bus and talked with her about her computer while Mr Y had driven the bus. 68A parent gave evidence of "the cotton truck incident" when Mr Y was driving. This incident occurred on or around 5th April 2013. Mr Y was driving the school bus with students on board. A cotton truck was travelling at speed from the opposite direction and on the wrong side of the road. Mr Y avoided a head on collision with the cotton truck by pulling across the path of the truck to the other, wrong side, of the road. He did this as there was insufficient clearance for him to pull over on the correct, left hand side of the road. The Respondent said that the incident had posed a serious safety threat to those on board the school bus. 69The Respondent provided to the tribunal court attendance notices in relation to the prosecution of JBC under section 9B of the PTA and clause 15 of the PTR on 8 counts of permitting Mr Y who did not have an authority to drive a school bus service doing so during March and April 2013. 70The Applicant said that he had strict training methods for training bus drivers. Mr Y had been in training with the Applicant. However as he had not paid Mr Y while training him the Applicant considered that he had not "engaged" Mr Y and had not breached the Regulation which referred to a person being "engaged" to drive a vehicle. The Applicant also said that Mr Y had passed one aspect of the light rigid test and he was under strict supervision when he was with the Applicant. He only drove when the bus was not loaded with students - other than on the one occasion which was the cotton truck incident. JBC did say that he had told Mr Y prior to him failing his first attempt at obtaining his licence that he was not ready. The Applicant also disagreed with the Respondent's characterisation of the cotton truck incident as posing a serious safety threat. He said he had been on the 2 way radio to the cotton truck driver and that the situation was under control.

[23]

Reason number seven - exceeding maintenance service intervals 84Your vehicle maintenance records indicate that you have exceeded the manufacturer's recommended maintenance service intervals on your vehicles on a number of occasions in contravention of clause 16 of the PTR. 85The Respondent relied on a letter in November 2012 from one of its senior officers pointing out inconsistencies in kilometre readings. The Respondent referred to correspondence from the Applicant in which he had said he had to service the vehicles during school holidays. This meant that he did not comply with the manufacturer's scheduling. This subjected bus users to an unsafe situation. The Respondent submitted that this would not have been necessary if the Applicant had deployed a spare bus which the Respondent argued was required under the contract and to which the Applicant had agreed in signing the contract. 86Further the Respondent raised the general approach of JBC to maintenance as a matter of concern. One parent made a complaint to TfNSW in June 2012 that there was diesel leaking under the bus which was causing irritation to his son and was a safety issue. TfNSW raised the issue with JBC who then had it repaired. The Respondent argued that it should have been a matter that JBC became aware of himself had he been attentive to maintenance needs. 87The Applicant denied this allegation. He produced a letter from the Toyota service manager in a nearby town dated 4 July 2013 which stated amongst other things "all services were carried out as per the manufacturer's service schedule" on the Applicant's 2 buses. The Tribunal is not clear whether this letter should be interpreted to mean that the service steps were carried out in the manner required by the manufacturer or at the kilometre readings required by the manufacturer or both. 88Further the Applicant said that as he was in a remote location the buses needed to be serviced away from the location and could not always be serviced at the exact kilometre reading required by the manufacturer.

[25]

Reason number nine - letter to parents' employer and landlord 92On 26 of November 2012 you wrote to the employer of parents of Miss C (Mr and Mrs C) whose child uses a bus service operated by you and stated: "Should Mrs C continue to keep putting us into Transport without first approaching us to see if we can sort out the problem will have no choice but to recommend to Transport for New South Wales that the buses do not set down or pick up at point W. This means that once we recommend this to Transport and it is acceptable by Transport that the buses will never stop at point W again for your children or grandchildren or any future workers." 93The Respondent considered that this was inappropriate threatening behaviour from the Applicant towards the parents of the schoolchildren. It misrepresented the way in which the bus routes were determined. It indicated that the Applicant was not using the Behaviour Management Guidelines to deal with schoolchildren's misbehaviour on the services. A copy of the letter was put by the Respondent to the Applicant. The Applicant conceded that he had written the letter in these terms. However the Applicant said that the letter had been taken out of context. The relevant context was the bad behaviour and the feuds between Mr and Mrs C's children and their employer's/landlord's children which caused disturbance on the bus services. 94The Applicant also relied on a letter dated July 2008 from the Respondent to bus service operators that he had received in the handover of the business from the previous owner. The letter did indicate that Transport for New South Wales had a database on which children's inappropriate behaviour could be recorded. 95In addition, Mrs C said that after she had complained to Transport for NSW about the letter sent to her husband's employer and their landlord that Mr JBC had then adopted the practice of not pulling off the road when he dropped her children off in the afternoon. Instead he had stopped in the middle of the road, requiring the children to alight and walk on the road to the stop. She thought this placed her children's safety in jeopardy and was in retaliation for the complaint she had made. 96The Applicant denied that this was done in retaliation. Rather the problem was that the sides of the road in this spot were jagged and had potential to damage the bus tyres.

[28]

Reason number 12 - inaccurately recording bus stop. 103You have inaccurately recorded the location of the bus stop for a student, namely AB in your 2012 and 2013 annual surveys for route XX70 to artificially inflate the student load on the bus. 104The Respondent had earlier conceded that this inaccurate recording had not inflated the student load but rather had the effect of increasing the kilometres travelled and the amount payable to the Applicant. 105The Respondent relied upon the evidence of the prospective purchaser Mr X who had become the caretaker of the 2 school routes in the interim period. The evidence from Mr X was that the map he had been provided with set the bus stop for AB as the 2nd bus stop on the route. However AB had never embarked or alighted the bus at this point while he had been driving the route. Nor was there any need to stop at bus stop number one - the furthest pick up point. The Respondent's senior administrator gave evidence that these 2 inaccurate recordings of stops had the effect of falsely inflating the kilometres of the route for no reason. 106AB's mother confirmed that her son was not picked up at the address JBC had advised the Director General of in the Annual Survey. In his evidence AB's father said that JBC had told him "I have to put AB down as getting on somewhere else" - meaning not their actual residential address. 107Miss C's mother gave evidence that Mrs JBC had, on an occasion, asked her to drop her children off at a bus stop 15 minutes away from their address - just while the people from Transport for NSW were in town to look at the Annual Survey Results. 108The Respondent's senior administrator for the region gave evidence that there were 3 instances of JBC providing deliberately false information about the residential addresses of 3 sets of students in order to benefit JBC. This had led to Transport for NSW paying JBC approximately $15,000 in excess of his real entitlement. 109The Applicant denied this allegation. He said that the student AB got on at different stops according to where his father was working and according to where his father would drop him off. This was often at a stop furthest away from town and hence he was justified in recording him as getting on at that stop. Further the Applicant considered it necessary for insurance purposes to record on the forms that the student was in fact boarding the bus at this further stop even though it was not occurring on every occasion. The Applicant argued that in any event this made no impact on the student load and hence the payment he received for the route.

[30]

Reason number 14 - state-wide databank threats 112You made false statements to at least two parents claiming that Transport for New South Wales will record incidents of misbehaviour on a state-wide databank, other bus operators have access to these records, and students on this database "might not be able to travel on a school bus in this state". In addition you falsely stated "this databank is shared between the Transport Department, the Education Department and the Police Department, which means that your child will have a record with each of the above departments until he leaves school." Further you threatened parents, claiming the police will be forced into taking action for wilful damage and vandalism to property and the police record will stay with your child." 113The Respondent referred to 2 separate incidents in which JBC had dealt inappropriately with alleged student misbehaviour on the bus. One incident involved 2 students blowing ink on bus seats while on the afternoon run. JBC had had written to the mother of one of the students in the terms set out above. The letter finished with a demand for payment of money. The student's mother had contacted Transport for NSW concerned about the threats to have her son removed from the bus. She was advised that the state-wide databank did not exist. JBC also contacted the student's school. He subsequently sent the parent further letters including a letter from his solicitor seeking payment. 114In another incident a student Miss C was banned by JBC from travelling on the bus for 2 months as a result of misbehaviour. The student's parents complained to Transport for NSW. The Department reviewed the incident and the 2 month banning and changed the ban to a 5 day period. 115The Respondent's contention was that these incidents demonstrated JBC's failure to refer to and apply the Guidelines for Management of Student Behaviour and that he had dealt inappropriately with student misbehaviour. 116The Applicant referred to a letter dated 14 July 2008 from the Department of Motor Transport that he had received in his handover from the previous route owners which referred to a state-wide databank available for the recording of student misbehaviour. He said that he was not receiving cooperation from parents in dealing with students' bad behaviour. In particular he referred to the incident when two students had blown ink onto seats and damaged them. He had needed to have the bus cleaned and needed to ensure that the students' parents paid for this damage. The Guidelines relating to student behaviour did not cater for recouping the costs of property damage. Accordingly he instructed his solicitors to undertake this action.

[34]

Additional issues raised at hearing 125In addition to the 18 matters raised in the Respondent's Statement of Reasons, new issues were raised at the hearing in relation to JBC's operation of the services. 126These included concerns by one teacher that JBC would on the afternoon run leave the bus loaded with students and stand on the footpath and talk to other drivers. The teacher expressed the view that this constituted a safety issue with the risk of misadventure to the unattended students on the bus. 127The tribunal notes that clause 97 of the PTR requires that a driver not leave the bus seat without good reason. 128One parent alleged she had smelt alcohol on JBC while he was driving a bus service. JBC denied that he drinks alcohol and thought the smell may have been liniment used on his affected leg. 129It was alleged on another occasion JBC had stopped to pick up a hitchhiker which presented a risk to the students. JBC denied that he had picked up a hitchhiker. On another occasion Wednesday 15 May 2013 JBC had left the school early and as a result left a student behind. JBC said the student had been kept behind and he had not been advised of this. 130It was alleged by Mr X the interim operator that JBC had followed the bus when he had taken over the routes and had given Mr X "the bird" which was noticed by students on the bus on 2nd August 2013. Mr X had reported the incident to the local police. JBC denied that he had done this and said he had been attending court proceedings in Dubbo on this day. 131 The mother of AB was shown a blue form dated 6 March 2013 which nominated an incorrect address for her son. She denied that the signature on the form was hers - the implication being that JBC had caused it to be forged. JBC denied that the signature on the form had been forged by him or anyone on his behalf. 132The father of AB said that JBC had sworn at him when AB's father had said that his 5 year old daughter was frightened of travelling on the bus with JBC and another man. JBC denied that he had sworn at him and this denial was supported by Mr Y who had been on the bus at the time.

[53]

The Applicant's submissions 153JBC submitted that he was a fit and proper person to be an operator. He had been unfairly targeted by Transport for New South Wales which had falsified and misplaced documents. The complaints had essentially been put in by five of the working families on the bus routes and he was the subject of prejudice from them. 154Mr Y the unauthorised driver had only driven once with students on board - the day of the alleged cotton truck incident. He had used the bus without automatic wig wags because he had purchased it from Queensland where the wig wag system is different from New South Wales. He had subsequently made them consistent with the New South Wales requirements. 155He denied using one bus for two routes and said that the teacher would not have been aware of which were his buses. Both buses did occasionally meet at one point to allow the children, many of whom were related, to get off and wish children on the other bus "happy birthday". 156He had only used his private motor vehicle once. He could not be expected to have a spare bus sitting by. There was no subsidy or funding in the contract for him to have an extra bus. 157He had only altered the routes when one of the schools started earlier. He had then changed the service back to the previous time when that school changed its starting time again 158He denied being aware of or using the goat track. 159His letter from the service provider contradicted the allegation that he had exceeded the manufacturer's maintenance service intervals. 160It was Mrs JBC - not himself - who had held the Nintendo out the window. 161He had sent the letter to the employer of Miss C's parents to draw attention to the feud between the C family and the employer's family and the childrens' bad behaviour as a result. 162There had been two incidents on 10 February 2012 when he had had to apply the brakes suddenly - avoiding a kangaroo and pulling into the truck stop suddenly to get a particular student to sit down. He had made a split second decision to do so and he had pleaded guilty to this matter. 163He denied having failed to report incomplete services and noted that he had reported the flooding event. 164The Respondent was incorrect in saying he had falsely recorded student bus stops and in any event it made no effect on the category. 165His reference to the state-wide databank in a letter to a parent had been taken out of context and its existence was supported in the July 2008 letter from Transport for New South Wales. As a safety matter, he needed to be able to deal with poor behaviour of children. He had taken reasonable action to deal with misbehaviour of students and was familiar with the guidelines which required students to behave in certain ways. The blue forms completed by parents also required parents to ensure their children understood the guidelines. 166He had not initially provided information requested by the Respondent in May 2013 as they had not given him the appropriate time to respond to the requests for information as set out in the contract. 167He had been given permission by the Council and by the Transport for New South Wales contracts officer to park his vehicle near his home while he made the alternate arrangements appropriate to prevent bogging.

[55]

Findings of Fact 171There were a number of matters in the evidence which were contentious. The Tribunal's view is that it must be satisfied as required by section 140 of the Evidence Act 1995 on the balance of probabilities, the civil standard of proof. 172The Tribunal also notes that it does not make findings as to whether or not JBC has breached the relevant regulation or a term of the contract between JBC and the Director General. The findings of fact are made in respect of the matters set out in sections 7 and 10 of the PTA in respect of the purpose of authorisation for accreditation of JBC as a bus operator. 173Accordingly, the Tribunal makes the following findings. 174There were several particulars of the Respondent's reasons for suspension of which the tribunal could not be satisfied. The tribunal does not find that JBC used a goat track on 24th February 2012. JBC denies this and there was insufficient evidence before the tribunal about this. Further, the tribunal cannot be satisfied of specific incidents where JBC has failed to report incomplete/cancelled services. The tribunal is satisfied that JBC did notify the flooding incident on 6 March 2012. 175Several witnesses gave evidence that was consistent with the Respondent's contention that the two routes were combined at times. JBC denies doing this. He submitted that the schoolteacher would not have known which were his buses pulling up outside the school. The tribunal does not accept this criticism of the schoolteacher's evidence about seeing only one of JBC's buses pull up outside the school. The tribunal understands it was part of the teacher's role on after school duty to ensure that students did get on the correct bus and that she would have been aware of which were ZPG's buses for this reason. 176None of the evidence was specific about an occasion on which JBC had combined the two routes into one service. The tribunal is satisfied by the evidence from a variety of the witnesses that the two routes were combined on occasions so that only one bus was used to provide the 2 contracted services. The tribunal cannot however be satisfied to the requisite degree that it occurred on any particular occasion. 177JBC also conceded that he had altered the route to meet a different school starting time and then reverted to the previous time when the school again changed its starting time. The tribunal does not consider this to be a matter of great significance against JBC. The tribunal makes no other finding in relation to alteration of routes. 178Mrs JBC held a child's Nintendo out the window on an occasion. 179The tribunal finds that JBC did use premises other than the nominated depot. However it would appear that the Respondent agreed to vary this arrangement in its dealings with JBC. Accordingly, the tribunal does not draw any adverse conclusion about this. 180There were a number of matters adverse to JBC about which the tribunal was satisfied. 181The tribunal accepts Mr Y's evidence that he drove without an authority on at least 10 occasions with students on board. The tribunal does not accept JBC's argument that "engaged" in the regulation required a formal legal engagement nor payment for services. Interpretation of the word "engaged" should be made in the light of the objectives of the PTA and PTR of provision of safe services. The aim of the Regulation is to ensure safe services are provided. Whether an unauthorised driver has been contracted appropriately or remunerated is not the relevant issue. The tribunal understands that this matter has been subject of proceedings against JBC. 182Mr Y gave evidence that he drove a bus which was not fitted with automatic wig wags on a number of occasions. He did not give evidence about signage. JBC also conceded that he used a bus from Queensland which did not conform with NSW wig-wag requirements - until he had it refurbished to conform. 183JBC conceded he had used his car on an occasion when a bus did not work. The tribunal is satisfied that this occurred. The Respondent has also pressed the lack of a spare bus as a breach of contract. However the tribunal had insufficient evidence before it to make a finding about such a provision in the contract. 184The tribunal understands from the documents at pages 355 and 356 of part 2 of the "Accreditation" file of the section 58 documents, that services are required every 10,000 kilometres. It is apparent from the documents that these intervals were regularly exceeded. In his correspondence with Transport for NSW at pages 353, 358 and 359 of part 2 of the "Accreditation" file, JBC confirms at page 358 that the buses are serviced in school holidays and that it is impossible to have them serviced during the term as they would then not be available for the afternoon or next morning service. The tribunal finds that on a number of occasions JBC exceeded the manufacturer's maintenance recommendations. 185JBC's sending of letters to a parent's employer and the mother of the child involved in the ink blowing incident demonstrate errors of judgement and a lack of understanding of the behaviour management guidelines he was bound by regulation to apply. The letter to the employer is clearly an attempt to intimidate Mr and Mrs C from making further complaints. It is also misleading in that JBC was aware that he did not have this level of influence in determining the service as he had spent some time trying to renegotiate routes with the Respondent. Similarly the false statements in relation to a state-wide databank and the threat of police action were clearly an attempt to intimidate parents. No possible reading of the letter from the Department of Transport in July 2008 nor the Guidelines for Managing Behaviour could justify JBC's statements in this regard. 186The tribunal finds that on at least one occasion JBC applied the brakes without warning - not to avoid an obstacle on the road - but to punish behaviour and force students to sit down. 187It is clear from the documentary and oral evidence that JBC acted to deceive the Department in relation to the bus routes serviced to increase remuneration from the services. He inaccurately recorded the stop relating to AB. The tribunal does not accept JBC's argument that this was necessary for insurance purposes as the forms were forms provided to the Department for the purposes of remuneration. They were not for insurance declarations. The tribunal also accepts that JBC and Mrs JBC asked parents to drop children at particular bus stops to support the misinformation provided to the Department. 188It is clear from JBC's own evidence that he declined to comply with requirements in May 2013 to provide documents to Transport for NSW. His refusal was hostile and combative in circumstances where are more co-operative approach was warranted.

[57]

Discussion of findings 192Having made these findings of fact the tribunal needs to be satisfied that Z GP as an accredited person is considered to be of good repute and in all other respects a fit and proper person to be responsible for the operation of a public passenger service. The tribunal needs to be able to make a positive attestation of these matters. Further it needs to be satisfied that he has demonstrated the capacity to meet the government's standards of safety of passengers and the public and of vehicle maintenance, as required by his accreditation. 193These conclusions need to be drawn in the light of the objectives set out under the PTA of regulating public passenger services to ensure they are safe, reliable and efficient. 194The tribunal understands that it needs to consider JBC's fitness and propriety taking into account the matters both for and against him. 195The concept of fitness and propriety includes the concepts of honesty and ability and integrity for the specific role. 196The tribunal has made findings that JBC allowed an unauthorised driver, Mr Y, to drive the bus on at least 10 occasions with students on board. It has also found that JBC applied the brakes unnecessarily on an occasion in order to discipline students. These matters are gross errors of judgement by JBC. They are evidence of a lack of fitness and propriety for to be responsible for the operation of a public passenger service. 197JBC exceeded the manufacturer's recommendations in relation to maintenance schedules and he operated the service without the required wig wag automatic lighting system. The tribunal finds that these matters indicate that JBC does not have the capacity to meet the government's standards of safety of passengers or the public as required in section 7(2) (b) (ii) of the PTA. They also undermine JBC's integrity in being responsible for providing public passenger services. 198The tribunal has found that JBC provided the service on an occasion using his private motor vehicle. The tribunal does not consider this to be a significant issue in itself. However the lack of alternative arrangements for such an occasion is of concern. These matters go to safety of passengers and the public and vehicle maintenance as set out in the requirements for accreditation in section 7(2) (b) (ii) and (iii) of the PTA. 199The tribunal has also made findings that JBC acted to deceive the Department by providing services using only one bus; mis-describing routes and asking parents to assist in this deceit; and his failure to comply with the Department's legitimate requests to audit his records. These matters go to his fitness and propriety as they demonstrate a lack of honesty and integrity. This honesty and integrity is fundamental to the relationship between the accredited operator and the Department in circumstances where the Department is unable to monitor services closely. 200The tribunal has found that JBC has attempted to threaten and intimidate parents of students in circumstances where he has not applied Behaviour Management Guidelines set out by Transport for New South Wales. There is no doubt that the children's behaviour was at times challenging. However the Behaviour Management Guidelines are in place to assist drivers and operators to deal with poor behaviour reasonably. These acts of intimidating and threatening parents demonstrate a lack of integrity and that he is not fit and proper person to be responsible for the operation of public passenger services. 201The case law set out above requires that the tribunal take into account public views as to whether or not these kinds of behaviour of concern will re-occur should JBC have his accreditation restored. JBC did not demonstrate any understanding of his inappropriate behaviour and little remorse. He did of course plead guilty to the infringement concerning unnecessary application of the brakes. He did not demonstrate to the tribunal however any understanding of the safety risks inherent in his behaviours. He was evasive and self-justifying in responding to the allegations that he had attempted to deceive the Department in relation to the service routes. The Tribunal cannot be satisfied that the matters found against JBC would not re-occur in future or that he would not display similar errors of judgement. 202JBC alleged that the Department had been biased against him in its dealings with him falsifying, hiding and misplacing documents. There was a large amount of documentary material put before the tribunal by both parties. Of that, the correspondence between the Department and JBC was substantial and at times JBC's responses were heated. The Department has conceded it incorrectly overlooked JBC's reporting of uncompleted services on an occasion by JBC. 203Further, much of the evidence against JBC has been provided by witnesses independent of the Department. 204On the evidence put before it, the tribunal is satisfied that the Department did not act in bad faith towards JBC. 205JBC also argued that local families had ganged up against him because of prejudice against him. It was clear from the evidence given by the parent witnesses that they did not like JBC. However their evidence uniformly focussed on their concerns about JBC's actions in operating and driving the school bus services such as the unnecessary application of brakes; having children alight from the bus in the middle of the road and sending threatening letters to them as a result of the childrens' behaviour. 206For these reasons the tribunal does not accept that the Respondent's action in suspending JBC's accreditation is motivated by bias against him or based on false testimony from local families prejudiced against JBC. 207The tribunal finds that JBC is not a fit and proper person to be responsible for the operation of a public passenger service. It also finds that he has not demonstrated the capacity to meet the government's standards of safety of passengers and the public and vehicle maintenance. 208 Having found that JBC is not a fit and proper person to be responsible for the operation of a public passenger service, the tribunal does not need to make findings in relation to his repute.

JBC v Director-General, Department of Transport

At a glance

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Decision date

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Judgment (59 paragraphs)

Parties

Cases Cited (7)

Cited By (1)