CITATION: Afchal -v- General Manager, Tow Truck Authority of NSW [2001] NSWADT 223 DIVISION: General Division APPLICANT PARTIES: Jihad Afchal RESPONDENT General Manager, Tow Truck Authority of NSW FILE NUMBER: 013289 HEARING DATES: 14/12/2001 SUBMISSIONS CLOSED: 12/14/2001 DATE OF DECISION: 12/31/2001 BEFORE: Hennessy N (Deputy President) APPLICATION: Tow Truck Industry Act - tow truck operator or driver - grant of licence or certificate - Tow Truck operator or driver - grant of licence or certificate MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Tow Truck Industry Act 1989 Tow Truck Industry Regulation 1999 CASES CITED: APPLICANT REPRESENTATION: In person RESPONDENT P Ranken, solicitor ORDERS: The decision of the respondent to refuse to issue the applicant with a tow truck driver's certificate is affirmed. Introduction 1 At the directions hearing in this matter on 14 December 2001, the parties agreed that the matter should be decided "on the papers" pursuant to s 76 of the Administrative Decisions Tribunal Act 1997 (ADT Act). The issue for determination is whether the respondent has made the "correct and preferable" decision in refusing Mr Afchal's application for a driver's certificate under the Tow Truck Industry Act 1998 (TTI Act). 2 Under s 26(1) of the TTI Act, the Tow Truck Authority must refuse to grant an application for a driver's certificate on mandatory grounds. Some of those grounds are listed in s 26(1). Other grounds are listed in the Tow Truck Industry Regulation 1999 (the Regulation). Clause 17(b) of the Regulation provides the an additional mandatory ground that: (b) the applicant has, within the period of 3 years before the application for the driver certificate was made, been disqualified from holding a driver licence. 3 The Tribunal has jurisdiction to hear this application under s 45(1) of the TTI Act. Facts 4 Mr Afchal agreed that he was disqualified from holding a driver licence for the period from 24 September 1997 to 14 September 2000. Mr Afchal said that when he originally applied for a tow truck certificate, it was granted. He then bought an $80,000 tilt tray. When it was time to renew his certificate the Tow Truck Authority refused his application. He would like a driver certificate so that he can continue to do the work that he was previously doing. Decision 5 The date on which Mr Afchal applied for a certificate is not apparent from the papers. However, regardless of the date of the application, Mr Afchal will not be eligible to apply for a driver certificate until 24 September 2003. On that date he will not have been disqualified within the period of 3 years before the application. It appears that Mr Afchal's confusion may have arisen from the fact that the legislation has changed and while he may have previously been eligible for a driver certificate the legislation now prevents a certificate from being issued. Neither the Tow Truck Authority, nor the Tribunal has any option but to refuse the certificate given the mandatory grounds in the legislation. 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.