Siguenza v Secretary, Department of Infrastructure [2002] VSC 46

Supreme Court of Victoria|2002-03-06|Before: Balmford J

The applicant obtained driving instructor authority by way of false presentation by omission of both traffic offence and of criminal proceedings pending. The criminal matters did not proceed in circumstances of credible and formal complaint being made of sexual offences by four children, of evidence on oath of complaint in committal proceedings being made by the four children, of two of the children making complaint and giving evidence in committal of matters involving alleged harassment of witnesses and attempted perversion of the course of justice and then followed in the present proceedings of all four children swearing on oath that by their initial formal complaints and by their evidence on oath - all of them had lied.

The evidence to that effect in these proceedings, coupled with the children's mother's evidence in these proceedings of her continued support of the appellant lead these proceedings to hold the gravest concern about the evidence of the four children in these proceedings. At the very least the position of the appellant is concluded as murky with respect to the complaints of the children and the position taken by their mother. These matters do not decide the application but give weight to the highly unsatisfactory position of the appellant in misleading the licensing authority to grant licence, this being the second occasion on which that has occurred.

The first occasion was concluded as confusion, carelessness or recklessness. This second occasion is not concluded in those terms but as intended to deceive the licensing authority.

Where these proceedings have no confidence in the status of the appellant when applying for driving instructor authority, where consideration must be given to the public who rely on the licensing process in presenting the appellant to be what he appears - that conclusion cannot be reached in this case.

Accordingly it is concluded that the licensing authority conclusion that the appellant is unfit to hold a driving instructor licence is upheld. The appeal is refused.

C. Siguenza (Other Party) ordered to pay costs in the amount of $5400. Stay to 31/12/2001.

The transcript of the Magistrate's oral reasons for decision indicates that he referred to the findings of the Magistrate who heard the 1999 appeal (see [7] above). He considered the evidence of the four children and their mother, as to which his views appear sufficiently from the formal order set out in the preceding paragraph. He concluded on the evidence that the appellant had "knowingly deceived the licensing authorities with a view to getting the licence [i.e. the Authority]". He stated that the appellant's competence as a driving instructor was not in issue, after which the transcript continues:

Another part of the licensing authority consideration is that the appellant is what the licence holds him out to be. A person who is doubtful as being fresh and clean and members of the public who might rely on it for that purpose.

In this case there is no licence that might ever be granted to the appellant as a driving instructor having seen and heard what's happened in these proceedings to date. That this court would ever be content to have the appellant presented as fresh and clean and safe to be dealt with on a single person basis. In other words, a licence sought to be obtained by deceit with a prior appeal on virtually the same matters and in circumstances of murkiness and suspicion it has to be concluded, and I do conclude, that the licensing authority properly formed an opinion that the appellant was not fit to hold a driving instructor licence.

The Magistrate's findings can be summarised as:

(i) That the appellant's competence as a driving instructor was not in issue;

(ii) That the appellant knowingly made false statements in his application, which were not the result of confusion, carelessness or recklessness as on the previous occasion, but were intended to deceive the Directorate in order that he might obtain an Authority;

(iii) That the evidence as to the events leading to the making and discontinuance of the charges relating to the children was equivocal and left an impression of "murkiness and suspicion";

(iv) That the grant of an Authority to the appellant would be taken as holding him out to the public to be "fresh and clean and safe to be dealt with on a single person basis";

(v) That the effect of items (ii) and (iii) was that he could not be held out as having those qualities;

(vi) That accordingly he was not a fit and proper person to hold an Authority, in terms of section 33(2)(a), and the appeal against the suspension and cancellation of his Authority must fail.

There is no dispute as to the occurrence of the convictions for speeding, the Social Security conviction, or the failure to disclose the pending charges. The Magistrate formed views as to the intention of the appellant in making the false statement, and as to the reliability of the evidence relating to the discontinued charges. He had the opportunity of hearing the children and their mother, who gave evidence before him, and of observing the demeanour of the appellant in presenting his case and examining those witnesses. There was evidence before the Magistrate which was clearly hearsay, but Mr Klemens for the appellant indicated that he would not be taking issue as to the admission of that evidence.

In the well-known passage in Spurling v Development Underwriting Inc [5] Stephen J said:

In the case of decisions of magistrates the position in Victoria is well established by a line of decisions culminating in Taylor v Armour and Co. Pty Ltd, [1962] VicRp 48; [1962] VR 346, in which the Full Court of this State held that in the case of any question of fact the Court should treat the matter as an appeal from the verdict of a jury and should not make up its own mind upon the evidence but rather confine itself to seeing whether there was evidence upon which the magistrate might, as a reasonable man, come to the conclusion to which he did come. In saying this the Full Court stated that it was following the view of Herring, CJ, in Young v Paddle Bros. Pty Ltd, [1956] VicLawRp 6; [1956] VLR 38; [1956] ALR 301. The Chief Justice, in that case, adopted as the test whether "on any reasonable view of the evidence that decision can be supported"; a party aggrieved can thus only succeed if a decision contrary to the view of the magistrate is "the only possible decision that the evidence on any reasonable view can support" (see at VLR p. 41).

Considering the factual findings of the Magistrate according to the principles there enunciated, there is no basis on which I could do anything other than accept those findings, despite the submissions of Mr Klemens to the contrary.

Mr Klemens submitted further that the failure to disclose the traffic offences and the pending charges was not significant because these were matters which it would be easy for the Directorate to find out for itself. However, that submission does not go to the gravamen of the Magistrate's view of that failure, which was that it was a deliberately deceitful action, performed with the intention of obtaining an Authority.

Mr Klemens also submitted that the Magistrate had erred in law in that he had failed to take into account certain matters which he should have regarded as balancing factors to set against the factors which had led him to the conclusion that the appellant was not a fit and proper person to hold an Authority. Those matters were first, that the appellant had been a driving instructor for nine years with no complaints made against him, and the mother of the children had given evidence before the Magistrate that he had taught her to drive and was a very attentive and patient instructor. Second, the Magistrate's decision had the effect of depriving the appellant of his livelihood. And finally, the decision had the effect of imposing a further penalty on the appellant in respect of the driving offences and the Social Security offence for all of which he had already paid the penalty, as well as penalising him for matters which had been the subject of a nolle prosequi and not properly proved.

Whether or not the failure to take those matters into account, had they been relevant to the issue before the Magistrate, would have been an error of law is a matter which I have not found it necessary to consider. In my view they were not relevant to that issue. Section 35 of the Interpretation of Legislation Act 1984 provides that in the interpretation of a legislative provision a construction that would promote the purpose or object underlying the legislation shall be preferred to a construction that would not promote that purpose or object; and permits consideration being given to inter alia reports of proceedings in any House of the Parliament. The purpose of the Act is set out clearly in the Second Reading Speech on the Road Safety (Driving Instructors) Bill in the Legislative Assembly [6] . The Minister for Transport said, after referring to the recommendations of the Driving Instructor Consultative Committee established in January 1997 [7] :

The recommendations of the committee have received widespread support from the industry and consumers and the standards identified have been accepted by the government as the minimum necessary to ensure appropriate levels of personal safety and security for learner drivers and adequate training competency of driving instructors, recognising that novice drivers are at present four times more likely to be injured or killed in a road crash than a more experienced driver.

Thus the legislation is concerned with the safety and security of learner drivers as much as with the quality of the training which they receive. That being so, it cannot be said that matters personal to the applicant for an Authority (including the agent's experience and skill as an instructor) are intended to be set in the balance against matters directly relevant to the concerns as to safety and security. It follows also that the legislation has no punitive purpose and should not be considered as having a punitive effect.

The High Court in New South Wales Bar Association v Evatt [8] considered the exercise by the Supreme Court of New South Wales of its power to disbar a barrister. The Court (Barwick, CJ, Kitto, Taylor, Menzies and Owen, JJ.), in a joint judgment, stated the scope of this power in the following passage:

The Supreme Court thought, moreover, that as the exercise of its disciplinary powers was to some extent a punishment for wrong- doing, mercy might be shown towards a young man who had not understood the error of his ways. The power of the Court to discipline a barrister is, however, entirely protective, and, notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved.

That decision was followed by Harris J in Glynn v Denman and Monk [9] where His Honour said of the power under section 19(2) of the Estate Agents Act 1958 to cancel an estate agent's licence:

. . the context of this legislation indicates that the discretionary power is one that is to be exercised for the protection of the public and it is not to be exercised for the purpose of punishing the respondents to any information.

The principal question before the Court is whether the findings of the Magistrate set out in [16] (ii) to (v) above justified his conclusion that the appellant was not a fit and proper person to hold an Authority in terms of section 33(2)(a). Mr Healey submitted that, as the appellant's Authority had been suspended and later cancelled, both under section 33(10), the correct test was, in terms of that sub-section, whether the appellant was "unfit" to hold an Authority, rather than, in terms of section 33(2)(a), whether he was "a fit and proper person" to hold an authority. However, that seems to me to be a distinction without a difference, and I say no more about it, save to refer to the passage from Secretary to the Department of Justice v Frugtniet cited in [31] below.

Mr Klemens submitted that those findings of the Magistrate related to aspects of the appellant's general character, and were peripheral to the issue of fitness to hold an Authority. The purpose of the section, in his submission, was to ensure that instructors met minimum standards of fitness and competence. Accordingly, the emphasis should be on whether the applicant had the skills of an instructor and was medically fit to undertake the task.

He relied on the decision of the Victorian Administrative Appeals Tribunal ("the Tribunal") in Re Troy and City of Oakleigh [10] where the Tribunal found that failure to disclose convictions for a driving offence and failure to complete records required under legislation relating to secondhand dealers did not disqualify an applicant for a secondhand dealer's licence from obtaining such a licence. The Tribunal referred [11] to decisions of the Australian Broadcasting Tribunal which had found that only those attributes directly concerned with the carrying out of the specific or relevant task were to be considered when assessing a person's qualification as a fit and proper person to hold a licence under the Broadcasting and Television Act 1942. Those several Tribunal decisions, while not without interest, do not of course bind this Court.

The other authority on which Mr Klemens relied was the decision of Olsson J in Petracaro v Commissioner of Consumer Affairs [12] in which His Honour found that aspects of general character, being convictions for offences of dishonesty related to drug dependency which had been overcome, were peripheral to the issue of fitness to hold a licence as a bricklayer, stonemason and building work supervisor. His Honour said, with emphasis, [13] :

It cannot be stressed too strongly that the Act is not pre-occupied with general character aspects, except to the extent that these may directly be relevant to the clear purposes of the statute, which essentially focus on the fitness of a person to discharge the responsibilities applicable to a particular type of licence. The statute is primarily concerned with the protection of the public by ensuring that the building work is not carried out by persons who are not suitably skilled or who are, or are likely to be, dishonest with those with whom they enter into contracts. . . .

Moreover, the test to be applied to the required characteristics of a bricklayer are fundamentally different from those related to (say) a security guard under the Commercial and Private Agents Act 1986 - where general good character is a vital feature of inherent qualifications for much of the work involved, for quite obvious reasons.

As was pointed out by Hale J in Maxwell v Dixon [1965] WAR 167 at 169, weight must be given only to matters which can fairly be seen to be relevant to the vocation in issue. That inquiry must primarily be directed to the situation as it stands at the time of the application, given that past events may assist as being relevant indicative background. Although the expression "fit and proper" is capable of extending to the three characteristics of honesty, knowledge and ability, what is pertinent for consideration depends on the statutory context and the qualifications directly relevant to the particular vocation.

There are many other cases where courts have been required to consider the question of whether a particular individual is a fit and proper person in a particular statutory context, although neither counsel referred me to any case relating to the fitness of a person to be authorised as a driving instructor. Dixon CJ and McTiernan and Webb JJ said, generally, in Hughes & Vale v New South Wales (No 2) [15] :

The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. "Fit" (or "idoneus") with respect to an office is said to involve three things, honesty knowledge and ability: "honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it"--Coke. When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances: R. v. Hyde Justices (1912) 1 K.B. 645, at p. 664. In another such case it was decided that if in the view of the justices the security of tenure enjoyed by the proposed licensee in the premises was insufficient, that was a good ground for holding that he was not a fit and proper person to be the holder of the licence: R. v. Holborn Licensing Justices; Ex parte Stratford Catering Co. Ltd. (1926) 42 T.L.R. 778.

The Appeal Division of this Court (Ormiston, Nathan and Vincent JJ) in Secretary to the Department of Justice v Frugtniet [16] was considering whether the respondent was, in terms of section 20(1) of the Travel Agents Act 1986 "a fit and proper person to continued to hold" a travel agent's licence. Their Honours said [17] :

What must be considered is the fitness of the individual concerned to operate as a licensed travel agent. Unfitness may be manifested in a variety of circumstances and in a multitude of ways. Some of those may be associated with employment as a travel agent but there is no requirement that this be the case and unfitness may be demonstrated by conduct totally unconnected with any such employment or employment at all.

Nathan J in Director of Consumer Affairs v Jay Jacq Pty Ltd [18] was concerned with a provision in the Motor Car Traders Act 1973 requiring in effect that a licensed motor car trader be "a fit and proper person to hold a licence". He said at 7a:

The Act is one designed to protect the interests of the community. It establishes a licensing system which regulates the business of motor car trading to those persons who, because they are fit and proper, are permitted by way of licence to trade. Accordingly, the community is entitled to have confidence in the fitness and propriety of motor car traders.

And, referring to the facts before him [19] :

The convictions and behaviour go to the very substance of the honesty, integrity and reliability of a motor car trader. The Act has established a system which entitles a purchaser to rely upon the honesty and integrity of a vendor. If that is undermined, the very structure of the Act is eroded.

One particular concern of the Magistrate in the present case seems to me to be well expressed in the judgment of Walters J, who said in Sobey v Commercial Agents Board [20] of an applicant for a licence under the Commercial and Private Agents Act 1972-78:

The issue whether an appellant has shown himself to be "a fit and proper person", within the meaning of s. 16(1) of the Act, is not capable of being stated with any degree of precision. But for the purposes of the case under appeal, I think all I need to say is that, in my opinion, what is meant by that expression is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence under the Act, but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails.

It is clear from the authorities that the test of a "fit and proper person" must depend, in each case, on the purpose of the legislation under which the test is being applied. I have already found that in the present case that purpose is, as expressed in the Second Reading Speech (see [22] above) "to ensure appropriate levels of personal safety and security for learner drivers and adequate training competency of driving instructors". The question is thus whether a given applicant, in the general terms adopted by Walters J, has the qualities which would "permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails".

The duties of a driving instructor, i.e. "the sort of work which the licence entails" necessarily involve being in close proximity with one learner driver at a time, in the confines of the front seat of a motor vehicle, which the instructor is better able to control than is the learner. Learner drivers are entitled to assume that the holder of an Authority is a person who is honest, and with whom they will be physically safe. As to honesty, the appellant has been required to make reparation to the Department of Social Security of over $16,000, having received a pension benefit or allowance which was not payable at all. Further, in his application for renewal of his Authority he made statements which, after his previous appearance in the Magistrates' Court, he must have known were untrue, and which can only have been made with the intention of obtaining the Authority. Those are two significant episodes of dishonesty.

As to the physical safety of the learner driver, it can be said that the discontinued charges related to offences against children, who would not be of an age to be learning to drive. As to whether or not it was appropriate for the Magistrate in all the circumstances to take those charges into account, I note the finding of the English Court of Appeal (Lord Bingham of Conrail CJ with whom Thomas J agreed) in McCool v Rushcliffe Borough Council [21] , expressed with some caution, that in licensing proceedings generally the civil standard of proof applied. I note that Toohey and Gaudron JJ said in Australian Broadcasting Tribunal v Bond [22] :

The question whether a person is fit and proper [to hold a commercial broadcasting licence] is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision-maker.

In House v The King [23], Dixon, Evatt and McTiernan JJ said:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.

While the expression of the Magistrate's reasons for his decision, both as appearing from the transcript and in the formal order, leaves something to be desired, I find nothing in the exercise of his discretion to justify me in setting aside his decision. The appeal will be dismissed. Counsel may wish to make submissions as to costs.

[1] Unreported, decided on 5 August 1994

[2] Unreported decision of Smith J, decided on 14 July 1994

[6] Hansard, Assembly 9 April 1998 p 979

Supreme Court (General Civil Procedure) Rule 1996

Supreme Court (General Civil Procedure) Rules 1996

Buzatu v Vournazos [1970] VicRp 63; [1970] VR 476

Spurling v Development Underwriting Inc [1973] VicRp 1; [1973] VR 1

New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177

Hughes & Vale v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

House v The King [1936] HCA 40; (1936) 55 CLR 499

At a glance

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Cases Cited (12)