Whittaker v General Manager, Tow Truck Authority [1999] NSWADT 54

CITATION: Whittaker v General Manager, Tow Truck Authority [1999] NSWADT 54

DIVISION: General

APPLICANT: Syd Whittaker

RESPONDENT: General Manager, Tow Truck Authority

FILE NUMBER: 993033

HEARING DATES: 06/01/1999

SUBMISSIONS CLOSED: 06/14/1999

DATE OF DECISION: 21 July 1999

M A Robinson - Judicial Member BEFORE:

PRIMARY LEGISLATION: Tow Truck Act 1989

APPLICATION: Review of refusal to grant tow truck drivers certificate -

MATTER FOR DECISION: Principal matter

Applicant: H Gulpers of counsel instructed by Margiotta Solicitors REPRESENTATION: Respondent: T Xenos, Bayside Solicitors

ORDERS:

1 This is an application made by Mr Whittaker ("the applicant") for review of a "reviewable decision" within the meaning of that expression in section 8 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") made by the Tow Truck Authority of New South Wales ("the Authority") to refuse the applicant's application for the issue of a tow truck drivers certificate on 9 February 1999. 2 Internal review of the adverse decision was sought by the applicant and resolved adversely to him by the Authority on 1 March 1999 when the decision to refuse the original application was affirmed. 3 The applicant applied to the Tribunal for review of the original decision on 12 February 1999 and sought and obtained from the Tribunal interim orders staying the operation of the decision on 25 February 1999. The stay order has been further extended to the date of the Tribunal's determination of the matter. 4 The principal issue in these proceedings is whether or not the applicant would be, in the opinion of the Tribunal, "a fit and proper person" to hold a drivers certificate within the meaning of that expression in section 19(a) of the Tow Truck Act 1989. Section 15 of that Act provides in short that a person must not drive or use a tow truck unless the person holds a drivers certificate. 5 The Tow Truck Act 1989 will be repealed in due course upon the commencement in full of the Tow Truck Industry Act 1998(No 111 of 1998). Parts of that Act have already commenced on 19 February 1999. Section 7 of the new Act constitutes the Tow Truck Authority of New South Wales. The new authority is described in subsection (2) as a body that does not represent the Crown. The Authority's functions are set out in section 8 of the new Act. A significant function is that the Authority is to regulate the tow truck industry in New South Wales. Schedule 2 of the new Act contains savings and transitional provisions relevant to decisions made under the 1989 Act. 6 The new Act has brought significant change in relation to the issue of drivers certificates in the tow truck industry. It has introduced some "mandatory grounds" in section 26(2) relating to past convictions of applicants, retains "discretionary grounds" in section 26(3) based in part on the "fit and proper person" test and adds a new "public interest" test. 7 Both parties agree that the present application is to be decided by the Tribunal based upon the 1989 Act so that the only test applicable here is the fit and proper person test and that the Tribunal has jurisdiction to review the Authority's decision upon interval review dated 1 March 1999. In any case, I am satisfied that the Tribunal has jurisdiction to deal with the application. 8 The reasons why the Authority refused the issue of drivers certificate to the applicant here primarily involve about 8 traffic and other offences said to have been committed by the applicant from 4 March 1997 to about 22 December 1997 from which some were appealed. Plainly the most significant offence alleged is the conviction of the applicant on about 22 December 1997 when he was convicted by the Local Court at Campbelltown for driving under the influence of alcohol or a drug when the applicant was fined $1000 and disqualified from driving for 1 year. The conviction related to an event, which occurred on about 19 January 1997. The applicant appealed that conviction to the District Court at Parramatta and on 24 November 1998 that Court dismissed the appeal and set aside the disqualification. 9 The hearing of this matter before the Tribunal took place on 1 June 1999. In addition to the documents contained in the Tribunal file, which I have read, the applicant relied on his affidavit sworn 1 June 1999 and the Authority relied on the affidavit sworn 18 May 1999 of Mr Charlie Rosiello, an Acting Senior Officer of the Authority. Both the applicant and Mr Rosiello gave oral evidence at the hearing and were cross-examined. I reserved my decision. 10 The Authority's evidence reveals that officers of the Authority issued the applicant with a Notice to Show Cause on about 20 January 1999 which was responded to by the applicant's solicitors by letter dated 3 February 1999. In that letter, the applicant addressed, in my opinion, to a satisfactory standard, most of the traffic and other offences relied upon by the Authority in its decision. As I have said, the most significant event is that which occurred on about 19 January 1997 resulting in his conviction on 22 December 1997. The applicant's explanation for his conduct then underwent significant scrutiny by both the Local Court and the District Court on appeal. In essence, the applicant alleged that he suffered from "a fugue state" around the relevant period resulting probably from a blow to the head. There followed a significant period of memory loss for the applicant who was ultimately admitted to the Psychiatric Unit at Campbelltown Hospital in January 1997. 11 The Authority tendered into evidence before the Tribunal a medical report prepared by a psychologist Ann-Marie Petrinas dated 7 August 1998. In that report, the psychologist sets out by reference to hospital clinical notes and consultations with the applicant details relating to the commission by the applicant of the January 1997 offence and of his subsequent admission into hospital and his memory loss around that time. The psychologist concludes that in her opinion the applicant's problem did not relate to alcohol at all. It related to his fugue state in January 1997 which was "most probably caused by a head injury". At page 3 of her report, the psychologist defined a fugue state as: