Wellfare v Roads and Maritime Services

Applicant's case

1. The applicant relied on: 1. a hand-written letter dated 4 March 2015 headed "Grounds for application or order" signed by the Applicant. 2. A statutory declaration by Robert Albert Wood made 2 March 2015. 3. A statutory declaration by Nicole Ella-May Bevan made 3 March 2015. 4. A letter dated 25 February 2015 on the letterhead of Martin's Bus & Coach Albury signed by David Martin, Managing Director; and 5. An undated letter by Terence Leahy which was admitted as far as the the letters and words "T.L.Leahy" appearing immediately under the signature.
2. The Applicant gave oral evidence during the hearing and was subject to cross-examination. The Applicant also made oral submissions during the hearing.

Consideration

1. The role of the Tribunal in matters such as this was succinctly set out recently by Senior Member Leal in Bedi v Roads and Maritime Services [2014] NSWCATOD 87 at [5]: … the Tribunal is undertaking a review of the merits of the original decision. The role of the Tribunal is to make the correct and preferable decision having regard to the material before it, including any relevant factual material and any applicable written or unwritten law. It then affirms the original decision, varies it, or sets it aside and substitutes another decision. The Tribunal makes its own decision in place of that of RMS and there is no presumption that the decision of RMS is correct.

The law

1. The Act was enacted to regulate public transport services and for other purposes.
2. The provisions of the Act and Regulations parts of which were set out in the RMS letter are: Passenger Transport Act 1990 Division 2 Drivers' authorities 11 Authorities (1)… (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. 14 Variation, suspension or cancellation of authority Having regard to the purpose of an authority, RMS may at any time vary, suspended or cancel any person's authority. Passenger Transport Regulation 2007 Part 4 General obligations of drivers of public passenger vehicles Note. This Part specifies the obligations that are common to all drivers of public passenger vehicles (other than ferry masters). 34 … 35 Dress and conduct of drivers The driver of a public passenger vehicle must: (a) be clean and tidy and wear clean and tidy clothes (including enclosed shoes) when driving the vehicle for the purpose of providing a public passenger service, and (b) behave in an orderly manner and with civility and propriety towards any passenger, intending passenger, driver of another public passenger vehicle or authorised officer, and (c) comply with every reasonable requirement of an authorised officer or passenger. Maximum penalty: 10 penalty units. 44 Driver to notify RMS of alleged offence (1) The driver of a public passenger vehicle must, in accordance with this clause, furnish RMS with written details of the following: (a) any alleged offence (other than a parking offence) with which the driver is charged by a police officer, (b) any penalty notice issued to the driver in respect of an alleged offence (other than a parking offence) that relates to the driving of a motor vehicle. Maximum penalty: 10 penalty units. (2)…

Statutory penalties CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 17 Penalty units 17 Penalty units Unless the contrary intention appears, a reference in any Act or statutory rule to a number of penalty units (whether fractional or whole) is taken to be a reference to an amount of money equal to the amount obtained by multiplying $110 by that number of penalty units.

Complaint of February 2015

1. This complaint is the most recent of the incidents outlined by RMS in the statement of reasons. It also appears to be the catalyst for the decision by RMS that it can no longer attest to the Applicant being a fit and proper person for the purposes of the Act.
2. The evidence as recorded by Mr David Martin, managing director of the Applicant's employer, is that on the afternoon of the incident the complainant (referred to as AB) alleged to Martin's Bus & Coach Albury (Martin's) that the Applicant had placed his hand up the back of her skirt without consent as she was alighting the bus (page 376).
3. Mr Martin also recorded that the Applicant had had previous interactions with the complainant. Some months earlier she had given the Applicant her phone number which was subsequently found by the Applicant's partner. The partner rang AB several times and harassed her.
4. Mr Martin suspended the Applicant from employment/driving pending an investigation. CCTV footage was taken from the vehicle and given to Albury police to investigate any criminal offence. The matter was investigated by a Detective Sergeant.
5. Mr Martin records at pages 376 and 375 that, after viewing the footage in detail, it was clear to the police that AB and the Applicant were both involved in flirtatious behaviour toward one another. The contact that the Applicant made with AB "was obviously consensual by her reaction prior to, and after the incident. The police concluded that (the Applicant) had not committed an offence."
6. The Applicant was informed by Mr Martin and the police that his behaviour was unacceptable and unprofessional and he should not touch a passenger. Mr Martin also recorded that the Detective Sergeant met with AB and informed her that the Applicant "would not be charged with any offence due to the evidence on the CCTV footage". AB accepted the decision and would not take any further action against the Applicant.
7. The CCTV footage was downloaded to a DVD and by consent was screened during the hearing.
8. The Applicant's evidence was: 1. AB had been a regular passenger on his bus for more than two years. In September 2014, while travelling on his bus, AB handed him a note with her name number and message saying "for a good time call AB". 2. From that day AB always tried to sit in the front seat of the bus and strike up a conversation with the Applicant. She was always flirtatious and suggestive with him. 3. Inadvisedly the Applicant retained the note. In October 2014 it was found by one of his children while playing with his wallet and came to the attention of his partner. The Applicant's partner was upset but was assured by the Applicant that nothing was going on. 4. In November 2014 another regular passenger, CD, informed the Applicant that AB was being harassed by phone calls from the Applicant's partner. AB had informed CD that if the harassment did not stop she would take some action. The Applicant spoke with his partner that evening and asked her to stop her phone calls to AB. 5. The next time the Applicant saw AB was several weeks later and he apologised to her about the calls. AB seemed to accept his apology and was friendly and behaved in her usual manner towards him. AB continue to travel on his bus regularly and continued to be flirtatious towards him. 6. On the day of the incident AB boarded the Applicant's bus and was the only passenger. AB continued her flirtatious approach to the Applicant. As AB was alighting from the bus she moved towards the Applicant and made some suggestive comments. 7. The Applicant placed his arm around her back and rested his hand on her left hip. AB responded positively and made a favourable comment. The Applicant removed his arm and then placed it again around AB. 8. As AB alighted from the bus she hopped and skipped off the bus in a jovial mood. She said "bye" and "catch up soon". 9. The CCTV footage of the incident clearly shows AB was comfortable and happy during the trip. 10. The Applicant believes AB used the opportunity to get back at the Applicant's partner.
9. The Applicant readily gave evidence that he had no express permission to touch AB and that it was inappropriate for him to have touched her.
10. The evidence for the Applicant included a statutory declaration by a passenger who stated that in September 2014 the Applicant had informed him that AB had been on his bus earlier and had given him the note referred to above. The passenger did not believe the Applicant at first. However the Applicant showed him the note which was still in his money tray. In November 2014 the passenger was approached by AB at a bus stop and asked to give a message to the Applicant to the effect that if the Applicant's girlfriend continued calling AB, AB would take action. The passenger informed the Applicant the next day on the bus of the conversation with AB. The Applicant said that he was unaware of those calls and he would speak with his partner. The passenger said he had travelled on the bus with AB on many occasions whilst the Applicant was driving and AB always sought the front seat of the bus when it became available and was always happy and outgoing with the Applicant.
11. Mr Wozniak said that he had seen the DVD of the incident many times and while AB was trying to walk away he had seen that her skirt had been lifted.
12. I have viewed the footage of the incident. I observe that AB sat in the front left-hand seat of the bus, leaning forward for most of the journey, smiling and talking with the Applicant. Before alighting from the bus and while the bus was stationary AB stood as close to the Applicant as was possible. The Applicant's left hand moved towards her lower back. However the Applicant's body was between the CCTV camera and his left hand and there is no footage showing the placement of the Applicant's hand on AB. The footage shows that after a short time the Applicant removed his hand from near AB, AB took half a step forward and then moved back to where she had been standing. The Applicant's hand again moved towards AB's lower back for a short time after which AB moved away. I observed no footage showing contact between the Applicant's hand and AB's body. I saw no evidence that AB's skirt had been lifted. I observe that the skirt worn by AB was of floating material and dropped well below the knee.
13. The CCTV footage had no audio. However I observed that AB and the Applicant appeared to chat in a friendly manner throughout the bus trip and throughout the incident. I also observed that AB appeared very happy and was smiling throughout the whole of the incident and, to the extent that her face was visible, when she alighted from the bus. I agree with the Applicant that AB hopped and skipped off the bus and appeared to be in a jovial mood.
14. I prefer the Applicant's evidence in relation to the incident over what Mr Wozniak said he observed in the footage.
15. Clause 35 (b) of the Regulation requires that the driver of a public passenger vehicle must behave in an orderly manner and with stability and propriety towards any passenger. Mr Wozniak submitted that the Applicant did not act with propriety in relation to the incident. I accept that submission and I note that the Applicant has acknowledged that he acted inappropriately.
16. I also observe that the maximum penalty for a breach of clause 35, which RMS did not include in the extract it provided in the statement of reasons, is 10 penalty units. This is a maximum penalty of $1,100 and could be contrasted with the potential penalty of cancellation of the Applicant's authority or even with his suspension which commenced on 20 February 2015 and continued at the date of the hearing on 7 April 2015.

Failure to notify RMS of a speeding offence in August 2014 in breach of both the Regulation and an ADT order

1. A failure of a driver of a public passenger vehicle to furnish RMS with written details of any penalty notice in respect of a driving offence, other than a parking offence, is a breach of clause 44 of the Regulation. The Applicant acknowledged that he did not notify RMS of the relevant fine. He said that he was under the belief that he was to inform RMS when renewing his driver's authority. He also said that he was aware that RMS receive notification of speeding offences and that it was futile to try to conceal the offence. He said he will not allow this to happen again.
2. The Applicant also said that the offence occurred after he received an early morning call that his 85-year-old father, for whom he had been caring for the previous four years, had fallen and broken his hip.
3. The statement of reasons stated that the third clause of a decision by the ADT in June 2013 in a matter involving RMS and the Applicant ordered the Applicant to comply with clause 44 of the Regulation and noted that any future breaches of the Act and Regulation may result in further administrative action. The evidence presented by RMS of the ADT decision was contained in legal advice at pages 193-192. The advice was provided by Mr Wozniak's law firm to TfNSW and signed by him, It appears that the decision was not reported. No explanation was given as to why the decision itself was not provided in evidence nor was a transcript of the proceedings provided. This is a less than satisfactory method of adducing evidence of a tribunal decision.

Assault conviction in 2013

1. The statement of reasons referred to the Applicant being charged with common assault in March 2013. RMS immediately suspended the Applicant's driver authority and the ADT granted an urgent stay of that suspension. After the local Court found the Applicant guilty of common assault and placed him on a 12 month good behaviour bond without proceeding to a conviction RMS issued him with a notice to show cause why his driver authority should not be cancelled, and then cancelled his authority. It appears that the ADT decision referred to above set aside the decision to cancel the authority and instead imposed a much more lenient 30 day suspension.
2. This incident has already been dealt with by a tribunal. However it is appropriate in this decision to briefly note the evidence provided in these proceedings on behalf of the Applicant. That evidence was not challenged by Mr Wozniak.
3. The Applicant's partner provided a statutory declaration in which she stated, in summary, that in March 2013 she and her two daughters visited the Applicant's eldest daughter in Sydney. The partner suffered from depression and had not taken her medication. She had a bad day and screamed at the Applicant in the car. He did not hit her, he pushed her face away from him. He was so upset that he drove to the local police station and insisted on being arrested so that he could have "time out". The partner said she would not have testified against the Applicant.
4. The Applicant's evidence corroborated that of his partner. He also said that when he went to court the only legal advice he received was a five-minute sit down with a duty solicitor on the day of the hearing. The solicitor advised him that if he pleaded guilty he would receive probation and a section 10 non-conviction. At the time his driver authority was under suspension so he pleaded guilty not realising that TfNSW would cancel his authority because of the incident. In hindsight he would not have pleaded guilty and there would have been no evidence against him.
5. I observe that the Court Order Notice at pages 128-127 states that a plea of guilty to common assault was accepted. The Applicant was ordered to pay court costs of $83, was found guilty, but without proceeding to conviction was directed to enter into a good behaviour bond for 12 months pursuant to s. 10 (1)(b) of the Crimes (Sentencing Procedure) Act 1999 and accept the condition that he must be of good behaviour and appear before the court during the bond term if required.

Earlier incidents

1. The statement of reasons also referred to earlier incidents in 2007 and 2008. These have been dealt with previously by RMS and are respectively eight and seven years ago. In my opinion they are not particularly relevant to the current proceedings.
2. The reasoning process of RMS is stated to relate to its continuing obligation under the Act to ensure that persons authorised to drive public passenger vehicles were of good repute and in all other respects fit and proper persons to drive the vehicles. RMS stated that the multiple offences by the Applicant since 2007 showed that he failed to behave in an orderly manner and with civility and propriety and did not possess sufficient responsibility when it came to driving a motor vehicle. In the view of RMS this cast grave doubts about his fitness to hold an authority and of his ability to carry out the duties of the position according to law and custom.
3. Mr Wozniak referred the Tribunal to the unreported decision of McNamara v Arnold BC9502405 at [10] (Supreme Court of South Australia 26 October 1996) which was referred to at [18] in Roads and Maritime Services v Rifahi [2015] NSWCATAP 43. The principle enunciated in the paragraph referred to by Mr Wozniak is that evident "evidence of dishonesty is relevant when considering a person's fitness".
4. Rifahi's case involved two convictions for Assault Occasioning Actual Bodily Harm for which Mr Rifahi was sentenced to 18 months imprisonment to be served as an intensive correction order in the community, Rifahi v Roads and Maritime Services [2014] NSWCATOD 88. Those convictions were not disclosed in a renewal application for his driver's authority one month before he was due in court to face the charges referred to above when Mr Rifahi said "no" to a question in relation to whether he was subject to criminal proceedings. MRS determined that it could no longer attest to Mr Rifahi being fit and proper and cancelled his driver authority. The tribunal at first instance set aside the decision. The appeal panel refused RMS leave to appeal and dismissed the appeal.
5. The Applicant's evidence is that the arrest, which occurred after he asked the police to arrest him, occurred on a Saturday in Sydney. When he returned to work the following Monday he was unable to meet with the operations manager that day. He met with the operations manager the next day and informed him of what had occurred. The Applicant's employer then informed TfNSW. While there may be a superficial similarity between the events involving Mr Rifahi and the Applicant they are readily distinguishable and I find there is no evidence of dishonesty on the part of the Applicant .
6. The case for RMS is substantially based on whether the Applicant has acted with propriety and is considered to be of good repute and is in all other respects fit and proper to hold a driver authority.
7. The Applicant accepted, and I agree, that he does not have a perfect record with RMS, and its predecessor TfNSW.

Hardship

1. The Applicant's evidence included details of his financial commitments, some debts, his bank balance, his income when not working and medical conditions of some members of his family.
2. In Lal v Director-General, Department of Transport [2001] NSWADT 74 Deputy President Hennessy said at [47]: Hardship to Ms Lal is not a factor which the Tribunal can take into account in determining whether or not the Director General has made the correct and preferable decision.
3. At [82] in Rifahi v Roads and Maritime Services [2014] NSWCATOD 88 Senior Member Scahill said: In keeping with the tribunal's past approach in Lal's case…the Tribunal has not taken into account the hardship that cancellation of Mr Rifahi's authority will cause to him and his family.
4. In the decision of the appeal panel in Mohammed Shamsuzzaman v Roads and Maritime Services [2015] NSWCATAP 62 it was said at [17] the jurisdiction in this field is protective not punitive and the appeal panel adopted the words appearing at [25] in Khan v Roads and Maritime Services [2014] NSWCATOD 23: …possible hardship to the applicant, or his family, cannot be taken into account in determining the correct and preferable decision...
5. I have not taken hardship to the Applicant or his family into consideration in this decision.

"Good repute" and "fit and proper"

1. In Saadieh v Director General, Department of Transport [1999] NSWADT 68, Deputy President Hennessy said: 16 Chief Justice Mason in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63] said that: "The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration." 17 Taking into account the terms of the legislation and the case law interpreting similar provisions, there are a number of factors that need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. These factors include: - the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted; - the nature, seriousness and frequency of any complaints made against the applicant; - the applicant's driving record; - the applicant's reputation in the community; - and the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences. 18 In assessing the last factor, several considerations are relevant. These include: the length of time since the offence/s were committed or the complaint/s made; the circumstances in which those offences or complaints occurred or are alleged to have occurred; whether the applicant admits responsibility for the offences or complaints and shows genuine remorse; the efforts the applicant has made to rehabilitate himself or herself during that time and; any change in the applicant's circumstances such as increased support from friends, family or professional service providers.
2. Applying these factors to the present case, to the extent that evidence has been presented to the Tribunal, I find that there is no evidence that the Applicant has been convicted or charged in the last seven years with any offences other than the common assault matter referred to above.
3. The Applicant's undisputed evidence is that he drives in excess of 30,000 kms each year. His record of traffic offences, to the extent that it was in evidence, is not perfect but has not been shown to be particularly exceptional.
4. I have noted the Applicant's failure to notify RMS of a traffic infringement and the events of February 2015 in relation to AB.
5. The Applicant has freely admitted responsibility in respect of the matters with which RMS indicated concern and has provided an explanation for his actions and his attempts to remedy personal defects such as those referred to in 2007 and 2008.
6. I find that the Applicant has been candid with RMS and his employer and has shown remorse in relation to the events which concerned RMS and which led to the suspension of his authority and the notice to show cause as to why his authority should not be cancelled. The Applicant has indicated that he is well aware of the effect which inappropriate incidents and resulting suspensions have had on his family and is concerned to ensure there is no repetition.

Likelihood of reoffending

1. I have had regard to the reference from Mr Leahey who appears to be aware of at least the situation concerning the Applicant's partner and AB.
2. Having considered all the evidence before the Tribunal and the submissions made to the Tribunal I find that the Applicant is at present of good repute and in all other respects a fit and proper person to be the driver of a passenger vehicle for the purposes of the Act.
3. The evidence is that the Applicant's authority has been suspended since 20 February 2015. I am uncertain as to the date on which the authority would expire in the normal course of events.
4. Having regard to the above findings on the material before the Tribunal the correct and preferable decision is that the decisions of the Respondent to suspend the Applicant's authority and issue a notice to show cause as to why his authority should not be cancelled are revoked and replaced with an order that driver authority FC8598 is suspended from 20 February 2015 until the date of publication of this decision.
5. If the authority has expired through the passage of time before this decision is published and if the Applicant applies after the date of publication of this decision for another authority, I direct that the Respondent have regard to this decision in considering that application.
6. I also observe that the recommendation of 18 February 2015 at pages 386 - 385, that the driver authority be suspended, was made by David Pond, Accreditation Officer. The evidence at pages 139-137 shows that on 10 April 2013 Mr Pond recommended that the Applicant be issued with a notice to show cause why his driver authority should not be cancelled. That recommendation was approved within RMS. The ultimate outcome appears to have been that the cancellation was reversed by the ADT.
7. The evidence also shows at pages 131-129 that on 9 April 2013 Mr Pond made a statement in which he alleged that, in the course of a telephone discussion with the Applicant Mr Pond informed the Applicant that his authority would be suspended. The Applicant was extremely aggressive and loud during the conversation and became uncivil and increasingly agitated. Mr Pond acknowledged that it was the tone of the Applicant's voice that was threatening, rather than the actual words used, but that by the end of the phone call Mr Pond was quite was "quite disturbed and upset". Shortly afterwards he went for a walk during his lunch break, felt very hot and sweaty and his blood pressure had risen.
8. In the circumstances and in the interest of all concerned, I find that it is less than ideal that Mr Pond should be the officer of RMS making recommendations in relation to the suspension or cancellation of the Applicant's authority. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 April 2015