Maatouk v Secretary of the Department of Customer Service

Relevant legislation

1. The TTI Act is concerned with the regulation of the tow truck industry in NSW.
2. Under the TTI Act a person must hold a certificate to drive, use, or operate a licensed tow truck (s 23). A certificate to drive a tow truck may be granted under s 27 of the TTI Act and may be subject to conditions (s 29(1)).
3. Section 26 of the TTI Act relevantly provides: 26 Restrictions on granting drivers certificate (1) The Secretary - (a) must refuse to grant an application for a drivers certificate on mandatory grounds, and (b) may refuse to grant an application for a drivers certificate on discretionary grounds. … (3) The discretionary grounds for refusing to grant an application for a drivers certificate are as follows - (a) that the applicant is not, in the opinion of the Secretary, a fit and proper person to hold a drivers certificate or is otherwise not competent to carry on the kind of towing work to which the proposed drivers certificate relates, … (d) that the granting of the drivers certificate would, in the opinion of the Secretary, be contrary to the public interest. … (4) The regulations may provide additional mandatory or discretionary grounds for refusing the granting of an application for, or renewal or restoration of, a drivers certificate.

The hearing

1. The matter was first listed for hearing on 2 May 2024. During the proceedings, reference was made by Mr Morrisey, the solicitor appearing for the Respondent, to the possibility of a certificate under s 128 of the Evidence Act 1995 (NSW) being required in these proceedings. As the Applicant was unrepresented, he was given an opportunity to seek legal advice prior to giving evidence in the matter. The matter was stood down for a period of time, and when it recommenced, the Applicant sought an adjournment. The matter was then adjourned, without objection, to 9 May 2024. At the commencement of the hearing, the Applicant indicated that he had had the opportunity to seek legal advice and was willing for the matter to proceed.

Material before the Tribunal

1. The review application was before the Tribunal which included the reasons for the Decision. Also attached were the grounds for the review application and a copy of the Applicant's internal review request dated 2 October 2023, which included a Certificate of Completion awarded to the Applicant for successfully completing the Online Traffic Offenders Rehabilitation Program (TORP) Special Program.
2. The grounds for the review application noted that the Applicant had held his Drivers Certificate for five years and his record had never been an issue in the past. He stated that his most recent driving offence which was pending at the time, has now been dealt with and there had been no conviction recorded. The Applicant noted that he was a single father of two children, whom he had sole parental responsibility for and had a mortgage, bills and living expenses. He referred to being self0employed and to having his own towing company and truck. He stated that he needed his licence to be able to work and provide for his children and to pay his bills and mortgage.
3. At the hearing, the Applicant relied upon a series of screenshots of bank records showing his loan activity statement with La Trobe Financial and documents relating to his Family Law proceedings. The Applicant also relied upon six character references.
4. The Applicant gave oral evidence and was cross-examined at the hearing.
5. The Respondent relied on the documents and supplementary documents filed under s 58 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act).
6. The Respondent filed written submissions in the matter and both parties made oral submissions at the hearing.

Role of the Tribunal

1. Section 45 of the TTI Act confers jurisdiction on the Tribunal for administrative review of the Respondent's decision pursuant to s 9 of the ADR Act. I am satisfied that the Tribunal has jurisdiction to hear and determine this review application
2. Section 63 of the ADR Act provides that in determining an application for review, the Tribunal is to make the correct and preferable decision having regard to the material then before it, and any applicable written or unwritten law. The Tribunal makes its own decision in place of that of the Respondent and there is no presumption that the decision of the Respondent is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357. In doing so it may exercise all of the functions conferred or imposed by any relevant enactment. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[30], [34]. In an application for review the Tribunal is not restricted to a consideration of the material that was before the decision maker but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31.

Issues for determination

1. Mr Morrisey, confirmed in the written submissions that the other ground relied on by the Respondent in the refusal decision of 20 September 2023 was abandoned and was no longer relevant to these proceedings. He also confirmed that the mandatory grounds under s 26(2) of the TTI Act are not relevant to this matter. Accordingly, I have had no regard to the abandoned ground in making my determination or to the mandatory grounds under the TTI Act.
2. In the written submissions, the Respondent submitted that these proceedings involve a consideration of only one discretionary ground under s 26(3)(d) of the TTI Act, namely whether the renewal of the Applicant's Drivers Certificate is contrary to the public interest having regard to the Applicant's driving history. This position was confirmed at the outset of the hearing. However, Mr Morrisey foreshadowed that the Respondent might also rely on the discretionary ground under s 26(3)(a) of the TTI, namely whether the Applicant is a fit and proper person to hold a Drivers Certificate.
3. In oral submissions, Mr Morrisey indicated that following the evidence in the matter, the Respondent relied on both grounds, namely that that the correct and preferable decision was for the Tribunal to affirm the Decision on the basis that: 1. Pursuant to s 26(3)(d) of the TTI Act, that the granting of the Drivers Certificate would be contrary to the public interest; and 2. Pursuant to s 26(3)(a) of the TTI Act, that the applicant is not a fit and proper person to hold a Drivers Certificate.
4. In support of this second ground, the Respondent relied on the Applicant's responses to question 2 and question 4 in section 6 of the Application. The Applicant responded "No" to question 2 which asked, "Has the applicant within the period of 3 years before the application was made had their driver licence suspended or cancelled (other than for fine default under the Fines Act 1996 or in relation to illness, incapacity or a medical condition under clause 65(1)(b) or (7) of the Road Transport (Driver Licensing) Regulation 2017)?". The Applicant also responded "No" to question 4, which asked, "Does the applicant have proceedings for an offence pending against them?".
5. It was the Respondent's position that as of 25 August 2023, the date that the Applicant signed the Application, his driver licence had been suspended for the period 10 January 2023 to 9 September 2023 inclusive and he was still awaiting the outcome of an offence of Drive Whilst Suspended offence committed on 21 June 2023 and finalised on 26 October 2023. The Respondent submitted that the Applicant's responses to these questions were either dishonest or reckless. The Applicant's position was that he had misinterpreted the questions and that his responses were honest mistakes.
6. The Respondent submitted that the Decision should be affirmed. However, if the Decision was not affirmed, the Respondent sought conditions that the Applicant not commit any traffic offences for a period of 12 months from the date of the Tribunal's determination.

Public interest

1. The term public interest is not defined in the TTI Act but is a term that has been considered often in this Tribunal and more broadly by courts.
2. In Aouli v Commissioner for Fair Trading [2022] NSWCATOD 194 (Aouli), Senior Member Montgomery referred to a number of decisions as follows (at [23] - [26]): 23… The Tribunal has considered the concept of 'the public interest' in a number of decisions. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated in regard to a decision to refuse to issue a security industry licence: "25 The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal." 24 The "public interest" allows issues going beyond the character of the Applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16. 25 "Public interest" embraces standards acknowledged to be 'for the good order of society and for the wellbeing of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The purpose of a reference in legislation to "public interest" is 'to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the decision-maker's consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at page 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals. 26 The legislative regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum.
3. As Senior Member Montgomery noted, the Court held in Comalco Aluminium (Bell Bay) Ltd v O'Connor (No 2) (1995) 131 ALR 657at page 681 that the relevant interest is the interest of the public, as distinct from the interest of an individual.
4. In Kaldas v Road and Maritime Services [2013] NSWADT 14, the Tribunal stated at [116]: In the context of the TTI Act the public interest underlying the objects and purposes of the Act are not the subject of specific provisions in the Act. A reading of the Act makes it clear however that among its major purposes are consumer protection, and the regulation of the industry so as to ensure the honesty and integrity of its operations, and to prevent their involvement in illegal and organised activities such as rebirthing.

Applicant's driving history

1. The Applicant was first granted a learner's driver licence (Class 1A) in December 1993 and a provisional licence (Class 1A) in December 1994. The s 257 Certificate provided in relation to the Applicant's driving record and adduced by the Respondent shows a large number of traffic offences from 1995 to 2023.

Applicant's evidence

1. The Applicant gave evidence that he believed that there were only 19 speeding offences in his driving history, rather than 21. He conceded that 15 of those offences were for speeding of greater than 15 kilometres per hour over the speed limit. Whilst he acknowledged that this indicated a tendency to speed, the Applicant said that this occurred over a period of 20 years and that his speeding was in the context of trying to overtake. The Applicant agreed with Mr Morrisey's statement that speeding put the public at risk. The Applicant also gave evidence that his mobile phone offence on 24 July 2020 occurred whilst he was driving his truck.
2. At the conclusion of the cross-examination, I took the Applicant to his evidence in relation to the number of speeding offences and then asked him whether his driving record was accurate. The Applicant responded that it looked "like it."
3. The Applicant was also asked questions by Mr Morrisey about the offences of drive whilst suspended and drive across dividing lines to perform U-turn (school zone) that occurred on 21 June 2023. When asked about the circumstances of these offences, the Applicant's evidence was that his children were late for school, and he was not thinking very well and just jumped into his car to take his son to school. He said that he was driving the family car and that only he and his son were in the car. His evidence was that he turned right into a driveway to drop his son off at school and a police officer was standing there.
4. The Applicant's evidence was that he became aware that his licence would be suspended a few weeks before the suspension took place on10 January 2023, and that he was aware from 10 January 2023 that his licence was suspended. The date of the suspension was from 10 January 2023 to 9 September 2023 inclusive. The Applicant gave evidence that he had not driven on any occasion during his suspension except on 21 June 2023. He was asked in cross-examination whether he expected the Tribunal to believe that the only occasion that the Applicant drove during his suspension, he was caught and he replied "yes." He said that was the truth and he had not driven after that date whilst he was suspended.

Consideration

1. The Respondent relied on the Applicant's tendency to speed and submitted that since holding a driver's licence, the Applicant had committed 21 speeding offences of the following nature: 1. 3 speeding offences of less than 10 km/h over the speed limit; 2. 3 speeding offences of more than 10km/h but less than 20km/h over the speed limit; 3. 11 speeding offences of more than 20 km/h but less than 30km/h over the speed limit; 4. 2 speeding offences of more than 30 kilometres but less than 45 km/h over the speed limit; and 5. 2 speeding offences of more than 45 km/h over the speed limit.
2. In his evidence, the Applicant said that he believed that there were only 19 offences rather than 21 but acknowledged that he had committed 15 speeding offences involving speeding of more than 15 km/h over the speed limit. He also confirmed that the driving record relied upon by the Respondent looked to be correct. In my view, even if only those speeding offences that the Applicant believed that he had committed were taken into account, they indicate a tendency to speed, including on occasion at very high speeds, throughout his driving history.
3. The Applicant's driving record indicates that the most recent of these speeding offences occurred on 1 April 2022 and related to speeding in a school zone. In the speeding offence on 3 September 2021, the Applicant exceeded the speed limit whilst driving a coach or heavy vehicle. The Applicant had previously committed a speeding offence in a heavy vehicle in 2014, with a further speeding offence relating to a school zone having occurred in 2015.
4. The Applicant's driving record also includes the following: 1. On 6 June 2022, the Applicant came before the Bankstown Local Court in relation to the offence on 16 October 2020 of driver not wearing seatbelt. Pursuant to s 9(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Applicant was given a Conditional Release Order, without conviction, for a period of one year; and 2. On 24 July 2020 - driver use mobile phone when not permitted. In his evidence before the Tribunal, the Applicant said that this occurred whilst driving his truck.
5. In my view, the Applicant's driving record is extremely poor, especially in relation to speeding. There can be no doubt that speeding presents a huge risk to the public, including to the Applicant, particularly in a heavy vehicle, as does the failure to wear a seatbelt; the use of a mobile phone whilst driving; and traffic offences committed in a school zone.
6. It is clear from the Applicant's driving record that he has accrued numerous fines and demerit points for various traffic offences in the period between October 1995 and June 2023. The Applicant has had multiple warning letters sent to him and has had his licence both suspended and cancelled for various reasons. He has good behaviour conditions imposed on his licence and it would seem from his driving record that he passed the Increased Traffic Offender Penalty Knowledge test in 2020, and yet he has continued to commit offences, including speeding offences.
7. On 6 December 2022, the Applicant's licences (Class HC and Class R) were suspended for the period 10 January 2023 until 9 September 2023 inclusive in relation to demerit points. On 21 June 2023, the Applicant was fined for driving across dividing lines to perform U-turn in a school zone. He was also charged with driving whilst suspended. That matter was dealt with by Liverpool Local Court on 26 October 2023 and pursuant to s 9(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) was given a Conditional Release Order, without conviction for a period of six months.
8. I accept the submission made by the Respondent that the public interest requires that all tow truck drivers be aware of, and comply with traffic laws and I accept that prior conduct can provide some guidance on how a person will behave in the future. The Applicant has been driving since 1993 and has continued to accrue traffic offences, including speeding offences, despite being fined, receiving warning letters, and having his driver licence suspended or cancelled on various occasions, including the suspension that was imposed for the period from 10 January 2023 to 9 September 2023. However, even whilst his licence was suspended, the Applicant chose to drive with his son in the vehicle on 21 June 2023, and committed a further offence in a school zone.
9. Whilst it may seem suspicious that the Applicant was caught by police on the one day that he said that he drove whilst his licence was suspended, I am not satisfied to the relevant standard that the evidence establishes that the Applicant drove on any other occasion whilst suspended.
10. It is however very concerning that when serving a suspension for demerit points accrued for previous traffic offences, the Applicant chose to drive on that one occasion and committed a further offence in a school zone, which put the public at risk, including school children. In my view, this conduct, coupled with the Applicant's driving record, creates concerns in relation to public safety if he was to have his Drivers Certificate renewed at this time.
11. I have had regard to the Applicant's evidence that he is a single father with two school aged children and that whilst he holds a Tow Truck Operators Licence, he relies on driving a tow truck to support his children and pay his mortgage. I accept this to be the case, and that if the Applicant is not granted a Driver Certificate, he and his family may suffer significant hardship. However, in the current matter the public interest takes priority over the Applicant's private interests.
12. I have regard to the character references adduced by the Applicant, and I accept that the Applicant is well regarded in the community and held to be a person of good character by the referees. Whilst the various character references are addressed to the Tribunal, and some refer to the Applicant's current legal situation, none of the character references make reference to the Applicant's driving record. In light of this, I give very little weight to these references in relation to my determination in this matter.
13. I have had regard to the Applicant's oral submissions in which acknowledged that he had done stupid things on the road and that he has now bettered himself and is not speeding any more. I accept that the Applicant successfully completed the TORP Special Program and was issued with a certificate on 16 August 2023. The Applicant submitted that this program would help him to be more aware on the road and to not speed anymore. However, the Applicant's driver licence remained suspended until 9 September 2023 and the offence of drive whilst suspended was finalised on 26 October 2023, with the six month conditional release order imposed by Liverpool Local Court only being completed in late April 2024, less than one month before the hearing in this matter.

Conclusion

1. In light of the Applicant's extensive driving record, and in particular his most recent offending, including driving whilst suspended and committing a further traffic offence whilst suspended, I am not satisfied that the imposition of a condition on the Applicant's Driver Certificate, would be sufficient to ensure the protection of the public.
2. Whilst I accept that the Applicant believes that he has bettered himself and has changed his driving behaviours, I am of the view that not enough time has elapsed to establish that the Applicant's driving does not pose a risk to the public safety.
3. Accordingly, I am of the opinion that the granting of the Drivers Certificate to the Applicant at this time would be contrary to the public interest. I note that the Applicant is not precluded from applying for a Drivers Certificate in the future.
4. Having made this finding, it is not necessary for me to consider the second ground raised by the Respondent at the hearing in relation to whether the Applicant is a fit and proper person to hold a Drivers Certificate.
5. In light of the above, the correct and preferable decision is to affirm the Respondent's decision in this matter.

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: 19 November 2024