Sheather v Transport for NSW

Jurisdiction

1. The Tribunal does not have general authority to review all administrative decisions. Instead, the Tribunal only has administrative review jurisdiction if enabling legislation expressly permits such a review. Section 9 of the Administrative Decisions Review Act 1997 (the ADR Act) sets out the circumstances in which the Tribunal has administrative review jurisdiction.
2. Section 9 of the ADR Act provides that the Tribunal has jurisdiction regarding an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review. Section 52(1) of the Act enables a person whose application for a driver authority has been refused to apply to the Tribunal for administrative review of the refusal under the ADR Act.
3. However, If the interested person was entitled to seek an internal review of the administratively reviewable decision, an application may not be made to the Tribunal unless the person has duly applied for an internal review: ADR Act, s 55(3). See generally s 53 dealing with internal reviews.
4. That provision is subject to s 55(4) of the ADR Act. Section 55(4)(b) provides, relevantly, that the Tribunal may deal with the application even though the applicant has not applied for an internal review if the Tribunal is satisfied that it is necessary to deal with the application to protect the applicant's interests and the application to the Tribunal was made within a reasonable time.
5. When these proceedings were initiated, there was no internal review. The Tribunal did not have jurisdiction and the subsequent internal review that was issued does not cure that jurisdictional issue. Therefore, a preliminary issue is whether the Tribunal should find that it should deal with the application pursuant to s 55(4) of the ADR Act. The Respondent does not oppose the review application proceeding.
6. In light of the facts as described below, I am satisfied that it is necessary to deal with the application to protect the applicant's interests and the application to the Tribunal was made within a reasonable time. 1. the Applicant was self-represented at the time the application was lodged, 2. the matter is now ready for hearing having used the time and resources of the Tribunal and that of their parties (including the legal costs incurred by the Applicant who has now briefed legal representation) 3. the decision the subject of these proceedings impacts upon the Applicant's livelihood and financial position; and 4. the refusal was subsequently affirmed on internal review in any case
7. In all the circumstances, I find that it is necessary for the Tribunal to deal with the application in order to protect the Applicant's interests and the application to the Tribunal was made within a reasonable time.
8. As the Tribunal has jurisdiction to hear the application, then - pursuant to s 63(1) of the ADR Act, the Tribunal is to determine this application by deciding the correct and preferable decision regarding the material before it, including any factual material and the applicable law; see also Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77. The Tribunal may exercise all the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision: ADR Act s 63(2).
9. The 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: Civil and Administrative Tribunal Act 2013, s 38(2) (CAT Act). Otherwise, neither party bears a legal burden of proof.

Licensing regime

1. A person who drives a public passenger vehicle, including a bus used to provide a public passenger service, is guilty of an offence unless the person is the holder of an appropriate authority issued under Part 2, Division 2 of the Act.
2. The power to issue a driver authority is conferred on the Respondent, Transport for NSW.
3. The objects of the Act are set out in s 4 and include: (a) To require the accreditation or authorisation, by Transport for NSW, of the operators of and drivers involved in public passenger services (other than ferry services); and … (e) to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services.
4. The Act, s 11 provides that a person can only drive a public passenger vehicle if they hold an authority and, further, that an authority can only be granted if it is possible to attest that the applicant is "of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle". Specifically: 11 Authorities (1) A person who drives a public passenger vehicle (other than a ferry) is guilty of an offence unless the person is the holder of an appropriate authority under this Division. Maximum penalty: 100 penalty units. (2) The purpose of an authority under this Division is to attest: (a) that the authorised person is considered to be of good repute and, in all other respects a fit and proper person to be the driver of a public passenger vehicle, and (b) that the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates: (i) in accordance with the conditions under which a public passenger service is operated, and (ii) in accordance with law and custom.
5. In determining whether an authority should be issued, the Respondent is to have regard to the Act, s 12 which relevantly provides: 12 Criteria and procedure (1) Having regard to the purpose of an authority, TfNSW may grant authorities to persons applying for them. (2) Applicants must meet any criteria set forth in the regulations and must satisfy TfNSW as to any matter TfNSW considers relevant. (3) Procedures for the purposes of this section may be settled by TfNSW, subject to any provision in that behalf made by the regulations
6. As the Appeal Panel noted in Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 at [12] (AIC): The first point to note is the use of the word 'attest'. The primary meaning of this word is 'to bear witness to; certify; declare to be correct, true or genuine; declare to the truth of, in words or writing: especially in an official capacity' (Macquarie Dictionary, 4th ed. 2005). The Parliament, in using this word, seeks, we consider, to emphasise the idea that the conferral of an authority involves a declaration of public trust. While this is true of all licensing, the word gives special emphasis to it in the present context.
7. The concepts of "good repute" and "a fit and proper person" are distinct. As stated in Farquharson v Director General, Department of Transport (1999) NSWADT 53 (Farquharson) at [27]: "The former concept goes to the way in which a person is regarded by others in the community (fairly or unfairly), while the latter concept goes to an individual's intrinsic characteristics, whether they are known to others or not."
8. In Director-General, Department of Transport v Z (2002) NSWADT AP 37 (Director-General v Z), the Appeal Panel stated (at [38]): "Good repute refers to the way reasonably minded people assess an individual's current reputation, with reasonably precise knowledge of those matters that put the person's reputation in doubt. The fact that the person produces evidence from witnesses who vouch in general terms for the person's reputation cannot be conclusive."
9. The Appeal Panel emphasised at [33] the objective nature of the test: "[T]he question of reputation is one that must always be assessed in an objective way by an administrator and the Tribunal, no doubt informed by information which is often quite subjective. The opinions of friends and co-workers are important but in our view would not be conclusive as to the way in which the objective task is carried out."
10. In objectively assessing whether a person is of good repute, criminal offences "are the raw material upon which bad reputation is built up. They have taken place in open court. They are matters of public knowledge. They are acted on by people generally as the best guide to (a person's) reputation and standing*: Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 (Re T) at 399, citing Goody v Oldhams Press Ltd [1967] 1 QB 333; quoted with approval in Loye v Director General, Department of Transport [2000] NSWADT 145 at [25].
11. A person's criminal record alone is not necessarily evidence of bad repute which is sufficient to disqualify that person from holding a driver authority. It does, however, create a presumption that the person has, among those who know of that history, a bad reputation. It places the onus on the person to establish his or her good reputation: Honyandari v Transport for New South Wales [2021] NSWCATOD 117 (Honyandari) at [43].
12. Being a "fit and proper person" includes being of "good repute," but the concepts involve different considerations: Saadieh v Director General, Department of Transport [1999] NSWADT 68 (Saadieh) at [12]; Singh v Director General, Department of Transport [1999] NSWADT 96 at [25].
13. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, in a passage often referred to by the Tribunal, Toohey and Gaudron JJ discussed the meaning of the expression "fit and proper person" (at 380 [36]): "The expression 'fit and proper person', standing alone, carries no precise meaning. It takes is meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive, but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question"
14. Their Honours went on to say [at 388] that: *The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration."
15. In Saadieh at [17], the Tribunal identified several factors that need to be taken into account in determining a person's fitness and propriety to be issued a driver authority, including: 1. the nature, seriousness, and frequency of any criminal offences for which the applicant has been arrested or convicted; 2. the nature, seriousness and frequency of any complaints made against the applicant; 3. the applicant's driving record; 4. the applicant's reputation in the community; and 5. the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences.
16. In assessing the last factor, relevant considerations include: 1. the length of time since the offence/s were committed or the complaints made: 2. the circumstances in which those offences or complaints occurred or are alleged to have occurred; 3. whether the applicant admits responsibility for the offences or complaints and shows genuine remorse; 4. the efforts the applicant has made to rehabilitate himself or herself during that time; 5. any change in the applicant's circumstances such as increased support from friends, family, or professional service providers.
17. In Bashir v Transport for New South Wales [2023] NSWCATOD 18 at [46], Senior Member Montgomery noted that the considerations set out in Saadieh were equally applicable to an authority such as that for which the Applicant has applied.

Evidence and Submissions

1. The Applicant relied upon: 1. The administrative review application form marked "A1". 2. The Applicant written submissions marked "A2". 3. The Applicant's statutory declaration marked "A3"
2. The Applicant's evidence in the statutory declaration included: 1. The failure to disclose the findings of guilt and the earlier refusal was because of "a difficulty in understanding things written on paper or computers" and not understanding what was being asked. Additionally, he thought that were there was no conviction they did not have to be disclosed. The Applicant confirms that he now understands this is wrong and apologies. 2. That he complied with the community corrections and because of the compliance, his supervision was suspended. 3. Stated that he sincerely apologised and regretted his actions leading to the charges and will not act in the same manner again. 4. He was also sorry for the speeding ticket but pointed out it was his first and he was 36 years of age. 5. Relied upon further character references and his curriculum vitae.
3. Based upon the evidence, the Applicant submitted that: 1. The failure to disclose the findings of guilt in his licence application was a result of issues the Applicant has with his "reading comprehension", that he is not legally qualified and his understanding was that non-convictions would not be relevant to any job applications. 2. The facts related to the criminal offences are not of the character that suggests that the Applicant is not a fit and proper person to be a driver of a public passenger vehicle. The circumstances support they are at the lower end of criminality with non-convictions imposed and the Applicant's appeal was only in respect of severity indicating his acceptance of guilt and remorse. The Applicant has not otherwise come to the adverse attention of the police and complied with the community corrections supervision and current AVO. 3. The references relied upon by the Applicant, which span a number of years, show a person of good repute and character including that the Applicant has been a volunteer fire fighter since 2010. 4. With respect to the speeding fine received on 31 May 2023, it is the only speeding fine the Applicant has incurred and should not act to disqualify the Applicant from driving a public passenger vehicle.
4. The Respondent relied upon: 1. Written submissions marked "R1" which attached a copy of the NSW Government "Public Passenger Operators and Drivers Fit and Proper Policy". 2. Section 58 bundle marked "R2" which included, amongst other documents nine-character references for the Applicant.
5. Based upon the evidence, the Respondent submitted that the Applicant was neither of good repute nor otherwise a fit and proper person to be a driver of a public passenger vehicle. It was submitted that this conclusion should be drawn based on the offences in respect of which the Applicant was found guilty and which are serious in nature.
6. The Respondent also submitted that the Tribunal would be unable to attest that the Applicant is of good repute or that he is a fit and proper person. This was said to be evident from the serious offending and the fact he is still subject to a conditional release order. In respect of the references relied upon by the Applicant, the Respondent contended that none appeared to have been prepared for the proceedings in this Tribunal (with some dating back almost 20 years and only two showing knowledge of the Applicant's criminal proceedings) and otherwise do not constitute an assessment of the Applicant's reputation. Additionally, the Respondent relied upon the Applicant's failure to disclose information in his application as described above.

Consideration

1. With respect to the traffic offence, I give it little weight in the context of the issues before me given that it is but one offence in the Applicant's driving history. In those circumstances, it cannot be said that the Applicant's driving history supports that he does not comply with, or have respect for, licensing regimes designed to protect the public.
2. However, based upon the other evidence and specifically the fact that the Applicant was found guilty of the offences of stalking/ intimidation and contravening an AVO, I accept the submissions of the Applicant that the Tribunal is unable to attest that the Applicant is of good repute.
3. I am not persuaded by the Applicant's contention that the charges should be given little weight or viewed at the "lower end" because no conviction was recorded, or because of the underlying events because first - as held in AIC a conferral of a driver authority involves a declaration of public trust and the offences committed by the Applicant involved a breach of that trust which occurred recently and as such, the evidence is probative and significant and ought to be given significant weight. Secondly, this Tribunal has considered and given weight to charges and proceedings irrespective of whether a conviction is recorded or the criminal proceedings have not yet been heard: FZQ v Commissioner of Police, NSW Police Force [2024] NSWCATAD 11 at [42]. Thirdly, these are serious charges with maximum penalties of five years imprisonment or 50 penalty units.
4. As reputation is to be assessed objectively, the Tribunal is unable to attest that the Applicant is of a good repute having regard to this recent offending and the fact he is still subject to a conditional release order irrespective of whether the supervision has been removed. In respect of this finding, I have given consideration to the references relied upon by the Applicant which I give some weight but they do not overcome the issue because, as submitted by the Respondent, the references in large part appear to have been obtained for various reasons other than for these proceedings including for employment purposes and the criminal proceedings. As such, they do not constitute an assessment of the Applicant's reputation as at the time of these proceedings. Additionally, as they have not been prepared in consideration of these proceedings, they do not specifically address the issues with which this Tribunal is concerned and only two of the references relied upon by the Applicant indicate an awareness of the Applicant's criminal proceedings.
5. With respect to the Applicant's failure to answer questions accurately in his licensing application, I do not accept that the absence of a legal representative when filling in those forms justifies the errors. Having reviewed the forms, I do not accept that they are convoluted, difficult to understand or requiring a legal professional. They are prepared using plain English and are designed for the proposed licensee to complete.
6. Additionally, the evidence is insufficient to establish that the Applicant has some difficulty with respect to reading or comprehension which justifies the misinformation included in the application. No medical or expert evidence was led as to this matter. Apart from the statement of the Applicant, the only other support was made by way of submission, that is, the opinion of his legal representative based upon the assistance the Applicant required in preparing his written statement in these proceedings. The latter is not evidence.
7. Further, the contention sits uneasily with the evidence relied upon by the Applicant and specifically his curriculum vitae which includes that in 2014 he acted as a part time horticulture teacher at TAFE NSW Riverina Institute Wagga Wagga and in this role he undertook the following: Developing innovative learning activities and assessment strategies in the relevant field of training and assessment. Delivering a learning program that meets the criteria of curriculum and syllabus. Prepare and mark students assessments.
8. In any case, as I have found that the Tribunal is unable to attest that the Applicant is of good repute, it is not necessary for the Tribunal to consider the question of fitness and propriety.
9. I therefore affirm the decision the subject of the administrative review application.

Orders

1. I make the following orders: 1. Pursuant to s 55(4) of the Administrative Decisions Review Act 1997, it is necessary for the Tribunal to deal with the application. 2. The decision the subject of the administrative review is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 February 2025