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[2014] NSWCATOD 63
appellant. The Tribunal set aside the Respondent's decisions refusing the Applicant's drivers certificate and refusing to lift the suspension, and remitted the matters to the Respondent under s 63(3)(d) of...
Moujalli, a long-time tow-truck driver, had his licence and certificate suspended after allegations of involvement in violent incidents on 8 and 9 March 2011. RMS refused to grant a new drivers certificate and would not lift the suspension. The Tribunal reviewed the evidence and concluded RMS relied on suspicion and equivocal witness accounts rather than cogent proof; the Tribunal found the evidence insufficient to conclude Moujalli was not 'fit and proper' and set aside RMS's decisions, remitting the matters back to RMS for reconsideration.
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Joseph Moujalli, a long-time tow truck driver and operator, was arrested and charged following two related incidents on 8 and 9 March 2011. The first (8 March) involved an altercation at a roadside collision between Moujalli and another driver, Mr McCosh; the second (9 March) was a much more serious, organised attack on premises (Gordon Tyler Smash Repairs) involving more than 20 persons, weapons and serious injuries. The Roads and Maritime Services (RMS) suspended Moujalli's tow truck drivers certificate and operator's licence on 10 March 2011. Moujalli later applied in November 2011 for a drivers certificate; a delegate refused the application on discretionary grounds (not a fit and proper person; contrary to public interest) and the internal review upheld that refusal (see [7]–[11], [13]). Moujalli also sought to have the suspension lifted; RMS refused, taking the view the suspension could not be cancelled once effective and reiterating concerns about the allegations (see [12]–[13], [72]).
No linked legislation citations have been extracted yet.
Moujalli commenced review proceedings in the Administrative Decisions Tribunal (ADT), which became NCAT by the time the matter was determined. The Tribunal heard submissions and examined the police briefs, Local Court transcripts and the RMS interview transcript. Key evidentiary features were: the Local Court dismissal of charges (charges 1 & 2 dismissed in November 2011; charges 3 & 4 dismissed in March 2012) (see [6], [60]); contemporaneous notes and the Magistrate's adverse credibility finding against McCosh in relation to the 8 March proceedings (see [29], [60], [78]). The RMS relied on witness statements (notably Mr Taylor for the 9 March attack) and argued inferences could be drawn from Moujalli's failure to give oral evidence (invoking Jones v Dunkel reasoning) and from inconsistencies in Moujalli's accounts (see [21]–[24], [25], [31]–[33], [40]–[49]).
On 12 June 2014 Senior Member Montgomery set aside RMS's decisions and remitted the matter back to RMS for reconsideration (see Orders at [90]–[91]). The Tribunal concluded RMS's material did not establish, on the balance of probabilities, that Moujalli was involved in the 9 March incident and that the 8 March incident did not demonstrate that Moujalli deliberately impeded another tow truck driver or otherwise made him unfit to hold a certificate; overall RMS's case rested on suspicion and was not supported by logically probative material (see [75]–[89]).
The Tribunal's decision rests on two linked legal and evidentiary propositions.
First, the Tribunal applied its statutory role of merits review. Under s 63(1) of the ADT Act the Tribunal must decide the correct and preferable decision on the material before it; s 63(3) gives the Tribunal power to set aside and remit decisions (see [71]). The Tribunal therefore undertook a fresh evaluation of the facts and law, not merely a procedural or ultra vires review of RMS's process.
Second, on the substance of RMS's case the Tribunal required "logically probative material" to sustain findings that Moujalli was not a fit and proper person or that granting a certificate would be contrary to the public interest. The Tribunal emphasised that serious allegations must not be resolved by mere suspicion or speculation (invoking Briginshaw in principle at [57], and asserting the need for cogent material at [87]). The Tribunal found the evidence for the 8 March incident did not support RMS's contention that Moujalli provoked or assaulted McCosh; contemporaneous police notes and the Local Court's findings undermined McCosh's version (see [78]–[81]). For the 9 March incident the only direct identification evidence against Moujalli was Shane Taylor's statement; the Tribunal accepted that Taylor acknowledged limitations in his vision without glasses, had lost his glasses during the incident and conceded he might have been mistaken (see [82]–[84]). Moujalli also provided an alibi (having lunch with a neighbour) later in an RMS interview; RMS produced no material disproving that alibi (see [51], [63], [84]).
RMS argued adverse inferences under Jones v Dunkel from Moujalli's failure to give evidence. The Tribunal noted, following Howell (as explained at [25]), Jones v Dunkel permits but does not compel such inferences in civil judge-alone contexts and in tribunal reviews. The Tribunal concluded that drawing such an inference would not, on the totality of the evidence, be justified or sufficient to uphold RMS's determinations (see [24]–[26], [68], [86]). Consequently, RMS's grounds for refusal were unsupported by a probative evidentiary foundation and the correct and preferable decision was to set aside and remit (see [88]–[91]).
The Tribunal also corrected the delegate's legal view that s 43 prevented RMS from cancelling a suspension once it took effect, noting nothing in s 43 precludes RMS making a new determination if new information is presented (see [72]).
Before this decision within this proceeding, RMS had adopted a cautious, protective approach to tow‑truck licensing in light of statutory text and the industry's problematic reputation, using discretionary refusals to exclude persons linked to violent or allegedly criminal incidents (see [13]). Delegates sometimes took a restrictive view of s 43 as an absolute bar to lifting suspensions once they had taken effect (see [12], [72]).
The Tribunal's decision reinforces these legal understandings:
Thus post-decision, regulators must ensure discretionary refusals are supported by evidence sufficient to satisfy the balance of probabilities, informed by Briginshaw when allegations are serious, and tribunals will not rubber-stamp precautionary suspensions where the evidentiary basis is weak.
“[Under section 63(1) of the ADT Act] the Tribunal's task is to 'decide what the correct and preferable decision is'” (para [71]).
“In my view there is nothing in section 43 of the Act which prevents the Respondent making a new determination if new information is presented to it.” (para [72]).
“The material before me does not give rise to more than mere suspicion or speculation. I agree with Mr Lange's submission that the Tribunal is required make its finding based on logically probative material.” (para [87]).
“On the material before me I am not satisfied that it is probable that the Applicant was involved in the 9 March incident.” (para [89]).
This decision is triggered where:
In such fact patterns the Tribunal will closely scrutinise whether RMS (or equivalent regulator) has more than suspicion and will require logically probative evidence before sustaining a discretionary refusal.
Within this judgment the Tribunal cited authoritative authorities to frame evidentiary rules (Briginshaw, Jones v Dunkel, Howell and Potts). The Tribunal applied those principles conservatively: Jones v Dunkel allows, but does not compel, drawing adverse inferences in civil judge-alone or tribunal review contexts; Briginshaw informs the required caution on serious allegations. The decision itself is a tribunal-level authority; subsequent courts or tribunals considering similar facts will likely treat it as persuasive (particularly for administrative tribunals dealing with 'fit and proper' licensing) rather than binding. Practitioners should expect tribunals to follow the same structure: rigorous evaluation of witness credibility, caution in the absence of direct evidence, and refusal to accept inferences of guilt from non-participation alone.
Any later appellate treatment (if taken on appeal) would be required to reconcile the Tribunal's assessment of evidence with judicial standards for review of merits decisions. In practical terms, regulators should not expect Jones v Dunkel alone to salvage a weak case; they must assemble probative evidence.
Scope of 'fit and proper' in borderline factual matrices: The Tribunal required probative material to show the applicant was not fit and proper. How far does that threshold extend where there is a pattern of industry misconduct but limited direct evidence concerning an individual? RMS may be expected to adduce contemporaneous investigatory material (s 80 inquiries, witness interviews) where concerns are systemic.
Weight to be given to non-contemporaneous admissions or inconsistent accounts: The Tribunal accepted that recollections can change with time and did not treat the Applicant's differing accounts as necessarily dishonest. There remains an open question how tribunals should treat inconsistent accounts given the competing interests of procedural fairness and public protection.
The practical operation of s 43: The Tribunal held s 43 does not prevent a later determination to lift a suspension. The mechanics and timing for RMS to reopen and fairly reconsider suspensions under s 43 in relation to procedural fairness remain to be tested where evidence emerges late or where there are competing public-safety considerations.
Interaction between Jones v Dunkel and inquisitorial powers under s 80: The Tribunal noted RMS could have conducted a s 80 inquiry with powers to require attendance and documents, yet did not. The extent to which a regulator's failure to use statutorily available investigatory powers affects the weight given to its case on review is not fully settled.
Briginshaw application in administrative licensing: The Tribunal stated it was not necessary to apply Briginshaw in full because the evidence did not make involvement 'probable'. However, the proper articulation of how Briginshaw impacts civil standard findings in administrative licensing disputes remains an area where further judicial guidance could help (for example, in specifying how seriousness of allegation skews required cogency of evidence).
Practical takeaway for practitioners: regulators must assemble directly probative evidence before declining licences on public interest or fitness grounds; applicants should ensure contemporaneous documentation (police notes, medical records, alibi confirmation) is available and pressed before the tribunal; tribunals will not substitute suspicion for evidence.
reasons for decision 1This matter was commenced in the General Division of the Administrative Decisions Tribunal ("the ADT") pursuant to the Administrative Decision Tribunal Act 1997 ("the ADT Act"). On 1 January 2014, the ADT was abolished and its functions were taken over by the Civil and Administrative Tribunal of New South Wales ('NCAT'). The present decision is therefore a decision of NCAT. However, because the proceedings to which it relates are 'part heard proceedings' as defined in clause 6(1) of Schedule 1 of the Civil and Administrative Tribunal Act 2013, they are to be determined as if that Act had not been enacted (see clause 7(3)(b) of this Schedule). 2These matters relate to the Applicant's Tow Truck Drivers certificate held under the Tow Truck Industry Act 1998 ("the Act"). 3The Applicant has held a drivers certificate and an operator's licence under the Act. In March 2011 he was arrested and charged with: (1)Wound to person to cause GBH (2)Riot (3)Assault (4)Not Behave in Orderly & Civil manner 4Offences 1 & 2 relate to an incident on 9 March 2011 ("the 9 March incident"). Offences 3 & 4 relate to incident on 8 March 2011 ("the 8 March incident"). 5The Applicant's Tow Truck Drivers certificate and Operators licence were suspended from 10 March 2011 until the date of their expiry. The Applicant sought a review of the suspension decision in the ADT but that application was withdrawn in July 2011. The suspension therefore remained in place until 28 January 2014. 6In November 2011 charges 1 & 2 were dismissed in the Liverpool Local Court. Charges 3 & 4 were dismissed in the Parramatta Local Court in March 2012.
Matter No. 123036 7In November 2011 the Applicant lodged an application for a drivers certificate. In December 2011 a delegate of the Respondent refused the Applicant's application. The delegate was of the view that the Applicant was not a fit and proper person to hold a drivers certificate, and that the granting of the drivers certificate would be contrary to the public interest. 8At the time of the determination the Applicant's drivers certificate remained suspended. The Applicant also had two matters yet to be determined in court. Ultimately, those charges were dismissed. 9The decision was affirmed on internal review. The reviewer provided the following reasoning for the determination: 4. The Reasoning Process that Led to this Decision Applicable law - discretionary refusal ground under sections 26(1) and 26(3) of the Act: RMS has an obligation under the Act to refuse an application if it considers a person, in the opinion of RMS, is not a fit and proper person to conduct towing work, and that the granting of the drivers certificate would be contrary to public interest. A consideration is relevant if it is one which the decision-maker is obliged to take into account. Matters to be taken into account include both those which the statute expressly requires be taken into account and matters to be determined 'by implication from the subject matter'. Section 26(3) of the Act provides several grounds for refusal of a drivers certificate to an applicant. Two of those grounds are that in the opinion of RMS,
Matter No. 123158 12The Applicant requested the lifting of the suspension of his tow truck drivers certificate. In May 2012 a delegate of the Respondent refused that request. By letter dated May 2013 the Applicant's solicitors were advised: (1)The provisions of s. 43 of the Tow Truck Industry Act 1998 do not allow RMS to cancel the suspension of 10 March 2011 until 28 January 2014 once it has taken effect (2)The allegations are serious even though not proved beyond reasonable doubt (3)There is no reason to depart from the suspension decision so those statement of reasons are still valid (4)Mr Moujalli withdrew his appeal to Administrative Decisions Tribunal against the suspension on 4 July 2011 13The determination which was the subject of the discontinued application to the ADT was that the Applicant's drivers certificate 43362 be suspended until 28 January 2014. The reasons provided in relation to that determination stated: Information relied upon in making this determination Information was received by the RTA which led to a search of Joseph Moujalli's criminal record through the NSW Police Force COPS database. This revealed: On 10 March 201 I police arrested and charged Joseph Moujalli with the following offences:
Applicable legislation 14As noted above, the regulated scheme provides a strict licensing system and the imposition of conditions on industry operatives. This regime is to ensure that a level of protection is provided to consumers and the general public. 15Section 26(1)(b) of the Act provides that the Respondent may refuse to grant an application for a drivers certificate on discretionary grounds. Section 26(3)(a) provides: (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 RMS, 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, (b) that the applicant does not hold the qualifications and experience prescribed by the regulations in respect of the class of drivers certificate sought by the applicant, (c) that the applicant has not satisfactorily completed such training courses as may be approved for the purposes of this section, (d) that the granting of the drivers certificate would, in the opinion of RMS, be contrary to the public interest. 16Section 26(4) of the Act provides that the regulations may provide additional mandatory or discretionary grounds for refusing the granting of an application for a drivers certificate. 17Section 43 of the Act provides: 43 Procedure for implementing disciplinary action (1) If RMS decides: (a) to suspend or revoke a licence or a drivers certificate, or (b) to disqualify a licensee or certified driver from holding a licence or drivers certificate for a specified period, or (c) to impose a fine on a licensee or certified driver, RMS is required to serve on the licensee or certified driver a notice informing the person of its decision. (2) The notice must include the reasons for RMS's decision. (2A) RMS is not, under this or any other Act or law, required to give any reasons for cancelling a licence or drivers certificate under section 41 (2A) to the extent that the giving of those reasons would disclose any criminal intelligence. (3) The suspension or revocation of a licence or drivers certificate, or any period of disqualification, takes effect when the notice is served or on a later date specified in the notice. (4) A notice that suspends a licence or drivers certificate must specify the period of suspension. (5) A notice that disqualifies a licensee or certified driver from holding a licence or drivers certificate must specify the period of disqualification. (6) RMS may, by serving a further notice on a licensee or certified driver, cancel a notice under this section before the notice takes effect. 18Section 63 of the Act provides: 63 Touting or soliciting for towing work at scene of accident (1) A person must not, at or within 500 metres of the scene of an accident, tout or solicit for any towing work in connection with the accident regardless of on whose behalf the touting or soliciting is done. Maximum penalty: 50 penalty units. (2) Subsection (1) does not prohibit a person from attempting to obtain a towing authorisation in accordance with this Act and the regulations in relation to a motor vehicle at any time before: (a) a towing authorisation is obtained by any person in accordance with this Act and the regulations for the towing of the relevant motor vehicle, or (b) a police officer has informed the person that the police officer has organised for the towing of the relevant motor vehicle. (3) Subsection (1) does not prohibit a person from dealing with a towing authorisation in accordance with this Act and the regulations. 19Section 80 of the Act provides: 80 Inquiries by RMS (1) RMS may conduct an inquiry into any matter that is connected with the tow truck industry. (2) Without limiting the reasons for conducting an inquiry, RMS may (but is not required to) conduct an inquiry into any matter concerning any licensee or certified driver for the purposes of deciding whether to take disciplinary action under Division 4 of Part 3 against the licensee or driver. (3) If RMS decides to conduct an inquiry under this section, it may, by notice in writing served on any person, require the person: (a) within such reasonable time as may be specified in the notice, to provide RMS with such information, and to produce such documents in the person's possession or under the person's control, as may be required for the purpose of the inquiry and as may be specified in the notice, or (b) to attend at a time and place specified in the notice before RMS, and at such other times as may be required by RMS, to give evidence concerning any matter the subject of the inquiry, and to produce such documents in the person's possession or under the person's control as may be required for the purpose of the inquiry and as may be specified in the notice. (4) In conducting an inquiry under this section, RMS may: (a) examine any person on oath, and for that purpose the person presiding at the inquiry may administer an oath, and (b) arrange for the services of an Australian legal practitioner to assist RMS. 20Clause 18 of the Tow Truck Industry Regulation 2008 ("the Regulations") provides 18 Additional grounds for refusing application for drivers certificate (1) For the purposes of section 26 (4) of the Act, the grounds on which an application for a drivers certificate must be refused include any case in which: (a) the applicant has been disqualified from holding a driver licence, or (b) the applicant's driver licence has been suspended or cancelled (other than for fine default under the Fines Act 1996 ), on more than one occasion during the period of 3 years immediately before the application for the driver certificate was made. (2) For the purposes of subclause (1), it does not matter that any of the periods of disqualification, suspension or cancellation occurred during only part of the 3-year period.
The Respondent's case 21The Respondent's position is that the Applicant is not a fit and proper person to be a tow truck driver and that the granting of the drivers certificate would be contrary to the public interest because: 1. During the 8 March incident he deliberately attempted to impede another tow truck driver attempting to lawfully obtain accident towing work 2. During the 8 March incident he provoked and assaulted another tow truck driver at the scene of an accident in front of members of the public and other industry operatives 3. In relation to the 9 March incident he willingly attended and involved himself in threatening and attacking the employees of a smash repairer and local tow truck operator. 4. He lied to either the Tribunal or to officers of the Respondent in relation to the 9 March incident. 22The Respondent also points to bookkeeping errors and failures to keep proper records by the Applicant which it suggested indicate a tendency to disregard regulatory requirements. 23The Respondent relies on documents filed pursuant to section 58 of the ADT Act, documents contained in the Police brief relating to the 8 March incident and the 9 March incident, transcripts of the Local Court proceedings in relation to those matters and a transcript of an interview between the Applicant and officers of the Respondent conducted on 29 August 2013. Mr Rayment also made detailed submissions. 24The Respondent did not call any witnesses. However, Mr Rayment submitted that the circumstances warranted the Applicant being called to give evidence and that an inference can be drawn from his failure to do so. It is submitted that the Tribunal can form the view that the Applicant's evidence would not have helped him with respect to the issue of whether he is a fir and proper person to hold a certificate. Mr Rayment also noted that the Applicant did not require any witnesses for cross-examination. 25Mr Rayment referred to the discussion of the "the rule in Jones v Dunkel" by the Court of Appeal in Howell v Macquarie University [2008] NSWCA 26 where his Honour Campbell JA stated from paragraph [93]: Jones v Dunkel 93 ... the Amended Notice of Appeal alleges ... that it "[f]ailed to have regard to the [University's] unexplained failure to call evidence from the author of the documents." ... ... 97 The only sense in which Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 establishes a "rule" concerns the inferences of fact that are open to be drawn when a relevant witness is not called. Jones v Dunkel concerned the trial by jury of a negligence action arising from a motor vehicle collision, at which the defendant, who was also the driver of the motor vehicle with which the plaintiff's vehicle had collided, did not give evidence. The decision related to the adequacy of the trial judge's directions to the jury. I venture to repeat what I said (with the agreement of Beazley JA and Pearlman AJA) in Manly Council v Byrne [2004] NSWCA 123 at [51]- [52] about the consequences that can be drawn from Jones v Dunkel concerning the obligations of the trial judge in a civil trial by judge alone: "Thus, if a witness is not called two different types of result might follow. The first is that the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn. Even though a jury should be directed about the availability of the inferences which are recognised by Jones v Dunkel, it is entirely a matter for the jury whether it actually draws one, or both, of those inferences: Cafe v Australian Portland Cement Co Pty Ltd (1965) 83 WN (NSW) (Pt 1) 280 at 286, 287. Applying this principle to the situation of a trial by judge alone, there is no compulsion on the trial judge to draw either of the Jones v Dunkel inferences." 98 In other words, in a civil trial by judge alone Jones v Dunkel licences, but does not compel, the drawing of inferences when a witness is not called. Whether either or both of the inferences are actually drawn is part of the trial judge's task of weighing the evidence. The same applies under the loosened procedural and evidentiary regime that section 73 ADT Act requires the Tribunal to adopt.
The 8 March incident 26The Respondent relies on documents contained within the Police brief in regard to the 8 March incident. The incident involved altercations between Steve McCosh and Stephen Borg and between Steve McCosh and the Applicant. The 8 March incident is less serious than the incident on 9 March 2011 but it is submitted that the Tribunal should still have regard to it. The Respondent contends that the 9 March incident was directly related to the 8 March incident in that the premises of the operator that employed Steve McCosh was attacked by at least 20 armed men, threats were made and staff were seriously injured and Ambulance assistance was required. 27The Respondent has serious concerns that the Applicant was involved. In the 9 March incident. It contends that the inference is available on the material before the Tribunal that the Applicant was involved. 28Steve McCosh provided a statement to police in regard to the 8 March incident. In his statement he provided the following version of the incident: About 5.00pm on Tuesday the 8 March 2011, I attended a two vehicle accident on Dunnmore Street Wentworthville. I was the first tow truck at the scene. I spoke with the occupiers of a red pulsar sedan who were of Indian decent. After establishing that they had no insurance I spoke with the driver of the silver corolla sedan who was young lady of Australian decent. I was talking to this lady who told me that she had fully insurance cover when I saw Steven Borg arrive at the accident in a Westside Towing Truck. Borg approached where I was talking to the female. I told Borg to piss off as I was talking to the lady. About this time Joe Magalli (I think that is how it is spelt) from Securer Towing arrived at the accident. Joe walked straight to where I was standing with the female. Joe came right up in my face in an aggressive manner and pointed his finger at me saying "You tell Ray from me". I gave him a stoutish look. Joe then pushed me in the chest. I took one step back from the force of the push and said, "Is that how it is". Joe came right back into my face, so to avoid a fight a grabbed him and held him in a headlock. At this point we both fell to the ground and I kept hold of Joe so I would not be further assaulted. Joe continued to lash out and I managed to get to my feet as Joe was breaking free from my grasp. I swung him over my hip towards the ground so I could get another grip on him to calm him down. I was afraid of what he might do to me because of his reputation. We were both on the ground again and Joe continued to lash out. I then punched him once to the rear of the head telling him to calm down. At this time I could hear sirens coming towards where we were. I heard Borgy yell out that the Cops were coming. I released Joe and we both got to our feet and Joe did not attack me again. Police separated everyone and told me to stand behind the van and waited for them to talk to me. Whilst I was talking to the Police Joe was making threatening gestures towards me by actioning the cutting of his throat towards me. I told the Police, "Look at him he is giving me death threats now". A short time later I was asked to move my truck. I did so because I had another tow to do and Borgy had picked up the tow from the Indian lady. There were no further incidents that night and I finished work at around 6.00pm. I was on call for the rest of the night but there were no jobs. 29Before the Local Court Mr McCosh indicated that there was an error in his statement and that it was not correct that the Applicant had "continued to lash out". The Magistrate found that Mr McCosh was not a credible witness because he had given false evidence in his statement. 30Steven Borg also provided a statement to police in regard to the 8 March incident. In his statement he provided the following version of the incident: Between 4 15pm and 4 30pm on Tuesday the 8th March 2011 I went to an accident on Dunmore Street, near Garfield Road at Wentworthville. It's on the intersection where all of the shops and banks are at Wentworthville. When I got there I saw Steve McCosh and he was talking to a lady. I know Steve from when I worked with Gordon Tyler Smash Repairs doing tows for the NRMA contract. Steve still drives Tow trucks for Gordon Tyler Smash Repairs I went across and asked the young Australian lady if she was alright (the lady Steve McCosh was talking to) Steve said straight of the bat, "Do you mind" I said, "What are you on about?" Steve said, 'Do you think you can come here and take work from my boss in our area? I just said, "In your area. For 25 to 30 years I have been running this area" Steve said, "I just have to do what my boss tells me " I just said to him, "It's not worth it" I walked over to the other lady, an Indian lady. She said, "My husband has run up the road to get his licence. You will have to talk to my husband" I asked her kids if they were alright and was joking around with them. The lady's husband come back and I explained to him through his wife and kids about the tow, as he didn't have very good English. About 5 to 10 minutes after I got there Joe Migalli turned up in his Secure Towing truck. Joe Migalli is the owner of Secure Towing. I was talking to the Indian Lady and Joe looked at me, but walked straight past and went up to Steve. I could hear Steve and Joe arguing, but all I could make out was something about 'Ray'. I know they would have been talking about Ray BAYSARI. I was explaining to the Indian guy and his wife about the price and towing of the vehicle. I turned around and saw Steve and Joe wrestling and Steve flipped Joe straight over. Steve had Joe in a headlock type hold on the ground and was punching him in the head. They were about 4 to 5 metres from me. I went over to try and pull them apart. I yelled out, "Stop it. There's kids here. Nobody needs this shit. You're just bring on shit onto everybody." I was trying to pull them apart, but they were both still fighting. I was holding my folder with one hand and trying to pull Steve off Joe with the other hand. I grabbed hold of the back of Steve's pants, but there was no way I could budge them. The police turned up and they were yelling, "Stop it. Stop it. Stop it." The police separated Steve and Joe, but they were still arguing. The police separated them about 15 metres apart and I said, "Just go with the police." I noticed Joe was bleeding from the head I think. 31The Respondent submits that there is some tension between the Applicant's version of events and that provided by Mr McCosh and the Applicant and that provided by Mr Borg. 32The Respondent says that the Applicant gave two different versions of the incident - one in a statement that he provided in support of his application and one in his interview to the Respondent conducted on 29 August 2013. The Respondent says that this suggests either a false version to the Tribunal or a false version in his interview to the Respondent. 33In his statement the Applicant said: I drove to the accident and saw that Stephen Borg was there as was Steve McCosh as well as the drivers and passengers of the cars involved in the accident and others. I saw and heard McCosh and Borg arguing loudly and standing face to face near the accident victims. I feared that both drivers' tempers were raised to such an extent that a fight might breakout. I walked up to them both to try to separate them and calm the situation down. I attempted to step between them. When I did Steven McCosh head butted me in the face causing me severe pain. 34That version of events corresponds to that recorded by Constable Dean Tonkin who had attended the accident scene on 8 March. In his statement dated 4 May 2011 Constable Tonkin wrote: At this time, McCosh did not appear to have any visible injuries. After briefly speaking with McCosh, I then walked over to where Constable MCDONALD and the accused were standing. The accused had a small cut to the back of his head which was bleeding at the time. After seeing this, I called for an ambulance to attend our location. Following this, I began to obtain the accused' [the Applicant's] details in my notebook. Whilst speaking with the accused, he stated that he was "Head butted" by McCosh and that is what caused the wrestle between them. The accused stated that he did not, however, wish to provide a statement in relation to the matter. A retraction statement was then obtained from the accused. This was recorded in Official Police Notebook F497946 on page 51. Following this, I then walked back over to McCosh. I began to obtain his details where he stated that he was "Pushed" by the accused and that is what caused the wrestle between them. He, too, did not wish to provide Police with a statement in relation to the matter. A retraction statement was then obtained from the victim and recorded in Official Police Notebook F497946 on page 52. 35The following account is recorded in the transcript of the interview between the Applicant and officers of the Respondent conducted on 29 August 2013: Q37: What occurred when you attended the accident scene? A37: When I arrived at the accident I tried to find a parking which was on the left hand side of the road on Dunmore Street. I parked the truck in a legal parking. I left the tow truck, crossed the road with my folder, there were already two tow trucks there, there was two cars there, there was a few passengers involved. I approached the customers immediately and asked them if they were okay, had youse exchanged details and has anybody arranged any towing for your vehicles? The customer advised me no, I'm waiting for my husband and we've called the police, we're waiting for the police. As I was talking to the customer, I was approached by Stephen McCosh to tell me what am I doing here? I said: "I'm attending an accident." He said: "Mate, there's two trucks here, get in your truck and go." I said: "There's nothing signed and the customer hasn't made a decision to who she wants to go with. You know I'm just offering her a service." He goes: "Mate, for your own good, get out of here." I said: "I'm not going nowhere, I have New South Wales number plates, I've got a right to be here as much as you." I said: "If the car is signed, I won't if it's stopped but I can see that nothing's been towed, the cars are still in the middle of the road." He goes: "Mate, I'm telling you." And I said: "Look, don't talk to me like that in front of the customer." I walked away, I straight away walked away from him because he was starting to be very demanding, telling me I'm not allowed in the area, I'm not allowed to work in that area. I said: "I don't know, I can work wherever I want. I have a licence." I walked away from the customer; I walked towards the carpark where there was nobody but myself and Stephen McCosh. The more I tried to tell him I'm not going to go, he came into my face, grabbed me by my shirt and head-butt me. I was shocked. I didn't know, from my reflection, reflex, I pushed immediately, he went back maybe a foot, two feet. From there I was still wondering what has just happened to me. Then he just charged at me like a pit bull, latched onto me, I tried to get out of the grabbing. The more I tried to grab, I remember helping myself to fall a bit because I couldn't get out. He fell on top of me. I was - his arms were wrapped right around me. My shoulder popped because I have a reconstructed shoulder which if I go too far it will just pop out. Q38: That's your right shoulder? A38: That's my right shoulder. My shoulder popped, I had no more mobility meaning I had to give in. From giving in, he just kept punching me and punching me and punching me and punching me. I couldn't fight back because my shoulder had popped, I was - he got me, he was much bigger than me, he's heavier than me and I didn't expect to get head-butted. And then the police arrived. Then he let go of me when the police arrived and I had bleeding in my head, I had a gash on my nose. I attended to the police, showed them, explained to them, you know, they separated, they didn't want to know about it until we were separated. Then I explained to the police what had happened and they asked me do I want to make a statement? I said: "No. I'm fearful because look what just happened to me?" They went up to Steve and said: "Do you want to make a statement?" He said: "No, I -he got what he-", he said something, "he got whatever he deserved or something." The police came up to me and said: "Okay, do you want an ambulance?" I said: "No, I'm okay. Can I just go home because my shoulder's popped and I can't - I don't want to be here." I got into my tow truck and I left the scene. 36The Respondent says that it doesn't know which version to accept. The Respondent also submitted that the Magistrate did not have to consider conflicting versions. Mr McCosh was cross-examined but the Applicant didn't have conflicting versions before the court. The Respondent conceded that the Magistrate found that Mr McCosh had lied. However, it says that the change to Mr McCosh's statement was voluntary and if the Magistrate had had to consider the Applicant's different versions he might not have put much weight on Mr McCosh accidently lying. 37The Respondent submitted that where the Applicant has given two different versions of the incident there is a question about the veracity of the Applicant's statement and therefore a question about his propriety. 38The Respondent says that the Tribunal needs to weigh the evidence of Mr Borg and Mr McCosh and the Applicant's different versions. It says that there is sufficient basis to find that during the 8 March incident the Applicant walked to Mr McCosh and said "You tell Ray from me" and pushed him. 39The Respondent submitted that either the Applicant gave a false version to the Tribunal or a false version in his interview to the Respondent. It contends that either is sufficient to indicate that the Applicant is not a fit and proper person to hold a certificate because he did not give honest answers with respect to his conduct at the accident scene.
The 9 March incident 40The Respondent contends that from the material before the Tribunal the inference is available that the Applicant was involved in the 9 March incident. It refers to the 15 April 2001 statement of Sergeant Ashley Keegan contained in the Police brief. Sergeant Keegan arrested the Applicant in relation to the 9 March incident. Sergeant Keegan provided the following account of what transpired when he told the Applicant that he was under arrest: As I said this I showed my Police Identification badge. I said, "You are under arrest for your involvement in a riot and the wounding of George FARAH at Gordon Tyler Smash Repairs Toongabbie yesterday. I am also arresting you for assaulting Steven McCOSH on Tuesday the 8th of March." MOUJALLI said, "I was not even there." I said, "You do not have to say or do anything unless you wish, but what you say or do may be recorded in used in evidence against you. Do you understand that? He said, "Yes, but I wasn't there." 41The Respondent says that the Applicant didn't exercise the right to silence but put a global assertion without putting an alibi. 42In his statement the Applicant's said "I worked on the 9th March even though I was still in pain from the assault." 43The Respondent contends that the Applicant made no mention of anything else he was doing. It further contends that the Applicant was aware of the incident at 3.45pm on 9 March 2011. Therefore it is a reasonable construction that his statement was to indicate that he was working at 3.45pm on 9 March 2011. 44The Respondent points to the coincidence of the two events. It says that the question arises as to whether the incident on 8 March 2011 was a motivating factor for the 9 March incident because the Applicant was hostile to Mr McCosh and his employer. 45The Respondent points to the statement that Shane Taylor gave to police in relation to the 9 March incident. On that day Mr Taylor was working as a panel beater at Gordon Tyler Smash Repairs. In his statement Mr Taylor said: I know Joe Moujalli as a tow truck driver. I have known of him for about four years. That is I don't know him personally just by face and name. He used to work in the Rosehill area but I haven't seen him for 2 to 3 years. So the last time I seen him he was driving a 'Secure' towing truck. In late afternoon on Wednesday 9th March 2011 I was in the workshop working on a Toyota Land Cruiser. ... I was working on a Toyota Land Cruiser. I was leaning in the car and had my head under the dash. Then all of a sudden I got drag out of the car from my legs. My glasses came off, although I can see without them. I said, "What the fuck is going on"? I initially thought it was some of our workers playing a practical joke, but when I glanced around the work shop, I just saw heaps of people running and yelling. There were heaps of people, at leaps 20 or 30 people maybe even more. I heard these people yelling, "Go into the office". They were rounding all the workers up. There were a couple of people around me maybe three or four and they grabbed my shirt and walked me towards the office. Walked into the office from the workshop door. Once I was in the office I saw Lee [manager of the shop] was sitting on a seat leaning over with his head forward and blood oozing from his face. I was looking around and then all of a sudden I got king hit to my right side of my jaw. I fell to the ground and then felt hits to my body and head. I remember been kicked and people stamping on my head and body. I felt immediate pain and I just put my hands over my head to protect myself. I remained on the floor doing this. I heard things getting smashed, like table and chairs and things pulled out of cupboards, etc. I heard them repeatedly yelling, "Where's the surveillance cameras". And we were all saying, "We've got none". Then I heard someone yell, "Let's get out of here now". They then started to run and I put my head up and saw everyone running out of the office. As everyone was running out that is when I saw Joe Moujalli in the office. When I looked at him, he looked back at me and he smiled directly at me. He then turned and walked or ran off with the other offenders. All the offenders then left the office area either through the workshop or through the main entry door of the office. I wouldn't be able to describe any of the offenders. All I could say is that they were mixed race some in there early twenties and some much older. The only person I recognised was Joe Moujalli. 46In his statement of 6 June 2011 Sergeant Keegan said that he asked Mr Taylor to view photos to assist in the investigation but he refused. Sergeant Keegan said that Mr Taylor said that he did not want to get involved any further. 47Mr Taylor gave evidence before the Local Court at Liverpool on 17 November 2011. The transcript of those proceedings indicates the following exchange between Mr Taylor and Mr Dennis, counsel for the Applicant: Dennis: Mr Taylor, when you spoke to the police you indicated to them that you'd seen Joe Moujalli on this particular day, didn't you? ST:Yes, I did. Dennis: ... as at March of this year, 10 March this year, when you made your statement, how long had you known Mr Moujalli for? ST:For three to four years. Dennis:All right, and- ST:Could've been five. Dennis:-and how did you know him? ST:He dro - through driving tow trucks. Dennis: All right. ST: I know him by face and name. Dennis: And how, um, how often would you see him? ST: I wouldn't see him months - could be three months, depends. Dennis: All right. Do you recall when it was the last time you saw him before the date of this incident? ST: No, I can't. Dennis: All right, do you recall saying to the police in paragraph 10 of your statement: "He used to work in the Rosehill area but I haven't seen him for two to three years"? ST: Yes. Dennis: All right, so, you're not close friends with him? ST: No. Dennis: You don't socialise with him? ST: No. Dennis: To the best of your knowledge, you don't have any mutual friends? ST: No. Dennis: All right, so he's nothing more than a passing acquaintance, would that be right? ST: Could say that, yes. ... Dennis: ... Were you concerned for your safety when you were dragged out of the car? ST: Yes, I was. Dennis: And concerned for the safety of your workmates? ST: Well, before I got - before I was dragged out, I didn't know who was in the workshop, I - I thought there was a practical joke that the other boys were playing. Dennis: All right. And could you see - of what you were able to see, um, did you notice whether there were any weapons or not? ST: Not at the time, no. Dennis: All right, is that because you were having some difficulty with seeing things at that time? ST: Well, I suppose so, yes. Dennis: All right, and, in fact, as you got dragged out of the car, your glasses got knocked off, didn't they? ST: Yes. Dennis: Right. Um, now, when you told the police that you saw Mr Moujalli, that was your honest belief at the time you made the statement, would you agree with that? ST: Yes. Dennis: Now, at some later time, a police officer, Detective Keegan, came and spoke to you again, didn't he? About whether you were prepared to come to court and so on? ST: Yes, he did. Dennis: All right, and during the course of that conversation, do you remember him asking you this question: "Well, I'm just wanting to clarify how well you saw him" - meaning Mr Moujalli. ST: I can't remember that. Dennis: All right, and - and you answered: "Well, my glasses were knocked off." Do you recall saying that? ST: In the original statement, yes, I did. Dennis: All right. Do you accept from me that the police officer has made a note of the conversation he's had with you, after your statement, where you've repeated that position? What I've just read out to you in these terms: "Well" - question: "Well, I just - I'm just wanting to clarify how well you saw him", and you answered "Well, my glasses were knocked off. Do you accept that you might've had a conversation to that effect with the police officer? ST:I could've, yes. Dennis: All right. Um, what do you say to this, that, given that your glasses were knocked off, and given that all that was happening on that day, that you might've made an honest mistake about seeing Mr Moujalli? ST: I could've. 48The Respondent points to a certificate issued under section 257 of the Road Transport Act 2013 which indicates that there is no condition placed on Mr Taylor's drivers licence that he wears glasses whilst driving. 49The Respondent also points to the Local Court transcript showing the following exchange between Mr Taylor and counsel for the prosecution when Mr Taylor was questioned about his ability to see: Hughes: ... can you just indicate what you can see without your glasses? ST: I can sort of see - vision - I can go to the toilet or stuff like that. Hughes: Okay. Um, now you - you've told police - so your glasses were knocked off for the entirety of this - of this incident, is that correct? ST: Yes. Yes. Hughes: From when you were dragged out from the car. Now, after indicating that you were dragged out from the car, you've given police a description of what - what you saw happening, is that correct? ST:Yes. Hughes: You've indicated: "I glanced around the workshop. I saw heaps of people running and yelling. There were heaps of people at least" - I believe that's probably at least - "twenty or thirty people, maybe even more". You've indicated to police that you - that you saw that? ST:Yes. Yep. Hughes: And that's what you saw on the day? ST: Yes. Hughes: Okay. You indicated there were a couple of people around you and - sorry: "There were a couple of people around me, maybe three or four, and they grabbed my shirt and walked me towards the office - walked into the office from the workshop door. Once I was in the office I saw Lee was sitting on a seat leaning over with his head forward and blood oozing from his face." Did you tell that to- ST: Yes. Hughes: -to police? And that's the truth? ST: Yes. Hughes:How far away was Lee sitting? ST: Oh, I don't know, probably a metre away. Hughes: And you could see that was Lee? ST: Well, I knew he sits there, so. Hughes: You knew that he sits there? ST: Yeah. Hughes: And there's other people in the office? ST: Yes. Hughes: Was it the case you could see that was Lee? ST: Well, the figure of Lee, yes. Hughes: And then the next - then you tell police that, um, there was fur - further altercation and - and ... you said to police: "As everyone was running out that is when I saw Joe Moujalli in the office." Did you - do you remember saying that to police? ST: Yes. Hughes: "When I looked at him he looked back at me and he smiled directly at me". ST: Yes. Hughes: You told police that. And that - on the day that's what you saw, is that correct? ST: Yes. Hughes: And you could see his face on the day? ST: I thought it was him, yes. Hughes: ... If someone's standing, say, a metre away from - from you, when your glasses are knocked off, can you see them? ST: Yes. Hughes: Can you see detail? ST: Yes. Hughes: On the day, you were certain that the person you saw was Joe Moujalli? ... ST: I was, yes. 50The Respondent contends that Mr Taylor did not make any concession that he had made an error but he accepted that he could have made a mistake. It is not correct to say that Mr Taylor recanted. 51The transcript of the interview between the Applicant and officers of the Respondent records the following exchange at pages 12 - 13 of the transcript: Q101: Where were you at approximately 3.45 on the 9th of March 2013? A101: I was at home with my neighbour who was eating with me at the front of my house and also the neighbour from two doors up who came over while we were eating and said: "Have you seen the news?" That was the first I knew about it. Q102: Can you tell me the name of your neighbour? A102: Yes, Simon. Q103: Simon, last name? A103: Zaiden. ... 52The Respondent submits that the Applicant did not offer this alibi to Police at the time of his arrest or at any time prior to the interview on 29 August 2013. As noted above, the Applicant had previously said that he was working on 9 March 2011. The Respondent submits that the only purpose the Applicant would have said he was working on that day was to put forward an alibi. Therefore, what he said to the officers of Respondent in the interview on 29 August 2013 was inconsistent with his statement that he was working on the day. 53The Respondent says that an inference is to be drawn from the Applicant's failure to give evidence. The Tribunal could conclude that the Applicant may have been involved in the 9 March incident. Further, the Respondent says that the Applicant's inconsistency is significant. If he lied to the Tribunal or to the Respondent he is not a fit and proper person to be a tow truck driver and it is not in the public interest for him to do so. The decisions should therefore be affirmed.
54The Applicant's position is that there is no inconsistency in the Applicant's statement that he was working on 9 March 2011 and the alibi that he provided on 29 August 2013 and that there is no evidence to support the Respondent's contention that he is not a fit and proper person to hold a Certificate. 55Mr Lange, counsel for the Applicant, submitted that the basis for Respondent's case is that could not be satisfied that the Applicant was not involved in the 9 March incident. That is, the Respondent's case is based on suspicions. He further submitted that the Respondent's suspicion is not a proper basis for the determinations. He submitted that the Tribunal must deal with logically probative evidence. The test is not whether the Applicant has failed to dispel the Respondent's concerns. 56In support of his submission he referred to views expressed by Judicial Member Molony in Potts v Commissioner of Police, NSW Police Service [2010] NSWADT 311 where he stated: 46 This Tribunal "is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice:" s. 73(2) Administrative Decision Tribunal Act 1997. While armed with the procedural flexibility vested in it by s 73, the Tribunal is none the less required make its finding based on "logically probative material" and "not on mere suspicion or speculation:" Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; [1980] 44 FLR 41 at 67 per Deane J. 57Mr Lange submitted that the Respondent has not presented evidence upon which the Tribunal could be satisfied to the Briginshaw standard. He argued that serious allegations ought to be made out to the standard described by Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. In Briginshaw Dixon CJ said: "... reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences." 58With respect to the 8 March incident the Applicant's position is essentially that set out in his statement dated 18 January 2012 and titled Facts Supporting An Application For Internal Review Of A Decision. In that statement the Applicant wrote with respect to the 8 March incident: On the 8th March, 2011, I was carrying on my business in the usual way - I received a telephone call at about 4.45 pm from Stephen Borg to go to a car accident at corner of Dunmore Street and Cumberland Highway. I drove to the accident and saw that Stephen Borg was there as was Steve McCosh as well as the drivers and passengers of the cars involved in the accident and others. I saw and heard McCosh and Borg arguing loudly and standing face to face near the accident victims. I feared that both drivers' tempers were raised to such an extent that a fight might breakout. I walked up to them both to try to separate them and calm the situation down. I attempted to step between them. When I did Steven McCosh head butted me in the face causing me severe pain. As I reeled away from the head butt he put me in a headlock, then flung me to the ground around his legs and punched and beat me causing a cut to the back of my head and my shoulder to dislocate. I struggled in vain to get him off me. Steven McCosh is a much bigger and heavier man than me, I believe he would be about 120 KG, and he threw me around like a rag doll pinning me to the ground. It was not until Police sirens were heard that he let me go and I was able to get back on my feet. The Police called an ambulance for me. I was bleeding profusely from my head. The ambulance arrived a short time later and examined my injuries. I thanked them for their help and attention but told them I did not want to go to the hospital with them and I would see my own Doctor. When I arrived home my wife took me to Westmead Hospital but there was a five (5) hour wait and I felt a lot of pain and dizziness so we returned home. At the accident both McCosh, Borg and myself were offered by the Police to make statements about the incident and all of us declined and McCosh and myself signed the Officer's Note Book to this effect. Never at any time did I do or say anything to McCosh that was antagonistic or threatening or that would provoke his vicious assault on me. The Police attending told me no charges would be laid against anybody. ... I deny I pushed [McCosh] in the chest and my struggling was to break his grip on me. Even on his own as yet unchallenged account, this is the only time he alleges any form of assault by me. I did not make a cut throat gesture. There is no way that I would involve myself in any sort of physical altercation because I suffer from Bi Lateral Kidney Stones in both kidneys ... I worked on the 9th March even though I was still in pain from the assault. 59Mr Lange noted that the 8 March incident did not involve signed authorities therefore there was nothing preventing the Applicant from attempting to obtain a tow. He submitted that there is nothing in section 63 of the Act which prevented the Applicant from attempting to do so. 60In the Local Court the Magistrate found that Mr McCosh was untruthful in some of his evidence. In relation to the charges arising from the 8 March incident the Magistrate stated: [T]here is simply one witness to the matter, who has attended Court to give evidence, that's Stephen McCosh. His evidence is that he attended a crash or collision, he was first there, and briefly he says that he was talking to a potential customer when he says, quite categorically that the Defendant, Joseph Moujalli, came up, pushed him in the chest and then later on made a throat cutting gesture by putting his finger across his throat. There's no suggestion of any assault occasioning physical violence inflicted on him and in fact, during his evidence on cross examination Mr McCosh agrees he wasn't struck by him, apart from possibly from struggling when he had him in a head lock. Quite clearly there are a number of people around ... there are the drivers, there's a passenger, there's other tow truck drivers who were all around when, quite clearly there was a violent incident between Stephen McCosh and Joseph Moujalli. ...There are two drivers, who appear to give equivocal evidence about whether ... they saw anything or not. There's a passenger who apparently has said that she saw something of one of the motor vehicles but wouldn't give a statement. There's Mr Borg who's possibly given some sort of statement but hasn't attended Court ... and one must look at the evidence of Mr McCosh. The evidence is that he was pushed and then proceeded to get him in a head lock and then punch him in the head, swung him over his hip and got him in a head lock. On the other side, it's quite clear that Mr McCosh inflicted much more violence on Mr Moujalli than he was the recipient of, he says he was pushed in the chest and a throat cutting ... gesture, which no-one saw. The Court also notes that Mr McCosh says that some details of his case, he was untruthful, or his statement did not correctly recall or, did not correctly state what he now says happened. he did at the end of his case admit he had lied and when the Court looks at his preparedness to accept his statement is not exactly correct at the time, that he did tell some untruths ... the lack of any other witnesses at all and the fact that the throat cutting gesture was not seen by anyone at all, anyone else at all, ... he was quite strongly cross examined on that but maintained he was pushed, , seemed to provoke him getting him in a head lock and punching him and inflicting injuries which were observed by the Police, the Court is of the view that his evidence simply does not provide any cogency in the matter sufficient for this Court to be able to consider a conviction, ah, the charge is dismissed. 61With respect to the 9 March incident the Applicant stated: The next day, the 10th March, I was again working on my usual routine and at about 4.15 pm I received a phone call on my mobile from Holroyd Detectives saying they want to see me at my home at about 4.30 pm or for me to come down to the station. I was at Oxford Street Merrylands and said to the Officer "what is it about". He said "the fighting yesterday with McCosh". I said "I would be home in two (2) minutes". Almost immediately after, I received another phone call asking me where I was. I said "I will be there in 20 seconds. As soon as I turned the corner into my street I saw approximately fifteen (15) Police Officers and seven vehicles including riot squad vehicles waiting at my home. I parked my truck in the driveway and before I got out I believe it was Det. Keegan who said to me "you are under arrest for the assault on McCosh. He also said "you are also under arrest for riot and assault occasioning grievous bodily harm on the 9th March at Gordon Tyler Smash Repairs Toongabbie". I said "I don't know anything about a riot at Gordon Tylers". I knew nothing of an attack on Gordon Tyler Smash Repairs. I only saw it on the news. And it was me who had been assaulted by McCosh not me assaulting him. I was immediately handcuffed behind my back and taken to a paddy wagon and then to Merrylands Police Station. I was taken to the cells at Merrylands and kept there overnight and transferred to Fairfield cells the next morning. I pleaded "not guilty" at Fairfield Court. I was refused bail and spent fifteen (15) days in Silverwater Remand Centre before being granted Conditional Bail at Liverpool Local Court. I pleaded "not guilty" to all four (4) Charges. One of the conditions of my bail was that I report to Police at Merrylands three (3) times per week which I did for approximately four (4) months when the reporting was reduced to two (2) days per week and finally to one (1). Each time I asked for the reporting condition to be removed, the Police refused stating "it is not far for him to go". My bail condition allowed me to continue to carry on my occupation but not to "go within 100 metres of Gordon Tyler and not operate in Wentworthville and Toongabbie areas. On the 22nd March, 2011 I received notice from the Tow Truck Authority dated 17th March, 2011 that both my Operators Licence and Drivers Certificate had been suspended. ... In cross examination of [Shane Taylor] by my Counsel, Mr Mark Dennis, which lasted less than 10 minutes that witness told the court that he could not be certain that the person he says he saw was me. He said that he had very poor vision and could not see more than a metre in front of him and further that he had lost his glasses in the skirmish. Accordingly, the Magistrate found his identification evidence of me could not be relied upon and being the only evidence of my alleged involvement the indictable charges were dismissed and the assault and behaviour matters sent to Parramatta Local Court. The earliest day I could get for hearing was 5th March, 2012. ... I respectfully submit I am a fit and proper person to hold a Drivers certificate. I submit my record speaks for itself and I tender to you references ... to support my submission that I am a fit and proper person to hold a Certificate and that the public interest will be served by my holding a Certificate as I have for twenty (20) years. My whole life was turned around in a blaze of the most harmful publicity on the 16th March, 2011. The unfounded charges resulted in the Tow Truck Authority judging me guilty and taking away my livelihood without any sort of hearing taking no account of the fact that my bail conditions allowed me to continue to operate on a restricted basis. ... I ask you to consider that I have been punished severely for something I did not do or have any knowledge of regarding the Gordon Tyler matter and even if the court did find me guilty of common assault (which I am confident it will not) then the fact that my Licence and Certificate have been taken from me for nearly 12 months then I think in the eyes of the community I would be seen as suffered a sufficient penalty and deterrent particularly in the light of my record over twenty (20) years and the commendation of the people who know me and use me in the industry and who support that I have always tried to create a good impression in an industry where the Authority itself says "many drivers have criminal records, are coarse, uncouth, intimidating and cannot be trusted". There is no evidence whatsoever that I have ever acted in an aggressive, violent, threatening or intimidating manner while carrying out my duties. I have never deliberately impeded any tow truck driver attempting to lawfully obtain accident work on the 8th March or at any other time since I have been licensed, I have never incited a violent incident on the 8th March or at any other time. 62In regard to the issue of whether Mr Taylor needs to wear glasses Mr Lange referred to the evidence that Mr Taylor gave before the Local Court at Liverpool on 17 November 2011, in response to questions from Mr Dennis. Mr Taylor admitted that his glasses came off during the 9 March incident; that he has an eye condition; he has difficulty seeing things and that things were blurry; that he would not drive without glasses; and he conceded that he could have made a mistake in identifying the Applicant as being present during the incident. 63Mr Lange referred to the Applicant's statement in his interview to officer of the Respondent that on the afternoon of 9 March he was "at home with my neighbour who was eating with me at the front of my house and also the neighbour from two doors up who came over while we were eating". Mr Lange submitted that this evidence was not contradicted - there is no suggestion that Simon Zaiden did not confirm the alibi. There is no evidence that the Applicant had made up the alibi. He said that the Respondent had confirmed Mr Zaiden's address and that if the alibi was not confirmed it is reasonable to expect that there would be evidence to that effect before the Tribunal. 64With respect to the issue of the Applicant not raising the alibi at an earlier time, Mr Lange submitted that there is no duty to raise an alibi prior to committal proceedings and there was no opportunity between the Applicant and the Police where the issue of an alibi came up. 65Mr Lange submitted that there is no contradiction. He says that the Applicant's statement to Sergeant Keegan that he "was not even there" is not inconsistent with his alibi. 66As noted above, the Applicant had previously said that he was working on 9 March. Mr Lange submitted that this was not an alibi but simply an explanation that he needed to work despite his injury. His reference to also working on 10 March was not an alibi. His alibi was that at approximately 3.45 on 9 March he was at home eating with his neighbour, Mr Zaiden, at the front of his house. 67Mr Lange submitted that the different sequence of events that the Applicant offered in relation to the 8 March incident is to be assessed in light of the time that had passed between the giving of the information. At the time of the incident the Applicant asserted that the altercation arose because he had been head-butted. The Applicant's statement was given almost a year after the incident and then the interview was held about 18 months later. Mr Lange submitted that it is not surprising that recollections fade over that amount of time. There was no attempt to mislead. 68Mr Lange further submitted that Jones v Dunkel does not require the Applicant to dispel any suspicions that the Respondent might have. Jones v Dunkel does not compel the drawing of inferences when a witness is not called and the Tribunal should not draw any such inferences from the failure of the Applicant to give evidence. 69Mr Lange noted that the Respondent could have required the Applicant to answer questions on oath if it had held an inquiry pursuant to section 80 of the Act. It didn't do so. In conducting a section 80 inquiry the Respondent has the power under section 80(4) to require the Applicant for cross-examination. Mr Lange submitted that while there is no duty on the Respondent to undertake further investigation, it has an obligation to not reject evidence without further investigation. 70Mr Lange said that the Respondent could have called witnesses but chose to not do so. He submitted that the material before the Tribunal is insufficient to support the Respondent's determinations. Mr Lange submitted that on the material before the Tribunal the Respondent's determinations should be set aside.
Discussion and conclusions 71Under section 63(1) of the ADT Act the Tribunal's task is to 'decide what the correct and preferable decision is', having regard to the material before it. section 63(3) provides that: (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 72As was noted above, the Applicant's Drivers Certificate was suspended until 28 January 2014. Clearly that suspension is no longer current. There is therefore no utility in determining the application for review of the determination to refuse to lift that suspension. However, I note that I do not agree with the view expressed by the delegate of the Respondent who stated that the provisions of section 43 of the Act do not allow the Respondent to lift a suspension once it has taken effect. In my view there is nothing in section 43 of the Act which prevents the Respondent making a new determination if new information is presented to it. 73I simply note that the reasons given by the Respondent for refusing the request were related to the Applicant's alleged conduct and the charges brought against him in regard to the 8 March incident and the 9 March incident. 74I will consider the issues raised by the Respondent in relation to the application for review of the determination to refuse to grant the Applicant's application for a drivers certificate. For the same reasons I give in relation to that issue it is my view that the decision to suspend that Applicant's drivers certificate is not the correct and preferable decision. 75As has been noted above, the Respondent contends that the inference can be drawn from the material before the Tribunal that the Applicant engaged in an unprovoked attack on Mr McCosh during the 8 March incident and that he was present during the 9 March incident. 76The evidence on which the Respondent relies in relation to the 8 March incident is that of Mr McCosh and Mr Borg. The significant difference between the version of events offered by Mr McCosh and that of the Applicant concerns whether Mr McCosh or the Applicant instigated the altercation. The Respondent points to inconsistencies in the versions of events provided by the Applicant in support of its submission that Mr McCosh had provided the correct version of in relation to the 8 March incident. 77I note that the charges against the Applicant in relation to the 8 March incident were dismissed. 78Clearly, the Applicant's assertion that Mr McCosh instigated the altercation was not a recent invention. Constable Tonkin who attended the accident scene on 8 March recorded that the Applicant told him that he was head butted by Mr McCosh and that is what caused the wrestle between them. In the Local Court the Magistrate found that Mr McCosh was untruthful in some of his evidence. 79In the Local Court the Magistrate found that Mr McCosh was untruthful in some of his evidence. I have no additional material from Mr McCosh. On the material before me I am not satisfied that Mr McCosh had provided the correct version of in relation to the 8 March incident. I am not satisfied that the Applicant provoked and assaulted Mr McCosh as the Respondent has asserted. 80I am satisfied that the Applicant attended the scene of the accident on 8 March 2011 with the intention of obtaining a tow. There is no suggestion that he was not entitled to do so. There is no suggestion that he was in breach of section 63 of the Act in doing so. Mr McCosh had not obtained a towing authorisation in relation to any motor vehicle at the scene before the Applicant arrived. Therefore, pursuant to section 63(2) of the Act the Applicant was permitted to attempt to obtain a towing authorisation. 81On the material before me in relation to the 8 March incident I am not satisfied that the Applicant deliberately attempted to impede another tow truck driver attempting to lawfully obtain accident towing work. 82In relation to the 9 March incident, the only evidence which places the Applicant at the Gordon Tyler Smash Repairs premises during the incident is the statement that Shane Taylor gave to police in relation to the incident. I have set out above the relevant parts of Mr Taylor's evidence as recorded in the transcript from the Local Court hearing. It is apparent that Mr Taylor accepted that he could have made a mistake in identifying the Applicant as present during the incident. However, I agree with the Respondent that it is not correct to say that Mr Taylor recanted. 83Nevertheless, I note that Mr Taylor gave evidence that he did not know the Applicant well; that he has an eye condition; that he has difficulty seeing things without glasses and things were blurry; that he would not drive without glasses; and that his glasses came off during the 9 March incident. 84The Applicant asserts that he was not at Gordon Tyler Smash Repairs premises during the 9 March incident. He said that he was working on that day and also said that at the time of the incident he was having lunch with his neighbour. There is no suggestion that the neighbour did not confirm that to be the case. 85The Respondent places much weight on the fact that the Applicant did not provided the alibi of having lunch with his neighbour until he attended an interview with officers of the Respondent on 29 August 2013 - almost two and a half years after the 9 March incident. The Respondent also relies on what it asserts to be inconsistencies in different accounts of his activities on 9 March 2011 and contends that the inference can be drawn that the Applicant was involved in the 9 March incident. The Respondent also contends that an inference can be drawn from the fact that the Applicant did not give evidence. 86I do not agree with the Respondent in regard to the inferences that it says should be drawn. I accept that there are inconsistencies in the different accounts given by the Applicant. However, I am not satisfied that he lied to either the Tribunal or to officers of the Respondent in relation to the 9 March incident. I accept Mr Lange's submission in regard to that issue. 87I accept that the material suggests that the Applicant was not totally candid with the Respondent however given that he was subject to criminal prosecution he was entitled to protect his rights in that regard. It does not follow that the only inference available on the material before me is that the Applicant was involved in the 9 March incident. In my view, the material before me does not give rise to more than mere suspicion or speculation. I agree with Mr Lange's submission that the Tribunal is required make its finding based on logically probative material. 88In my view, the material on which the Respondent relies is insufficient to support the determination to refuse the Applicant's application. 89On the material before me I am not satisfied that it is probable that the Applicant was involved in the 9 March incident. In the circumstances it is not necessary that I consider the application of the Briginshaw standard. Put at its highest, the material is only sufficient to support the finding that it is possible that the Applicant was involved in the 9 March incident. This is not sufficient to warrant the finding that the Applicant is not a fit and proper person to hold a Drivers Certificate or that it is not in the public interest for him to hold a Drivers Certificate.
Conclusion 90Having formed these views, it follows that the Respondent's decisions should be set aside. 91Given the time that has passed since the Applicant's application for a Drivers Certificate was lodged with the Respondent, the matter should be remitted to allow the Respondent to be satisfied that all other necessary requirements have been met. If that is the case, then the Drivers Certificate should be granted. That process should be completed within 28 days of the date of this decision.
Order
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: 12 June 2014
Moujalli
Roads and Maritime Services
(1938) 60 CLR 336
(1959) 101 CLR 298
[1938] HCA 34
The Tribunal set aside the Respondent's decisions refusing the Applicant's drivers certificate and refusing to lift the suspension, and remitted the matters to the Respondent under s 63(3)(d) of the Administrative Decision Tribunal Act 1997 for reconsideration in accordance with the Tribunal's reasons; remittal to be completed within 28 days (see [90]–[91]).