Sleiman v Tow Truck Authority of New South Wales [2004] NSWADT 270

CITATION: Sleiman v Tow Truck Authority of New South Wales [2004] NSWADT 270 DIVISION: General Division APPLICANT PARTIES: Fadi Sleiman RESPONDENT Tow Truck Authority of New South Wales FILE NUMBER: 043336 HEARING DATES: 11/11/2004 SUBMISSIONS CLOSED: 11/11/2004 DATE OF DECISION: 11/25/2004

BEFORE: Hennessy N - Magistrate (Deputy President) APPLICATION: Tow Truck Industry Act - tow truck operator or driver - suspension or revocation of licence or certificate - Tow Truck operator or driver - suspension or revocation of licence or certificate MATTER FOR DECISION: Principal matter LEGISLATION CITED : Tow Truck Industry Act 1998 Commissioner for Motor Transport v Darcy Francis Leo, NSW Supreme Court (McInerney J) CASES CITED: Farquarson v Director General, Department of Transport [1999] NSW ADT 53 Musgrave v Director General, Ministry of Transport [2004] NSWADT 141 Williamson v Director General, Department of Transport [2001] NSWADT 3 APPLICANT REPRESENTATION: G Black, Senior counsel RESPONDENT D Jordan, counsel ORDERS: The decision of the Tow Truck Authority to suspend Mr Sleiman's driver's certificate until its expiry on 1 August 2005 is varied. The new decision is that Mr Sleiman's tow truck driver's certificate is suspended until the charge of conspire to defraud is dealt with or withdrawn or his current certificate expires, whichever happens first.

REASONS FOR DECISION Introduction 1 Mr Sleiman is employed by Kalache's Investments Pty Ltd as a tow truck driver. He has been driving tow trucks for about 11 years. On 8 October 2004 the Tow Truck Authority suspended his driver's certificate on the basis that he had been charged with conspiracy to defraud the National Australia Bank of $316,000. The Tow Truck Authority nominated several legal bases for suspending Mr Sleiman's certificate including that he had been charged with an indictable offence and that he is no longer a fit and proper person to hold a driver's certificate. According to the Authority, apart from the criminal charge, another matter which reflects adversely on Mr Sleiman's fitness is that he said in his application for a tow truck driver's certificate that he had never used a different name or identity. In fact Mr Sleiman had changed his name to Freddie Lee-Man three months before completing the application form. 2 On 15 October 2004 the Tribunal granted a stay of the suspension decision pending an urgent hearing. The hearing took place on 11 November 2004. The issue is whether the Authority made the "correct and preferable" decision in suspending Mr Sleiman's driver's certificate until its expiry on 1 August 2005, on the ground that: - he has been charged with an indictable offence : Tow Truck Industry Act 1998 s 42(b) - he is no longer a fit and proper person to hold drivers certificate: Tow Truck Industry Act 1998 s 42(f); or - the Authority would not have granted him a licence if he re-applied either because he is not a fit and proper person to hold a licence or because it is not in the public interest for him to do so: Tow Truck Industry Act 1998 s 42(a) and s 26(3)(a) & (d). 3 As well as asking whether the Authority's decision to suspend was the correct decision, a further issue is whether the Authority made the correct decision in suspending the certificate until its expiry on 1 August 2005. Charged with an indictable offence 4 Background. Section 42(b) of the Tow Truck Authority Act 1998 authorises the Tow Truck authority to take disciplinary action against a certified driver if he or she has been charged with an indictable offence. Mr Sleiman has been charged with the offence of common law conspiracy to cheat and defraud which is an indictable offence. The question for the Tribunal is whether or not that fact justifies the Tow Truck Authority's decision to suspend his driver's certificate. The Tribunal must examine the nature and seriousness of the offence with which Mr Sleiman has been charged and consider whether the offence in connected with Mr Sleiman's activities as a tow truck driver. 5 Nature and seriousness of the offence. It is not the Tribunal's role to determine whether Mr Sleiman is innocent or guilty. I must simply examine the seriousness of the charges and the circumstances of those charges. (Commissioner for Motor Transport v Darcy Francis Leo, NSW Supreme Court (McInerney J), 10 September 1986, unreported.) The charge relates to the purchase of a low value residential property and the sale of that property at a grossly inflated price. It is alleged that there were approximately 16 co-conspirators including Mr Kaled Kalache who is the sole director of Kalache Investments Pty Ltd, Mr Sleiman's employer. Mr Kalache is also Mr Sleiman's nephew. Mr Kalache and his wife allegedly purchased a residential property for $155,000 in December 2000 and Mr Sleiman used a false identity, "Rabii El Bodden" to apply for a loan of $316,000 from the National Australia Bank. The property was then sold for $395,000. Both parties agreed that the matter with which Mr Sleiman has been charged is serious. The Tow Truck Authority highlighted the fact that the offence was an indictable offence and that the amount involved was substantial. 6 Relationship to activities of a tow truck driver. While the circumstances of the offence with which Mr Sleiman has been charged did not involve activities within the tow truck industry, Mr Kalache, one of the alleged co-conspirators, is also involved in the tow truck industry. The Tribunal has affirmed the administrator's decision in a previous case involving an indictable offence in circumstances where the offence did not relate to the regulated activity in which the applicant was engaged. In Farquarson v Director General, Department of Transport [1999] NSW ADT 53 the applicant had been charged with soliciting a person to commit murder. The Department of Transport (as it then was) suspended his taxi driver authority pending resolution of the criminal charge. Although the charges did not relate to the driving of a taxi, the Tribunal affirmed the decision to suspend Mr Farquarson's taxi driver authority. The Tribunal formed the view that a reasonable member of the travelling public would be inclined to the view that the objective seriousness of the charge is sufficient in its own right to permit the administrator to suspend the licence. 7 Conclusion. Mr Sleiman has been charged with conspiracy to cheat and defraud the National Australia Bank of $316,000. The fact that there is a separate provision allowing the Tow Truck Authority to suspend a person's driver's certificate when they have been charged with an indictable offence reflects the legislature's concern about possible criminal activity by people within the industry. There are further provisions that oblige the Tow Truck Authority to refuse a licence if the person (or a close associate) has been convicted, or been found guilty with no conviction being recorded, of certain offences including any offence involving fraud, dishonesty or stealing. In my view, the objective seriousness of the charge which involves large scale fraud is sufficient in its own right to justify the suspension of his tow truck driver's certificate. Fit and proper person 8 Introduction. This conclusion makes it unnecessary to consider the Tow Truck Authority's second ground for suspending Mr Sleiman's certificate, namely that he is no longer a fit and proper person to hold such a certificate. The factors that are relevant to determining that question are similar to those I have already considered. However, in case I am wrong in relation to the first ground, I will go on to examine the second ground for suspending Mr Sleiman's licence. The question of Mr Sleiman's character bears directly on the question of his fitness to hold a tow truck driver's certificate. 9 Character. It is not in dispute that Mr Sleiman does not have a criminal record. He tendered two references attesting to his honesty and good character. However, apart from the criminal charges there is an allegation that he completed the tow truck application form dishonestly. In April 2002 Mr Sleiman applied to the Registrar of Births Deaths and Marriages to change his name to Freddy Lee Man. On 3 May he was advised that his name had been changed. When filling out an application for a tow truck driver's certificate at the end of July 2002 he answered "No" to the following question. "Do you now, or have you ever, used a different name or identity?" Mr Sleiman said that he read the question and understood the importance of answering it correctly, but assumed that the question was asking whether he had used another name or identity as a tow truck driver. He says that he gained that impression from the previous question which asked whether he holds or has ever held a tow truck driver's certificate. 10 Mr Sleiman's explanation is implausible. Despite the fact that he gave evidence that he did not understand a lot of what he read, I am satisfied that he did understand the question. The question was short, written in plain English and was visually separate from the previous question. Mr Sleiman had officially changed his name just three months earlier. In those circumstances, I find that he knowingly gave an incorrect answer to this question on the application form. 11 Reason for change of name. Mr Sleiman was also cross-examined about the reason he gave for changing his name. He said that his brother has been convicted of murder and that he had been told that members of the deceased's family had made threats against him. He said that he feared for his life and decided to change his name. However he did not use his new name or change any identity documents. He did not move away from the area in which he was living. The reason he gave for not acting on his fears was that his mother was diagnosed with cancer in April 2002 and he spent the majority of his time caring for her in her home. It is alleged that Mr Sleiman used the alias "Rabii El Bodden" when applying for the loan from the National Australia Bank. While I am not satisfied that Mr Sleiman's motive for changing his name to Freddy Lee Man was that he feared for his life, there is insufficient evidence to draw any adverse inference about Mr Sleiman's use of aliases which would otherwise reflect adversely on his character. 12 Similar cases. Mr Blake representing Mr Sleiman usefully summarised some of the Tribunal's decisions in similar cases in order to make a comparison between the facts in this case and the facts in other cases involving a suspension or cancellation of a licence or authority where criminal charges had been laid. Mr Blake relied in particular on the decision of Musgrave v Director General, Ministry of Transport [2004] NSWADT 141. In that case the Tribunal set aside a decision of the Director General of the Ministry of Transport suspending a taxi driver's authority in circumstances where Mr Musgrave had been charged with 153 counts of fraudulently producing Taxi Transport Scheme Subsidy vouchers to the Ministry of Transport and receiving payment of some $14,381.45 for those vouchers. 13 In Mugrave's case, the Judicial Member took into account: (a) the seriousness of the allegations which have been made against Mr Musgrave (b) the circumstances in which the conduct is alleged to have occurred (c) the fact that charges have been laid, but there has been no finding of guilt (d) previous complaints against Mr Musgrave in respect of the authorities he has held; and (e) Mr Musgrave's otherwise previous good character. 14 The Judicial Member concluded that the matters with which Mr Musgrave had been charged involved a systematic course of conduct over a period of time and involved a substantial amount of money. However it was not in dispute that tax payers in general, rather than the individual passengers, were out of pocket. The Judicial Member noted that the suspension of an authority is justified where the person's fitness to drive is sufficiently compromised by allegations of impropriety for it to be in the public interest that the person not drive until those issues are resolved: Williamson v Director General, Department of Transport [2001] NSWADT 3 at [21]. 15 Conclusion. While I do not disagree with the legal principles enunciated by the Judicial Member in Musgrave, each case turns on its own facts. The alleged fraud in this case involves a considerably greater amount than that in Musgrave and the nature of the fraud is more serious. I am satisfied because of the seriousness of the charge and the fact that Mr Sleiman knowingly gave an incorrect answer to a question on the application form, that he is no longer a fit and proper person to hold a driver's certificate. Because I agree with two of the three grounds on which the Commissioner has suspended Mr Sleiman's certificate, I do not intend to deal with the third ground. Period of the suspension. 16 The Authority suspended Mr Sleiman's certificate until its expiry on 1 August 2005. Although it not anticipated that the charges will be heard until some time in 2006, it would have been preferable for the Tow Truck Authority to have suspended the certificate until the charges are determined or withdrawn or his current certificate expires, whichever happens first. Order The decision of the Tow Truck Authority to suspend Mr Sleiman's driver's certificate until its expiry on 1 August 2005 is varied. The new decision is that Mr Sleiman's tow truck driver's certificate is suspended until the charge of conspire to defraud is dealt with or withdrawn or his current certificate expires, whichever happens first.