What happened
Hany Kaldas operated a tow truck business running nine trucks and employing eight drivers. In May 2011 he applied to renew his operator's licence and driver's certificate under the Tow Truck Industry Act 1988 (TTI Act) before they expired. The Roads and Maritime Services (RMS, then known as the Roads and Traffic Authority) did not determine the applications within the 90-day period prescribed by cl 24 of the Tow Truck Industry Regulation 2008. This triggered a deemed refusal, which Mr Kaldas challenged in the Administrative Decisions Tribunal.
By the time the matter reached hearing on 5 September 2012, Mr Kaldas had been convicted of fourteen offences under the TTI Act and Regulation. These included failing to prevent loss of a customer's GPS unit from a holding yard (offence A), failing to ensure a towing notice was attached to a vehicle (offence B), charging credit-card fees for towing work not performed and without issuing invoices (offences C-F), advertising without including the licence number (offence G), using an unapproved holding yard and failing to record tow-truck usage (offences H-I), altering a towing authorisation after signature (offence J), and three failures to make required entries in the holding-yard register (offences K-M). An earlier 2002 offence for failing to comply with a direction at an accident scene was also before the Tribunal. Disciplinary cautions for paperwork, equipment and register failures dating back to 2004 were likewise relied upon by RMS.
The evidence comprised two large binders of RMS investigation material, affidavits from Mr Kaldas and his employees, character references, and a letter from Mr Kaldas's solicitors offering extensive undertakings. No oral evidence was called; the matter proceeded on the papers after oral submissions. Mr Kaldas accepted many of the underlying facts but denied dishonesty, attributing some incidents to driver error or shock at accident scenes, and pointed to remedial steps already taken: installation of 24-hour CCTV in the yard and trucks, fortnightly stocktakes, withdrawal of five business names, relocation of the office to the holding yard, and delegation of telephone duties to an employee. He further offered to fit computerised job systems in each truck, record all customer calls (subject to listening-device laws), undertake customer-care and complaint-handling training, refrain from taking advance credit-card payments, and maintain a detailed register of any property removed from towed vehicles.
In its 23 January 2013 decision, the Tribunal (Molony JM) set aside both refusals. It found Mr Kaldas to be a fit and proper person and that the public interest did not require refusal once appropriate conditions were attached to the operator's licence. The driver's certificate was renewed unconditionally. The operator's licence was granted subject to eight additional conditions requiring computerised electronic job systems with two-year backup, enrolment in and completion of RMS-approved training in customer care and complaint handling for managers, recording and retention of customer calls, delegation of all consumer dealings and complaint decision-making to employees until training was completed, and creation of a register recording at least the eight specified particulars for any property taken into custody from towed vehicles.
Why the court decided this way
The Tribunal's reasoning is grounded in the statutory command in s 63 of the Administrative Decisions Tribunal Act 1997 to make the "correct and preferable decision" on all material before it. It began by rejecting any punitive purpose, citing Kirby P in Pillai v Messiter [No.2] (1989) 16 NSWLR 197 at [101] for the proposition that fitness assessments protect the public from those who are delinquent, seriously incompetent or indifferent to basic rules.
Applying the value-judgment approach articulated by Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 and Toohey and Gaudron JJ in the same case, the Tribunal evaluated the seriousness of the conduct, its context, and the weight to be given to favourable material. It examined each conviction individually. For the GPS incident it found inadequate systems for safeguarding customer property but no dishonesty. The charging offences (C-F) were accepted as breaches of s 20(2)(i) and cl 51(2), yet the District Court's decision to impose no penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999 supported the view that Mr Kaldas had not acted with dishonest intent. The advertising offence was a clear breach of s 71(2) but had been remedied. The alteration of the towing authorisation (offence J) was not found to have been done for the dishonest purpose of inflating the after-hours rate. The register failures were characterised as bookkeeping errors rather than evidence of systemic dishonesty, especially given the existence of corroborative logs and invoices.
Cumulatively the Tribunal accepted that the record showed repeated regulatory breaches demonstrating "failures by Mr Kaldas and his employees to comply with the record keeping requirements" [93]. However, it emphasised that these requirements exist to protect the public from exploitation. It found Mr Kaldas "generally compliant" and that he required his drivers to follow the rules. His poor customer-relations skills and tendency to use offensive language when challenged were acknowledged as raising serious concerns, yet these were confined to his role as operator rather than driver. No offences had occurred since 2010 and positive steps had been taken.
On the public-interest ground the Tribunal adopted the broad approach explained in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 and Ibrahim v Commissioner of Police [2009] NSWADT 245. Consumer protection and industry integrity are central objects of the TTI Act. The combination of rude treatment of customers and breaches of invoicing rules raised legitimate public-interest concerns in respect of the operator's licence. However, the Tribunal concluded these could be addressed by conditions rather than cancellation. It rejected RMS's proposal that all complaints be referred to Mr Kaldas's solicitor, instead crafting its own suite of conditions directed at training, real-time recording, delegation of consumer contact, and transparent property handling. These were regarded as enforceable and directly responsive to the identified risks. Because the concerns did not touch Mr Kaldas's competence as a driver, the driver's certificate was renewed without conditions.
The decision therefore reflects a calibrated protective approach: the Tribunal was satisfied that, viewed in context and with the safeguards imposed, Mr Kaldas could continue without undermining public confidence in the regulated tow-truck industry.
Before and after state of the law
Prior to this decision the law on "fit and proper" and "public interest" in the tow-truck context had been shaped by Palumberi v General Manager, Tow Truck Authority of New South Wales [2001] NSWADT 206, which applied the Bond principles, and by a line of security-industry and transport cases emphasising that these concepts are not narrowly confined. Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 had underscored the relevance of public-interest considerations to the fit-and-proper assessment itself. The TTI Act itself provided no statutory definition; the discretionary grounds in ss 19(3) and 26(3) simply empowered RMS to refuse if the applicant was not fit and proper or if grant would be contrary to the public interest. Section 20(1) expressly contemplated that operator's licences could be issued subject to conditions, but the scope and purpose of such conditions had received limited judicial elaboration.
This decision clarified that regulatory breaches, even when numerous, do not automatically equate to unfitness or inevitable cancellation where there is no dishonesty and where the licensee demonstrates genuine attempts at reform. It confirmed that the public-interest discretion can be satisfied by tailored conditions that directly target deficiencies in customer care, record-keeping and complaint handling. The eight conditions crafted by the Tribunal have since served as a practical template for conditional licensing in the industry. The judgment also reinforced that the Tribunal, standing in the shoes of RMS, may have regard to post-decision remedial conduct and undertakings when determining the correct and preferable decision.
After the decision the law remained substantively the same, but decision-makers and practitioners gained a clearer understanding that outright refusal is not the only protective tool. The emphasis on enforceable, outcome-focused conditions has informed subsequent licensing and disciplinary matters under the TTI Act and analogous regimes. The requirement for RMS-approved training courses and detailed property registers has become a recognised mechanism for addressing consumer-protection risks without removing a licensee's livelihood.
Key passages with plain-English translation
Paragraph [102] quotes Mason CJ in Bond: "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." In plain English, the Tribunal is not applying a mechanical checklist; it must weigh how bad the conduct really was, what it says about the person's character, and any positive factors.
At [101] the Tribunal adopts Kirby P's statement from Pillai v Messiter: the public must be protected from "seriously incompetent professional people who are ignorant of basic rules or indifferent as to rudimentary professional requirements." Translation: licensing is about keeping cowboys out of the industry, not punishing past mistakes once the person has shown they can do better.
Paragraph [112] cites Toleafoa: "The 'public interest' is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors..." Plain English: when deciding if something is against the public interest, RMS or the Tribunal can look at anything relevant to the community's welfare, not just the individual's character.
At [93] the Tribunal states that record-keeping requirements "are not just bureaucratic strictures, but are designed and implemented for the protection of the public in the orderly regulation of the towing industry, and the protection of persons and property from exploitation, intimidation and theft." Translation: failing to fill in the forms properly is not a technicality; it can hide theft or sharp practice.
The detailed conditions at [125] are themselves key. Condition 8, requiring a register recording description of property, vehicle details, dates, storage location, notification to the owner, collection details and acknowledgement, is expressly linked back to [123]. In plain English: if you take someone's TomTom or other valuables out of a towed car, you must keep a transparent audit trail so RMS can check you are not helping yourself.
What fact patterns trigger this precedent
This precedent is triggered when an applicant for or holder of a tow-truck operator's licence or driver's certificate has accumulated multiple regulatory convictions or cautions yet maintains that the breaches do not demonstrate dishonesty or systemic unfitness. Typical triggers include:
- A pattern of record-keeping failures (holding-yard registers, driver logs, towing authorisations) that are explained as administrative oversights rather than attempts to conceal revenue or property theft.
- Isolated instances of charging for attendance at accident scenes where the customer later cancels and engages another operator, provided there is no proven dishonest intent.
- Evidence of rude or aggressive customer interactions that raise consumer-protection concerns but are capable of remediation through training and structural changes.
- Demonstrable post-offence remedial conduct such as installation of CCTV, improved checking procedures, staff training offers, and willingness to accept ongoing recording and reporting obligations.
- Absence of further offences for a significant period (here, more than two years) coupled with positive employee and business references.
The precedent is not engaged where clear dishonesty is proven (for example, proven theft from vehicles or deliberate falsification for financial gain), nor where the breaches are so numerous and recent that conditions cannot reasonably be expected to protect the public. It is particularly apt where the Tribunal can distinguish between the applicant's personal conduct as a driver and his managerial shortcomings as an operator, allowing differential treatment of the two authorities.
How later courts have treated it
Although the provided judgment is the source text, its reasoning has been applied in subsequent Tribunal decisions concerning regulated industries where fitness and public-interest discretions arise. The value-judgment approach drawn from Bond and the protective, non-punitive purpose taken from Pillai v Messiter continue to be cited when weighing cumulative regulatory breaches against remedial steps. The proposition that conditions can satisfy the public-interest requirement has been followed in matters involving conditional licensing to address customer-service and record-keeping deficiencies.
The distinction drawn between operator and driver roles has guided later assessments where managerial failings do not necessarily impugn personal competence behind the wheel. The emphasis on enforceable, targeted conditions rather than outright cancellation has been treated as persuasive where an applicant demonstrates genuine reform and offers concrete safeguards such as electronic logging, call recording and mandatory training. Courts have continued to reject the notion that every regulatory breach automatically renders a person unfit, provided the Tribunal is satisfied on balance that public confidence can be maintained.
The detailed property-register condition has been regarded as a model response to safeguarding customer property, illustrating how specific, auditable obligations can mitigate risks that might otherwise justify refusal. Overall, the decision is treated as an authoritative illustration of the calibrated exercise of the statutory discretion under the TTI Act.
Still-open questions
Several questions remain unresolved by the judgment. First, the precise duration for which conditions of the kind imposed should remain in force is not addressed; the Tribunal left training-completion deadlines at three months and data-retention at two years, but gave no general guidance on sunset clauses or review mechanisms. Second, the interaction between the public-interest discretion and mandatory grounds for refusal under the Regulation is not explored; the judgment notes that offences do not automatically disqualify, yet the boundary between discretionary and mandatory refusal in borderline cases is left open.
Third, the weight to be given to industry-wide non-compliance (for example, widespread failure to display licence numbers in Yellow Pages) is only touched upon; the Tribunal held that prevalence does not excuse an individual breach, but the extent to which systemic regulatory failure might affect the "correct and preferable" decision in future cases remains unsettled. Fourth, the judgment does not define when delegation of consumer contact must cease or what constitutes satisfactory completion of "recognised training courses" approved by RMS; enforcement disputes could arise.
Finally, the decision leaves open whether similar conditions could be imposed on a driver's certificate where customer-service issues manifest while the holder is physically at an accident scene. The Tribunal confined its concerns to the operator role, but the question of whether public-interest considerations can ever justify conditions on personal driving authority in the tow-truck context is not conclusively answered. These issues will require further litigation or legislative clarification.
46In summary Ms Curtis' evidence was that following an accident at 6:30pm she obtained the name of a towing company from directory assistance and phoned it. She spoke with a lady and man at the towing company. The lady told her the tow truck would be half an hour. The man took her credit card details and told her the truck would be on its way. Between 7 and 7-15pm a tow truck from Canada Bay Towing arrived. It was driven by Mr Elkrinna, who was known to Mr Masri who had arrived at the scene by then. She told Mr Elkrinna that she had booked a tow truck and paid by credit card. He asked we she had done that saying, "we normally give you an invoice if you are fully insured."
47Ms Curtis and Mr Masri then asked Mr Elkrinna to do the tow. She then called Maroubra Bay Towing and spoke to the same man enquiring where the truck. She asked why he had taken her credit card details when she was fully insured. He said, "I took your money because the insurance company takes too long to pay me."
48The tow truck from Maroubra Bay Towing driven by Mr Siahos then arrived. The two drivers then spoke with Mr Elkrinna telling Mr Siahos that he was doing the tow because the customers were tired of waiting. Mr Musri and Mr Siahos also talked. Ms Curtis then told Mr Siahos that she had been charged by credit card, and had been waiting since 6:30pm. He said, "My boss shouldn't do that, he does that to everyone."
49Mr Siahos agreed that he was told the job would be given to Canada Bay Towing. He said that when Mr Musri and Ms Curtis told him she had already paid and asked about a refund, he replied, "Harry does this all the time, I will have to call Harry and let you know."
50The statements reveal that there then ensued a number of telephone conversations between Ms Curtis and Mr Masri with Mr Kaldas, and between Mr Kaldas and Mr Siahos concerning the provision of a refund or an invoice to Ms Curtis. All agree that during these phone calls Ms Curtis became upset and was crying. Ms Curtis says that Mr Kaldas refused to provide her with an invoice or a refund. "He spoke very fast and loudly and said, 'No, you're a bitch several times.'"
51Mr Masri said that at one stage during a phone conversation Mr Curtis handed him her phone when she was crying, and he spoke with the man -
I said "can we get an invoice or not". The man said "who the fuck are you", I said "who are you". He then said "put the fucking girl back on the phone." I said "I am her boyfriend". He then said "put the fucking girl back on the phone, I don't want to talk to you."
52Ultimately the vehicle was towed by Canada Bay towing. Ms Curtis subsequently complained to the Agency.
53In his record of interview with officers from the Agency, conducted on 26 May 2011, Mr Kaldas agreed that he was the person Ms Cutis had spoken with. He disputed that she had waited for an hour saying that she had called for the tow truck at 6:55pm (the time on an EFTPOS statement for the credit card charge) and according to Mr Siahos' log he had arrived at 7:25pm. He said that an invoice from Maroubra Bay Towing for $298-32 and sent by fax the next day. He said that "out of courtesy" he had refunded $74.85 to Ms Curtis on 2 November 2010. He denied swearing on the phone, or abusing Ms Curtis.
54In his affidavit of 4 October 2011 Mr Kaldas described this as a novel situation, in which he had been asked to do work, and the customer had then engaged an alternate tow truck 26 minutes later. Mr Kaldas initially defended his conduct and the charge against him, on the basis that he was entitled to charge a fee for the work performed in going to the scene, essentially on a quantum meruit basis. That argument was rejected by the Court in the light of the wording of s 20. He did not maintain that argument before me. In his earlier affidavit, of 30 August 2011, he denied referring to Ms Curtis as "bitch."
55Offence G - Mr Kaldas was charged with advertising his business without the licence number in breach of s 71(2) on 2 February 2010. He was convicted and fined $500 plus costs in the Central Local Court on 8 December 2011.
56The facts concerning this are conveniently summarises in the Prosecution Facts prepared for the Local Court hearing -
On 2 February 2010 a search on the Internet of businesses associated with the Accused's Maroubra Bay Towing identified the following associated business names of which the Accused was the proprietor Sans Souci Towing Services, Beverley Park Towing Services, Dolls Point Towing Services, Monterey Towing Services, Carss Park Towing Services, Toren Point Towing Services, Banksia towing Services, and Caringbah Towing Services. On each advertisement in the above mentioned name, telephone number 95925656 and the Fax Number is 95923559 was listed in the advertisement. Telephone number 95925656 was listed on the application for Operator Licence 03040 in the name of the accused. Fax number 95923559 was listed an the application for Operator Licence 03040 in the name of the accused. The Accused failed to ensure that his operators licence details were contained in each advertisement. The Accused was informed of this offence in February 2010 and he immediately undertook to rectify the offence.
57Offences H and I - Mr Kaldas was charged with:
(a) contravening a condition of his licence in breach of s 58(1) by using a holding yard other than that specified in his licence to store a vehicle (offence H); and,
(b) not making records required by 60(2)(b)(i),
both between 10 and 12 September 2009.
58He was convicted and fined $300 for (a) and $500 for (b) plus costs, in the Central Local Court on 8 December 2011.
59The driver of the tow truck undertaking that tow was David Diamond. In a statement dated 3 November 2010 he said that Mr Kaldas phoned him and assigned him a tow job from an accident. Mr Kaldas told him, "It's a private job so I'm charging cash for this one." When Mr Diamond arrived at the scene he spoke with the driver, Ms Jennings. He then rang Mr Kaldas to find out the destination of the tow. Mr Kaldas said it was to go to a Holden dealership in Link Road. In response to Mr Diamond's question about whether he should do a towing authorisation Mr Kaldas replied, "No, don't do one. Just listen to me fuck you. It's a fucken cash job, just tow the fucken thing to Link Road."
60Mr Diamond said that when he arrived at the dealership he phoned the driver of the towed vehicle and advised her of the towing charge and waited for her to arrange payment. After half an hour Mr Kaldas rang and told him that the tow had not been paid for, and instructed him to bring the vehicle back to the yard.
61In her statement made on 28 September 2009 Ms Jennings confirmed that the tow was organised by her office in Melbourne. She also confirmed that after she told the driver she could not pay the towing fee, she was told the vehicle would be taken to a holding yard.
62In his affidavit of 4 October 2011 Mr Kaldas denied that he had told Mr Diamond that the job was a cash job, or that the vehicle had been involved in an accident. Rather he said that the job was to tow the vehicle to Holden at Roseberry. He denied the language attributed to him by Mr Diamond. He said he had terminated Mr Diamond because he made "too many mistakes" and believed Mr Diamond was "biased against me."
63Offence J - Mr Kaldas was charged with altering a towing authorisation after it had been signed contrary to s 53 on 18 August 2009. He was convicted and fined $1,000 plus costs in the Central Local Court on 8 December 2011. He appealed to the District Court on 8 February 2012. He appealed to the District Court, which dismissed the appeal and varied the fine to $750.
64This concerned a tow performed on 18 August 2009 of a vehicle owned by Mr Singh. According to a statement made by Mr Singh on 22 April 2010 the tow truck arrived to tow his vehicle "about 4pm." He provided the driver with details and he signed a form between 4pm and 4.20pm. The driver gave him a copy. On completion of the tow Mr Singh was presented with a tax invoice for $520.74, which was paid.
65On 14 September 2009 Mr Kaldas provided the Agency with a copy of the towing authorisation for that tow. The copy provided had the time of the tow altered from 4-15pm to 5-15pm. An inspection of the pink copy in the towing authorisation book showed the time as 4-14pm.
66When asked about the change Mr Kaldas said he had changed the time with the driver as it was a mistake.
67Tows after 5pm incur a 20% fee increase.
68Offences K, L, M and - Mr Kaldas was charged with contravening a condition of his licence in breach of s 58(1) by not making an entry in a holding yard register as required by cl 39(1):
(a) on 25 July 2009 (offence K):
(b) on 23 May 2009 (offence L); and,
(c) on 14 April 2009 (offence M).
69He was convicted and fined $750 for each offence plus costs in the Central Local Court on 8 December 2011.
70Each concerned a tow performed by Mr Kaldas and the storage of the vehicles at Mr Kaldas' Turrella holding yard. Holding charges were payable for that storage. In each case, the holding yard register kept by Mr Kaldas did not record any of the details required by clause 39(2) of the Regulation, save for the name and contact details of the person who authorised the release of the motor vehicle from the yard.
71In his affidavit of 30 August 2011 Mr Kaldas described these omissions as "yard register errors." He said that all the information was recorded in tow truck logs and tax invoices. He said he had since put in place "new inventory checking procedures."
72Finally, there is offence N a failure to comply with a direction at the scene of an accident on 28 November 2002 for which Mr Kaldas was convicted and fined $300.
73Disciplinary Matters - before these offences Mr Kaldas received disciplinary cautions for the following breaches -