Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Najjar v Commissioner for Fair Trading [2023] NSWCATOD 141 Hearing dates: 14 September 2023 Date of orders: 20 September 2023 Decision date: 20 September 2023 Jurisdiction: Occupational Division Before: J Levine, Senior Member Decision: 1. The Decision under review, including the permanent revocation of the Applicant's drivers certificate and the 3-month disqualification, is set aside. 2. In substitution for the Decision, the Applicant is fined $250 pursuant to section 41(2)(d) and reprimanded pursuant to section 41(2)(f) of the Tow Truck Industry Act 1998 (NSW). 3. As a result of the Order in paragraph (1) setting aside the Decision under review, the renewed Drivers' Certificate No. 45995 05 issued between around 19 to 29 June 2023 shall no longer be treated as 'cancelled' and instead shall be treated as current with immediate effect. Catchwords: TOW TRUCK INDUSTRY ACT 1998 – tow truck drivers certificate – disciplinary action – certified driver guilty of one indictable offence as grounds for disciplinary action under section 42(1)(b) even when no conviction recorded and matter dealt with summarily – appropriate disciplinary action under section 41(2) – permanent revocation of certificate and three month disqualification from holding certificate not appropriate –reprimand and fine appropriate in circumstances Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Criminal Procedure Act 1986 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Tow Truck Industry Act 1998 (NSW) Tow Truck Industry Regulation 2020 (NSW) Cases Cited: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 Texts Cited: None Category: Principal judgment Parties: Wasim Najjar (Applicant) Commissioner for Fair Trading (Respondent) Representation: Solicitors: Wasim Najjar (Self-Represented) Customer Service NSW (Respondent) File Number(s): 2023/00205293 Publication restriction: Nil REASONS FOR DECISION Introduction 1. This case is about disciplinary action under the Tow Truck Industry Act 1998 (NSW) ("TTI Act"). Mr Wasim Najjar ("Applicant") requests administrative review of the decision by a delegate of the Commissioner for Fair Trading of NSW ("Respondent") on 16 June 2023 ("Decision") to: 1. reprimand the Applicant; 2. fine the Applicant a sum of $250; 3. permanently revoke the Applicant's drivers certificate; and 4. disqualify the Applicant from holding a licence or drivers certificate for a period of 3 months. 1. The Decision was made on the basis that Mr Najjar had been charged with an indictable offence for an assault that occurred on 28 April 2021 (the "April 2021 Incident"). 2. Mr Najjar believes the Decision was unreasonable, unjust and severe. He notes that no conviction was recorded for the April 2021 Incident, and that he has a good record, with no other criminal or traffic matters resulting in court appearances in the previous 18 years. According to Mr Najjar, a 3-month disqualification has a substantial impact on himself, his family, his employees and his business, which was already suffering financial losses from the COVID period. He has applied to this Tribunal to set aside the Decision. 3. The Respondent submits that the Decision should be affirmed. It does not think the Applicant should be afforded leniency and noted his failure to produce documents or witnesses to substantiate the claim his business has been suffering. However, at the hearing in this matter, held on 14 September 2023, the Respondent stated that it does not press the third portion of the Decision, which was to permanently revoke the Applicant's drivers certificate. 4. For the reasons that follow, and having considered all the circumstances and material before me, I find that the Decision of 16 June 2023 should be set aside. The correct and preferable decision to be made in substitution is for the Applicant be fined a sum of $250 under section 41(2)(d) of the TTI Act and reprimanded under section 41(2)(f). There shall be no revocation or disqualification of his licence or certificate. Accordingly, the renewed drivers certificate that was issued to Mr Najjar in June 2023 is confirmed to be a current certificate. The Relevant Legislation 1. The TTI Act establishes a licensing and certification scheme for tow truck operators and drivers and regulates other matters relating to the tow truck industry. Part 3 of the TTI Act deals with operators licences and drivers certificates. 2. Division 1 of Part 3 deals with tow truck operators licences. Under Section 15, a person "must not carry on a business as a tow truck operator unless the person holds a tow truck operators licence that authorises the kind of towing work carried on by the person in the course of that business." 3. Division 2 of Part 3 deals with tow truck drivers certificates. Section 23 requires tow truck drivers to hold drivers certificates in order to drive, stand, use, operate, or assist in the use of a tow truck. 4. For both tow truck operators licences and drivers certificates, there are mandatory and discretionary grounds for the Secretary of the Department of Customer Services (or any delegate of the Secretary, including the Respondent, pursuant to section 93) to refuse to grant an application. These are set out in Sections 18 and 26. The discretionary grounds for refusing to grant an application for a drivers certificate include that the Applicant is not a fit and proper person to hold the certificate or otherwise not competent to carry on the kind of towing work to which the certificate relates. The regulations may also provide additional grounds for refusing to grant an application for, or renewal or restoration of, a licence or certificate. 5. The Tow Truck Industry Regulation 2020 (NSW) lists prescribed offences for purposes of sections 18 and 26 of the TTI Act. Clause 14(3) of the Regulation states that for purposes of section 26(4) of the TTI Act, the Secretary may refuse an application for a drivers certificate where an applicant has been found guilty (but with no conviction being recorded) of "(k) an offence involving an assault of any kind against a person." 6. Section 40A(3) of the TTI Act provides that a "licence or drivers certificate that has been surrendered or cancelled must not be restored." 7. Division 4 of the TTI Act enables the Secretary to take disciplinary action against a licensee or certified driver. Under the heading "Disciplinary Action", section 41(2) provides that the Secretary may do any of the following— (a) In the case of a licence or drivers certificate granted for a term of 1 year or less—suspend the licence or drivers certificate for a specified period, (a1) in the case of a licence or drivers certificate granted for a term of 3 or 5 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). (b) permanently revoke a licence or drivers certificate, (c) disqualify a licensee or certified driver from holding a licence or drivers certificate for a specified period, (d) impose a fine not exceeding $500 on a licensee or certified driver, (e) give a direction under section 84 to a certified driver, (f) caution or reprimand a licensee or certified driver. 1. Section 41(3)(b) provides that, in deciding whether to take disciplinary action, the Secretary may 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. The Secretary must take such submissions into consideration before taking disciplinary action (section 41(5)). Section 41(6) clarifies that the Secretary "is not prevented from taking disciplinary action under this Division merely because the licensee or certified driver concerned is subject to criminal or civil proceedings that relate to the same matters or incident to which the disciplinary action relates." 2. The grounds for taking disciplinary action are set out in Section 42, which relevantly provides: (1) The Secretary may take disciplinary action under this Division against a licensee or certified driver for any of the following reasons— (a) any reason for which the licensee or certified driver would not have been granted a licence or drivers certificate initially, (b) the licensee or certified driver has been charged with an indictable offence, (c) the licensee or certified driver supplied information that was (to the licensee's or driver's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence or drivers certificate, (d) the licensee or certified driver has contravened any provision of this Act or the regulations, whether or not the licensee or driver has been convicted of an offence for the contravention, (e) the licensee or certified driver has contravened any condition to which the licence or drivers certificate is subject, (f) 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, … 1. Section 43 sets out the procedure for implementing disciplinary action, including for notices setting out reasons for the disciplinary action and any relevant periods of suspension or disqualification. 2. Section 44 is entitled "effect of suspension", and states in subsection (2) that a suspended certificate does not authorise the holder to do anything during the period of suspension notice that would otherwise require the person to hold a certificate. There is no equivalent provision on the effect of disqualification, revocation or cancellation. 3. Division 5 of the TTI Act provides for administrative review by the Civil and Administrative Tribunal ("Tribunal"). Section 45 provides: 45 Application to Civil and Administrative Tribunal for administrative review (1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions— … (c) the suspension or revocation of a licence or drivers certificate granted to the person, (d) the disqualification of the person from holding a licence or drivers certificate, (e) the imposition of a fine on the person, (f) the giving of a direction under section 84 to the person. 1. On 27 June 2023, Mr Najjar applied to this Tribunal for administrative review of the Respondent's Decision, seeking to have the decision set aside. Jurisdiction and Issues to Determine 1. According to section 9 of the Administrative Decisions Review Act 1997 (NSW) ("ADR Act") and sections 28 and 30 of the Civil and Administrative Tribunal Act 2013 (NSW) ("CAT Act"), the Tribunal has jurisdiction over a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review. 2. As stated above, section 45 of the TTI Act provides for administrative review by the Tribunal of decisions, including for the revocation of a drivers certificate, the disqualification of the person from holding a drivers certificate and the imposition of a fine. 3. Section 55 of the ADR Act provides for applications to the Tribunal for administrative review of administratively reviewable decisions by interested persons. Section 55(3) provides that if the interested person was entitled to seek an internal review, they must apply for internal review before coming to this Tribunal for administrative review. However, section 55(4) provides that "the Tribunal may deal with an application for the administrative review of an administratively reviewable decision even though the applicant has not duly applied for an internal review to which the applicant was entitled if the Tribunal is satisfied that… (b) it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned." 4. On 11 July 2023, Senior Member Ransome, being satisfied that it is necessary for the Tribunal to deal with the application in order to protect the Applicant's interests and that the application had been made to the Tribunal within a reasonable time, determined that the Tribunal "may deal with the application in the absence of internal review" pursuant to section 55(4)(b) of the ADR Act. Senior Member Ransome also refused a request by Mr Najjar to stay the Respondent's Decision to take disciplinary action. 5. The Tribunal confirms that it has jurisdiction to deal with the Applicant's application for administrative review of the Decision, pursuant to section 45 of the TTI Act, sections 28 to 30 of the CAT Act, and sections 9 and 55 of the ADR Act. 6. In determining an application for administrative review, section 63 of the ADR Act provides that this Tribunal is to decide what is "the correct and preferable decision," having regard to "any relevant factual material, and any applicable written or unwritten law". The Tribunal is not restricted to consideration of the material that was before the original decision-maker but may have regard to any relevant material before it at the time of the review (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 129). 7. The Tribunal makes its own decision in place of the Respondent's and there is no presumption that the decision of the Respondent is correct. In determining an application for administrative review of a decision, the Tribunal may decide to affirm the decision, to vary the decision, to set aside the decision and make a decision in substitution, or to remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal (ADR Act, section 63(3)). 8. Under section 38(2) of the CAT Act, the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. 9. Under section 38(4) of the CAT Act the Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. 10. The relevant questions for the Tribunal to determine in the present case are: 1. Are there grounds for disciplinary action against the Applicant? 2. If so, what is the appropriate disciplinary action? Material before the Tribunal 1. The Tribunal has had regard to the following material provided by the parties. 2. The documentary material from the Applicant comprised: 1. Application to the Tribunal for administrative review, filed on 27 June 2023, attaching the Respondent's cover letter of its Decision of 16 June 2023 to take disciplinary action against the Applicant. 2. Application to the Tribunal for a stay of the original decision dated 27 June 2023, in respect of the decision to disqualify the Applicant from holding a licence or drivers certificate for a period of three months, 3. The Applicant's documents filed on 18 August 2023: 1. Tow Truck Driver Certificate Renewal Application paid and signed on 31 May 2023 and sent on 7 June 2023 (in which he selected yes to having been found guilty of an offence involving an assault against a person). 2. Confirmation text message from Service NSW dated 19 June 2023 to the effect that Mr Najjar's driver certificate application had been approved. 3. Acceptance letter from the Respondent attaching Tow Truck Driver Certificate no. 45995 05 with expiry date of 29 June 2026. The date of this document is unclear, though based on the other documents, it is taken to be dated between around 19 June 2023 and 29 June 2023. 1. The documentary material from the Respondent comprised: 1. The Respondent's materials filed in support of its position on the Stay Application, including: 1. The Court Attendance Notice of 20 July 2021 for the charge of common assault under section 61 of the Crimes Act 1900. 2. The uncorrected Police Facts sheet created on 25 June 2021. 3. The corrected Police Facts Sheet of 29 August 2021. 4. The Applicant's Submissions on the Notice to Show Cause dated 23 March 2023 (without Annexures). 1. The Respondent's materials under section 58 of the ADR Act, filed on 4 August 2023, including: 1. The Application for Administrative Review filed 27 June 2023. 2. The Application for a Stay filed 27 June 2023. 3. The Respondent's cover letter to its Decision of 16 June 2023. 4. The Respondent's Notice and Reasons for Decision of 16 June 2023, attaching: 1. The details of the Applicant's drivers certificate as at 9 June 2023. 2. The compliance history associated with the Applicant's drivers certificate as at 9 June 2023. 3. The details of the Applicant's operators licence as at 9 June 2023. 4. The compliance history associated with the Applicant's drivers certificate as at 9 June 2023. 5. Copy of the Notice to Show Cause dated 23 February 2023. 6. Copy of Mr Najjar's submissions provided to the Respondent on 23 March 2023 (explaining the background to the magistrate's orders on the common assault charge, enclosing (A) the correct police facts sheet, (B) and (C) statistics on treating section 61 of the Crimes Act offences on an indictable or summary basis, (D) 11 character references, (E) a letter from the Applicant to the Respondent seeking no disciplinary action, (F) a letter from Mr Geoff Taylor tendered in court on 19 December 2022 in support of Mr Najjar for the Common Assault sentencing). 1. The 'Reviews Fact Sheet' issued with the Notice of Reasons for Decision. 1. The Respondent's written submissions filed on 1 September 2023. 1. All of the above evidence was admitted to the record, without objection from either side. The Respondent confirmed that there was no application for lodgement of confidential information under section 59 of the ADR Act and no expectation of the hearing requiring a private session. 2. At the hearing on 14 September 2023, there were no witnesses apart from the Applicant, who committed to tell the truth, and answered a number of questions from the Tribunal. The Respondent chose not to cross-examine the Applicant. The Applicant had previously been legally represented at the local court proceedings for the assault charge, and during the show cause phase of the Respondent's decision-making in respect of his Drivers Certificate. However, at the hearing before this Tribunal, Mr Najjar represented himself. Present at the hearing in support of Mr Najjar was a friend and colleague from his company, Mrs Taylor. 3. During the hearing, the Respondent confirmed that the Applicant's operators licence is not in issue in these proceedings, which only concern his drivers certificate under the TTI Act. The Respondent also confirmed that it was not its intention to ban the Applicant for life from driving a tow truck. The Respondent confirmed the Applicant applied for a new drivers certificate in May 2023, as he was entitled to do. This happened before the Decision was issued, but the new drivers certificate was approved and issued some days after the Decision, and is currently in the Respondent's system with a note that it is "cancelled". 4. The Respondent stated that if the Tribunal were to set aside the permanent revocation of the certificate but affirm the 3-month disqualification decision, then the Applicant would need to reapply for a certificate after the 3-month period has expired. The Respondent stated that if the Tribunal were to set aside the permanent revocation of the certificate and also set aside the 3-month disqualification decision, the certificate would no longer be noted as 'cancelled' in the Respondent's system but would be treated as current, and there would be no need for the Applicant to apply for a new certificate. Factual Background 1. The below factual background is based on the above-mentioned documents in the record, as well as information provided by Mr Najjar during the hearing, without being questioned by the Respondent. Work as a Tow Truck Operator and Driver 1. Mr Najjar has been a tow truck driver for over a decade. He has held Drivers Certificate No 45995 since 21 June 2006. 2. Mr Najjar also held an Operator's Licence No 05087 from 4 November 2005 to 1 November 2021 which allowed him to operate the business FCT Sydney Pty Ltd, trading as "First Choice Towing Sydney". FCT Sydney Pty Ltd now holds Operator Licence TTOPT080018625 allowing the company to operate and trade under "First Choice Towing Sydney". Both Parties confirmed at the hearing that the operator licences are not the subject of the present proceedings. 3. According to Mr Najjar, his company employs around 20 staff. 4. Mr Najjar testified that during the COVID pandemic his business suffered financially as there was so little traffic on the roads and less work for tow trucks generally. This was not contested by the Respondent. 5. Mr Najjar has described his work in the tow truck industry as meaning "everything to me." Incident of 28 April 2021 and Dismissal of Charges in Local Court 1. On 28 April 2021 an incident took place which led to Mr Najjar being charged in May 2021 with common assault under section 61 of the Crimes Act 1900 (NSW) ("Crimes Act"). The Agreed Police Facts Sheet recounted the following details about the incident: The victim knows the accused through their profession as Tow Truck Drivers. They would often see one another when at traffic jobs where vehicles are required to be towed. On the 28th of April 2021, the witness had contacted her vehicle Insurer … to arrange for a Tow Truck after her vehicle had been involved in a collision. Whilst organising this through her insurer, the accused was already at the scene assisting his other staff members with other vehicles which also required to be towed. About 1140 am on Wednesday the 28th April 2021, the victim arrived at the locations per his instruction from his Operations Manager. The victim stopped his Tow Truck on the road and was approached by the accused. The accused walked over to the driver's side door. The Accused said he had already 'picked up' the witness' mini. The Accused had a towing authority for a mini. The victim drove off and pulled over a short distance away. The victim was further instructed to carry on with the job and speak with the witness. The victim exited his vehicle holding his Tow Book and mobile phone. The accused then walked over to the victim. The victim commenced to record the Accused. The Accused went to grab the mobile phone off the victim and in the process has lightly tapped the victim on his cheek with his hand. The accused has then left the scene… 1. On 19 December 2022, the Applicant entered a plea of guilty to common assault at the Burwood Local Court. The offence was dealt with by the magistrate under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("CSPA"), which involves a complete dismissal of the charge. 2. Section 10 of the CSPA relevantly provides: 10 Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders— (a) an order directing that the relevant charge be dismissed, … (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors— (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. … 1. The magistrate found that the assault was one of a trivial nature and accordingly dismissed the charge without implementing any type of conviction, fine or good-behaviour bond. 2. The Applicant stated at the hearing before this Tribunal that he was committed no incident like it ever happening again. He emphasised that the offence was treated by the magistrate as a trivial one and subject to a section 10(1)(a) order. He acknowledged that he made a mistake and believes he has learned from that mistake and is sorry for what happened. The Tribunal found Mr Najjar's statements in this regard to be sincerely held and genuinely expressed. Notice to Show Cause 1. On 23 February 2023, the Respondent issued a Notice to Show Cause ("NTSC") under section 41(3)(b) of the TTI Act. The Respondent informed the Applicant that it had formed the opinion that there were reasonable grounds for taking disciplinary action against the Applicant under section 42(1)(b) of the Act (that the certified driver has been charged with an indictable offence) and section 42(1)(f) (that 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). 2. The NTSC pointed to the Applicant's compliance record and prior offences against the TTI Act to show that he was not a fit and proper person to hold a drivers certificate and may not have an adequate appreciation of the duties, responsibilities and expectations of the public. In particular, the NTSC stated that the conduct during the April 2021 Incident demonstrated a willingness to put the public at risk of harm and to undermine the integrity of the tow truck industry and relevant licensing regime, "particularly as consumers are entitled to expect that a certified driver is someone who will not engage in threatening, intimidating or aggressive behaviour". The NTSC invited the Applicant to show cause by 23 March 2023 as to why disciplinary action should not be taken. 3. The Applicant submitted a response to the NTSC on 23 March 2023, prepared by his lawyer ("Response"). The Response noted that the NTSC had cited an uncorrected version of the Police Facts Sheet. The Response accepted that common assault contrary to section 61 of the Crimes Act may be classified as an indictable offence, but pointed to statistics showing that between 24 September 2018 and 30 June 2022, only two matters contrary to section 61 had been dealt with on indictment, as compared with 29,356 matters dealt with summarily. In the circumstances, disciplinary ground 1 (Section 42(1)(b) of the TTI Act) was satisfied. However, the Applicant respectfully requested the Respondent give due consideration to the fact that common assault charges are usually dealt with summarily. 4. The Response also noted that the NTSC had misstated the Applicant's compliance history but accepted that 14 incidents contravened the licence or certificate pursuant to section 58(1) of the Act, however 3 were dealt with by caution only and 11 were dealt with by fine. The Applicant submitted that the fines were paid in full and he should not be double-penalised for such breaches. The Response also stated that the Applicant had not contravened any condition of his licence within the last 5 years. As for the assault offence, the Response recalled that the magistrate had found it to be trivial in nature when dismissing the charge. Prior to the April 2021 Incident, he had not had any other criminal or traffic matters prompting a court appearance for the last 18 years since 2005. 5. The Response enclosed 11 character references from Mr Najjar's employees, peers and colleagues attesting to his good character. These included statements to the effect that Mr Najjar operates with integrity, is "hard working" and "dedicated" and a "responsible and caring" employer. They consistently refer to his passion for the tow truck industry and state that he is a patient and authentic person that usually keeps his cool in stressful situations. The Response also attached a letter from Mr Najjar himself that described the impact of the NTSC on his confidence and emotional wellbeing, and the devastating prospect of losing his certificate after decades in the industry. 6. Also attached to the Response was a letter of support dated 15 December 2022 addressed to the presiding magistrate at Burwood Local Court. This was written by one of the character referees, Mr Geoff Taylor (who had been appointed Transport Manager of the company effective as of 16 February 2023). In addition to attesting to the "genuine, responsible and hardworking" nature of Mr Najjar, Mr Taylor's letter directly referred to the court proceedings before the magistrate and stated that he knew "the details of this incident". He noted that the other company which was involved in the incident was continuing to do business with Mr Najjar's business and he understood that the incident was "completely water under the bridge". 7. In the hearing before this Tribunal, the Mr Najjar confirmed to the Tribunal that he had made Mr Taylor (whose wife was present at the hearing) familiar with the details of the April 2021 Incident when he prepared the letter to the magistrate. Mr Najjar stated that while Mr Taylor was aware of all the details and not proud of him for what happened, he was completely willing to support him in the Local Court and in the effort to maintain his certificate. The Tribunal finds that this is consistent with the documents provided by Mr Taylor and Mr Najjar's oral evidence was uncontested by the Respondent. The Respondent's Decision 1. The Respondent issued its Decision on 16 June 2023. The Respondent was satisfied that the disciplinary ground under Section 42(1)(b) of the TTI Act was made out because common assault under section 61 of the Crimes Act is an indictable offence. It held this is sufficient for purposes of establishing the discretion to take disciplinary action, even if, as the Respondent accepted, the evidence supports that common assault charges are ordinarily dealt with summarily, albeit they are 'indictable offences'. 2. The Respondent found that section 42(1)(f) of the TTI Act was not established. That is, the Respondent was not of the opinion that the Applicant "is no longer a fit and proper person to hold a licence or drivers certificate". The Decision summarised legal authorities that had considered the meaning of the fit and proper person test (including Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 ("Austin") at [57]-[59]). The Decision took into account Mr Najjar's submissions. However, the Respondent noted that the compliance history was relevant insofar as it showed the Applicant's disregard towards compliance with industry standards and requirements as a whole, rather than particular conduct associated with each contravention. The Respondent also gave weight to the time that had passed since the last licence contravention in February 2019. The Decision accepted and took into consideration the character references and the corrected Agreed Facts Sheet. It also considered the facts surrounding the April 2021 Incident and Mr Najjar's good character. The Respondent noted that "the most serious disciplinary action that can be taken is permanent disqualification". 3. Ultimately, the Decision considered that the Applicant's conduct had the potential to cause major harm, that his behaviour presented a risk to the integrity of the industry and licensing system, and that his conduct displayed recklessness and fell short of the standards expected by members of the public. It considered the overall severity of the conduct to be moderate. As mitigating factors, he considered the magistrate's dismissal of the assault charge and the effect disciplinary action may have on the Applicant's livelihood. These factors reduced the disqualification period that the Respondent considered appropriate from 6 months to 3 months. There were no aggravating factors. In the circumstances, the Respondent decided that the appropriate disciplinary action to be taken against Mr Najjar, with immediate effect was: 42.1 under section 41(2)(f) of the Act, I reprimand the Certified Driver; 42.2 under section 41(2)(d) of the Act, I impose a fine of $250 on the Certified Driver; 42.3 under section 41(2)(b) of the Act, I permanently revoke the Drivers Certificate; and 42.4 under section 41(2)(c) of the Act, I disqualify the Certified Driver from holding a licence or drivers certificate for a period of three (3) months. Impact of Disqualification on Business 1. In his application to this Tribunal, the Applicant stated that the 3-month disqualification period would have a substantial impact on his business, which was already under enormous financial pressure due to the COVID pandemic. 2. At the hearing, Mr Najjar was asked to explain how the disqualification impacted his business, particularly in light of other staff being employed by the company. Mr Najjar explained that it particularly impacted night work as he was often the only staff member who was available at night. He had advertised for employees to do night work but to no avail. During the 3-month disqualification period the company simply had not been able to do night work without Mr Najjar and it had suffered as a result. He explained that he had ordered a new tow truck 8 months ago that he was having to pay off with over $3,000 every month, but the tow truck was not getting to be used because of the situation with his drivers certificate. This evidence was not challenged by the Respondent. Renewal of Drivers Certificate 1. Before the Respondent issued its Decision on 16 June 2023, the Applicant applied to renew his drivers certificate, as he was lawfully entitled to do. He had received a renewal notice in May 2023 advising that his certificate was due to expire on 29 June 2023. He signed the renewal application form on 31 May 2023 and was up front in his disclosures about the assault charge. He supplied the requisite information and paid the $407 fee. He lodged the application on 7 June 2023, i.e., 9 days before receiving the Decision on disciplinary action. 2. On 19 June 2023, 3 days after the Decision on disciplinary action, Mr Najjar received a text message notification from NSW Fair Trading stating "Your Driver Certificate application has been approved. Your authorisation number is 45995. You will receive your authorisation in the mail within three weeks. This message is not your approval to commence working under your Driver Certificate." 3. Mr Najjar then received the new drivers certificate by mail, however, by the time he did so, he had received the Decision about disciplinary action. He accordingly left the drivers certificate stuck to the letter it arrived with and put it in a safe until the outcome of these Tribunal proceedings. The letter attaching the new drivers certificate did not refer to the disciplinary action. 4. At the Hearing before this Tribunal, the Respondent confirmed that the new certificate was issued a few days after the Decision, and stated that it is currently in the system with a note that it is 'cancelled'. 5. The Respondent stated that if the Tribunal were to set aside the permanent revocation of the certificate but affirm the 3-month disqualification decision, then the Applicant would need to reapply for a certificate after the 3-month period has expired. The Respondent stated that if the Tribunal were to set aside the permanent revocation of the certificate and also set aside the 3-month disqualification decision, the certificate would no longer be noted as 'cancelled' in the Respondent's system but would be treated as current, and there would be no need for the Applicant to take any steps to apply for a new certificate. First Issue to be Determined: Are there grounds for disciplinary action against the Applicant? 1. The first issue to be determined is whether there are grounds for disciplinary action against the Applicant under the TTI Act. 2. The grounds which may lead to disciplinary action are set out in Section 42(1) of the TTI Act, which provides (emphasis added): (1) The Secretary may take disciplinary action under this Division against a licensee or certified driver for any of the following reasons— (a) any reason for which the licensee or certified driver would not have been granted a licence or drivers certificate initially, (b) the licensee or certified driver has been charged with an indictable offence, (c) the licensee or certified driver supplied information that was (to the licensee's or driver's knowledge) false or misleading … (d) the licensee or certified driver has contravened any provision of this Act or the regulations … (e) the licensee or certified driver has contravened any condition to which the licence or drivers certificate is subject, (f) 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… 1. The relevant ground for disciplinary action in this case is section 42(1)(b), namely that the Applicant has been charged with an indictable offence. 2. Mr Najjar was charged with common assault contrary to section 61 of the Crimes Act which states under the heading "Common assault prosecuted by indictment": Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years. 1. Section 3(1) of the Criminal Procedure Act 1986 (NSW) ("Criminal Procedure Act") defines "indictable offence" to mean "an offence (including a common law offence) that may be prosecuted on indictment." 2. Section 5 of the Criminal Procedure Act states: (1) An offence must be dealt with on indictment unless it is an offence that under this or any other Act is permitted or required to be dealt with summarily. (2) An offence may be dealt with on indictment if it is an offence that under this or any other Act is permitted to be dealt with summarily or on indictment. 1. Schedule 1 of the Criminal Procedure Act lists "Indictable offences triable summarily". Table 2 at Schedule 1 details "indictable offences that are to be dealt with summarily unless prosecutor elects otherwise." Part 1 of Table 2 details "Offences against the person under Crimes Act 1900 or Crimes (Domestic and Personal Violence) Act 2007" which include "An offence under section …. 61…. of the Crimes Act 1900." 2. It is common ground between the Parties that the Applicant was charged with Common Assault under section 61 of the Crimes Act, which is categorised by the Criminal Procedure Act as among "indictable offences that are to be dealt with summarily unless the prosecutor elects otherwise." It is also common ground that no such election was made by the prosecutor and that the common assault charge was indeed dealt with summarily before the Local Court. 3. Statistics from the Judicial Information Research System that were submitted by the Applicant in the NTSC proceedings and accepted by the Respondent reveal that between 24 September 2018 and 30 June 2022, only two matters concerning conduct contrary to section 61 of the Crimes Act were dealt with on indictment. By contrast 29,356 matters were dealt with summarily. 4. The Applicant accepted, in the context of the NTSC proceedings, that under section 42 of the TTI Act, disciplinary action may be taken on the basis that Mr Najjar was a certified driver charged with common assault. 5. The Tribunal accepts that Mr Najjar was charged with an indictable offence. Although the charge was dealt with summarily (as common assault charges almost invariably are), and although it was dismissed by the magistrate, finds that the ground for disciplinary action under section 42(1)(b) of the TTI Act has been formally established. As a result, disciplinary action "may" be taken. 6. The Tribunal confirms that section 42(1)(b) is the only ground for disciplinary action in this case. No other ground in section 42 is established. In particular, the Tribunal recalls that the Respondent did not find, and does not now seek a finding, that the Applicant is not a fit and proper person to hold a tow truck certificate. The Respondent came to that view having considered the Applicant's experience in the industry, the letters in support of the Applicant from his colleagues, peers and friends, the letter from Mr Taylor and the letter from Mr Najjar himself. The Tribunal agrees that those materials would support a finding that Mr Najjar is a fit and proper person (within the meaning explained in Austin at [57] to [59], namely he is a person of honesty, knowledge, ability and that he possesses sufficient integrity and rectitude to be accredited to the public as a person to be entrusted with the work of a tow truck driver). 7. Having established one ground for disciplinary action, the next issue to determine is what, if any, disciplinary action is appropriate in the circumstances. Second Issue to be Determined: What disciplinary action is appropriate? 1. Section 41 of the TTI Act enables the Secretary to take disciplinary action against a certified driver and provides, in subsection (2)(b) that the Secretary "may do any of the following— (a) in the case of a licence or drivers certificate granted for a term of 1 year or less—suspend the licence or drivers certificate for a specified period (a1) in the case of a licence or drivers certificate granted for a term of 3 or 6 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) (b) permanently revoke a licence or drivers certificate, (c) disqualify a licensee or certified driver from holding a licence or drivers certificate for a specified period, (d) impose a find not exceeding $500 on a licensee or certified driver, (e) give a direction under section 84 to a licensee or certified driver, (f) caution or reprimand a licensee or certified driver. 1. As the Respondent itself observed, the above provision uses three different terms for ways in which a certificate can cease to operate for a period of time as a disciplinary action. These are "suspend", "revoke" and "disqualify", none of which are defined terms in the TTI Act (a fourth term, "cancel" is also used, e.g. in sections 31(4), 40A(3) and 43(2A)). In Mr Najjar's case, curiously, the Respondent's Decision was both to "permanently revoke" his drivers certificate pursuant to section 41(2)(b) and at the same time to "disqualify" him from holding a licence or certificate for three months pursuant to section 41(2)(c), as well as a reprimand and a fine. 2. The Applicant submits that the Decision was "unreasonable, unjust and severe". He pointed out that the charge for common assault was dismissed under section 10(1)(a) of the CSPA, with the court noting the "trivial nature of the offence". He stated his belief that the Respondent's Decision was "harsh" and that the Respondent had "failed to properly take into consideration the outcome of my matter when making their decision". He emphasised his good record, noting that for the 18 years prior to the common assault charge he had no other criminal or traffic matters resulting in any court appearances. He noted that his business, already under enormous pressure and still recovering from the financial losses caused during COVID, would suffer from the 3-month disqualification. The decision to disqualify him from holding a drivers certificate impacted not only himself but those around him in his family and business. 3. The Respondent stated at the hearing that it did not press the decision to take disciplinary action in the form of a decision to "permanently revoke" Mr Najjar's drivers certificate, and acknowledged that on its face this decision seemed inconsistent with the 3-month disqualification. The Respondent clarified that it had no intention to ban Mr Najjar from being a tow truck driver for life. The Tribunal agrees that any decision to "permanently revoke" Mr Najjar's drivers certificate is excessive and heavy handed and likely was not, in any event, intended to have the effect of depriving him of a drivers certificate for the rest of his career. The Decision itself even referred to permanent suspension as the "most serious" disciplinary action available under the TTI Act. 4. The Tribunal is also of the view that in the circumstances, disqualification even for a 3-month period, is not the correct and preferable disciplinary action to be taken under section 41(2) in the circumstances of the present matter. The Tribunal accepts that during the April 2021 Incident, the Applicant acted in a manner that was aggressive and did not cast the tow truck industry in a positive light. The assault occurred on the job, and although there is evidence that it followed from some provocative behaviour on the part of the victim, it was still unjustified, wrong, and regrettable. The Tribunal however notes that the corrected Police Statement of Agreed Facts described the victim as having been "lightly tapped" on the cheek as the Applicant sought to knock his phone away to stop him from filming him. The magistrate accepted the incident as "trivial in nature". The letters of support from other colleagues, which was accepted by the Respondent, indicate that this was out of character for the Applicant, a man who is consistently described as usually keeping calm and cool in high stress situations. 5. The Tribunal has noted the Respondent's observation that the letters of support do not indicate knowledge about the assault in question, and therefore should be given "no weight". That is not the case, however, for the letters from Mr Taylor. The Tribunal finds, based particularly on the text of Mr Taylor's December 2021 letter, and the uncontested explanations provided by Mr Najjar about his relationship with Mr Taylor, that Mr Taylor understood the nature of the assault charge and the underlying incident. It accepts Mr Taylor's character reference in support of the Applicant and notes it is consistent with the other descriptions of Mr Najjar by his employees, colleagues and peers. 6. The Tribunal also takes into account the impact that even a 3-month disqualification would have on Mr Najjar's business and financial situation. In particular, the Tribunal has accepted his uncontested explanations that he was unable to recruit night drivers and lost jobs that he might have taken up himself had he not been disqualified. The Tribunal accepts that he has been unable to undertake that work, or make use of a new tow truck that he purchased before the Decision was issued. Accordingly, the Tribunal considers that the correct and preferable disciplinary action against Mr Najjar should not involve disqualification. 7. The Tribunal notes a further flaw in the Decision was the ambiguous reference to disqualifying the Applicant from holding a "licence" in addition to "drivers certificate" in paragraph 42.4 of the Decision. This is despite the fact that the Respondent at the hearing, and in the main text of the reasons for the Decision, made clear that the operators licence was not at issue in these proceedings. 8. For all of the above reasons, the Tribunal has decided to set aside the Decision of the Respondent dated 16 June 2023. Nevertheless, the Tribunal does consider that some disciplinary action is appropriate. The Tribunal accepts, based on hearing from Mr Najjar at the hearing as well as his statements in the documentary record, that he realises he made a mistake and behaved towards a fellow tow truck driver in a less than ideal manner the night of the April 2021 Incident in the presence of a client. The fellow tow truck driver did not suffer injury and the magistrate considered the nature of the offence trivial. The Respondent notes that Mr Najjar has been fined and cautioned in the past for contraventions of the TTI Act (including with respect to record keeping, displaying his licence number, certain equipment being missing from his truck, etc). There is no evidence, however, that he has acted on other occasions in a similar way to the April 2021 Incident. 9. The Tribunal considers that a reprimand pursuant to section 41(2)(f) and a fine in the amount of $250 (pursuant to section 41(2)(d)) would be appropriate disciplinary measures in the circumstances described above. Conclusion 1. Section 63(1) of the ADR Act provides that the Tribunal is to decide "what the correct and preferable decision is" having regard to the factual material before it and any applicable law. Section 63(2) provides that 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." Under section 63(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 administratively reviewable decision in this case is the Respondent's Decision of 16 June 2023 on disciplinary actions against Mr Najjar. For the reasons set out above, the Tribunal considers the correct and preferable decision in this case, having regard to the material before it, is to set aside the Respondent's Decision of 16 June 2023. 2. While the reprimand and fine were appropriate disciplinary actions, the Tribunal finds that permanent revocation of the drivers certificate and the 3-month disqualification are disproportionate and inappropriate in the circumstances. Accordingly, the Decision shall be set aside pursuant to section 63(c) of the ADR Act and substituted with a decision to issue a reprimand and a $250 fine only. The result for Mr Najjar's certificate is that the renewed Drivers Certificate No. 45995 05 issued between around 19 and 29 June 2023 shall no longer be treated as 'cancelled' but rather be treated as current, without him having to reapply for a certificate. Orders 1. The Tribunal makes the following orders: 1. The Decision under review, including the permanent revocation of the Applicant's drivers certificate and the 3-month disqualification, is set aside. 2. In substitution for the Decision, the Applicant is fined $250 pursuant to section 41(2)(d) and reprimanded pursuant to section 41(2)(f) of the Tow Truck Industry Act 1998 (NSW). 3. As a result of the Order in paragraph (1) setting aside the Decision under review, the renewed Drivers' Certificate No. 45995 05 issued between around 19 to 29 June 2023 shall no longer be treated as 'cancelled' and instead shall be treated as current with immediate effect. ********** 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: 20 September 2023