Smith v Transport for New South Wales

Smith v Transport for New South Wales - [2024] NSWCATOD 103 - NSWCATOD 2024 case summary — Zoe

[4]

Substantive provisions

The objects of the Passenger Transport 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.
The Passenger Transport 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. …
Before the hearing, the controversy between the parties was whether Mr Smith was a person of good repute and, in all other respects, fit and proper to be a driver of a public passenger vehicle. However, as Mr Smith's evidence unfolded before the Tribunal, it became apparent that, had he provided as full an explanation as he did at the hearing, the Respondent may have entertained a significant doubt about Mr Smith's responsibility and aptitude in addition to its objections concerning his reputation, fitness and propriety to operate a public passenger vehicle.
In determining whether an authority should be issued, the Respondent is to have regard to Passenger Transport 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.
As the Appeal Panel noted in Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 at [12]: 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. [emphasis added]
Though not expressly stated, the objective set out in the Passenger Transport Act, s 4(e), phrased as it is in terms of community expectations, is analogous to regimes that concern consumer protection: specifically, one objective of the Passenger Transport Act is to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient transport services. In Taouk v Director General, NSW Fair Trading [2016] NSWCATOD 41 at [63]-[64], Senior Member Montgomery, considering the application of a building licence regime observed that: The significance of the consumer protection aspect of the licensing regime established by the Act has been recognised in a number of cases before this Tribunal and the former Administrative Decisions Tribunal. To be regarded as a fit and proper person under the Act requires that that person fully understands the provisions of the Act and be prepared to observe its requirements. Regard must be given to the nature of the functions, obligations and duties which would arise under the licence: see my discussion in Bejjani v Commissioner for Fair Trading [2004] NSWADT 262. Ms Campora has referred me to the decision of Boumelis v Building Services Corporation, Commercial Tribunal of New South Wales, 9 June 1995, unreported. I agree with the Respondent in regard to the importance of public confidence in builders and the view expressed by the Commercial Tribunal in Boumelis that: "Members of the public must have confidence in builders both from the perspective of standard of work and honesty. Consumers place their trust and their money in builders and often rely on their money in builders and often rely on their advice at times which are often stressful, that is, the renovating, extension or building or a home. Consumers must be sure that the confidence they place in builders is not abused. They should be able to assume that builders adhere to the proper standards of trust and honesty".
In my respectful opinion, those comments are applicable in the context of attestation for a driver authority under the Passenger Transport Act.
The term "fit and proper person" carries no precise meaning; a determination of whether an applicant is a fit and proper person must be determined by reference to the activities the person has or will be engaged in and whether any improper conduct has occurred or is likely to occur; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 per Toohey and Gaudron JJ; Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28.
Determination of whether a person is "fit and proper" is a subjective exercise on the part of the decision-maker. In Bond at 388, Toohey and Gaudron JJ further stated 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 to be given to matters favouring the person whose fitness and propriety are under consideration.
These statements have been considered at some length in numerous decisions of the Tribunal, most significantly the Appeal Panel's decision in Austin v Commissioner of Fair Trading [2016] NSWCATAP 179 at [58], albeit in the context of an applicant with a criminal history seeking at tattooist licence. The principle to be applied however is the same: the Tribunal is to have regard to the activities the applicant will be engaging in when considering the question of whether an applicant is a fit and proper person and the context of the relevant legislative regime; Bond per Mason CJ at 348; see also Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 at [22].
In Director General Department of Finance & Services v Porter [2014] NSWCATAP 6 at [30], the Appeal Panel stated: In the light of the High Court's comments in Hughes and Vale Pty Ltd v New South Wales No 2 [1955] HCA 28; (1955) 93 CLR 127 at 156 it can be accepted in determining this appeal that honesty, knowledge and ability are each considerations which the relevant decision maker was bound to take into account in reaching a conclusion as to whether the respondent was a fit and proper person in the context of the PSBA Act.
What arises from the authorities is that the determination of whether an applicant is a fit and proper person is not merely an assessment of an applicant's character; it is also an assessment of their conduct, likely future conduct, community confidence that relevant improper conduct will not occur, and knowledge of the duties and responsibilities of the person seeking to obtain or retain registration; Austin at [58].
There is also a distinction to be drawn between reputation on the one hand and the question of fitness and propriety on the other; in Farquharson v Director General, Department of Transport [1999] NSWADT 53, the President of the predecessor Tribunal stated at [27]: The concepts of "good repute" and "fit and proper character" involve different considerations. 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: see, for a detailed discussion, Re T and Director of Youth & Community Services [1980] 1 NSWLR 392 (Waddell J).
However, in Saadieh v Director-General, Department of Transport [1999] NSWADT 68, a case involving a taxi cab diver authority also under the Passenger Transport Act, the predecessor Tribunal considered that being a 'fit and proper person' was a broader term that included being of 'good repute': at [12]).
In this case, the question with which the Tribunal is concerned is fitness and propriety of character only - there is no sub-issue pertaining to Mr Smith's reputation that can, or should, arise on the evidence before the Tribunal.
At [17] of Saadieh, the learned Deputy President, considering the question of fitness and propriety, listed five factors to be considered on the question of suitability in such cases, of which only two are presently relevant, being: 1. The applicant's driving record; and 2. The likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences.
The considerations set out in Saadieh have been followed in numerous cases before this Tribunal and the former Administrative Decisions Tribunal, see for example, Armani v Director-General, Department of Transport [1999] NSWADT 20; Honyandari v Transport for New South Wales [2021] NSWCATOD 117.
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 Mr Smith has applied.
In Frugtniet and Anor v Commissioner for Fair Trading; Commissioner for Fair Trading v Travel Action Pty Ltd and Anor (GD) [2004] NSWADTAP 12, the Appeal Panel further summarised the principles to be applied in assessing fitness and propriety, derived from the Commercial Tribunal's decision in Young Taek Chong v Tomazin (1994) ASC 56-283. The principles identified by the appeal panel at Frugtniet at [209] were: '…that the question must be determined with reference to the particular purposes of the regulatory regime involved;' 'that account must be taken of the minimum standards of the profession or occupation being regulated;' 'that matters such as 'character', 'suitability', 'integrity' and 'trustworthiness' - indeed, 'any aspect of fitness or propriety that is relevant to the public interest' - must be considered;' 'that while an isolated act may suffice to show lack of fitness and propriety, this will not necessarily be the case, and 'deliberate prolonged conduct or a course of conduct' stands on a different footing; and' 'finally that 'the evaluation of fitness involves a wide discretion'.

[7]

Ms Le

Before Mr Smith gave his oral evidence, he tendered and relied on a witness statement from his wife, Thao My Thi Le. Ms Le attended the hearing and was cross-examined by the Respondent.
Ms Le's evidence in chief was to the effect that she, as a learner driver had received driving instruction from Mr Smith and that he had been "a great teacher". Ms Le also stated that she, in the course of their relationship of nearly two years, she had "felt comfortable and happy when we are driving together" by which I inferred her to mean when Mr Smith was driving Ms Le as a passenger. Ms Le referred to two vehicles owned by her and Mr Smith and noted that there were no driving offences relating to either vehicle.
In her statement, Ms Le gave some specific evidence concerning the last two traffic offences on Mr Smith's record which occurred, respectively, in April and May 2023. With regard to those offences, it was Ms Le's evidence that: The first offence that I know that my husband did not do was on 28th April 2023. My husband and I were together at our home when this happened, and also I received a text message about that offence from the lady who was in the car at the time of the offence and commenting on the driver who was committing the offence. The second offence is on 9th May 2023, and again my husband and I were together, and I also have information from the same lady talking about the same committing the same offence.
In cross-examination, Ms Le stated that Mr Smith had written the statement for her, she said "I tell him a little bit, my English is not very good, he [Mr Smith] helped me with my spelling and grammar". I have concluded, having regard to the admitted circumstances in which it was prepared, that Ms Le's written statement cannot be given significant weight, however it was apparent from her oral evidence that Ms Le believes that Mr Smith is a driver with whom she is comfortable travelling with. However Ms Le, unlike members of the general public, knows of Mr Smith's driving record and her consent to be a passenger in vehicles in which he is the driver is informed by that knowledge.
Further, in cross-examination, and consistent with her written statement, Ms Le told the Tribunal that she had received a message on her phone from a woman who was in the vehicle when the offences of in April and May 2023 occurred. She told the Tribunal that these offences occurred in a short period of time because "She has an adult son, blood trouble, had to go to hospital." Ms Le told the Tribunal that she has asked the woman why the speeding offences had been committed and had been told "Oh, because I had an emergency". As explained in further detail below, Ms Le's evidence on this point contradicts Mr Smith's evidence concerning these offences, which was that that an earlier set of traffic offences occurring in in May and June 2021, a year before Ms Le came to Australia to live, related to urgent hospital visits associated with a son of his associate who had "blood cancer".
At the hearing, Ms Le had a mobile phone with her which she said contained the messages between the woman and Ms Le concerning these offences. She told the Tribunal that the messages were in a language other than English. Mr Smith had not attempted to extract those messages, have them translated, serve them as evidence or tender them before the Tribunal. Accordingly, and as a matter of fairness between the parties, I could not accept evidence as to what was communicated in those messages or even when they were sent.

[8]

Mr Smith's testimony - background and context

Via a lengthy process of examination by the Tribunal and cross-examination by the Respondent's representative, Mr Smith provided the following account of the matters that are presently relevant.
A substantial part of Mr Smith's work history has involved driving vehicles. He told the Tribunal that he had worked as a delivery driver, courier, limousine and hire car driver, parking valet, and truck driver. He told the Tribunal that he now has a job offer with a bus company, and that is why he needs to obtain a bus driver authority - so he can undertake that employment. The prospective role will initially entail shuttling workers from a pick-up to a work site.
Mr Smith told the Tribunal that, in about 2002 he met and became friends with a woman known as 'Ming' or 'Lily' (Lily) . When they first met, Mr Smith was experiencing personal and financial difficulties following on from the end of his first marriage. After meeting Lily, Mr Smith came to realise that Lily was the mother of a friend of his from university days. From about 2002, Lily, who ran several businesses including a brothel and a convenience store in the inner west of Sydney, took Mr Smith on as her assistant, driver and receptionist. For this work, he was paid, cash in hand, the sum of $50 per day. That arrangement continued, apparently, until about May 2023.
Mr Smith informed the Tribunal that Lily required him, and others, to drive her places because she did not have a licence and did not know how to drive and yet her business dealings, in particular the convenience store, required her to drive to get items such as cigarettes from a supplier. Mr Smith told the Tribunal that Lily also required him, and others, to drive her to see her family and to other personal appointments. What is curious about this account is that, according to his driving record, Mr Smith first obtained an unrestricted driver's licence on 17 April 2000 which had been suspended on 5 November 2002, and that this suspension was only lifted in August 2006. Mr Smith did not reconcile how it was that for a period of four years when he was being a driver for Lily that his licence was, in fact, suspended.
Mr Smith told the Tribunal that it was his understanding that Lily could not have a vehicle registered in her name because she did not have a driver's licence. While that was not a correct understanding, I nonetheless accept that Mr Smith truthfully understood this to be the case. Unfortunately, that misunderstanding meant that Mr Smith agreed to allow Lily to purchase vehicles that were then transferred, registered, and insured in his name. At least in at the outset, this arrangement made some sense given that Mr Smith typically drove Lily around in those vehicles.
From about 2003, Mr Smith moved to a suburb in the outer west of Sydney, which he said was either an hour's drive by car or a 90-minute train trip to Lily's main place of business. He said that, again, for payment of $50 per day, he would attend to Lily and carry out tasks, including driving her around to various places. Sometimes, he would be allowed to take a car (one that was registered and insured in his name) back to his home, and at other times, he would be required to leave the car with Lily and make the 90-minute trip home by public transport. Mr Smith described his role, for which he was paid, as "not really a job; I was just helping her [Lily] out".
In late 2017 or early 2018, Mr Smith obtained employment as a valet parking attendant and by May 2018, he was working in that job as a permanent employee.
In 2022, Mr Smith and Ms Le, purchased two more vehicles; one, a model of BWM and a model from Toyota. Mr Smith referred to these vehicles as his own to differentiate them from the various other vehicles in respect of which he is the registered owner.
Mr Smith told the Tribunal had been offered a permanent casual job with a company that has a contract with the State government to provide shuttle buses from a train station to a workshop for staff and which also provides buses and drivers for rail replacement bus services from time to time. He told the Tribunal that the regular shift he had been offered started at 3 AM and finished at the depot at about 11 AM, which suits his present requirements. He stated he was not yet confident he could drive a full-sized bus but was confident he could drive the smaller, 12-seater buses and looked forward to doing so. He stated in cross-examination that he had disclosed his driving record to his prospective employer, and he was, nonetheless offered to be engaged by them; however, he provided no independent evidence concerning the attitude of his prospective employer.

[10]

20 December 2018, Disobey traffic lights - camera detected

Mr Smith says that the vehicle involved in this offence was a hire car, that he had hired the car but that, at the time of the offence, someone else, such as Lily's daughter, was the driver. In cross-examination, Mr Smith stated, "we agreed to have someone else drive. I said, please make sure they do it safely." While it appeared from his evidence that Mr Smith considered this was all he could do, I have concluded this was manifestly inadequate and irresponsible; he appeared to have taken no interest whatsoever to inquire into the most basic details of the other driver, most particularly whether they held a driver's licence.
Mr Smith told the Tribunal that once he received the infringement notice, he had asked Lily for the driver's details, but she refused to provide them to him. He said did not know the proper name of the person driving. Then, when pressed by the Tribunal, Mr Smith was not able to say who, in fact, was driving. Moreover, he was unable to entirely rule out that he was not actually the driver, other than to say that he could not have been him given his very particular and proper adherence to traffic lights.
Mr Smith told the Tribunal that he arranged for a payment plan which would allow for payment to be made by Lily though all bills were sent to him. He stated that he was not comfortable with setting up such an arrangement, in fact he said he was "somewhat upset" by it, but he felt that is was necessary to help out Lily. Again, in giving this evidence, Mr Smith failed to appreciate the significant purposes of the infringement notice which include to encouraging compliance with traffic laws, including suspending the licences of drivers who persistently commit traffic offences.
With regard to this offence, Mr Smith also did not seem to appreciate that, having identified himself to the hire car provided as the sole driver he was misrepresenting to the hire company what was to occur and he did not appear to understand the consequences that might arise from that misrepresentation. He stated that Lily had paid insurance for the hire car and was very keen about obtaining insurance for the hire, however Mr Smith did not appear to appreciate that, had an accident occurred when a driver other than he, as the nominated driver, was behind the wheel, that insurance would likely have been voided.
If, as Mr Smith says, it was the case that he let unknown people drive a car hired out to him, then I accept the Respondent's submissions that Mr Smith's conduct demonstrates a serious level of irresponsible conduct on his part which would inform the Tribunal's consideration of whether or not he if a fit and proper person and whether he displays sufficient responsibility to have a bus driver authority. That submission applies with even greater force where, as here, Mr Smith's evidence was that he hired a cars which he then allowed others, unknown to him, to drive.

[17]

Suspension of licence 20 October 2021 to 19 February 2022, extended to 19 May 2022

The offences of 20 December 2018, 12 January 2019, 12 January 2021, 2 May 2021, 5, 6 and 7 June 2022 lead to the number of demerit points accruing to Mr Smith's drivers licence being exceeded. He was notified on 15 September 2021 that he would be able to avoid suspension of his licence if, among other things, he passed a Driver Knowledge Test.
On 20 February 2022, this suspension was extended because Mr Smith had not passed the Driver Knowledge Test. The suspension was ultimately lifted on 19 May 2022.
Mr Smith told the Tribunal that, while he had in fact undertaken this test in time but that it was "a weekend thing" and he had forgotten to fill out the requisite form after completing the test.
Mr Smith stated that when he received the notice suspension of his licence arising from the loss of demerit points, he told Lily that this had occurred. He told the Tribunal that he was "somewhat upset" about his suspension. Mr Smith several different reasons for why he did not notify the RMS that he was not the driver and why he suffered the suspension. He said, firstly, that it was because he thought he needed evidence to demonstrate who was, in fact, driving before raising that objection. He then said that he considered he was helping out Lily and that he gave Lily the penalty notices on the proviso that she was going to attend to payment of the fines. Mr Smith also told the Tribunal that he had agreed with Lily to allow other people to drive the vehicles and that he had asked Lily to ensure those other people drove safely. Lily had claimed to have taken a photo of the driver's licence of each person who had used the vehicles for which Mr Smith had been nominated as the registered owner or hirer, but Mr Smith then explained that Lily had refused to provide him with those photographs or any other identifying information concerning those drivers.
When it was put to him by the respondent that what he had done had the effect of shielding the real driver from being responsible for their offending, Mr Smith stated, contradicting the balance of his evidence, "I take responsibility, still do." However, having regard to the manner of his evidence, I cannot accept Mr Smith does take responsibility for his actions or the actions of those whom he has, effectively, shielded.

[20]

28 April 2023 Exceed speed limit by not more than 10 km/h while driving a motor vehicle - camera detected - school zone

Mr Smith told the Tribunal that this offence was committed by a person other than he, who was driving another Mercedes Benz vehicle that had been purchased and registered in his name. Mr Smith told the Tribunal that he did not know the precise name of the driver but did know that the person driving the vehicle that day when the offence was committed was the cousin of a good friend of his called Benny.
This offence took place at Woodville Road, Chester Hill at 9:18 AM. Mr Smith did not make any submission recognising the serious of this offence at it relates to a school zone. The offence involved exceeding the speed limit by 8 km/h.
While, as I note above, I accept Ms Le's evidence that Mr Smith's friend Lily was being driven back and forth to visit her son in hospital, I am unable to determine whether she was, as she says, with Mr Smith at the time she received the text message from Lilly concerning the speed camera offence. Nor am I able, because the text messages were not produced, to determine when those messages were received by Ms Le. It is entirely possible, and from common experience likely, that the offence was committed but only known about once the infringement notice was issued weeks later. If that is the case, then I cannot give any weight to Ms Le's evidence (nor Mr Smith's) concerning his whereabouts at the date and time the offence was actually committed. As I note above, I do not accept that Mr Smith was studying full-time when these offences were committed as he stated that those study commitments arose relevant to the offences committed in May 2021.
On the balance of probabilities, having regard to the fact that the car was registered to Mr Smith, that it continued to be his job to drive Lily around in vehicles registered to him, that he has admitted to having driven (and offended) while his licence was suspended, and the fact that Mr Smith's evidence does not show he was anywhere else, I have concluded that it is more likely than not that Mr Smith was driving the vehicle and committed the offence on 28 April 2023.

[22]

Consideration

Applying the first of the relevant considerations in Saadieh, being consideration of Mr Smith's driving record; while many of the traffic offences are at the lower end of the scale of seriousness, it is the accumulation of such offences that can give rise to a finding that a person is not fit and proper; see, for example, Di Benedetto v Transport for NSW [2022] NSWCATOD 133. This is reflected in the fourth consideration set out by the Appeal Panel in Frugtniet as noted at paragraph 28 above.
Here, Mr Smith has a record of traffic offending which may properly described as both concerning and lamentable. I condone, or accept, that the offences with which Mr Smith was charged can be explained away or trivialised. In its reasons for decision, the Respondent noted the following with which I respectfully agree and adopt: "Speeding contributes to road fatalities and serious injuries on roads. There is no such thing as safe speeding, As you are aware, speed increases both the risk of having a crash and the severity of the crash outcome. Speed limits are designed to protect drivers, passengers, cyclists and pedestrians, and we all need to take responsibility and play our part in making sure our communities are a safe place …"
It is not to the point that Mr Smith now says that he was not the driver and did not in fact commit the offences. The fact is that if, in fact, he was not driving the vehicles when some of the offences took place, then it was his responsibility to notify that he was not the driver. Every single penalty notice in evidence contained detailed advice on what to do if another driver committed the offence; including reviewing the camera footage and telling Service NSW who was driving . Moreover, each penalty notice contained the following warning: 'If you name another driver, do not send payment as a new penalty notice will be issued to them. False nomination is a serious offence and severe penalties apply.' [emphasis added]
Mr Smith's evidence was that he either did not know who was driving the vehicle or did not have the full details of the driver to allow for him to nominate someone else as being the driver. To the extent that he was not, in fact, the driver, that is an inadequate explanation. The effect of his evidence was that he was willing to be paid by others to shield those persons from the consequences of their offending.
With regard to the first of the two offences which Mr Smith admits to, his conduct in trying to minimise his conduct over the use of a mobile phone while driving is inexcusable. The photograph clearly shows that, at the time of the offence, he had a passenger in the front seat of the vehicle and he expressed no regard for the safety of that passenger or other road users.
With regard to the second of the admitted offences, Mr Smith failed entirely to appreciate the gravity of the situation that he admitted to driving over the speed limit while his licence was suspended. That Ms Le was also in the car at the time is a further lapse of judgment since, as a learner driver, Ms Le expressed a significant level of reliance on Mr Smith's ability and safety.
A greater concern arises where Mr Smith denies even being in control of several vehicles when many nine offences were said to have occurred. As shown above, I consider it more likely than not that he was the driver in several of those instances. In any event, and despite his denials, Mr Smith did nothing of any practical nature to alert the authorities as to the identity of the offending driver; he simply accepted the fines, arranged for payment plans, accepted the demerit points applied to his licence and even accepted the suspensions of his licence which arose from the accumulation of demerit points. He was willing to allow people to drive cars hired or registered in his name and to take responsibility for whatever may have occurred. At hearing, he did not appear to understand the gravity of what he had done - he made no attempt to inquire into whether the drivers who were taking vehicles registered or hired to him were even licenced and in respect of the hire cars, his failure to advise the hire car operator of the identify of each driver would likely have resulted in some of the insurance over that vehicle being voided. His conduct in that regard is well below the standard that the community would expect of a responsible driver entrusted with important role of transporting workers to and from site. In those circumstances, it would be a departure from the Respondent's duty, and now the Tribunal's, to attest to Mr Smith's the fitness and propriety having regard to those circumstances.

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