Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Aouli v Commissioner for Fair Trading [2022] NSWCATOD 194 Hearing dates: 15 November 2022 Date of orders: 22 November 2022 Decision date: 22 November 2022 Jurisdiction: Occupational Division Before: S Montgomery, Senior Member Decision: The decision under review is affirmed. Catchwords: ADMINISTRATIVE LAW –refusal of application for tow truck drivers certificate - fit and proper person - public interest - discretionary grounds for refusal – traffic record Legislation Cited: Civil and Administrative Tribunal Act 2013 Administrative Decisions Review Act 1997 Tow Truck industry Act 1998 Tow Truck Industry Regulation 2020 Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16 Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63 Hughes and Vale Pty Ltd v The State of New South Wales (1955) 93 CLR 127 Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Category: Principal judgment Parties: Karim Aouli (Applicant) Commissioner for Fair Trading (Respondent) Representation: Solicitors: Zahr Partners (Applicant) Smythe Wozniak Lawyers (Respondent) File Number(s): 2022/00254083 Publication restriction: Nil Reasons for Decision Introduction 1. This is an application by Mr Karim Aouli ("the Applicant") for review of the decision made by a delegate of the Commissioner for Fair Trading ("the Respondent") to refuse the Applicant's application for a tow truck drivers certificate. The application was refused under sections 26 of the Tow Truck industry Act 1998 ("the Act") and clause 14 of the Tow Truck Industry Regulation 2020 ("the Regulation"). 2. The decision maker was of the view that the Applicant is not a fit and proper person to hold a tow truck drivers certificate and that the granting of the drivers certificate would be contrary to the public interest. This view was based primarily on the Applicant's driving record. 3. The decision was affirmed on internal review and the Applicant has applied to the Tribunal for external review. The issue 1. The issue for determination is whether the correct and preferable decision is to refuse the Applicant's application for a tow truck drivers certificate. The Tribunal's jurisdiction 1. Section 9 of the Administrative Decisions Review Act 1997 ("the ADR Act") provides that the Tribunal has jurisdiction in regard to an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review. Section 45 of the Act provides for an application to the Tribunal for administrative review under the ADR Act of the decision to refuse to grant a licence or drivers certificate. 2. Section 63 of the ADR Act provides that in determining the application, the Tribunal is to decide what the correct and preferable decision is, having regard to the material then before it. For the purpose of conducting the review, the Tribunal may exercise all of the functions that are conferred or imposed by the relevant legislation on the Respondent. 3. The standard of proof applying in these proceedings is the civil standard. That is, the balance of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party. 4. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at paragraph [23]. 5. The discretion must be exercised keeping in mind the activities which are authorised by a certificate under the Act. Accordingly, the objects and purposes of the Act are relevant. Applicable legislation 1. A drivers certificate authorises the certified driver to carry on the kind of towing work that is specified in the certificate. 2. The Respondent has an obligation under the Act to refuse an application if it considers the person is not a fit and proper person to conduct towing work, and that the granting of the drivers certificate would be contrary to public interest. 3. A consideration is relevant if it is one which the decision-maker is obliged to take into account. Matters to be taken into account include both those which the statute expressly requires be taken into account and matters to be determined by implication from the subject matter. 4. Section 26(3) of the Act relevantly provides: The Secretary— (a) must refuse to grant an application for a drivers certificate on mandatory grounds, and (b) may refuse to grant an application for a drivers certificate on discretionary grounds. … (3) The discretionary grounds for refusing to grant an application for a drivers certificate are as follows— (a) that the applicant is not, in the opinion of the Secretary, a fit and proper person to hold a drivers certificate or is otherwise not competent to carry on the kind of towing work to which the proposed drivers certificate relates, … (d) that the granting of the drivers certificate would, in the opinion of the Secretary, be contrary to the public interest. ... (4) The regulations may provide additional mandatory or discretionary grounds for refusing the granting of an application for, or renewal or restoration of, a drivers certificate. 1. Clause 14 of the Regulation provides: 14 Discretionary Grounds for Refusing Drivers Certificate Application (1) For the purposes of section 26(4) of the Act, the grounds on which the Secretary may refuse an application for, or renewal or restoration of, a drivers certificate include any case in which the following have occurred on more than one occasion during the period of 3 years immediately before the application was made-- (a) the applicant has been disqualified from holding a driver licence, (b) the applicant's driver licence has been suspended or cancelled (other than for fine default under the Fines Act 1996 or in relation to illness, incapacity or a medical condition under clause 65(1)(b) or (7) of the Road Transport (Driver Licensing) Regulation 2017). (2) For the purposes of subclause (1), it does not matter that any of the periods of disqualification, suspension or cancellation occurred during only part of the 3-year period. (3) ... 1. The intent of the regulated scheme provides a strict licensing system and the imposition of conditions on industry operatives. This regime is to ensure a level of protection is provided to consumers and the general public and that those with poor driving records or those who undertake unconscionable conduct or behave inappropriately may be excluded from the industry. Members of the public have a right to expect that tow truck drivers are adequately screened for suitability to hold a drivers certificate. Fit and proper person 1. The power to refuse a certificate arises if the Respondent is of the opinion that the applicant is not a fit and proper person to hold a certificate. 2. The Act does not include a definition of "fit and proper", however, the Tribunal has considered the issue on a number of occasions. The consideration of a person's fitness takes account of the activities that the person will undertake. 3. In Hughes and Vale Pty Ltd v The State of New South Wales (1955) 93 CLR 127 the High Court discussed the meaning of the term 'fit and proper' stating at 156-7): "The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for Judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ..." 1. The High Court decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 provides further guidance as to the meaning of a "fit and proper person". In that case Toohey and Gaudron JJ stated (at page 380): The expression "a fit and proper person", 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 upon the nature of the activities the question may be whether improper conduct has occurred, whether it is likely to 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 an indication of likely future conduct) or reputation (because it provides indication of public perceptions as to likely future conduct) may be sufficient to grant a finding that a person is not fit and proper to undertake activities in question. 1. Their Honours further stated at page 388: 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 valuation by the decision maker. So too is the weight, if any to be given to matters favouring the person who's fitness and propriety are under consideration. 1. In Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Walters J said of the term "fit and proper": 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 evolving 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. When considering whether an applicant is a fit and proper person to be granted a certificate, their conduct should be considered. The decision is to be taken as to whether or not that conduct is such that, notwithstanding the conduct, the person can be held out to the public as suitable for the role that is authorised by the certificate. The Public Interest 1. As noted, the Respondent contends that it is not in the public interest for the Applicant to be granted a certificate. The Tribunal has considered the concept of 'the public interest' in a number of decisions. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated in regard to a decision to refuse to issue a security industry licence: "25 The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal." 1. The "public interest" allows 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: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16. 2. "Public interest" embraces standards acknowledged to be 'for the good order of society and for the wellbeing of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The purpose of a reference in legislation 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 decision-maker's consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at page 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals. 3. The legislative regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. The material before the Tribunal 1. The Applicant did not give any evidence. He did not provide a statement and was not available for cross-examination. He relies on submissions made on his behalf by his solicitor, Mr Jabakhangi, and material provided to the Respondent in support of his internal review application. This material included some references attesting to his good character. 2. The Applicant submitted three character references. These were referred to in the internal review decision as follows: • Ms Rakida Aouli, dated 22 June 2022 - Ms Aouli, who is Mr Aouli's sister, describes him as a caring brother, father and son and a generous, kind and hardworking person. Ms Aouli does not demonstrate an awareness of the reasons for the tow truck driver certificate application refusal. • Mr Elia Ayoub, dated 4 July 2022 - Mr Ayoub states he is the owner of South Western Towing, that he is aware Mr Aouli's application was refused due to his driving history and he has offered Mr Aouli a position with his business on the basis he obtains a drivers certificate. Mr Ayoub describes Mr Aouli as a man of great principles, dedicated to his work and family. • Ms Sarah Alhyari, undated - Ms Alhyari describes herself as a former employee of Mr Aouli's civil earthworks business and states she is aware that the drivers certificate application was refused due to his driving record. Ms Alhyari also describes Mr Aouli as a well-rounded individual and contributing member of society. * Only Mr Ayoub and Ms Alhyari convey they are aware of the reason for the application refusal. However, neither comment on Mr Aouli's character in the context of his driving history. It is noted that Mr Ayoub also seemingly has an interest in the granting of the tow truck driver certificate to Mr Aouli. 1. I agree with this summary of the Applicant's references. 2. The Respondent relies on material filed pursuant to section 58 of the ADR Act and written submissions. Mr Wozniak, the Respondent's solicitor also made oral submissions. The Respondent's submissions 1. The Respondent relies on the Applicant's driving record as sufficient reason to warrant refusal of the application. The Applicant has accumulated 56 demerit points since 2016. It is not in dispute that his licence was suspended on more than one occasion in the three years preceding the application period. 2. Clause 14 of the Regulation provides that the application may be refused if, on more than one occasion during the period of three years immediately before the application was made, the Applicant's drivers licence has been suspended or cancelled. Clause 14(2) provides that it does not matter that any of the periods of disqualification, suspension or cancellation occurred during only part of the 3-year period. 3. In this instance, the application was made on 18 May 2022. Therefore the relevant period is from 18 May 2019 to 18 May 2022. 4. Mr Wozniak provided a copy of the Applicant's traffic record. He summarised the record in the following terms: Mr Aouli's driving record between 21 August 2018 and 12 April 2022 reflects four periods of driver licence suspension, and it is noted that during this period, his driver licence was suspended for more days than it was active. Mr Aouli's driving record also shows that, in addition to the licence suspensions, he has been issued with ten driving-related penalty notices since April 2018, including for offences on 30 October and 7 November 2019 relating to exceeding the speed limit in a school zone. On 3 August 2021, Mr Aouli appeared at Sutherland Local Court in relation to "Drive unregistered heavy vehicle". It is not known whether this was the result of the court election of a penalty notice or a prosecution brought against Mr Aouli. During the three years before the application was made, Mr Aouli was sent four demerit point warning letters and one demerit point courtesy letter. Despite the warnings, Mr Aouli continued to commit driving offences carrying demerit points. 1. Mr Jabakhangi did not suggest that the record or Mr Wozniak's summary was inaccurate. 2. The Respondent contends that the Applicant is not a fit and proper person to hold the certificate because of his poor traffic record. It is submitted that in determining his fitness and propriety to be granted a tow truck drivers certificate, consideration is to be given to not just his character, honesty and integrity but also his knowledge and ability. Regard is to be given to the nature of the functions, obligations and duties the Applicant will engage in should he be granted a tow truck drivers certificate. 3. The Respondent also contends that the Applicant must demonstrate a change in his character or behaviour. This requires clear proof to show that he has established himself as a different person. In that regard, Mr Wozniak submitted that the Applicant has not provided any explanation in mitigation of his behaviour. 4. Further, the Applicant has not explained his failure to comply with the request to complete a Driver Education Course. That failure resulted in the suspension of his driver licence from 5 October 2020 to 1 March 2021. Further, the Applicant has not demonstrated remorse for the behaviour that lead to the suspensions of his driver licence. Nor has he given any assurances that the general community can have confidence that the commission of driving offences will not or is unlikely to occur. 5. Mr Wozniak noted that the Respondent's records show that on 27 February 2020 the Applicant was advised by Police not to drive as his driver licence was suspended. He was not charged by Police as a result of this incident. However, Mr Wozniak submitted that it can be assumed that the Applicant was in control of a motor vehicle at the time, contrary to his driver licence status. 6. Mr Wozniak further submitted that, in the absence of information from the Applicant to provide additional context, the incident indicates the Applicant's willingness to disregard the conditions of the driver licence suspension that he was serving at the time. 7. The Respondent contends that the Applicant's driving history is directly relevant to the duties he will engage in if granted a tow truck drivers certificate. It is therefore integral to the consideration of his fitness and propriety to hold such a certificate. 8. The volume of licence suspension and driving offences committed as well as the nature of the offences and the relatively short period of time in which they occurred raises concerns that the Applicant does not have sufficient responsibility to hold a tow truck drivers certificate at this time. Accordingly, it is submitted that he is not a fit and proper person to hold a tow truck drivers certificate. 9. Further, given his traffic record, it is submitted that it is not in the public interest that he hold a drivers certificate. The Applicant's submissions 1. As noted, the Applicant relies on the testimonials that I have referred to above. Mr Jabakhangi submitted that these testimonials suggest generally that the Applicant is a hard-working family man and is presented with an opportunity to support his family through employment as a tow truck driver if granted a certificate to do so. 2. Mr Jabakhangi submitted that the Applicant is a person of good character and that his previous poor traffic record does not show otherwise. Mr Jabakhangi submitted that: * Whilst his traffic record is not unblemished, the Applicant has no major offences on his traffic record within the relevant period. The traffic record appears to primarily relate to lower end speeding offences and does not include offences such as drive whilst disqualified/suspended, drink driving or dangerous driving. Further, the Applicant has complied with all suspensions. * In regard to the 27 February 2020 Police warning not to drive, there is no evidence of the circumstances in which the warning was given. The fact that the warning was issued, and that he was not charged, is a factor to be taken in the context of his compliance with all other suspensions. * The Applicant's traffic record indicates that he has not committed any traffic offences since 27 June 2021 - a period of some 16 months - which shows a demonstrated improvement in his driving. * The Applicant has completed a Driver Education Course. 1. Mr Jabakhangi further submitted that the Respondent appears to place undue weight onto the Applicant's traffic record. In considering whether the Applicant is a fit and proper person to hold a tow truck drivers certificate, his traffic record is but one consideration amongst others. It is to be considered in light of his otherwise good character. 2. Mr Jabakhangi argues that the Applicant is a fit and proper person to hold a tow truck drivers certificate having regard to: * the Applicant's 16 months offence free period; * his compliance with suspensions; * the fact that he is on notice that if tow truck drivers certificate is granted any traffic offence would likely result in the cancellation of his certificate; * his otherwise good character; and * the importance which he places on his ability to work as a tow truck driver 1. It is further submitted that there is no basis to consider that it is not in the public interest for the Applicant to hold a tow truck drivers certificate. Therefore, the decision to refuse the application should be set aside and the decision made to grant him a tow truck drivers certificate. Discussion 1. The Applicant's fitness and propriety has been brought into question as a result of his long history of traffic offences. It is my view that insufficient time has passed for those offences to be disregarded. 2. Other than his traffic offences, there is no suggestion that the Applicant has been charged with any offences or that he has engaged in any unlawful conduct. In my view this is a relevant consideration in these proceedings. 3. It is also relevant that the Applicant has not been charged with any recent traffic offences. The Applicant's traffic record indicates that he has not committed any traffic offences since June 2021. 4. However, as Mr Wozniak has correctly pointed out, the Applicant did not give any evidence to explain his circumstances in that 16 month period. For example, it is not clear whether the Applicant was driving during that period or if he was even in the country. In the absence of that evidence I am unable to agree with Mr Jabakhangi's submission that the lack of traffic offences since June 2021 shows a demonstrated improvement in the Applicant's driving. 5. I also note that as the Applicant did not give any evidence to explain the circumstances of his offences or the police caution, he has also not taken the opportunity to express contrition in regard to his offences. Nor has he indicated a preparedness to comply with the Act and related legislation in the future. 6. I accept that those who have provided references in support of the Applicant's application are of the view that he is a person of good character. However, any consideration of whether he is a fit and proper person to hold a tow truck drivers certificate requires consideration to be given to the nature of the functions, obligations and duties the Applicant will engage in should he be granted a certificate. Without evidence from the Applicant, these factors cannot be separated from his driving record. 7. The public interest requires that all tow truck drivers be aware of, and comply with, traffic laws. They must not only understand and comprehend the laws that govern them; they also must act in accordance with them. 8. Prior conduct can provide some guidance but it is impossible to say with certainty how any individual will behave in the future. My concern is based on the Applicant's traffic record and the lack of evidence to suggest that it is unlikely to continue. The Applicant's extensive history of traffic infringements is not in dispute. It demonstrates a disregard for laws aimed at ensuring public safety. This is a relevant consideration in regard to a determination of whether or not it is contrary to the public interest for the Applicant to hold a tow truck drivers certificate. Given the extensive history of traffic infringements, and the lack of evidence to suggest otherwise, I cannot be satisfied that similar conduct will not be repeated. 9. In my view, more time would need to pass before I could be confident that the Applicant is likely to comply with the traffic laws in the future. Notwithstanding the Applicant's apparent good character, in my view it is not in the public interest for him to hold a tow truck drivers certificate at this time. Order The decision under review is affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 February 2023