Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Karamanli v Secretary of the Department of Customer Service [2024] NSWCATOD 135 Hearing dates: 23 July 2024 Date of orders: 29 August 2024 Decision date: 29 August 2024 Jurisdiction: Occupational Division Before: K Robinson, Senior Member Decision: (1) The decision under review is set aside. (2) The applicant is to be granted a certificate under s 27 of the Tow Truck Industry Act 1998 subject to a condition that the applicant not commit any traffic offence for a period of 24 months from the date of issue of the certificate. Catchwords: Administrative Law – administrative review – tow truck licence – public interest – driving record - condition Legislation Cited: Administrative Decisions Review Act 1997 Tow Truck Industry Act 1998 Tow Truck Industry Regulation 2020 Cases Cited: Aouli v Commissioner for Fair Trading [2022] NSWCATOD 194 Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Constantin v Commissioner of Police [2013] NSWADTAP 16 Director-General Ministry of Transport v FV (GD) [2008] NSWADTAP 60 Ned Kelly Transport Pty Ltd v Commissioner for Fair Trading [2024] NSWCATAD 85 Shi v Migration Agents Registration Authority [2008] HCA 31 Shuttleworth v Tow Truck Authority of NSW [2006] NSWADT 301 YG and GG v Minister for Community Services [2002] NSWCA 247 Texts Cited: None cited Category: Principal judgment Parties: Koray Karamanli (Applicant) Secretary of the Department of Customer Service (Respondent) Representation: Abbas Jacobs Lawyers (Applicant) Department of Customer Service (Respondent) File Number(s): 2024/00146625 Publication restriction: Nil REASONS FOR DECISION Introduction 1. Koray Karamanli applied for a tow truck driver certificate under the Tow Truck Industry Act 1998 (TTI Act). 2. The Secretary for the Department of Customer Service (the Respondent) refused the application because the Respondent was not satisfied it was in the public interest for Mr Karamanli to be granted a certificate on the basis of his traffic record. 3. The Respondent made the decision on 21 March 2024. The Respondent conducted an internal review of the decision at the request of Mr Karamanli and on 9 April 2024 the Respondent affirmed their decision. 4. Mr Karamanli seeks review of the decision to refuse him a tow truck driver certificate. Material before the Tribunal 1. The application for review attaching the reasons of the internal review was before the Tribunal. Mr Karamanli also provided two written submissions, an affidavit, a certificate of completion for a Traffic Offender Intervention Program and a number of letters of reference. He gave oral evidence and was cross examined at the hearing. 2. The Respondent provided a bundle of documents filed under s 58 of the Administrative Decisions Review Act 1997 (the ADR Act) and written submissions. 3. Both parties made oral submissions at the hearing. Role of the Tribunal Jurisdiction 1. The Tribunal has jurisdiction to review an administratively reviewable decision: s 55 of the ADR Act. Section 45 of the TTI Act provides that applications may be made to the Tribunal for administrative review under the ADR Act of decisions to refuse a certificate under the TTI Act. I am satisfied the Tribunal has jurisdiction to hear and determine this application for review. Administrative Review 1. When considering an application for review the Tribunal is to decide what is the correct and preferable decision having regard to the material before it (s 63(1) of the ADR Act). In doing so the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision (s 63(2) of the ADR Act). 2. The time at which the correct and preferable decision is determined is when Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25]. In conducting a review the Tribunal is not restricted to consideration of the material that was before the Respondent but may have regard to any relevant material before the Tribunal at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31. 3. The Tribunal may decide to affirm or vary the administratively reviewable decision, or set it aside and either substitute a different decision or remit the matter to the administrator for reconsideration: see s 63(3) of the ADR Act. Naming issue 1. Following the hearing the Tribunal issued directions seeking to identify the proper name of the Respondent because the application for review had identified the Secretary of the Department of Customer Service as the respondent which was not consistent with the listed party name nor the material provided by the Respondent. On 1 August 2024 the Respondent submitted in writing that the proper name of the Respondent was "Commissioner for Fair Trading". The Tribunal conducted a directions hearing on 23 August 2024 and made a direction requiring the Respondent to provide evidence in support of their contention the proper name of the Respondent was "Commissioner for Fair Trading". On 26 August 2024 the Respondent submitted in writing that the proper name of the Respondent was "Secretary of the Department of Customer Service". 2. Section 3 of the TTI Act defines Secretary to mean "the Secretary of the Department" and Department to mean "the Department of Customer Service". The Tribunal is satisfied the proper name of the Respondent is "Secretary of the Department of Customer Service" in this review. Applicant's case 1. Mr Karamanli contends he should be granted a tow truck driver certificate because he is remorseful for his past driving behaviour, has taken steps to address his past behaviour and is otherwise of good character. Respondent's case 1. The Respondent contends it would be contrary to the public interest for Mr Karamanli to be granted a tow truck driver certificate on discretionary grounds because of his poor driving record. Legislation 1. Under the TTI Act a person must hold a certificate to drive, use, or operate a licensed tow truck (s 23). A certificate to drive a tow truck may be granted under s 27 of the TTI Act and may be subject to conditions (s 29(1)). 2. Section 26 of the TTI Act relevantly provides: 26 Restrictions on granting drivers certificate (1) The Secretary— (a) must refuse to grant an application for a drivers certificate on mandatory grounds, and (b) may refuse to grant an application for a drivers certificate on discretionary grounds. … (3) The discretionary grounds for refusing to grant an application for a drivers certificate are as follows— (a) that the applicant is not, in the opinion of the Secretary, a fit and proper person to hold a drivers certificate or is otherwise not competent to carry on the kind of towing work to which the proposed drivers certificate relates, … (d) that the granting of the drivers certificate would, in the opinion of the Secretary, be contrary to the public interest. … (4) The regulations may provide additional mandatory or discretionary grounds for refusing the granting of an application for, or renewal or restoration of, a drivers certificate. 1. Clause 14 of the Tow Truck Industry Regulation 2020 (the Regulation) relevantly provides: 14 Discretionary grounds for refusing drivers certificate application (1) For the purposes of section 26(4) of the Act, the grounds on which the Secretary may refuse an application for, or renewal or restoration of, a drivers certificate include any case in which the following have occurred on more than one occasion during the period of 3 years immediately before the application was made— (a) the applicant has been disqualified from holding a driver licence, (b) the applicant's driver licence has been suspended or cancelled (other than for fine default under the Fines Act 1996 or in relation to illness, incapacity or a medical condition under clause 65(1)(b) or (7) of the Road Transport (Driver Licensing) Regulation 2017). (2) For the purposes of subclause (1), it does not matter that any of the periods of disqualification, suspension or cancellation occurred during only part of the 3-year period. …. Consideration Applicant's history 1. Mr Karamanli was granted a learner's driver licence in September 2015, a provisional P1 licence in August 2017, a provisional P2 licence in November 2018 and an unrestricted licence in April 2022. He was granted a learner's motorbike licence in June 2016, a provisional P1 motorbike licence in October 2016, a provisional P2 motorbike licence in January 2018 and an unrestricted motorbike licence in January 2021. 2. Mr Karamanli has a number of offences on his driving record. He was fined for negligent driving and for failing to comply with his learner's licence conditions in 2016. His licence was suspended for three months in 2017 as a result of those offences. In January 2020 he was fined and received demerit points for speeding and for failing to comply with his licence conditions while he held a P2 licence in October 2019 and for failing to make a lawful U turn in February 2020. His P2 licence was suspended for a further three months in 2020 as a result of those offences. 3. In 2021 Mr Karamanli was fined and received demerit points for a negligent driving offence committed in December 2020. He was issued a courtesy letter in March 2020 to warn him he was approaching the limit for demerit points. He subsequently committed a speeding offence (between 20-30km over the limit) in May 2021. He challenged the three month licence suspension imposed as a result of those two offences and the Wollongong Local Court reduced the licence suspension to six weeks between 17 September to 28 October 2021. 4. On 11 November 2022 Mr Karamanli performed a burnout at industrial premises close to his work and his licences were immediately suspended by the NSW Police for six months. In May 2023 the Wollongong Local Court imposed a seven month disqualification period backdated to the date of the offence and a fine. His licences were restored in June 2023 and he has committed no further driving offences since then. 5. Mr Karamanli successfully completed a Road Sense Australia Traffic Offender Intervention Program in May 2023. His evidence was this course had taught him the consequences of dangerous driving had a much boarder effect than to himself. 6. Mr Karamanli works as a qualified mechanic in his father's business. He started work as a 15 year old and has worked for nine years. His intention is to conduct a tow truck driving business. To that end he sought and was granted a Heavy Vehicle (Class HR – Heavy Rigid) licence which permits him to drive vehicles such as B double trucks and has invested in a tow truck. 7. Mr Karamanli acknowledges his driving history is poor and is something for which he holds remorse. He has actively pursued positive changes in his life, has maintained a clean driving record since completing the course and is committed to driving safely. The Respondent did not directly challenge Mr Karamanli's evidence, including his ownership of his past behaviour or his commitment to change. 8. A number of letters from referees were provided to the Tribunal but most do not demonstrate the referees are aware of the full context of the Mr Karamanli's relevant circumstances, for example they do not reference his poor traffic record. The two letters that do provide some acknowledgement of past mistakes and an offence are both from his father, one on behalf of the Gary's Mechanical business and one in a personal capacity. In those circumstances the references are of little assistance to the Tribunal in this review and will be given low weight: see Director-General Ministry of Transport v FV (GD) [2008] NSWADTAP 60 at [40]. Public interest 1. The term public interest is not defined in the TTI Act but is a term that has been considered often in this Tribunal and more broadly by courts. In Constantin v Commissioner of Police [2013] NSWADTAP 16 the Appeal Panel stated (at [33]): The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system. 1. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 the Appeal Panel stated (at [25]): The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal. 1. Further, in Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 the Court stated (at p 681): The purpose of the reference to "public interest" is to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the Commission's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual. 1. In Aouli v Commissioner for Fair Trading [2022] NSWCATOD 194 (Aouli) the Tribunal stated (at [26]): The legislative regime is not about punishment but rather about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with the need to reduce any risks to a minimum. 1. Mr Karamanli referred the Tribunal to a number of decisions of the Tribunal including Ned Kelly Transport Pty Ltd v Commissioner for Fair Trading [2024] NSWCATAD 85 which involved a tow truck operator licence and Shuttleworth v Tow Truck Authority of NSW [2006] NSWADT 301 which involved issues of fitness and propriety. I do not consider those cases to be analogous the facts in this review. Should the Applicant be granted a certificate? 1. The matter of Mr Karamanli's fitness and propriety to hold a certificate was not at issue in this review: see [5.1] and [4.4] of exhibit R2. 2. On the material before the Tribunal, I am satisfied the discretionary grounds for refusal under cl 14(1) of the Regulation apply to this matter because Mr Karamanli's driver licence has been both suspended and disqualified within the relevant three year period. 3. Further, while cl 14(1) of the Regulation specifies a three year period where licence disqualification, suspension or cancellation occur as a distinct discretionary ground for refusal, it was agreed, and I accept, the Tribunal can look to the entirety of the driving history in considering the public interest under s 26(s)(d) of the TTI Act in this review. 4. I accept Mr Karamanli has a poor driving record such that it is potentially not in the public interest for him to be granted a certificate. However, on the material before the Tribunal, taking into account his commitment to change and the positive steps taken to address his poor driving record as well as his clean record over the past 12 months since his licences were restored, I am satisfied the correct and preferable decision is not to refuse the grant of a certificate. 5. The Respondent submitted that in the event I were to determine the correct and preferable decision is not to refuse the grant of a certificate in this review, a certificate should be issued subject to a condition that Mr Karamanli not commit any traffic offences for a period of 24 months from the date of issue of a certificate. 6. I am satisfied, on the material before the Tribunal and considering the observations in Aouli discussed at [30] above, that the public interest, particularly public protection, will be appropriately safeguarded by granting a certificate under s 27 of the TTI Act subject to a condition, as permitted by s 29(1) of the TTI Act, that Mr Karamanli not commit any traffic offence for a period of 24 months from the date of issue of the certificate. 7. Therefore the correct and preferable decision is to set aside the decision to refuse to grant a certificate and instead substitute a decision that a certificate be granted subject to a condition. Orders 1. The decision under review is set aside. 2. The applicant is to be granted a certificate under s 27 of the Tow Truck Industry Act 1998 subject to a condition that the applicant not commit any traffic offence for a period of 24 months from the date of issue of the certificate. ********** 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: 29 August 2024