Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Nguyen v Roads and Maritime Services [2019] NSWCATOD 199 Hearing dates: 3 April 2019 Date of orders: 3 May 2019 Decision date: 03 May 2019 Jurisdiction: Occupational Division Before: C Ludlow, Senior Member Decision: 1. The decision under review is affirmed. Catchwords: ADMINISTRATIVE LAW – refusal of public passenger vehicle driver authority – history of speeding infringements – whether applicant is fit and proper person and has sufficient responsibility and aptitude Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Passenger Transport Act 1990 (NSW) Cases Cited: AJO v Director-General Department of Transport [2012] NSWADT 101 Director General, Transport New South Wales v AIC [2011] NSWADTAP 65 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Saadieh v Director General, Department of Transport [1999] NSWADT 68 Category: Principal judgment Parties: Tien Minh Nguyen (Applicant) Roads and Maritime Services (Respondent) Representation: Counsel: Solicitors: Mr A Wozniak (Respondent) File Number(s): 2018/00374195 Publication restriction: Nil REASONS FOR DECISION 1. The applicant applied to the respondent to be issued with an authority to drive a public passenger vehicle (a bus). The respondent refused the application on 18 September 2018, and when the applicant applied for internal review, the refusal was affirmed on 9 October 2018. The applicant has now sought review of that decision by this Tribunal. 2. I have determined that the decision under review should be affirmed. My reasons are set out below. Legislation 1. Sections 11 to 12 of the Passenger Transport Act 1990 provide: "11 Authorities (1) A person who drives a public passenger vehicle (other than a ferry) is guilty of an offence unless the person is the holder of an appropriate authority under this Division. Maximum penalty: 100 penalty units. (2) The purpose of an authority under this Division is to attest: (a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle, and (b) that the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates: (i) in accordance with the conditions under which a public passenger service is operated, and (ii) in accordance with law and custom. (3) The regulations may create categories or grades of authority. 11A Issue and renewal of authorities (1) An authority, unless sooner suspended or cancelled, remains in force for a period determined by RMS and specified in the authority, but is renewable from time to time on payment of the fee (if any) fixed under section 15 for the renewal. (2) Procedures for renewal may be settled by RMS, subject to any provision in that behalf made by the regulations. 11B Conditions of authority (1) An authority is subject to: (a) the conditions prescribed by the regulations, and (b) such additional conditions as RMS, having regard to the purpose of an authority, may from time to time impose on the authority. (2) Conditions in force under subsection (1) (b) may be varied (whether by amendment, addition, revocation or suspension of one or more conditions) by RMS from time to time by notice served on the holder of the authority. (3) The holder of an authority who contravenes or fails to comply with a condition of the authority is guilty of an offence. Maximum penalty: 100 penalty units. (4) A variation of conditions imposed on an authority by RMS under subsection (1) (b) is, for the purposes of Division 3 of Part 5 (Appeals), a variation of the authority. 12 Criteria and procedure (1) Having regard to the purpose of an authority, RMS may grant authorities to persons applying for them. (2) Applicants must meet any criteria set forth in the regulations and must satisfy RMS as to any matter RMS considers relevant. (3) Procedures for the purposes of this section may be settled by RMS, subject to any provision in that behalf made by the regulations." 1. Section 3 provides that the definition of "public passenger vehicle" includes "a bus used to provide a public passenger service". 2. Section 63 of the Administrative Decisions Review Act 1997 provides: "63 Determination of administrative review by Tribunal (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." Issues to be determined 1. The role of the Tribunal in this case is to determine what is the correct and preferable decision having regard to the material before it (s 63 Administrative Decisions Review Act 1997). 2. It was not in dispute that the applicant had committed a number of traffic infringements between 2014 and 2018. In the respondent's view, these infringements reflected negatively on the applicant having sufficient responsibility and aptitude to drove a public passenger vehicle. The applicant however provided additional information about the circumstances of those incidents and submitted that the circumstances should be taken into account, as well as recent evidence that he had not committed further traffic infringements and had redeemed his driving record. 3. The issue to be determined is whether the applicant: 1. is of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle, and 2. is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates, in accordance with the conditions under which a public passenger service is operated, and in accordance with law and custom. 1. In Director General, Transport New South Wales v AIC [2011] NSWADTAP 65 the Appeal Panel stated at [12] that by using the word "attest" in s 11 the Parliament has sought "to emphasise the idea that the conferral of an authority involves a declaration of public trust". 2. The expression "of good repute and in all other respects a fit and proper person" allows for assessment of the person's general standing in the community and factors such as: 1. the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted; 2. the nature, seriousness and frequency of any complaints made against the applicant; 3. the applicant's driving record; 4. the applicant's reputation in the community; and 5. the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences. (Saadieh v Director General, Department of Transport [1999] NSWADT 68 at [17]) 1. In AJO v Director-General Department of Transport [2012] NSWADT 101 at [35] the Tribunal provided this guidance on the criterion of responsibility: "With respect to requirement that an authority holder have sufficient responsibility to drive the vehicle concerned in accordance with law and custom, the Tribunal's task is assess the authority holder's likely future conduct. Evidence of past failures to comply with relevant law and custom is relevant to and informs that assessment. I agree with the Agency that law and custom means more that simply the rules of the road applicable to bus drivers, but the lawful requirements and directions that must be observed by them. Custom includes industry standards, including applicable policies of the Agency relevant to the to an authority holder." Evidence 1. In the present case the evidence was limited to the applicant's driving record and his account of the incidents that gave rise to that record. The applicant was issued with a provisional licence on 10 September 2007 and an unrestricted licence on 16 September 2010. 2. The respondent relied upon the applicant's driving history which identified the following offences: 1. On 5 April 2014, the applicant was infringed for the offence of "Exceed speed limit by more than 10 km/h but not more than 20 km/h whilst driving a motor vehicle"; 2. On 15 April 2015 the applicant was infringed for the offence of "Exceed speed limit by more than 10 km/h whilst driving a motor vehicle"; 3. On 17 May 2017 he was infringed for the offence of "Exceed speed limit by more than 30 km/h but not more than 45 km/h whilst driving a motor vehicle"; and 4. On 9 March 2018, he was infringed for the offence of "Exceed speed limit by more than 10 km/h whilst driving a motor vehicle". 1. As a result of the 17 May 2017 offence, the applicant's driver's licence was subject to a three month suspension from 1 August 2017 until 31 October 2017. 2. The applicant did not dispute that he had exceeded the speed limit on the specified occasions, but he provided explanatory information relating to the incidences of speeding, stating that they occurred in emergency circumstances. 3. He stated that on 5 April 2014, he was driving when he experienced stomach pain and increased his speed in order to get somewhere where he could use a toilet quickly. 4. He explained the incident on 15 April 2015 by stating that he received a telephone call from his mother who said that there was a suspicious person near her house and she was concerned. His mother does not speak English and she requested him to come to her house as soon as possible. He drove faster in order to get there quickly. 5. On 17 May 2017 he said that he was travelling to Canberra on the freeway where the speed limit was 110 km/h. He said that he noticed a strange noise in the engine, which became louder whether he drove fast or slowly. He drove fast to get to a town where he could have a mechanic examine the car. He said that in the end he did not visit a mechanic, as after the police stopped him for speeding, the noise did not recur. 6. On 9 March 2018, he said that he drove fast to his home because his father had called him to say that the smoke alarm in the house had gone off and would not stop, and he was afraid that the fire brigade would come to the house and they would be fined. 7. He said that since this occasion, he had become a more careful driver. He said that he had been driving for more than 10 years in total and had 7 points left on his licence. He promised to take extreme care on the road for himself and others. He needed to be a bus driver to support his family. He had not committed any traffic offences since March 2018. Submissions 1. The respondent submitted that the applicant's history of speed offences was relevant to whether he was fit and had sufficient responsibility and aptitude to drive a passenger bus, which criteria are judged against law and custom. Bus drivers are responsible for a greater number of passengers than taxi drivers and once they are issued with an authority, they are able to drive buses carrying children. 2. The respondent also submitted that the applicant's explanations were flimsy and he could have taken other action rather than exceeding the speed limit. None of the situations were actual emergencies. The principle in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 should be applied to the applicant's evidence as the applicant had not provided any corroborating evidence from his parents to support his accounts; the Tribunal could infer that their evidence would not have assisted his case. His explanation of driving in excess of 140km/h on the freeway when he feared his car was defective made no sense. 3. The respondent also submitted that the Tribunal could infer that the applicant was now driving more carefully because he had received a courtesy letter on 1 May 2018 advising that he was at risk of losing his licence if he incurred more demerit points. The period of lawful driving was not sufficient to show that he met the requirements of the legislation. The applicant had incurred 10 demerit points on his licence since June 2014. 4. The applicant submitted that the incidents did occur as he described them. He said that the incident on the freeway where he had exceeded the speed limit by more than 30 km/h was different and less serious than speeding in a location where the speed limit was 50 km/h. He also said buses did not usually travel on freeways. He said that he had tried to be more careful recently and this was reflected in the absence of any driving infringements since March 2018. Consideration 1. There was no evidence before the Tribunal as to the applicant's standing in the community and no evidence that he had any other adverse matters on his record other than the driving infringements. 2. The evidence of the speeding infringements are relevant to his fitness and also whether he has sufficient responsibility and aptitude to drive a passenger bus. I have determined to accept the applicant's versions of the incidents, but even so, they indicate that he resorted to contravening the speed limit in a stressful situation when there were other reasonable actions he could have taken, such as calling the police for his mother, instructing his father what to do to the smoke alarm, or calling a motor vehicle assistance service on the freeway. It is possible that had he been responsible for passengers he may have acted differently, however, there is no evidence to support this apart from his own assertions. Also, even while driving without passengers, his conduct and his submissions do not show an awareness that exceeding the speed limit potentially put the safety of other drivers at risk. 3. In my view this conduct shows a lack of fitness, responsibility and aptitude in the applicant to drive safely and in accordance with the relevant law. I appreciate that he wishes to become a bus driver to support his family, but that consideration is not relevant to the criteria under the legislation. 4. Insufficient time without any infringements has passed, and there is insufficient evidence of the responsibility and aptitude required, for me to be satisfied that he can currently be considered to be fit and have sufficient responsibility and aptitude to drive a public passenger vehicle. Orders 1. 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: 09 March 2023