Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Wulff v Transport for NSW [2023] NSWCATOD 176 Hearing dates: 16 August 2023 Date of orders: 30 November 2023 Decision date: 30 November 2023 Jurisdiction: Occupational Division Before: J McAteer Senior Member Decision: (1) The decision of the Respondent is affirmed. Catchwords: ADMINISTRATIVE LAW – Fit and Proper person – good repute – seriousness of offending – fitness – honesty – integrity – still serving terms of sentence – insufficient time since offending Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Passenger Transport Act 1990 Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409 Farquharson v Director General, Department of Transport [1999] NSWADT 53 Hughes and Vale Pty Ltd v New South Wales (No 2) [1955] 93 CLR 127 R v Wulff, R v Oxenbridge, R v Myers, R v Walker [2019] QCA 183 Stricke v Commissioner for Fair Trading [2017] NSWCATOD 100 Texts Cited: None Category: Principal judgment Parties: Carl Wulff (Applicant) Transport for NSW (Respondent) Representation: Solicitors: Applicant (Self Represented) TfNSW Legal (K Hudson) (Respondent) File Number(s): 2023/00173471 Publication restriction: Nil Reasons for decision Introduction 1. The Applicant Carl Wulff (Mr Wulff) applied for a Bus Driver Authority in April 2023. Mr Wulff's application was considered by the regulator Transport for NSW (TfNSW) who is the Respondent in these proceedings. By way of a decision dated 5 May 2023 the Respondent refused Mr Wulff's Bus Driver Authority on the basis that they determined on the available information that he was not a fit and proper person to be issued with and hold the Bus Driver Authority. 2. Under the Passenger Transport Act 1990 (the Act) persons who hold Bus Driver Authorities are required to be of 'good repute'. Section 12 of the Act provides that the regulator may issue a Bus Driver Authority only if the authorised person is considered to be of good repute and in all other aspects a fit and proper person to be the driver of a public passenger vehicle. The section goes on to refer to other necessary attributes such as skill and responsibility as set out in s 11. 3. The Respondent made a finding that Mr Wulff was not a fit and proper person to be issued with the Bus Driver Authority predominantly because of his criminal history relating to offences committed in Queensland. 4. Following an Internal Review which upheld the finding that Mr Wulff was not a fit and proper person to be issued with a Bus Driver Authority, Mr Wulff applied for administrative review of that decision before the Tribunal. 5. The application was made in accordance with s 52 of the Act which provides: 52 Applications to Civil and Administrative Tribunal (1) Any person whose application under Part 2 has been refused, or whose accreditation or authority has been varied, suspended or cancelled may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the refusal, variation, suspension or cancellation. 1. There is no dispute that the application has been lodged within time. Background 1. Mr Wulff sought a Bus Driver Authority by way of an application completed on 13 April 2023. In that application Mr Wulff disclosed personal particulars including matter relating to his current drivers licence status and history. He appropriately disclosed a Queensland Licence which had since been cancelled or expired. Details of Mr Wulff's two most recent traffic offences were disclosed including disclosure of his criminal matters from 2019. Matters relating to Australian Citizenship or Visa status were also provided. 2. In the first instance decision the respondent essentially focused on the criminal history disclosed by Mr Wulff concerning offences of 'Official Corruption' and 'Attempting to pervert justice' which were dealt with by the District Court of Queensland in early 2019. 3. The Respondent noted that Mr Wulff had been sentenced to a five year prison sentence with a 20 month non parole custodial sentence imposed and served in relation to those offences. The delegate of the Respondent noted that "the offences cast doubt that you are a 'fit and proper person' or a person of 'good repute' for the purposes of the Passenger Transport Act 1990 and 2014." 4. The delegate also noted that those offences were recent and as a result they confirmed the view that they could not attest that Mr Wulff was a fit and proper person or a person of good repute. The application was refused on that basis. 5. Mr Wulff applied for an Internal Review of that decision on 5 May 2023. Upon review the senior delegate affirmed the original decision to refuse the Bus Driver Authority on the same basis. In a Statement of Reasons, the senior delegate noted Mr Wulff's grounds for review where he indicated that his submission had not been adequately considered. Reference was made to: * Mr Wulff's good health and lack of any prior criminal offending other than the matters outlined above, * the fact that the Office of the Children's Guardian had issued Mr Wulff with a Working with Children Check Clearance, * evidence of prior or past positive character including evidence from a psychology report relied upon in support, * an assertion that other persons with more serious offending had been granted Bus Driver Authorities. 1. The Senior Delegate determined that TfNSW could not be satisfied and attest as to Mr Wulff's ability to convey public passengers because he was not a fit and proper person or otherwise a person of good repute. 2. The senior delegate concluded that: 'The nature, seriousness and recentness of the offences are persuasive evidence against your fitness to drive a commercial vehicle'. Jurisdiction 1. The Refusal Notice was issued under the provisions of s 12 of the Act. As noted above the application to the Tribunal was made pursuant to s 52 of the Act. Section 11 provides the basis for issuing the authority. Section 11 provides : 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. 1. The Tribunal's powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (the ADR Act), which provides: (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 1. As noted above, an application under s 52 of the Act is an administrative review. The Tribunal's function on review under section 63 of the ADR Act is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, 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] AATA; (1979) 46 FLR 409. What issues do these proceedings raise for determination? 1. On my assessment the issues are as set out by the Commissioner's representative: * Whether the Tribunal can be satisfied that Mr Wulff is a fit and proper person to be issued with a Bus Driver Authority; * Whether the Tribunal can be satisfied that Mr Wulff is a person of good repute sufficient to be issued with a Bus Driver Authority. 1. There is no dispute that Mr Wulff is otherwise technically qualified / licenced to drive a public passenger vehicle. Applicant's written evidence * Exhibit 'A-1': Statement of Evidence (31 paragraphs) including attachments A- MM inclusive. Respondent's written evidence * Exhibit 'R-1' Documents filed under s 58 ADR Act, * Exhibit 'R-2' Policy Document downloaded from internet by Respondent's Solicitor – received without objection, (TfNSW Public Passenger Operators and Drivers Fit and Proper Policy) * Exhibit 'R-3' material, received under Summons from: Vic Roads, Department of Transport and Main Roads Qld and NSW traffic record.. 1. The Respondent was legally represented and provided detailed written submissions. No witness was called to give evidence or subject to cross examination at hearing. Mr Wulff relied upon his written material as the majority of matters were not contested or otherwise in dispute. The applicant's case 1. Mr Wulff ran his case before the Tribunal in the context of admitting all transgressions but relying on the fact that his offending occurred in one context only, took place over 10 years ago, and that when his entire adult life and conduct is examined the offences were out of character, occurred in a particular set of circumstances that will not arise again, and as a result he will not reoffend. 2. Mr Wulff relied upon a large number of character references, a psychology report prepared as evidence for sentencing at Court, and actions he subsequently took in 'mitigation' in a sense to give back to society on a voluntary basis post offending. These matters related to an offer to repay the fraudulent gains and participation in an educational program to help prevent corruption and offending. 3. Mr Wulff submitted that he was now again a person of good repute and provided the following matters as evidence of this: * 45 years of public service and volunteering, * Positive driving record given length of licence holding and distance travelled, * Early guilty plea and acceptance of offending, * Voluntary relinquishment of funds acquired from his actions, * Involvement in and force behind anti-corruption educational material for use by Queensland Government, 1. He submitted that with these positive matters, he should be considered a fit and proper person and a person of good repute, sufficient to be issued with the Bus Driver Authority. 2. In addition, at hearing Mr Wulff made submissions as to how there was a current shortage of bus drivers in NSW and that the refusal of TfNSW to issue him with an authority was extreme having regard to the impact that the driver shortage was having on the community. The respondent's case 1. The Respondent relied on the material issues of fact from the decision and review. Significantly they relied upon the seriousness of Mr Wulff's offences, that his offending had only come to light some years after the conduct took place, the situation that Mr Wulff had received a custodial sentence and that he was still under the terms of that sentence at the time of the application, as well as a lack of insight into the nature of his offending and how an ordinary member of the public would view his offending. 2. The Respondent submitted that the Tribunal cannot be satisfied that Mr Wulff is of good repute and in all other aspects a fit and proper person to drive a public passenger vehicle. The Respondent submitted that if the Tribunal cannot be satisfied that at present Mr Wulff is a person of good character, then that is the end of the matter and the authority must be refused. 3. In respect of how a reasonably minded person might view Mr Wulff's repute today at the time of this assessment the Respondent submitted that the offending occurred whilst Mr Wulff was employed at Ipswich City Council from July 2006 to December 2013. Mr Wulff was the Chief Executive Officer (CEO) of Ipswich City Council, the most senior non publicly elected person in the organisation. In that role Mr Wulff had entered into two arrangements and received 'kick backs' by way of bribes from two different third parties. 4. The first arrangement involved Mr Wulff engaging with a Mr Meyers through a Company Dinorden Pty Ltd. Under the arrangement with Mr Meyers, Mr Wulff's wife (Ms Oxenbridge) was engaged as a consultant, although no consulting services were performed. Through this consultancy 'work' Ms Oxenbridge was paid $115,000.00 which was paid to a company controlled by Mr Wulff and Ms Oxenbridge. False invoices were issued in an attempt to legitimise the payments. A deck at the home of Mr Wulff and Ms Oxenbridge was also built and paid for under this arrangement. 5. The other arrangement concerned a Mr Walker who was a consultant engaged by Council to assist with flood restoration work. Under the arrangement with Mr Walker, Mr Wulff was paid a $5,000.00 per month retainer. Like the other arrangement Ms Oxenbridge was again engaged as a consultant but no services were provided, fictitious invoices were issued and their company received the payments. $99,000.00 was received through this arrangement plus a further $5,00.00 in cash. The basis of the payments by Mr Walker concerned the position that it was open to Mr Wulff as CEO to award Council contracts to Mr Walker's Company. 6. The Queensland Crime and Corruption Commission (CCC) investigated the matters arising from irregularities uncovered via an audit. The CCC investigation was complex and detailed and when the CCC's actions were clear to Mr Wulff, and he formed the view that they were closing in on him and the 'arrangement' with Walker and Meyers he urged Mr Meyers to give false evidence to the CCC to say that the consulting arrangements under which the payments were cloaked was a legitimate fee for service arrangement. 7. A total of $219,000.00 was corruptly paid to Mr Wulff and his wife as well as the construction of the deck (and a set of stairs at their home) as a result of the two corrupt arrangements entered into with Mr Myers and Mr Walker. 8. The Respondent submitted that Mr Wulff abused his position as CEO of the Ipswich City Council for personal gain and illegally received over $200,000 and other benefits with the understanding that he would use his position to influence the awarding of various contracts to Walker and Meyers. 9. The Court of Appeal in R v Wulff, R v Oxenbridge, R v Myers, R v Walker [2019] QCA 183 the Appeal Judges noted the following in their decision: [91] First, all of the considerations raised before this Court by Counsel on behalf of Wulff have to be seen in the overall context of the seriousness of the offending. This was not a low-level employee engaging in minor forms of official corruption. Wulff was the Chief Executive Officer of the Ipswich Council, and therefore at the pinnacle of the non-councillor officers employed by the Council. He was responsible for all others below him, and the honest and efficient management of the Council's affairs. He was centrally involved in the instigation of two corrupt schemes by reason of which he directly received more than $130,000 from the Myers scheme, and more than $100,000 in respect of the Walker scheme. Wulff was centrally engaged in the planning of relatively sophisticated steps to camouflage the truth of the arrangements and the fact of the payments. In all of those matters Wulff was, as the learned sentencing judge found, a willing and enthusiastic participant. [92] When the whole thing began to unravel because of the CCC's investigation, Wulff took steps to persuade others to join him in lying to the CCC about the arrangements and thereby thwart the investigation. He thus exhibited a propensity not only to lie himself, but to encourage others to lie on his behalf. His attempt to pervert the course of justice takes his offending beyond mere official corruption, and into a more serious category of offending. The corrupt arrangements were an egregious breach of trust insofar as the Council and its officers are concerned, but the attempt to pervert the course of justice strikes well beyond the Council, and at the heart of the legal system in place for the benefit of all members of the community. … [101] It is true to say, as Counsel for Wulff submitted, that such cooperation is beyond the ordinary level. However, inevitably such mitigating features are balanced against the objective seriousness of the offending, and the need for condign punishment. Here the offending was of such an egregious character that it called for the imposition of a substantial period of actual imprisonment: see paragraph [91] above. Given that Wulff was centrally involved in each of the corrupt arrangements designed to benefit himself, and solely the instigator of the attempt to pervert the course of justice, the task of demonstrating that 20 months' actual custody is manifestly excessive cannot, in my view, be achieved. … [103] Finally, even acknowledging that Wulff had undone the monetary aspect of offending, through the compensation proceedings, and had taken unusual steps in terms of his offer with the CCC, I am unable to accept the submission advanced on his behalf that he thereby "effectively undid the damage or potential damage done".[30] Official corruption of this kind damages the fabric of society in ways which are not directly salved by the repayment of the money and public expressions of regret. As was said in R v Gmeinder:[31] "Official corruption strikes at the health of society and unless strongly deterred has a ready capacity to spread. The honest administration of our system of government is a very important and fundamental matter that needs support from the Courts." [104] That passage was adopted recently by this Court in R v Mackay[32] and remains as sound today as it was when stated by Thomas JA. [105] When one adds into the offending conduct the fact that Wulff attempted to pervert the course of justice by persuading others to join him in lying to the CCC, and thus hiding his admittedly corrupt behaviour, the seriousness becomes such that it would be an affront to the community had the period required to be served in actual custody been significantly lower than that imposed. 1. Mr Wulff engaged in corrupt conduct when the initial offending occurred concerning Myers and Walker, and some years later when matters were being discovered and the mischief was being uncovered he was breached for attempting to pervert the course of justice. 2. On 20 December 2018 Mr Wulff pleaded guilty to the offence of Official Corruption x 2 and was sentenced on 15 February 2019 to four years and six months imprisonment with a minimum non-parole period of 20 months with a further good behaviour period of five years from the date of his release. 3. On 20 December 2018 Mr Wulf pleaded guilty to the offence of Attempting to Pervert the Course of Justice on 27 September 2017, whereby he was sentenced on 15 February 2019 to a six month sentence in effect to be served concurrently with the other term imposed for the other offence with a five year good behaviour period from prison release. 4. The Respondent submitted that because of these matters, namely the offending, the Tribunal cannot attest that Mr Wulff is of good repute. The consideration of whether a person is of good repute is to be considered and assessed objectively. In this regard the Tribunal stands in the shoes of the reasonable person examining the evidence and matters before the Tribunal and making a decision (as the evidence currently stands) concerning the person under consideration. 5. In respect of the character references tendered by Mr Wulff, the Respondent submitted that other than one reference from Forest Coaches all the references were over five years old. The authors do not record in their references any details as to the nature of the offending, only a general awareness. The Respondent submitted that in such a context it was possible that the referees may have understood that Mr Wulff was acquitted, rather than convicted and sentenced following a guilty plea. 6. The Respondent relied upon a number of authorities concerning good repute and fit and proper and noted from the case of Farquharson v Director General, Department of Transport [1999] NSWADT 53. 27. A taxi driver has a continuing responsibility to ensure that he is of "good repute" and a "fit and proper person". Clearly the laying of serious criminal charges bears on the reputation of an individual and may raise questions as to the person's character. The concepts of "good repute" and "fit and proper character" involve different considerations. The former concept goes to the way in which a person is regarded by others in the community (fairly or unfairly), while the latter concept goes to an individual's intrinsic characteristics, whether they are known to others or not: see, for a detailed discussion, Re T and Director of Youth & Community Services [1980] 1 NSWLR 392 (Waddell J). 1. Other cases going to the merits and meaning of the terms fit and proper (which are discussed below) were also relied upon by the Respondent. 2. In respect of Mr Wulff's traffic record the Respondent altered their position that his record indicated a 'moderate' history of non-compliance. After obtaining Queensland and Victorian traffic records by summons the Respondent noted that there were four offences in the period 1986-1998 in NSW, five offences in Victoria in the period 2001- 2011 and five offences in Queensland in the period 2014-2021. The respondent submitted that the history was now characterised as 'substantial non compliance' or something greater than moderate. Consideration 1. The main basis for the decision for review before the Tribunal, the notion of 'fit and proper' is often referred to in the lead case of Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 and the various ADT and Tribunal cases that have relied on Bond. The case of Bond provides the general principle that fitness and propriety are not to be narrowly construed or confined and can extend to any aspect of fitness and propriety that is relevant. At [63] Mason CJ stated: The question whether a person is fit and proper is one of a value judgement. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration. 1. In Hughes and Vale Pty Ltd v New South Wales (No 2) [1955] 93 CLR 127 Dixon CJ, McTiernan and Webb JJ stated that: "Fit' (or 'idoneus') with respect to an office is said to involve thee things, honesty, knowledge and ability: honesty to execute it truly, without malice affection or partiality, knowledge to know what he ought duly to do, and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it'. 1. In my view the evidence indicates that Mr Wulff fails on these criteria. His honesty is called into question. Whilst the offending behaviour occurred predominantly 10 or more years ago in more recent years his significant crime of attempting to pervert the course of justice arose. The actions in that regard in my view open up again the original offending. That is because the influence he placed on others to lie about their prior crimes and criminal enterprise was to avoid detection of those crimes, including lying under oath. This calls into question ongoing honesty and integrity. The more recent offending is clearly related to the prior offending. 2. As such, whilst a reasonable person might observe that the initial offending was in 2012 and 2013, there is evidence of more recent serious criminal acts, which were added to the substantive charges. 3. Mr Wulff's guilty pleas and remorse and positive actions to mitigate the impact of his crimes whilst positive, arise in a context where he had committed serious crimes, but then acted criminally to avoid prosecution once a possible prosecution became clear. It was only when those attempts failed that he admitted his criminality and acted positively and in the public interest by pleading guilty, assisting instigators and trying to make amends. 4. On a related note his written statement / submission shows a poor insight into the circumstances and impact of his offending. Whilst noting his ambition or desire to be 'self funded' and not a drain on the public purse in retirement, what must be remembered is that Mr Wulff's criminal actions cost the ratepayers of the City of Ipswich, and Queensland generally (in respect of the investigations and prosecution and incarceration), significant sums. His conduct did not benefit the residents and ratepayers of Ipswich. 5. On a final matter I note that Mr Wulff remains under the terms of his sentence, which at best will expire sometime next year. As I observed in the case of Stricke v Commissioner for Fair Trading [2017] NSWCATOD 100 such a situation calls into question the ability for a person to be adjudged as currently being of good repute and in all other aspects a fit and proper person. 6. In Stricke at [57] – [58] the Tribunal observed: 57. Much of my consideration has been outlined in my views about the applicability of the cases referred to above by both parties. On the applicant's own evidence all of his criminal activity in the first decade of the 20th Century was 'dishonest'. In my view licences under the PSBA Act require a high level of fitness and propriety which comes from honesty as a relevant consideration under the lead authorities referred to above. 58.It seems that as the applicant is still under the terms of his sentence, albeit with exemplary behaviour as demonstrated by his references and his own evidence, the protective and rehabilitative purpose aspects of the sentencing remain in force for approximately three more years. 1. In the current matter, whilst Mr Wulff is seeking a Bus Driver Authority rather than a licence predominantly focused on honesty such as the case in Stricke, the issue of being able to attest that he is of good repute, whilst still under conditions to not reoffend, and noting the extreme seriousness of his prior offending, weigh towards refusing the application. 2. Because of these matters, the seriousness of his offending and the fact that he is still under the terms of his sentence, I cannot attest that Mr Wulff is currently a fit and proper person or otherwise of good repute and I so find. 3. As the Legislation requires that I positively determine such matters in order for the Authority to issue, the consequence of my finding is that the decision must be affirmed. Conclusion 1. For the reasons set out above, the decision of the respondent will be affirmed. Orders 1. The decision of the Respondent 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 Amendments 30 November 2023 - Case name amended to 'Wulff v Transport for NSW' 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: 30 November 2023