CITATION: McCurtayne -v- Director General, Department Transport [2002] NSWADT 281 DIVISION: General Division APPLICANT PARTIES: William McCurtayne RESPONDENT Director General, Department of Transport FILE NUMBER: 023213 HEARING DATES: 16/12/2002 SUBMISSIONS CLOSED: 12/16/2002 DATE OF DECISION: 12/30/2002 BEFORE: Montgomery S - Judicial Member APPLICATION: Passenger Transport Act - public passenger vehicle - grant of authority - Public passenger vehicle - grant of authority MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990 Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 McDonald v Director General of Social Security (1984) 1 FCR 354 CASES CITED: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Singh -v- Director General, Department of Transport [1999] NSWADT 96 Saadieh v Director General, Department of Transport [1999] NSWADT 68 Maythisathit v Registrar of Motor Vehicles (1996) ACT 165 APPLICANT REPRESENTATION: In person RESPONDENT A Wozniak, solicitor ORDERS: The decision of the Director General, Department of Transport to refuse an application by Mr William McCurtayne for a public passenger vehicle driver's authority is affirmed. Background 1 These proceedings relate to a determination made by a delegate of the Director General, Department of Transport ("the Director General") to refuse an application by William Joseph McCurtayne ("Mr McCurtayne") for renewal of a public passenger vehicle driver's authority. 2 Mr McCurtayne is 58 years of age. Until recent times he has operated a transport business. Over a period of some sixteen years he worked on a sub-contract basis with both hire-cars and coaches for most of the major inbound tourist operators in Sydney. He held a public passenger vehicle driver's authority numbered EB5021. He has had a long career as bus driver. 3 Mr McCurtayne's traffic record shows several offences over the period 1978 to 2000. He faced fines and cancellation of his driver's licence as a result of convictions related to driving with high range concentration of alcohol. On the 26 July 2000, Mr McCurtayne was convicted for driving with High Range PCA, fined $1500.00 plus $56.00 court costs and disqualified from driving for 2 years commencing 27 May 2000. Consequently he was unable to drive public passenger vehicles under his driver's authority. 4 The period of disqualification expired on 27 May 2002. Mr McCurtayne has recovered his drivers licence and 5 June 2002 Mr McCurtayne applied for renewal of his public passenger vehicle driver's authority. The Director General refused that application. 5 Mr McCurtayne was advised of the decision by letter dated 31 July 2002, signed by Stewart Eldridge, Senior Business Services Officer Contracts and Compliance with the Newcastle Office of the Department of Transport ("the Department"). The reasons for the decision were attached. 6 On 15 August 2002 Mr McCurtayne sought an internal review of the Director General's decision. He provided testimonials which attested to his character and his suitability to hold the authority for which he had applied. The internal review was conducted by a delegate of the Director General Mr Ahmed Youssef, Senior Contracts and Operations Officer with the Department. On review the Director General confirmed that the initial decision to refuse Mr McCurtayne's application was the appropriate course of action. Mr McCurtayne was advised of that decision by letter dated 11 September 2002. Mr McCurtayne brought this application in relation to the internal review decision. Reviewable decision 7 The reviewable decision is that of the Director General confirming the decision to refuse Mr McCurtayne's application. That decision was advised to Mr McCurtayne by letter dated 11 September 2002. 8 On 26 September 2002 Mr McCurtayne lodged an application with the Tribunal for a review of the Director General's 11 September 2002 decision. The matter came before me for hearing on 16 December 2002 and proceeded on that day. Nature of proceedings 9 The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all the material first considered, together with any further relevant material, so as to either confirm the original decision, vary it, or set it aside and substitute another. "The duty of the tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view was objectively the right one to be made" (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77). 10 These are not adversarial proceedings in which Mr McCurtayne carries an onus of proof. Mr McCurtayne, by making the application, triggers a process of merits review by the Tribunal. Mr McCurtayne does not take on the responsibility of having to prove a case, nor does he cause the Director General to have to prove a case. Mr McCurtayne and the Director General are before the Tribunal as parties by virtue of section 67(2) of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"). 11 Section 63(1) of the ADT Act provides: "63 Determination of review by Tribunal (1) In determining an application for a review of a 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 enactment on the administrator who made the decision.(3) In determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal." 12 The Tribunal makes its own decision in place of the Director General's, and there is no presumption that the decision of the Director General is correct: (McDonald v Director General of Social Security (1984) 1 FCR 354 at 357). 13 When there is a fact in issue as to the existence of which the Tribunal must be satisfied, it must be satisfied to the civil standard of proof, that is, on the balance of probabilities: (McDonald at 357). Requirements to be met 14 The issue for this Tribunal is: what is the correct and preferable decision? The Passenger Transport Act 1990 ("the Act") sets out the applicable law. Division 2 in Part 2 of the Act makes provision for Authorities to drive a public passenger vehicle. Section 11(2) of the Act provides: "(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. 15 Section 12 of the Act states: "Criteria and procedure12 (1) Having regard to the purpose of an authority, the Director-General may grant authorities to persons applying for them. (2) Applicants must meet any criteria set forth in the regulations and must satisfy the Director-General as to any matter the Director-General considers relevant. (3) Procedures for the purposes of this section may be settled by the Director-General, subject to any provision in that behalf made by the regulations." 16 The decision to be made is whether Mr McCurtayne can be 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 to have sufficient responsibility and aptitude to drive the vehicle 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 such that an authority can attest to that status. 17 It is clear from the correspondence and the Department's file that the Director General decided that he would not attest that Mr McCurtayne has sufficient responsibility and aptitude to be the driver of a public passenger vehicle. Evidence 18 The Department's file was put in evidence and the Director General relied on the documents contained within that file. The Director General also relied on Mr McCurtayne's criminal history and the documents contained in files summonsed from the Local Court Manly. The Director General did not call any witnesses in support of his case. 19 Mr McCurtayne presented oral evidence in support of his case. He also relied on testimonials referring to his good character. Those testimonials were provided by Mr Anthony Burns, Proprietor Northside Shuttle, and Mr Barry Hodson Senior Performance Analyst with Workcover New South Wales. Mr McCurtayne's partner, Ms. Elizabeth-Anne Gill, also provided a statement in which she provided insight into Mr McCurtayne's current lifestyle and supported his application. Mr McCurtayne's Case 20 Mr McCurtayne conceded that he has convictions recorded against him. He has offered apologies for these offences and expressed regret for his conduct. He stated that notwithstanding those convictions, he is a responsible person with the requisite aptitude and good repute. 21 Mr McCurtayne stated that at the time of the most recent disqualification of his driving licence in May 2000 he had been working very long hours in running a successful tourist service. As well as driving, he was responsible for managing drivers and office administration. His health suffered and in December 2000 he underwent an operation for prostate cancer. He made an assessment of his personal and professional life and decided on a complete change of environment to avoid serious future consequences to his health and employment prospects. 22 He decided to move away from Sydney as he saw the social and commercial pressures as the prime reason for his occasional excessive drinking. He felt that by moving to a new environment, together with my partner, his lifestyle would change and this has indeed been the result. 23 Mr McCurtayne now lives in a small community at Woombah in the Lower Clarence District. He says he enjoys the stress-free atmosphere of the climate and local people. His health is good and he believes he has successfully addressed his problem of occasional excessive social drinking. His partner, Ms. Gill, does not drink alcohol and his consumption is now limited to the occasional glass of wine with meals 24 In her statement Ms. Gill confirmed this information. She states: "Since moving to the north-coast, we have adopted a very quiet life, as I myself do not drink and he has settled into a routine of working on the property and looking for employment. My background in nursing has helped me acquire some casual work in the care industry which involves the consequences of drug and alcohol abuse. I have no hesitation in saying that Bill has changed his behaviour, particularly his need to socialise with others whom I believe contributed to his occasional excessive drinking. He no longer has any interest in that lifestyle and this re-location has benefited both of us and our relationship. I would not be a party to any communication or contribute to help him recover his driving authority unless I was convinced of his determination not to drink and drive. He is basically a hardworking and responsible person." 25 Mr McCurtayne has sought to have his driver's authority re-issued to give him the opportunity to look for employment in an industry where he has considerable experience. He said that he has been unemployed since his licence was disqualified in May 2000 and work in the local area is extremely difficult to find. A driver's authority would increase his chances of obtaining employment. He provided a financial statement to give some indication of his expenses. He also stated that Ms. Gill's employment was uncertain and if it were to cease they would be forced to seek social security benefits; an option which neither wishes to take. 26 Mr McCurtayne said he has never been a person who would put the lives of passengers at risk and have never driven a Public Passenger Vehicle whilst under the influence of alcohol. His convictions were all at times when he was off duty. In over 40 years of driving motor vehicles including driving as a country sales representative, a truck driver, an operator of hire-cars, wedding cars and tourist coaches together with private motoring, he never caused an accident. He stated that during the period he held his authority he drove somewhere in the region of 750,000 kilometres completely accident free, in Sydney traffic conditions. He submitted that this represents an extremely good driving record. 27 Mr McCurtayne referred to the testimonials provided on his behalf as relevant to his assertion that he is a person of good repute. Mr Anthony Burns is the Proprietor of Northside Shuttle, a tourist service recently given a Small Business Award for achievement. Mr Barry Hodson is a senior executive in the public service. 28 Mr McCurtayne stated that he was a member of the Surf Lifesaving Association of Australia for many years and was treasurer of the Manly Rowing and Sailing Club for several years. References could also be obtained from those organisations. 29 Mr McCurtayne further stated that during the period he held his authority he worked on a sub-contract basis with both hire-cars and coaches for most of the major inbound tourist operators in Sydney as well as Comcar and corporate clients. Those contractors only employ drivers/operators who offer a high standard of aptitude and presentation. 30 He therefore argued that his driving ability is not in question. The only issue is whether he is a fit and proper person to hold an authority. He submitted that if there is any concern in this regard he would accept any conditions on the granting of the authority that the Director General or the Tribunal considered appropriate. He would accept any restriction that would limit his ability to drive to within the local area. The Director General's Case 31 The Director General relied on the documents contained in the Departmental file and the Manly Local Court file. He also relied on details relating to Mr McCurtayne contained in the records from the NSW Roads and Traffic Authority and NSW Police Service Criminal Records Section. The details of Mr McCurtayne's convictions are not in dispute. 32 Mr Wozniak submitted that the record of convictions shows a continuing pattern of behaviour over a long period. Over the past 18 years Mr McCurtayne has been disqualified from driving for a total of over five and a half years. He argued that it cannot be said that Mr McCurtayne's conduct was merely isolated departures from proper professional standards. The Tribunal should not assume that Mr McCurtayne has become a reformed person. It has little on which to base such a conclusion other than Mr McCurtayne's word. 33 Mr Wozniak argued that the only way Mr McCurtayne can prove that he has changed his pattern of behaviour is if a sufficient period has passed without further incident. He suggested that a period of two years may be appropriate. 34 Mr Wozniak further argued that it is not appropriate to grant the authority subject to conditions. He referred to the NSW Court of Appeal decision in Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 as authority for the principle that if it is necessary to impose a condition on the grant of an authority then the imposition of the conditions demonstrates that the person who is the subject of the conditions is not fit to hold the authority. 35 An authority would allow Mr McCurtayne to drive all types of public passenger vehicles. This would include school buses. The appropriate test is whether a member of the traveling public, including parents of school children who might travel on his bus, knowing of Mr McCurtayne's record and what he has done to rehabilitate himself, would object to Mr McCurtayne as the driver of the bus. 36 Mr Wozniak further argued that it is of no consequence that Mr McCurtayne's convictions were recorded when he was off-duty. He referred to the decision of the Deputy President of this Tribunal in Singh -v- Director General, Department of Transport [1999] NSWADT 96 and argued that the incidents which lead to the decision to cancel the applicant's taxi cab authority in that matter did not involve passengers. In Singh the main offences with which the Tribunal was concerned related to breaches of an apprehended violence order including threats of violence. These were not related to his work as a taxi cab driver. 37 Mr Wozniak submitted that the appropriate order is to affirm the decision under review. Findings 38 I agree that the principal issue for determination is whether Mr McCurtayne can be 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. 39 In Saadieh v Director General, Department of Transport [1999] NSWADT 68, the Deputy President of this Tribunal 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. In my opinion these factors are also applicable in determining a person's suitability and fitness to obtain a public passenger vehicle driver's authority. Those factors are: · 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. 40 The Department has identified a number of convictions. McCurtayne has accepted those convictions and has expressed remorse for them. It is not in dispute that, with the exception of his convictions, Mr McCurtayne has a good driving record. There is no evidence of any complaints against him as a public passenger vehicle driver. Mr McCurtayne must show that in spite of his history he is a fit and proper person. Mr McCurtayne gave evidence as to his reputation but his reputation is best established by evidence of others, and by inferences from positions he might hold in the community. To that end, he has produced testimonials that attest to his reputation and character. 41 A witness's opinion of Mr McCurtayne may be accepted as evidence of his repute, although the weight to be given to that evidence will depend on the circumstances in which the witness formed the opinion. The testimonials provided make reference to the witness's knowledge of Mr McCurtayne and it is also probable that the authors were aware of his convictions and that Mr McCurtayne was seeking to renew his driver's authority. I accept those testimonials on face value. It follows that reasonable weight can be given to those testimonials in assessing Mr McCurtayne's reputation. 42 In assessing the likelihood that Mr McCurtayne will re-offend or commit further traffic offences, several considerations are relevant. These include the length of time since the offences were committed; the circumstances in which those offences occurred; whether Mr McCurtayne admits responsibility for the offences or complaints and shows genuine remorse; the efforts he has made to rehabilitate himself during that time; and any change in his circumstances such as increased support from friends, family or professional service providers. 43 The main offences with which the Tribunal is concerned in this case are those relating to driving with High Range PCA. Mr McCurtayne has been before the court several times for breaches of this kind and has been disqualified from driving on several occasions. The regularity of his offences indicates that at least until the last conviction he did not learnt from these experiences. The fact that the convictions relate to his personal rather than his professional life does not mitigate their severity in any way. 44 In the present circumstances, it is Mr McCurtayne's behaviour since his last conviction which is the most significant factor to be considered in assessing the likelihood that Mr McCurtayne will re-offend. I found Mr McCurtayne a credible witness. I have no reason to doubt that he has undergone a significant transformation since his last conviction and that this transformation has greatly reduced his exposure to the factors which contributed to his excessive drinking. 45 Notwithstanding that view, I also am mindful of the fact that Mr McCurtayne has only recently retuned to driving after a long period of disqualification. I agree with Mr Wozniak's argument that the protection of the public is paramount. The appropriate test as to whether Mr McCurtayne is of fit and proper character to hold an authority is that defined and applied by the President of the ACT Administrative Appeals Tribunal in the matter of Maythisathit v Registrar of Motor Vehicles (1996) ACT 165. In that particular case, the President applied the test in respect of a person being of fit and proper character to hold a taxi driver's authority. In my view, the test is equally applicable with respect to a person being of fit and proper character to hold a public passenger vehicle driver's authority. In Maythisathit the test was stated to be: "One must put oneself, so far as possible, in the position of a member of the public who might travel in a taxi driven by the applicant and ask whether that member of the public, knowing of the applicant's criminal record and what he has done in the past year to rehabilitate himself, would object to the applicant as the driver of the taxi". 46 In the present circumstances that test can appropriately applied with reference to the relevant member of the public travelling in a passenger vehicle driven by Mr McCurtayne. The relevant question is therefore whether the relevant member of the public, knowing of Mr McCurtayne's record, would object to him as the driver of the bus? That question must be answered in light of the whole of the circumstances of the matter. 47 In my opinion, it is not a practical option to issue a limited authority. It is unrealistic to expect that Mr McCurtayne could be monitored to ensure that he did not venture out of the local area or otherwise comply with restrictions that might be imposed in relation to any bus he was driving. It is also unrealistic to expect that he could avoid travelling out of the local area if his employment required him to do so. 48 I am persuaded by the views expressed by the NSW Court of Appeal decision in Health Care Complaints Commission v Litchfield to the effect that if it is necessary to impose a condition on the grant of an authority then the need to impose those conditions would demonstrate that Mr McCurtayne is not fit to hold the authority. 49 Mr McCurtayne's record should not necessarily be a permanent stamp on his character. However, the Tribunal should not assume that he has become a reformed person. I note the views expressed in Health Care Complaints Commission v Litchfield where the Court of Appeal stated: "Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man". 50 Knowing of Mr McCurtayne's record and what he has done to rehabilitate himself I believe passengers would still object to Mr McCurtayne as the driver of their bus. The long period between the first and last convictions suggest that his conduct reflected more than an isolated or passing departure from proper professional standards. It represents a course of conduct over a long period. Clear proof is needed to show that Mr McCurtayne has established himself as a different man to warrant the renewal of his authority. I do not accept that sufficient time has passed since his most recent conviction and the recovery of his driver's licence for the travelling public to be comfortable with him as their driver. 51 It follows that on the evidence before me, I cannot be satisfied that Mr McCurtayne is a fit and proper person to be the driver of a public passenger vehicle. It also follows in my view that the correct and preferable decision is to refuse his application for a driver's authority. Accordingly I affirm the Director General's decision to refuse Mr McCurtayne's application. 52 I note however that I have formed this view on the evidence before me. It is possible that Mr McCurtayne could obtain a psychiatric or psychological report giving clear evidence of his psychological stability and could satisfy the Director General that he is a fit and proper person to hold a public passenger vehicle driver's authority. If that is the case and if Mr McCurtayne were to reapply for a driver's authority, the Director General may well reach a different conclusion. Orders 53 The decision of the Director General, Department of Transport to refuse an application by Mr William McCurtayne for a public passenger vehicle driver's authority is affirmed. 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. 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