Chandler v Ministry of Transport [2004] NSWADT 49

CITATION: Chandler v Ministry of Transport [2004] NSWADT 49 DIVISION: General Division APPLICANT PARTIES: Michael Chandler RESPONDENT Director General, Ministry of Transport FILE NUMBER: 033285 HEARING DATES: 27/11/2003 SUBMISSIONS CLOSED: 11/27/2003 DATE OF DECISION: 03/10/2004

BEFORE: Montgomery S - Judicial Member APPLICATION: Bus driver - cancellation of authority - Passenger Transport Act - bus driver - cancellation of authority MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Passenger Transport (Bus Services) Regulation 2000 Passenger Transport Act 1990 Archmor Investment Pty Ltd & Anor v Director General, Department of Transport [2002] NSWADT 209 CASES CITED: Re T and Anor and the Director of Youth and Community Services [1980] 1 NSWLR 392 Saadieh v Director-General, Department of Transport [1999] NSWADT 68 APPLICANT REPRESENTATION: In person RESPONDENT A Wozniak, solicitor ORDERS: The decision of the Director General of the Ministry of Transport to cancel Mr Chandler's Driver Authority CP8587 is affirmed.

Background 1 On 15 September 2003 Mr. Michael Chandler was notified of the decision by a delegate of the Director-General of the Ministry of Transport ("the Director-General") to cancel Mr. Chandler's Driver Authority Number CP8587, effective immediately. The reasons for this decision were set out in the statement of reasons attached to the Notice of cancellation ("the Notice"). 2 The delegate's reasons stated: "Facts, Evidence and Material The Director-General relies on the following facts, evidence and material to cancel the Bus Authority on issue to Mr Michael Noel Chandler: - breaches of the legislative and other standards required of accredited operators, including: (a) Falsifying certificates of accreditation. (b) Irregularities pertaining to Defect Notices. (c) Driver qualifications. (d) Non-compliance with vehicle maintenance program. (e) Deficiencies in relation to the Register of Drivers. - Transcripts of the proceedings from the Administrative Decision Tribunal decision of 23 October 2002 the Deputy President of the Tribunal stated " ...I find that Mr Chandler did threaten to sue Mr Gibson in the course of a telephone conversation on 9 October 2002. That threat was made in circumstances where Mr Chandler knew that Mr Gibson would be giving evidence in these proceedings. Threatening a witness in this way is totally unacceptable". - Transcripts of the proceedings from the Administrative Decision Tribunal decision of 23 October 2002 the Deputy President of the Tribunal stated " ... there is sufficient evidence to satisfy me that neither Mr Somerville, nor any of his employees, completed the defect notice in question. I find that Mr Shearer, Mr Chandler or someone under their direction completed the defect notices". - Transcripts of the proceedings from the Administrative Decision Tribunal decision of 23 October 2002 the Deputy President of the Tribunal stated "...I am satisfied that Mr Chandler was carrying out work as a mechanic when he does not have the necessary qualifications to do so". - Mr Michael Chandler authorised the operation of a public passenger service to convey fare paying passengers on 16 October 2002 whilst not holding the appropriate accreditation. - The Passenger Transport Act, 1990 states that you must have "sufficient responsibility ... to drive the vehicle ... in accordance with the conditions under which a public passenger service is operated". It is also of concern that you have displayed a lack of responsibility by authorising an operation of a public passenger service to convey fare paying passengers on 16 October 2002 whilst not holding the appropriate accreditation. This history of breaching the Passenger Transport Act 1990, in this instance Part 2, Section 7 may led the general public to have concerns that you would not meet the standards of "... sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates: in accordance with the conditions under which a public passenger service is operated; and in accordance with law and custom". - The findings of the Administrative Decisions Tribunal on 23 October 2002 in relation to you "carrying out work as a mechanic when he does not have the necessary qualifications to do so" and the finding that "... Mr Chandler or someone under their direction completed defect notices" in a manner inconsistent with the requirements of the Passenger Transport Act and the standards of Operator Accreditation may also lead the general public to have concerns that you may not have the "... responsibility and aptitude to drive the vehicle or vehicles to which the authority relates: in accordance with the conditions under which a public passenger service is operated; and in accordance with law and custom". The general public may form the view that this behaviour demonstrated by yourself could be perceived as a disregard for the expectation of the community for safe, reliable and efficient passenger transport services. The reasoning process that led to the decision The Ministry of Transport has a continuing obligation under the Passenger Transport Act, 1990 to ensure only fit and proper persons drive public passenger vehicles. Under Section 11 (2) (a) the Passenger Transport Act, 1990 states that the authorised person is to be considered of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle. (b) the Passenger Transport Act, 1990 states that the authorised person is to have sufficient responsibility and aptitude to drive the vehicle: (i) in accordance with the conditions under which a public passenger service is operated. (ii) In accordance with law and custom. I have considered: (a) The nature, seriousness and frequency of your proven offence record, and your complaint record; (b) The likelihood that you will again commit non-traffic offences, or be the subject of further complaints. I have concerns that the Ministry of Transport may not be able to attest that you would be considered of "good repute" and in "all other respects a fit and proper person" due to your proven history of actions pertaining to the delivery of public passenger services. When taking into consideration the likely hood of you re-offending or the likely hood of further complaints I have serious concerns that you have already displayed a clear history of repeated behaviour which may has cast doubt in the minds if the travelling public in relation to your "good repute". - I have concerns that the travelling public may draw conclusions or form perceptions regarding your "good repute" if they were aware of your history. These concerns have been founded based on your demonstrated behaviour. Specifically in light of the findings of the Deputy President of the Tribunal on 23 October 2002 which stated that "... that Mr Chandler did threaten to sue Mr Gibson in the course of a telephone conversation on 9 October 2002. That threat was made in circumstances where Mr Chandler knew that Mr Gibson would be giving evidence in these proceedings. Threatening a witness in this way is totally unacceptable". The action of threatening an individual could be perceived by the general community as a serious offence especially given the circumstances as noted by the Deputy President". 3 Mr Chandler held Driver Authority Number CP8587 under the Passenger Transport Act 1990 ("the Act"). This Driver Authority permitted Mr Chandler to drive a public passenger vehicle. Mr Chandler had previously held Tourist Operator Accreditation 7850. As noted above, the Director-General asserted that Accreditation 7850 was "cancelled based on various breaches of the legislative and other standards required of accredited operators". Mr Chandler asserts that in fact that accreditation was surrendered and not cancelled. The Director General's Case 4 The Director General relied on several volumes of files from the Ministry but primarily on the record of Mr Chandler's convictions and findings made by the Deputy President of this Tribunal in the matter of Archmor Investment Pty Ltd & Anor v Director General, Department of Transport [2002] NSWADT 209. It is common ground that Mr Chandler appeared in the Queanbeyan Local Court on 14 August 2003 in relation to numerous charges of breaching the Act in his own right and as a director of Changa's Enterprises Pty Limited ("the Company"). The charges brought against the Company alleged that on various specified dates during October 2002 and November 2002 Changa's Enterprises Pty Limited t/as Alpine Pacific Coaches: "in the State of New South Wales, did carry on a public passenger service by means of a bus or other motor vehicle being a service which operated within or partly within New South Wales without being an accredited service operator for that service." 5 The charges brought against Mr Chandler alleged that on the various specified dates he: "being a Director of Changa's Enterprises Pty Limited, did knowingly authorise or permit the said Changa's Enterprises Pty Limited to contravene a provision of the Passenger Transport Act 1990, namely that the said company did carry on a public passenger service by means of a bus or other motor vehicle being a service which operated within or partly within New South Wales without being an accredited service operator for that service." 6 Convictions were recorded in relation to each of these charges and penalties were imposed. 7 Mr Wozniak, for the Director General, argued that it is significant that these convictions relate to serious breaches of the Act. Mr Chandler concedes the convictions though he disputes the amount of the penalty imposed. Mr Chandler has not lodged an appeal against the Court's decision. 8 Mr Wozniak also referred to comments made by the Deputy President of this Tribunal in Archmor where she stated at paragraphs 76 and 77: "76 One matter which came to light during the course of the hearing was evidence from Mr Gibson that Mr Chandler had telephoned him on 9 October 2002 to say that after the case is over he was going to sue Mr Gibson and take away his house. When questioned by Mr Shearer, Mr Gibson agreed that this comment was made in the context of Mr Chandler reminding Mr Gibson of a confidentiality agreement in his contract of employment. Mr Gibson said that he prepared the statement for the Tribunal in accordance with a notice issued by the Department of Transport. 77 Mr Chandler did not give evidence about what was said during this phone call. Although it is not directly relevant to the matters under consideration in these proceedings, I find that Mr Chandler did threaten to sue Mr Gibson in the course of a telephone conversation on 9 October 2002. That threat was made in circumstances where Mr Chandler knew that Mr Gibson would be giving evidence in these proceedings. Threatening a witness in this way is totally unacceptable." 9 The transcript from the proceedings in Archmor was put in evidence and Mr Wozniak referred to various comments by the Deputy President relating to Mr Chandler's conduct and her finding that Mr Chandler was carrying out work as a mechanic when he does not have the necessary qualifications to do so. 10 Mr Wozniak submits that the Deputy President's comments are of significance in this matter as they relate to the issue of whether he is of good repute. Similarly the convictions recorded by the Queanbeyan Local Court also relate to the issue of whether Mr Chandler is of good repute. 11 Mr Wozniak also asked the Tribunal to draw a negative inference from the fact that Mr Chandler has failed to return the authority that is the subject of these proceedings. The Notice issued to Mr Chandler included the addresses of various office of the Ministry and stated: "The relevant regulation states that the holder of an authority who has received notice of cancellation is to immediately deliver the authority to the Director-General at the relevant office listed below". 12 In support of this submission Mr Wozniak referred to the Re T and Anor and the Director of Youth and Community Services [1980] 1 NSWLR 392 in which Waddell J stated at page 393: "a person's reputation is to be found in the estimate of his moral character entertained by some specific group of people, such as by those who live in the neighbourhood of his residence, those who work with him, or those with whom he associates in his occupation or profession. The importance of a person's reputation is that it is an estimate of his character, or some aspect of his character, upon which the persons in such a group are generally, although not necessarily unanimously, agreed. It is this essential nature of reputation which makes it a reliable guide to a person's character". 13 Mr Wozniak submitted that the Tribunal must examine the seriousness of the alleged conduct, the circumstances in which the conduct took place and any other relevant circumstance. In this case, Mr Wozniak submitted that Mr Chandler's convictions are serious, and are of particular seriousness as they relate to activities that are directly regulated by the Act. This situation is compounded by the fact that these offences followed the cancellation (or, on Mr Chandler's version, the surrender) of the Tourist Operator Accreditation number 7850. 14 Mr Wozniak submitted that the Tribunal's role is to decide if Mr Chandler is of good repute and a fit and proper person to hold the authority. Any other issues raised by Mr Chandler therefore have no relevance to these proceedings. He argues that there is evidence that Mr Chandler is not a fit and proper person or of good repute but that there is no evidence that he is of good repute. It was on these grounds that Mr Wozniak argued that the Director General's decision was the correct and preferable decision. Mr Chandler's Case 15 Mr Chandler conceded the convictions as alleged by the Director General however he asserts that these convictions relate to minor issues. He disputes the Director General's assertion that Accreditation number 7850 was cancelled. He stated that he surrendered it in November 2002 whereas the cancellation was not issued until December 2002. 16 He submitted that the comments by the Deputy President in the matter of Archmor should be disregarded as he was not a party to that matter and therefore was not in a position to represent himself and contradict the evidence given by Mr Gibson. He concedes that he did ring Mr Gibson as alleged but he said that when he did so he was not aware that Mr Gibson was a witness in the case. 17 Mr Chandler also submitted that no weight should be given to the Director General's assertions that he has a history of breaching the Act or that there is a likelihood of future conduct in breach of the Act or of future complaints against him. He said that he was never notified of any complaints against him. He also argued that it is incorrect to assert that the general public might draw conclusions or form perceptions about Mr Chandler reputation because the general pubic would not know of his history. 18 With respect to his failure to return the authority that is the subject of these proceedings after he received the Notice of Cancellation, Mr Chandler stated that there was no clear indication in the Notice as to where the authority was to be returned. He argued that he will return the authority when advised where he should send it and therefore no negative inference should be drawn from his failure to return it. 19 Mr Chandler argued that cancellation should be considered in the light of the seriousness of the offence. He submitted that there are many cases involving other authority holders where the Director General has taken no action. The Director General has wrongly singled him out for action and the cancellation should therefore be set aside. 20 Mr Chandler argued that in any event the Director General has no power to cancel his authority because of the operation of clause 56 of the Passenger Transport (Bus Services) Regulation 2000 ("the Regulation"). The essence of this argument is that a person who holds a licence, permit or other authority that allows the person to drive a public bus in some other State or Territory does not have to hold an authority under the Act in order to drive such a bus in New South Wales. Mr Chandler stated that he holds an ACT authority and therefore does not need to hold a NSW authority. As the Director General has no power to cancel his authority it should be reinstated. Findings 21 The Tribuna1's jurisdiction derives from section 52(1) of the Act and section 38 of the Administrative Decisions Tribunal Act 1997. The Director General's power to cancel an authority is pursuant to section 14 of the Act which provides: "Variation, suspension or cancellation of authority 14. Having regard to the purpose of an authority, the Director-General may at any time vary, suspend or cancel any person's authority." 22 The Director General's case is based on the provisions of section 11 of the Act. In contrast, Mr Chandler argued that section 11 does not apply because of the provision of clause 56 of the Regulation. Section 11(2) of the Act 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." 23 Clause 56 of the Regulation. Section 11(2) of the Act provides: " 56 Interstate bus drivers: exemption from section 11 (1) A person who holds a licence, permit or other authority: (a) that allows the person to drive a public bus (that is, a bus that is used to provide a public passenger service) in some other State or Territory, and (b) that is recognised by the Department of Transport for the purposes of this clause, is exempt from the provisions of section 11 (1) of the Act, and so does not have to hold an authority under Division 2 of Part 2 of the Act in order to drive such a bus in New South Wales. (2) This exemption does not apply in relation to journeys that take place wholly within New South Wales." 24 I have considered Mr Chandler's submissions in regard to the effect of clause 56. While I accept that this clause may in fact have the consequence of relieving an individual who holds a recognised interstate authority from the need to hold a NSW authority, I do not agree that the clause has any application to this matter. This matter is a review of a decision to cancel an authority. My role is to determine whether that is the correct and preferable decision based on the material before me. Whether or not the holder of an ACT authority is required to hold a NSW authority in order to drive a bus in NSW is not an issue in this matter. In my view, there is no need to give any further consideration to that argument. 25 In my view, section 11 of the Act applies to this matter because Mr Chandler in fact held an authority and the Director General made a decision purporting to cancel that authority. I agree with Mr Wozniak's submission that the Tribunal's role is to decide if Mr Chandler is of good repute and a fit and proper person to hold the authority. The Director-General's delegate formed the view that Mr. Chandler is not of such repute and propriety. 26 An administrator, in this case the Director General's delegate, has a wide discretion to cancel an authority but the decision must be made in the context of the responsibilities and community expectations of drivers. The issue in this case is whether, in the light of Mr Chandler's convictions; the other evidence relating to his conduct; and the responsibilities and expectations of an authorised driver, Mr Chandler is nevertheless a "of good repute and in all other respects a fit and proper person to drive a public passenger vehicle". 27 The Tribunal must decide whether the Director General's delegate made the correct and preferable decision having regard to any relevant factual material and any written or unwritten law. In determining an application the Tribunal may affirm, vary or set aside the decision: section 63 Administrative Decisions Tribunal Act 1997). 28 In this application, I have considered all of the evidence and the oral argument presented before the Tribunal. In particular I have had regard to the following issues: - the documentary evidence before the Tribunal; - Mr. Chandler's record of convictions and his admissions in relation to the convictions; - Mr. Chandler's evidence and submissions; and - Mr. Wozniak's submissions. 29 Pursuant to section 11(2) of the Act, an authority would attest that Mr. Chandler is to be considered: - to be of good repute (section 11(2)(a)) - to be in all other respects a fit and proper person to be the driver of a public passenger vehicle (section 11(2)(a)), - to have sufficient responsibility to drive a public passenger vehicle in accordance with the conditions under which a public passenger service is operated (section 11(2)(b)(i)), - to have sufficient responsibility to drive a public passenger vehicle in accordance with law and custom (section 11(2)(b)(ii)), - to have sufficient aptitude to drive a public passenger vehicle in accordance with the conditions under which a public passenger service is operated (section 11(2)(b)(i)), and - to have sufficient aptitude to drive a public passenger vehicle in accordance with law and custom (section 11(2)(b)(ii)). 30 If an applicant for an authority is of good repute then it must also be found that "in all other respects", that is, in all respects other than their reputation, the applicant is a fit and proper person to be the driver of a public passenger vehicle before an authority is issued. Whether a person is of good repute is an issue related to but different from whether a person is fit and proper for a particular purpose. Being considered to be of good repute is a threshold status in section 11(2). If a person is not of good repute there is no need to consider whether they are a fit and proper person to be the driver of a public passenger vehicle. 31 Mr. Chandler does not fail to be of good repute simply because of convictions. In Saadieh v Director-General, Department of Transport [1999] NSWADT 68 the Deputy President of this Tribunal made clear at paragraphs 14 and 15 that an assessment of repute is a matter for the Tribunal, weighing all the evidence. All the circumstances of the case must be taken into account in assessing a person's suitability to retain an authority. 32 Repute is what others think. A person's reputation, in fact and in law, is to be found in the estimate of his moral character entertained by some specific group of people, such as those who live in the neighbourhood of his residence, those who work with him or those with whom he associates in his occupation or profession: Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 per Waddell J at page 393. 33 Whether a person's history is known in the community will be a factor in assessing what weight to give to the evidence of repute. A positive estimation in spite of knowledge of a blemished history would ordinarily weigh in favour of the person. 34 I agree with Mr. Chandler's argument that for the purposes of these proceedings the comments by the Deputy President in the matter of Archmor should be disregarded. While I note Mr Wozniak's submission that Mr. Chandler was present during those proceedings and could have had the evidence given by Mr Gibson challenged, the fact remains that Mr. Chandler was not a party to that matter and therefore those findings against him must be considered to fall within a different category to findings that follow an exhaustive examination of facts in issue. 35 With respect to Mr. Chandler's assertion that he was not notified of complaints against him, I note that the Ministry's files indicate a history of warnings and suspensions. I therefore consider that Mr. Chandler must have been aware of the concerns held within the Ministry and that he was given reasonable opportunity to address those concerns. 36 The Department has identified convictions but it is open to Mr. Chandler to show that in spite of that history he enjoys a good reputation. Mr. Chandler gave some evidence as to his reputation however his reputation is best established by evidence of others, and by inferences from positions he might hold in the community. There is no evidence before me that gives any indication of how he is regarded by others. 37 In my view, Mr. Chandler does not satisfy the first limb of section 11(2)(a) of the Act. On the evidence before me I am not satisfied that Mr. Chandler is of good repute. Given these findings it is not necessary to consider whether Mr Chandler is of fit and proper character to hold a driver's authority. Nevertheless, out of abundance of caution, I find that he is not of such character. 38 In Saadieh the Tribunal's Deputy President set out a number of factors, based on the terms of the legislation and the case law interpreting similar provisions, that need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. These factors are equally applicable to the consideration of a person's fitness to hold a driver authority. These factors were: - the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted; the nature, seriousness and frequency of any complaints made against the applicant; - the applicant's driving record; - the applicant's reputation in the community; and - the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences. 39 The Deputy President also noted in that case that in assessing the last factor, several considerations are relevant. These include: the length of time since the offence/s were committed or the complaint/s made; the circumstances in which those offences or complaints occurred or are alleged to have occurred; whether the applicant admits responsibility for the offences or complaints and shows genuine remorse; the efforts the applicant has made to rehabilitate himself or herself during that time; and any change in the applicant's circumstances such as increased support from friends, family or professional service providers. 40 I agree with Mr Wozniak's submission that the offences for which Mr. Chandler has been convicted are serious offences. The seriousness with which the Court regarded these offences is reflected in the fact that it imposed fines totalling some $26,000. The offences occurred in activities that are directly regulated by the Act and in defiance of the obligations imposed by the Act. There is no evidence of any genuine remorse on Mr. Chandler's part. 41 I also note that very little time has passed since Mr Chandler's convictions were recorded. Applying the Saadieh test to Mr Chandler's situation, it is my view that it is too soon to yet be confident that Mr. Chandler is unlikely to re-offend or be the subject of further complaints. 42 Accordingly, I am satisfied that the Director General's decision is the correct and preferable one. ORDERS The decision of the Director General of the Ministry of Transport to cancel Mr Chandler's Driver Authority CP8587 is affirmed.