Toohill v Secretary, Department of Customer Service [2025] NSWCATOD 35

1. The hearing was held on 24 March 2025. The Applicant gave oral evidence and was cross-examined by the Respondent. The Respondent's Authorised Officer/Senior Investigator ('Senior Investigator') was cross-examined by the Applicant. No other witnesses were required by either party. Both parties made oral submissions.
2. The following material was relied on in the Applicant's case during the hearing:

(1) Administrative review application form filed on 28 November 2024.

(2) Character reference dated 11 November 2024, by a person who has known the Applicant for 10 years.

(3) Applicant's affidavit affirmed on 6 December 2024.

(4) Affidavit of Applicant's son affirmed on 6 December 2024.

(5) Character reference dated 7 February 2025, by a person who has known the Applicant since 2021.

(6) Applicant's affidavit affirmed on 20 February 2025.

(7) Applicant's submissions dated 20 February 2025.

1. The following material was relied on in the Respondent's case during the hearing:

(1) Bundle of documents filed pursuant to s 58 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act).

(2) Respondent's submissions dated 14 March 2025.

(3) Unredacted, unsigned and undated copy of the Respondent's Prosecution Report by the Senior Investigator.

(4) Letters of Advice of complaints, addressed to the Applicant from the Respondent dated 28 August 2018 and 20 June 2019.

(5) Video recording of incident occurring on 22 June 2021.

1. The Applicant has been working in the tow truck industry for approximately 40 years.
2. On 17 July 2003 the Applicant was issued with a drivers certificate.
3. Around 2016/2017, the Applicant started a tow truck business with his son. Prior to the decision under review, the Applicant held a drivers license and was employed as a tow truck driver by his son who is the licensee of their tow truck business.
4. On 22 June 2021, an incident occurred when two tow truck drivers from another tow truck business attended the business address of the Applicant and his son to retrieve several vehicles which were to be towed to another location. An altercation occurred between the Applicant and his son (and another tow truck driver of their business) and the two tow truck drivers from the other tow truck business.
5. The Police investigated this incident and decided not to take any action.
6. The Senior Investigator investigated the incident and completed a Prosecution Report. The Applicant was then served with a Court Attendance Notice to attend Wyong Local Court on 23 November 2022 with the Respondent identified as the Prosecution Authority. The Applicant was charged with the offence of common assault under s 61 of the Crimes Act 1900 (NSW).
7. On 11 March 2024, the Applicant pleaded guilty to this offence and was ordered by Belmont Local Court to pay a fine of $800 as well as $2,000 in professional costs to the Respondent as the Prosecution Authority.
8. On 11 March 2024, after the matter was dealt with at Belmont Local Court and as the parties were leaving the Court room, the Respondent alleges that the Applicant 'lunged' towards the Senior Investigator from the other side of the public area and shouted/swore at him. No charges were pursued by the Respondent as a result of this incident.
9. On 27 June 2024, the Respondent sent a Notice to Show Cause to the Applicant, with a response required by 11 July 2024. The Applicant was invited to show cause as to why disciplinary action should not be taken against him as a certified driver. The two grounds for taking disciplinary action were identified as:

(a) Section 42(1)(b) of the TTI Act - that the Applicant had been charged with an indictable offence, and

(b) Section 42(1)(f) of the TTIA Act - that the Respondent was of the opinion that the Applicant was no longer a fit and proper person to hold a licence or a drivers certificate.

1. On 10 July 2024, the Applicant sought an extension of 90 days to submit his response. The Respondent granted the Applicant an extension of two weeks, such that the response was due by 25 July 2024.
2. On 25 July 2024, the Applicant responded in writing to the Notice to Show Cause.
3. On 16 September 2024, the Applicant received a notice that the Respondent had decided to permanently revoke his drivers certificate and disqualify him from holding a licence or drivers certificate for a period of two years. The reasons for this decision were summarised as:

(1) The Applicant had been charged and convicted of an indictable offence, namely an offence against s 61 of the Crimes Act, and

(2) The Respondent was of the opinion that the Applicant was no longer a fit and property person to hold a licence or a drivers certificate.

1. In terms of the reasons for taking the specific disciplinary action it did, the Respondent applied the Respondent's Guidelines for Determining Disciplinary Action Outcome and the associated Schedule, a copy of which was included in the Respondent's material. The Applicant's conduct, being the incidents on 22 June 2021 and 11 March 2024 and the Applicant's compliance history between 2009 and 2019, was assessed by the Respondent as having the potential to cause major harm, reckless and of moderate severity. The Respondent did not identify any subjective factors with a mitigating effect.
2. On 17 September 2024, the Applicant's drivers certificate expired.
3. On 14 October 2024, the Applicant's legal representative sought an internal review of the decision and provided submissions and a statement by the Applicant to be considered by the Respondent in an internal review.
4. On 1 November 2024, the Respondent advised the Applicant that the internal review had affirmed the decision of 16 September 2024. The Respondent provided the Applicant with a statement of reasons.
5. On 28 November 2024, the Applicant filed an administrative review application with the Tribunal as well as an application for stay or interim order.
6. On 18 December 2024, after the filing of evidence and submissions by the Applicant and Respondent, and an interim hearing, the Tribunal made an order pursuant to s 60(2) of the ADR Act, staying the decision under review.

1. The decision under review is a decision to take disciplinary action against the Applicant under Div 4 of Pt 3 of the TTI Act.
2. Section 45(1) of the TTI Act provides that a person may apply to the Tribunal for an administrative review under the ADR Act of a decision of the Respondent to suspend or revoke a licence or drivers certificate granted to the person (s 45(1)(c)), as well as a decision to disqualify the person from holding a licence or drivers certificate (s 45(1)(d)).
3. There is no dispute in this matter, and the Tribunal is otherwise satisfied, that the Tribunal has jurisdiction to conduct an administrative review of the decision under review.

1. The task of the Tribunal is set out in s 63 of the ADR Act which provides as follows:

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(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.

1. The Tribunal is required to base its findings of fact on logically probative material: Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 44 FLR 41 at [62] and [68]; and Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 at [5]- [8], [15]-[17]. Procedural fairness and other aspects of natural justice, of course, are to apply to these proceedings and the Tribunal has discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.
2. The standard of proof applicable to this review by the Tribunal is the balance of probabilities. These is no burden or onus of proof on either party: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28]-[34]. The standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 (NSW) do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89]-[91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10]-[12]. However, these standards provide guidance for the Tribunal's exercise of jurisdiction, especially in relation to any character issues for consideration.
3. In conducting a review, the Tribunal stands in the shoes of the administrator (in this case, the Secretary of the Department of Customer Service) and makes the correct and preferable decision having regard to all relevant material. The Tribunal may have regard to material that was relevant at the time of the decision as well as any further material that is relevant at the time of the hearing. The issue for determination is what is the correct and preferable decision at the time of the determination, irrespective of whether it was or was not the correct and preferable decision at the time it was originally taken: YG & GG v Minister for Community Services [2002] NSWCA 247, [25].
4. In terms of the Tribunal's task of reaching the correct and preferable decision, this involves reaching a decision that is correct on the law and evidence. If there is more than one possible decision, the decision must be the preferable one having regard to the limits imposed by the legislation under which the decision is made and the facts of the case: Re Zheng and Minister for Immigration and Citizenship [2011] AATA 304; (2011) 121 ALD 372, [24].

1. Section 42(1) of the TTI Act provides that the Secretary of the Department of Customer Service may take disciplinary action under Div 4 of Part 3 of the TTI Act against a licensee or certified driver for any one of several specified reasons. The relevant grounds in this matter, include:
   • the licensee or certified driver has been charged with an indictable offence (s 42(1)(b)),
   • the Secretary is of the opinion that the licensee or certified driver is no longer a fit and proper person to hold a licence or drivers certificate, respectively (s 42(1)(f)).
2. An indictable offence means an offence (including a common law offence) that may be prosecuted on indictment (s 3 of the Criminal Procedure Act 1986 (NSW)). Indictable offences can be categorised as either 'Table 1 offences' or 'Table 2 offences' or strictly indictable offences. Common assault (s 61 of the Crimes Act 1900 (NSW)) is a Table 2 offence - an indictable offence that is to be dealt with summarily unless the prosecutor elects otherwise.

1. Section 41(2) of the TTI Act provides that the Secretary may do any of the following, in respect of taking disciplinary action against a licensee or certified driver:
   • in the case of a licence or drivers certificate granted for a term of one year or less - suspend the licence or drivers certificate for a specified period,
   • in the case of a licence or drivers certificate granted for a term of three or five years - suspend the licence or drivers certificate for a specified period and, when the suspension ends, reduce the period for which the licence or drivers certificate is in force so that it will cease to be in force on the next anniversary of its issue (and refund fees accordingly),
   • permanently revoke a licence or drivers certificate,
   • disqualify a licensee or certified driver from holding a licence or drivers certificate for a specified period,
   • impose a fine not exceeding $500 on a licensee or certified driver,
   • give a direction under section 84 to a licensee or certified driver,
   • caution or reprimand a licensee or certified driver.
2. Section 42(3) of the TTI Act provides that in deciding whether to take disciplinary action, the Secretary may conduct an inquiry under s 80 of the TTI Act or invite the licensee or certified driver concerned to show cause, by way of a written submission, as to why the Secretary should not take any such action. Section 42(5) of the TTI Act requires that if any written submissions are made by a licensee or certified driver, the Secretary must, before taking disciplinary action under this Division, take those submissions into consideration.

1. In considering what is the correct and preferable decision, the following issues are to be determined:

(1) Whether a ground for disciplinary action has been made out under s 42(1) of the TTI Act, noting that the following two grounds are relied on by the Respondent:

(a) The Applicant has been charged with an indictable offence (s 42(1)(b)),

(b) The Applicant is not a fit and proper person to hold a licence or drivers certificate, respectively (s 42(1)(f)).

(2) Whether it is contrary to the public interest for the Applicant to hold a licence or drivers certificate.

(3) If a ground for disciplinary action has been made out, whether there are any reasons advanced by the Applicant as to why disciplinary action should not be taken.

(4) If a ground for disciplinary action has been made out and there are not sufficient reasons advanced by the Applicant for why disciplinary action should not be taken, what disciplinary action should be taken.

1. The Applicant's case is that the decision under review should be set aside. The Applicant submits that he is a fit and proper person to hold the relevant certificate and licence as:

(1) Although the Applicant was charged and found guilty of common assault for the incident on 22 June 2021, this does not affect his position as a fit and proper person to hold a licence or drivers certificate, nor does it jeopardise his ability to perform his role in the best interests of the public. It was one-off matter that involved his son being perceived to be in danger, it did not involve consumers and was aggravated by other parties. The Police laid no charges, it was the Respondent that laid charges and the Applicant pleaded guilty as part of the plea deal.

(2) The Applicant denies intimidating the Senior Investigator on 11 March 2024. This also does not affect his position as a fit and proper person to hold a drivers certificate or licence, nor does it jeopardise his ability to perform his role in the best interests of the public.

(3) The previous compliance history between 2009 and 2019 involved minor breaches, resulted in limited action, and a number of them were dealt with at Court and dismissed or had no conviction recorded.

(4) The Applicant has worked in the tow truck industry for approximately 40 years and has had no consumer complaints.

(5) The real circumstances of the matter do not disclose any danger that the Applicant poses to the public. The primary focus is on the interest of the public and whether the public will have confidence that the Applicant can hold a drivers certificate and perform his role safely and competently, which the Applicant maintains he can.

1. The Respondent's case is that the correct and preferable decision is to affirm the decision under review because the Applicant is not a fit and proper person to hold the relevant certificate and licence, and it is not in the public interest for him to hold a tow truck drivers certificate.
2. The Respondent submits that the Applicant is not a fit and proper person as:

(1) The Applicant pleaded guilty and was convicted of common assault for the incident on 22 June 2021 in which the Applicant displayed aggressive behaviour towards his colleagues, the tow truck drivers, while performing his duty as a tow truck driver.

(2) The Applicant was involved in a further incident on 11 March 2024 at Belmont Court, in which the Applicant continued 'his pattern of aggressiveness towards member of the public'.

(3) The Applicant's integrity in handling situations where his ability to manage and prevent escalation is questioned and subject of concern. The incidents on 22 June 2021 and 11 March 2024 are cited as examples of the Applicant's 'poor judgement'.

(4) The Applicant has not accepted responsibility for his offending or for the incident on 11 March 2024. The demonstrates a lack of remorse for the impact and consequences his conduct could have on member of the public.

(5) The Applicant exhibits significant anger management issues, posing a considerable risk to public safety, particularly when performing duties as a tow truck driver. The Applicant has not provided any evidence of addressing these difficulties, nor has he attended any courses, therapies or a program to manage his anger.

1. The Respondent submits that, having regard to the Applicant's conduct and behaviour, it is contrary to the public interest for the Applicant to hold a tow truck driver certificate because:

(1) The Applicant tends to behave aggressively, and has displayed this conduct towards his colleagues, tow truck drivers, as well as members of the general public, even in the presence of young children.

(2) The Applicant's behaviour as described in the facts for the common assault incident on 22 June 2021 and the incident at Belmont Court on 11 March 2024, jeopardise the Applicant's ability to perform his role in the best interest of the public as his aggressive behaviour is a concern in relation to public protection, public safety and public confidence.

(3) The Applicant's compliance history between 2009 and 2019, and the prosecution of the common assault on 22 June 2021 that concluded with a sentence on 11 March 2024, is a relevant consideration and the Tribunal cannot be satisfied that similar conduct will not be repeated.

The evidence before the Tribunal and findings of fact

Applicant's compliance history between 2009 and 2019

1. Between 2009 and 2019, according to the Respondent's records of the Applicant's Tow Truck Driver History record, issued in accordance with s 101 of the TTI, the Applicant has committed the following offences in descending order under the TTI Act/Tow Truck Industry Regulation 2020 (NSW) (TTI Regulation), with the result also noted:

(1) 5 April 2019 - not behave in orderly and civil manner (Advice letter sent)

(2) 14 September 2018 -

(a) Not behave in orderly and civil manner (Applicant fined $550 by Respondent, Applicant elected to have matter heard at Court, Applicant found guilty with no conviction recorded. Matter dismissed pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW)).

(b) Not notify that licence/drivers certificate had been lost/stolen/damaged/destroyed/altered/defaced (Applicant fined $110 by Respondent, Applicant elected to have matter heard at Court, Applicant found guilty with no penalty imposed pursuant to s 10(A) of the Crimes (Sentencing Procedure) Act 1999 (NSW)).

(c) Not return damaged/altered/defaced licence/certificate (Applicant fined $440 by Respondent, Applicant elected to have matter heard at Court, Applicant found guilty with no conviction recorded. Matter dismissed pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW)).

(3) 5 April 2018 -

(a) Driver contravene condition of drivers licence (Disciplinary caution).

(b) Not notify that licence/drivers certificate had been lost/stolen/damaged/destroyed/altered/defaced (Disciplinary caution).

(c) Not return damaged/altered/defaced licence/certificate (Disciplinary caution).

(4) 2 April 2018 - Not behave in orderly and civil manner (Warning).

(5) 9 December 2017 - Tow contrary to towing authorisation (Disciplinary caution).

(6) 24 April 2016 - Not wear drivers certificate (Applicant fined $550 by Respondent, Applicant elected to have matter heard at Court, Applicant found guilty with no conviction recorded. Matter dismissed pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW)).

(7) 22 October 2009 -

(a) Certified driver not comply with direction of authorised officer (Applicant fined $1,100 by Respondent, Applicant elected to have matter heard at Court, matter was dismissed/withdrawn).

(b) Unauthorised passenger in tow truck (Applicant fined $1,100 by Respondent, Applicant elected to have matter heard at Court, Applicant found guilty with no conviction recorded. Matter dismissed pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW)).

1. In relation to the three recorded offences of 'Not behave in orderly and civil manner', only the offence on 14 September 2018 resulted in a penalty notice issued to the Applicant by NSW Police. As noted above, the Applicant was fined $550 and elected to have the matter determined in Court. On 31 January 2019, the Local Court found the Applicant guilty but without proceeding to a conviction. The matter was dismissed under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The offence on 2 April 2018 resulted in a warning and the offence on 5 April 2019 resulted in a Letter of Advice being sent to the Applicant.
2. The Applicant had minimal recollection of the offences listed in his compliance history. In his material and also under cross-examination during the hearing, the Applicant was not able to recall the particulars of any of the offences of 'Not behave in orderly and civil manner'. In his material, the Applicant states that he can recall on two occasions he was told that the certificate he was displaying was faded, and that he told the officer on these occasions that this was not his fault but rather the fault of how the certificates were printed.
3. During the hearing, the Tribunal enquired as to whether the Respondent could provide any further evidence of the particulars of at least the offences of 'Not behave in orderly and civil manner' which were the offences relevant to the Respondent's submission that the Applicant has a tendency to behave aggressively.
4. In response to this request, the Respondent produced a Letter of Advice dated 23 August 2018 which was addressed to the Applicant. The letter noted that the Respondent had received a complaint regarding the Applicant's behaviour while operating tow trucks. It had been alleged that the Applicant's behaviour had been 'confrontational and aggressive' towards another tow truck driver. It was noted that the Applicant had been invited to participate in a formal interview and had give a formal account. It was noted that after consideration, the Respondent did not propose to take disciplinary action in relation to the allegation.
5. The Respondent also provided a Letter of Advice dated 20 June 2019, which was addressed to the Applicant. The letter noted that the Respondent had received a complaint about the Applicant's behaviour whilst driving a tow truck. It had been alleged that the Applicant's behaviour was 'rude and aggressive towards a fellow tow truck driver from another company and towards a motorist'. It was noted that after consideration, the Respondent did not propose to take disciplinary action in relation to this allegation.
6. When the Applicant was shown these two letters during cross-examination, he was not able to recall any specific incidents that these letters related to. In the Applicant's material, he stated that on each occasion where a penalty notice was issued, these were 'challenged in Court and overturned'.
7. The Respondent did not provide any further evidence in relation to the particulars of any of the offences between 2009 and 2019.
8. In response to the offences recorded by the Respondent between 2009 and 2019, the most severe disciplinary action that the Respondent took against the Applicant was to impose a fine, which was overturned by a Court on each occasion.
9. In relation to the offences that are most relevant to the Respondent's contention that the Applicant has a tendency to act aggressively, after consideration, the Respondent decided not to take any disciplinary action.
10. These offences occurred over a period of ten years between 2009 and 2019 and appear to relate to six or seven separate incidents. The most recent incident occurred six years ago.
11. It follows that the Tribunal is not persuaded that any one or culmination of these offences is of sufficient seriousness to warrant taking disciplinary action against the Applicant or otherwise support the Respondent's submissions that the Applicant has a tendency to act aggressively, will repeat similar conduct in the future or poses a risk to public safety.

1. The evidence initially relied on by the Respondent in relation to the particulars of the incident that occurred on 22 June 2021 was a three-page undated and unsigned Prosecution Report, almost half of which was redacted. At the Tribunal's request, the Respondent produced an unredacted copy after it was confirmed that there were no impediments to doing so. The Senior Investigator confirmed under cross-examination that he prepared this report and conducted the investigation.
2. In relation to the investigation, the Senior Investigator confirmed that the Applicant was not involved in the investigation. The Senior Investigator stated that he had requested the Applicant to attend an interview, however the Applicant stated that he wanted to bring the media to the interview. The Senior Prosecutor stated that when this request was denied, the Applicant stated that he would attend the interview, but this would be under duress. The Senior Investigator then decided not to interview the Applicant because of this statement.
3. The Tribunal asked the Senior Investigator if the Applicant was offered an opportunity to participate in the investigation by way of a written statement if an interview could not proceed. The Senior Investigator confirmed that this did not occur. The Tribunal then asked the Senior Investigator if the Applicant was offered an opportunity to respond to any preliminary adverse findings. The Senior Investigator confirmed that this also did not occur.
4. The Senior Investigator stated that he did interview the two other tow truck drivers from the other tow truck company, referred to for convenience as TD1 and TD2. The records of these interviews were not included in the Respondent's material.
5. At the Tribunal's request, the Respondent also produced the video recording of the incident on 22 June 2021, recorded by one of the other tow truck drivers, which the Tribunal has viewed. The Tribunal asked the Senior Investigator if a transcript of this video recording, which is 3 minutes and 14 seconds in duration, was arranged. The Senior Investigator stated that he transcribed parts of the video that were relevant for inclusion in the Prosecution Report that he prepared.
6. The Applicant did plead guilty to the offence of common assault, as part of a plea deal, and was convicted. The particulars of the offence recorded on the Court Attendance Notice were that the Applicant was yelling at one of the tow truck drivers in a threatening and aggressive manner, stepped towards the driver, raised his fist and screamed threatening words at him, putting the driver in fear of being attacked.
7. The Applicant does not deny that he plead guilty to the offence of common assault, but contends that there was further context that was not considered by the Respondent in the decision under review. The Applicant gave the following additional evidence:

(1) TD1 and TD2 attended the Applicant's business premises to retrieve some vehicles. TD1 and TD2 were asked by the Applicant and the Applicant's son to park so that they were not blocking the driveway. TD1 and TD2 did this initially but then moved a car that they were collecting so it was blocking the driveway. The Applicant's son asked them to move it.

(2) During this time, another tow truck driver from the Applicant's business attempted to gain access to the premises but could not gain access because the tow truck of TD1 and TD2 and the car they were collecting had blocked access.

(3) At this point, there was shouting and swearing from all parties involved. At this point, either TD1 or TD2 (the Applicant is not sure who it was), grabbed the Applicant's son and pinned him against the nearby fence.

(4) This caused the Applicant to feel very angry as he thought that his son was in danger of violence. The Applicant approached both TD1 and TD2 and yelled at them. The Applicant does not recall exactly what he yelled, however he believes that it was words to the effect of: "Don't fucking grab him or I'll fix you too".

(5) This is the only time in the Applicant's career that he has been involved in such an incident or has felt the need to act in such a manner. The Applicant felt that it was necessary in the circumstances to protect his son. The Applicant would not have acted in that way unless the circumstances were extreme enough to warrant it.

(6) The Applicant did not physically assault TD1 or TD2 and did not have any intention to. The Applicant only wished for them not to harm his son and leave the premises.

(7) In the Applicant's view, it was TD1 and TD2 that caused the situation and aggravated it to the point that the Applicant needed to act in the manner he did to protect his son.

(8) NSW Police investigated the incident and did not proceed with any charges against the Applicant. The charges were laid by the Respondent. The Applicant plead guilty as part of a plea deal. He had been advised of a representation between his lawyer and the lawyer for the Respondent that if he plead guilty, that would be the last of the matter and no further action would be taken regarding the assault. If the Applicant had known that his guilty plea would be relied on by the Respondent in deciding to cancel his drivers licence, he would have plead not guilty and fought the charges.

(9) On 11 March 2024, the Magistrate fined the Applicant $800 and professional costs of $2000. When making this decision, the Applicant recalls the Magistrate saying words to the effect that the assault was of low severity and as such the penalty imposed would be on the low end of what can be ordered.

(10) The Applicant does not believe that the assault that he was charged with has anything to do with his ability to perform as a tow truck driver. The Applicant was not dealing with members of the public or consumers and he does not present a risk to the public.

1. The Tribunal has viewed the video recording of this incident that the Respondent produced. TD1 or TD2 recorded 3 minutes and 13 seconds of this incident on their phone. At one point the phone appears to have been knocked to the ground, while still recording, but the visual element was lost. It can be heard that the Applicant and his son asked TD1 and TD2 to move their tow truck/the car blocking their driveway a number of times and stating that TD1 and TD2 block their driveway "every single time". After the phone was knocked to the ground and there was no clear visual, what sounds like the Applicant's son can be heard saying "don't grab me". The Applicant later can be heard stating "fucking grab him again and I will fix you too, you hear me". What sounds like the Applicant's son can then be heard stating "do not grab me again".
2. Not all of the dialogue about the Applicant's son being grabbed is transcribed in the Prosecution Report. There is no reference in the Prosecution Report to the Applicant's son being threatened or grabbed by TD1 or TD2. It was put to the Senior Investigator under cross-examination by the solicitor for the Applicant that it was the Applicant's son stating "don't grab me again". The Senior Investigator said that he obtained statements from both TD1 and TD2 and there was nothing in their statements about it and TD1 and TD2 said they were nowhere near him. The statements of TD1 and TD2 were not included in the Respondent's material. When it was put to the Senior Investigator that the Prosecution Report did not contain everything in the recording, the Senior Investigator said that if he neglected to include it, it "wasn't pertinent to the conduct" of the Applicant.
3. The Applicant's son affirmed an affidavit on 6 December 2024, which the Respondent did not respond to in its evidence. The Applicant's son was not called for cross-examination by the Respondent. In relation to this incident, the Applicant's son attests that:

(1) A heated discussion occurred between himself, the Applicant, TD1 and TD2 in relation to moving the truck that was obstructing his business.

(2) This had occurred before.

(3) He was pushed into a fence by one of the drivers and the Applicant tried to defend him without physical contact by yelling at them to get off.

(4) The incident was reported to NSW Police. No criminal action was taken by Police.

(5) He declined to press charges against the driver that assaulted him.

1. The Applicant's son also stated that his business has a contract with NSW Police where they are called upon when there is an accident to tow vehicles away. As part of the contract, there is 45 minutes for them to respond when receiving a call, which requires drivers spaced out at different locations at all times, 24 hours a day, seven days a week, to meet these timeframes.
2. The Prosecution Report notes that there is a "long history of intimidation and aggressive behaviour" by the Applicant and the Applicant's son and other employees of their business against the drivers from the business that TD1 and TD2 work for. The Prosecution Report also notes that "as a result of this conduct", those drivers were issued with body worn cameras by the licensee of their business to ensure drivers safety when dealing with the personnel from the Applicant's business. The Prosecution Report notes that the drivers have been forbidden to operate these cameras when attending the Applicant's business premises. There was no reliable corroborative evidence filed by the Respondent to support these statements made in the Prosecution Report.
3. When asked about this under cross-examination, the Senor Investigator said that it was "anecdotal evidence" from the drivers of the other business and "this was the first time people were prepared to make a statement". The Senior Investigator also stated that the Respondent had received "a number of reports of his behaviour" that were "below the threshold".
4. The Senior Investigator did concede during cross-examination that in terms of his own prior dealings with the Applicant, which had been for a significant period of time, the incident that occurred on 22 June 2021 was out of character for the Applicant. The Senior Investigator described the Applicant, in terms of his dealings with him, as "always somewhat respectful".
5. During cross-examination, the Applicant stated that he had a good relationship with the other towing company and he used to be employed by them. The Applicant stated that one of the drivers still comes to their business premises and the Applicant doesn't have an issue with him. The Applicant stated that the reason his employment with this company ended was because the Applicant's son wanted to start a tow truck business and employed the Applicant to get it started. The Applicant stated that TD1 and TD2 intimidated everyone by parking their trucks in the driveway. The Applicant stated that if they had removed the truck then the incident would not have happened. The Applicant stated that he was not aware of the other company having to wear body worn cameras because of issues with him.
6. The Applicant stated that he does not engage in that sort of behaviour in his daily work, and he doesn't think that he is violent. The Applicant admitted that the incident was not appropriate and he should have walked away.
7. The Tribunal is not able to place any weight or make any finding in relation to the contents of the Prosecution Report about the Applicant having a "long history of intimidation and aggressive behaviour" because the Applicant denies this allegation and there is no reliable corroborative evidence provided by the Respondent to support this contention in the Prosecution Report.
8. The Tribunal is not satisfied that the investigation was conducted by the Senior Investigator in such a way that the Applicant was afforded procedural fairness. The Applicant was not offered an opportunity to participate in the investigation, including through the provision of a written statement if there were issues about conducting an interview, or able to respond to any preliminary adverse findings made against him. The Applicant was not given a fair and reasonable opportunity to respond to the allegations before the investigation was finalised.
9. The Tribunal also finds that the Prosecution Report does not include all relevant evidence including not only the Applicant's and the Applicant's son's account of what occurred, but all the relevant comments made during the video of the incident. The Senior Investigator admitted to only transcribing what he thought was pertinent to the Prosecution Report. The Tribunal finds that the Prosecution Report, in this regard is not a balanced view of all the relevant evidence.
10. For these reasons the Tribunal is not able to place significant weight on the contents of the Prosecution Report, particularly where it differs from the Applicant's account.
11. Noting that the Applicant did plead guilty to the offence of common assault which is an indictable offence, and in view of the other evidence before the Tribunal about this incident, the Tribunal accepts the Applicant's submissions that:

(1) This was a one-off incident,

(2) He reacted in the way that he did because of the conduct of TD1 and TD2 and the danger he perceived his son to be in, and

(3) The incident did not involve any consumers, but two drivers from another tow truck company.

1. It follows that the Tribunal is satisfied that the conviction of the Applicant with an indictable offence is a ground for disciplinary action in s 42(1)(b) of the TTI Act that is made out.
2. The Tribunal is not satisfied, however, that this incident is an example of or supports the Respondent's submissions that the Applicant has a tendency to act aggressively or has demonstrated a pattern of aggressive behaviour, exhibits significant anger management issues, has poor judgement in handling situations where his ability to manage and prevent escalation is questioned, or poses a risk to public safety when performing duties as a tow truck driver.

1. On 4 April 2024, the Senior Investigator signed a statement about the incident that occurred at Belmont Local Court on 11 March 2024. In this statement, the Senior Investigator stated that:

(1) He was required to attend Court on this date as he was the informant for the matter.

(2) As the matter was being heard, he was seated at the right hand side of the Court in the middle row with the Applicant at the front of the public area on the left hand side. At this time, he had no contact with the Applicant or the Applicant's son, on that day.

(3) Also present in Court where approximately 10 teenage school children and a number of other persons.

(4) Once the matter was finalised, he rose from his seat to exit the Court, and as he did, he saw the Applicant lunge towards him from the other side of the public area. He noted that the Applicant had an angry look on his face and was looking straight at the Applicant. The Applicant then shouted at him through gritted teeth and said "you fucken cunt".

(5) He was quite taken aback at this and said to the Applicant "say it again, go on, say it again".

(6) He then saw that the Applicant was grabbed by the Applicant's son and his legal team.

(7) The Respondent's solicitor appearing in the matter came by his side and said to the other persons "control your client". The solicitor then ushered him from the Courtroom and escorted him to his vehicle.

(8) The actions and words of the Applicant "shook him up quite a bit". He was "extremely intimidated, his conduct and behaviour was aggressive and threatening and not what I would consider to be the proper behaviour to a representative of the oversight body of the tow truck industry".

1. The evidence that the Senior Investigator gave during cross-examination was similar to the contents of this statement about this incident. It was put to the Senior Investigator by the solicitor for the Applicant that the Applicant is not extremely mobile and that he was not able to walk with his body forward in a lunging position. The Senior Investigator denied this proposition on the basis that the Senior Investigator is of a similar age to the Applicant and the Senior Investigator is mobile. The Senior Investigator also noted that the Applicant has to be mobile enough to act as a tow truck driver and works in a holding yard which requires dexterity for such a physical job.
2. The Tribunal asked the Senior Investigator about why he had said "say it again, go on, say it again" given what the Applicant was alleged to have said to him, and the fact that they were in a Court room. The Senior Investigator said that it was a flight or fight response, and he could have run out of the court room or stood his ground, and he was not going to run. The Senior Investigator said that the instinctive thing for him was to make sure that the Applicant repeated those words so others could hear.
3. Apart from the statement of the Senior Investigator, the Respondent has not produced any other evidence to corroborate the Senior Investigator's version of events. The Respondent did not report the matter to Police or take any formal action following this event, apart from including it is as part of the Notice to Show Cause that was issued to the Applicant.
4. In the Applicant's affidavit, he states that he disputes anything that could be interpreted as intimidating the Senior Investigator. The Applicant denies saying anything to the Senior Investigator and denies lunging at him or being held back by his son or legal team. The Applicant did recall that the Senior Investigator had said "say it again" although he had not said anything to the Senior Investigator before this. The Applicant maintains that he did not do or say anything that was intimidating or aggressive and felt that it was the Senior Investigator who was being aggressive and trying to upset him. The Applicant stated that he had no reason to act as angry or shocked, as he knew he had plead guilty, and the Magistrate had made an order that was on the very low end of what possible order the Court could make.
5. The Applicant's son did not address this incident in his affidavit, and the Applicant otherwise did not provide any other evidence to corroborate his version of events.
6. The Tribunal is not satisfied, on the balance of probabilities, that the Applicant engaged in the conduct that the Senior Investigator alleges he did at Belmont Local Court on 11 March 2024. This is because of the conflicting version of events from the only two people that have provided evidence about the incident and the lack of any reliable evidence to corroborate either account.
7. Both parties agree that the Senior Investigator did say "say it again, go on, say it again" or something similar, which the Tribunal does consider to be a provocative action on the part of the Senior Investigator and not appropriate given that there were, according to the Senior Investigator, ten school aged children in the Court room.
8. It follows that the Tribunal is not persuaded that this incident of itself is a ground which warrants taking disciplinary action against the Applicant under the TTI Act. The Tribunal is also not satisfied that this incident is an example of or supports the Respondent's submissions that the Applicant has a tendency to act aggressively or has demonstrated a pattern of aggressive behaviour, exhibits significant anger management issues, has poor judgement in handling situations where his ability to manage and prevent escalation is questioned, or poses a risk to public safety when performing duties as a tow truck driver.

Applicant's reasons for why disciplinary action should not be taken

1. As noted above, in respect of the common assault of 22 June 2021, the Applicant stated during cross-examination that the incident was not appropriate and he should have walked away.
2. The Applicant submits that the fact of being charged and convicted of the common assault offence does not mean that he lacks moral integrity and rectitude as submitted by the Respondent. The Applicant submits that he does not lack moral integrity and rectitude as he has admitted and acknowledged this conduct.
3. The Applicant submits that the Respondent's view of the severity of his conduct and the risk of causing major harm with no mitigating factors is not supported by the facts and circumstances of the case.
4. In relation to the compliance history between 2009 and 2019, the Applicant submits that consideration should be given to the earliest offence being some 15 years ago, and the latest being April 2019, over five years ago. The Applicant submits that the Respondent did not give consideration to the specific nature of each offence and how it impacts on his ability to be a fit and proper person to hold a certificate. The Applicant submits that a number of offences were dealt with by the Courts and were dismissed and/or there was no conviction.
5. The Applicant submits that he has been working in the towing industry for about 40 years and has never once received a complaint from a customer in carrying out his work. The Applicant submits that this should be a significant factor weighing in favour of the Applicant, given that the goal is the protection of the public interest and confident to be able to perform his role.
6. The Applicant filed two character references, one by a friend who has known him for over ten years, and one by a previous landlord and friend who has known him since 2021. Both character references refer to positive attributes of the Applicant including that he is honest, punctual, reliable, helpful, and professional in his work. The Tribunal asked the Applicant whether these people were aware of the incidents of concern and the revocation of his drivers certificate. The Applicant stated that both persons were aware of these circumstances. These persons were not required for cross-examination by the Respondent.
7. Both the Applicant and the Applicant's son referred to the financial impact that the decision under review would have, including that the Applicant would be left without an income if he was not able to work as a tow truck driver and this would place significant financial pressure on him. The Applicant and Applicant's son also referred to the impact that the decision under review would have on the Applicant's son's business and the Applicant's son who was significantly overworked in the period that the Applicant's drivers certificate was revoked.
8. The Applicant was asked by the Tribunal whether there was anything he had done to address any issues of concern held by the Respondent or to avoid a situation such as what occurred on 22 June 2021. The Applicant stated that he had not done anything. The Applicant said that he did not have a problem in terms of what the Respondent was saying. The Tribunal took this to mean that the Applicant does not believe that he has a problem with managing anger or aggression.
9. The Applicant stated in his affidavit that if the decision under review is affirmed he would continue to ensure that he is not in breach of any conditions and comply with all relevant laws and regulations. The Applicant attests that he will continue to operate as a tow truck driver in the best interests and safety of the general public, as he had done throughout his whole career. The Applicant attests that he will always continue to act in the interest of the public and will not change that.

Whether a ground for disciplinary action has been made out

1. There is no dispute, and the Tribunal accepts that the Applicant was convicted of an indictable offence. In this regard, the Tribunal is satisfied that a ground for disciplinary action in s 42(1)(b) of the TTI Act has been made out.

Whether the Applicant is a fit and proper person to hold a licence or drivers certificate

1. The TTI Act contains no definition of what is a 'fit and proper person'. A number of cases however have given consideration to the term which are of assistance.
2. In Hughes and Vale Pty Ltd v New South Wales (No 2) [1995] HCA 28; (1955) 93 CLR 127 at [156] - [157], the High Court said that fitness and propriety involve three things - honesty, knowledge and ability.
3. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, the High Court, Toohey and Gaudron JJ said, at [380] and [388]:

The expression "fit and proper person", standing alone, carries no precise meaning. It takes its 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.

The question whether a person is fit and proper is one of value judgement. 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.

1. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said (at p 76):

In my opinion what is meant by that expression is that the 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 a particular licence ... 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 ... as a person to be entrusted with the sort of work which the licence entails.

1. In Trombetta v Commissioner for Fair Trading [2018] NSWCATOD 167, the Tribunal was considering an application for a tradesperson's certificate as a motor mechanic in circumstances where the applicant had been found guilty in April 2017 of several serious offences. The Tribunal stated at [23] and repeated at [65]:

The issue of whether a person is fit and proper due to past criminal conduct is a matter of judgement. In considering that issue the Tribunal is required to take into account the nature and seriousness of the original misconduct, any events relevant to an assessment of the Applicant's fitness which have occurred since then, the candour with which the Applicant has approached the issue of past misconduct, the Applicant's explanation of the misconduct, the impact of the effluxion of time, and the Applicant's present circumstances and reputation.

1. The Tribunal in Trombetta v Commissioner for Fair Trading went on to state at [67] that the convictions were relatively recent but noted that there is no necessary period before a person convicted of serious offences can be considered to be a fit and proper person. The licensing requirements of the Act are not imposed by way of punishment for those convicted of crimes. They are imposed for the protection of the public.
2. The nature of the industry, in which the person concerned wishes to operate, affects a consideration of whether a person is a 'fit and proper person' to operate in that industry. In Haining v Commissioner of Police, NSW Police Service (1999) NSWADT 6 at [41], the President of the Tribunal made the following comments on the issue, in the context of the security industry:

Whether a person is `fit and proper' to hold a licence in a regulated industry will be affected by general considerations relating to the character of the person, special considerations that take account of the nature of the industry in issue and the public policy objective leading the legislature to regulate the industry.

1. The Tribunal is of the view that following matters are relevant in assessing whether the Applicant is a fit and proper person to hold a licence or drivers certificate.

1. There was no evidence before the Tribunal of any complaints having been made by consumers as to how the Applicant has carried on his duties and responsibilities as a tow truck driver.
2. The Applicant stated in his affidavit that he prides himself in his ability to work with members of the public in a positive way, and that during his employment he often deals with members of the public who are usually in stressful situations and he is able to help them with their situation.
3. In relation to the offences recorded by the Respondent against the Applicant between 2009 and 2019, the most severe disciplinary action that the Respondent took against the Applicant was to impose a fine, which was overturned by a Court on each occasion. The most recent offence prior to the common assault incident on 22 June 2021 occurred six years ago.
4. The Tribunal is satisfied that the Applicant has sufficient knowledge of his duties and responsibilities as a tow truck driver to be able to hold a drivers certificate. Prior to the decision under review, the Applicant held a drivers certificate since 2003 and has otherwise had over 40 years of experience in the tow truck industry.

1. In relation to the common assault that occurred on 22 June 2021, the Tribunal accepts that NSW Police investigated the matter and decided not to take any action. It was the Respondent who decided to prosecute the matter after the Senior Investigator's investigation, during which procedural fairness was not properly afforded to the Applicant. The Applicant in the circumstances accepted a plea deal and pleaded guilty to the offence of common assault. The penalty imposed by the Court was on the lower end of options in terms of severity.
2. The Tribunal has accepted the Respondent's submissions that the incident was a one-off event, did not involve consumers and the Applicant was concerned that his son was in danger.
3. While the common assault occurred on 22 June 2021 is an indictable offence, the Tribunal does not consider the incident of sufficient seriousness to affect the Applicant's fitness and propriety as a tow truck driver.

1. The Applicant has not engaged in any other offences since the incident on 22 June 2021, a period of nearly four years. For the reasons outlined above, the Tribunal has not made any adverse findings against the Applicant in relation to what occurred at Belmont Local Court on 11 March 2024.
2. Since 22 June 2021, the Applicant has maintained his drivers certificate, except for the period between the Respondent's initial decision on 16 September 2024 and the stay of the decision on 18 December 2024 without any cause for further disciplinary action.
3. The Tribunal is of the view that the Applicant's conduct since the offence of 22 June 2021 has not adversely affected his fitness and propriety as a tow truck driver.

1. Given the effluxion of time since the common assault on 22 June 2021, without any other offences or disciplinary action, the Tribunal finds that there is low risk of the Applicant engaging in similar offences in the future. The Applicant's evidence is that he has continued to have contact with the tow truck drivers involved in the incident on 22 June 2021 and there have not been any issues.
2. The Tribunal is not persuaded by the Respondent's submission, due to the lack of reliable evidence, that the Applicant has a tendency to act aggressively or has demonstrated a pattern of aggressive behaviour, exhibits significant anger management issues, or has poor judgement in handling situations where his ability to manage and prevent escalation is questioned.

1. The Tribunal is not persuaded by the Respondent's submission, due to the lack of reliable evidence, that the Applicant poses a risk to public safety when performing duties as a tow truck driver or that it is contrary to the public interest for the Applicant to hold a drivers certificate or licence.
2. The issues that the Respondent has taken with the Applicant has had, as few as they are and some of which have resulted in dismissal not been proven to the requisite standard on the evidence before the Tribunal, have been primarily with other tow truck drivers and not with other members of the public. On the evidence before the Tribunal which has not been controverted, the Applicant has been involved in the tow truck industry for over 40 years, with a drivers certificate since 2003, and has not received any consumer complaints during this period.

Assessment of Applicant's fitness and propriety

1. For the reasons noted above in relation to the assessment of fitness and propriety in respect of the Applicant, the Tribunal finds that the Applicant is a fit and proper person to hold a drivers certificate and licence under the TTI Act.
2. Prior to the decision under review, the Applicant did not hold a operators licence. The Respondent's disciplinary action was to revoke the Applicant's drivers certificate as well as disqualify the Applicant from holding a drivers certificate and licence for a period of two years. It is the Applicant's son who is the licensee of their tow truck business. The Applicant did not give evidence that he intended to apply for licensing as a tow truck operator. The submissions from both parties did not address the difference between a drivers certificate and operators licence and whether the Tribunal should consider different factors in assessing the Applicant's fitness and propriety for each.
3. The Tribunal's assessment of the Applicant's fitness and propriety is based on the evidence before the Tribunal of the Applicant holding a drivers certificate. The Tribunal finds that there would otherwise be no factors which adversely affect the Applicant being a fit and proper person to also hold a licence.

1. The term 'public interest' is not defined in the TTI Act but is a term that has been considered in a number of cases which are of assistance.
2. In Constantin v Commissioner of Police [2013] NSWADTAP 16, the Appeal Panel stated at [33]:

The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system.

1. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others [1995] IRCA 540; (1995) 131 ALR 657 the Court stated at p 681:

The purpose of the reference to "public interest" is to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the Commission's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation.

1. The Respondent submits that it is contrary to the public interest for the Applicant to hold a tow truck driver certificate because of his tendency to behave aggressively towards his colleagues, tow truck drivers, members of the general public, including young children. The Respondent submits that this is behaivour which would jeopardise the Applicant's ability to perform his role in the best interest of the public and that his aggressive behaviour is a concern in relation to public protection, public safety and public confidence. The Respondent also submits that the Applicant's compliance history is a relevant consideration and the Tribunal cannot be satisfied that similar conduct will not be repeated.
2. The Tribunal has found that there is not sufficient reliable evidence to support the Respondent's submissions that the Applicant has a tendency to act aggressively or that the Applicant poses a risk to public safety when performing duties as a tow truck driver. The Tribunal is not satisfied that the Applicant's conduct results in concerns about public protection, public safety and public confidence in the administration of the tow truck certification and licensing system. On the evidence before the Tribunal, the Tribunal does not find that it would be contrary to the public interest for the Applicant to hold a drivers certificate and licence.

Whether the Applicant has shown sufficient reasons why disciplinary action should not be taken

1. The Tribunal is of the view that there are sufficient reasons given by the Applicant, as outlined above, for not taking disciplinary action.
2. The statement of reasons for the Respondent's internal review ended with this statement: "The disciplinary outcome serves as a warning to other licence and certificate holders to conduct themselves appropriately and that disregarding the legislation is unacceptable, and the consequences of such disregard are significant". Notably and in contrast, the Respondent's Guidelines to determine a disciplinary action outcome states the following:

The purpose of disciplinary action is to be protective rather than punitive. The main objective is to protect the public and their interests with the additional objective of protecting the integrity of the industry as well as the interests of the Licensee. This must be considered during the disciplinary process.

1. The Tribunal accepts the Applicant's submissions that the ultimate purpose of disciplinary action is not punitive or to punish a driver for a criminal offence but for the protection of the public. The Tribunal is not satisfied that due to the incident on 22 June 2021, there is a need to protect the public.
2. The Applicant has accepted that the incident on 22 June 2021 was not appropriate and he plead guilty to the offence. However, the fact of the conviction, which was on the lower scale of severity in terms of the penalty imposed, is not sufficient reason alone to exercise the discretion in s 41(2) of the TTI Act to take disciplinary action against the Applicant. Further, the circumstances of the offence, such as it being a one-off incident, the Police having not taken any action after their investigation, not involving consumers, and the Applicant's fear for his son as well as the conduct of the other parties involved, are all relevant factors that the Tribunal has had regard to in finding that that there is no danger to the public or any need to protect the integrity of the tow truck industry arising from this incident.

1. As noted above, the Tribunal is satisfied that there are sufficient reasons for not taking disciplinary action against the Applicant.

1. While the Tribunal has found that a ground for disciplinary action has been made out with the fact of the Applicant's conviction of an indictable offence, the Tribunal is satisfied that it is appropriate not to take any disciplinary action against the Applicant. The Applicant has already had a period of time in which he has not been able to operate as a tow truck driver since the decision under review, which has had an unnecessary adverse effect on himself and his family.
2. For the reasons outlined above, the Tribunal has found that the Applicant is a fit and proper person to hold a drivers certificate and a licence. The Tribunal has found that there is not sufficient reliable evidence to support the Respondent's contentions that the Applicant has a tendency to act aggressively or has demonstrated a pattern of aggressive behaviour, exhibits significant anger management issues, has poor judgement in handling situations where his ability to manage and prevent escalation is questioned, or poses a risk to public safety when performing duties as a tow truck driver.
3. The Tribunal is not persuaded by the Respondent's submission that it is not in the public interest for the Applicant to hold a licence or drivers certificate. The Tribunal has not found that the Applicant poses a risk to the public or that there is a need to protect the integrity of the tow truck industry by taking disciplinary action against the Applicant.
4. The Tribunal is therefore of the view that the correct and preferable decision is to set aside the decision under review and that the Applicant be granted a drivers certificate under the TTI Act.

1. The decision under review is set aside.
2. The Applicant is granted a drivers certificate under s 27 of the TTI Act.

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.