Berry v Director-General, Department of Transport [2000] NSWADT 71

CITATION: Berry v Director-General, Department of Transport [2000] NSWADT 71 DIVISION: General Division APPLICANT Leslie John Berry PARTIES: RESPONDENT Director General, Department of Transport FILE NUMBER: 003092 HEARING DATES: 29/05/2000 SUBMISSIONS CLOSED: 05/29/2000 DATE OF DECISION: 06/06/2000

BEFORE: Hennessy N (Deputy President) APPLICATION: Long Distance Service operator - suspension of accreditation - Passenger Transport Act - long distance service operator - suspension of accreditation - Passenger Transport Act - tourist service operator - suspension of accreditation - Tourist Service operator - suspension of accreditation MATTER FOR DECISION: Principal matter LEGISLATION CITED : Passenger Transport Act 1990 CASES CITED: Elgammal v Director General, Department of Transport [1999] NSWADT 82 APPLICANT REPRESENTATION: In person RESPONDENT A Wozniak, solicitor ORDERS: The decision of the Director General to continue the suspension of Mr Berry's accreditation is affirmed.

REASONS FOR DECISION Introduction 1 On 7 March 2000 the Director General decided to continue the suspension of Mr Berry's accreditation to operate long distance and tourist services. The suspension decision was made following compliance checks undertaken by officers of the Department of Transport (the Department) on 7 February 2000 and further investigations after that date. The Department found, among other things, that Mr Berry operated a public passenger service on various dates using a vehicle that was not fitted with a vehicle monitoring device. A vehicle monitoring device is defined in s 59 of the Road Transport (Safety and Traffic Management) Act 1999 as a "device which, when fitted to a motor vehicle, is capable of producing automatic data for a journey made by the vehicle." Colloquially, they are known as tachographs. 2 The present case involves the suspension of an accreditation. Most other cases the Tribunal has dealt with have involved the suspension or cancellation of a driver's authority. Accreditation allows a person to carry on a public passenger service, that is a service which carries passengers for a fare or other consideration. Mr Berry still has his driver's authority, but his accreditation to operate a public passenger service has been suspended. Jurisdiction 3 On 3 April 2000, Mr Berry applied to the Tribunal for a review of the Director General's decision to suspend his accreditation. Section 10(1) of Passenger Transport Act 1990 (the Act) gives the Director General the power to suspend or cancel an accreditation. That section states that: (1) Having regard to the purpose of accreditation, the Director-General may at any time vary, suspend or cancel any person's accreditation. 4 The Tribunal has jurisdiction to hear this case under s 52(1) of the Act which states that: Any person whose application under Part 2 has been refused, or whose accreditation or authority has been varied, suspended or cancelled may apply to the Administrative Decisions Tribunal for a review of the refusal, variation, suspension or cancellation. Relevant legislation 5 The Act establishes a scheme for the accreditation of people who carry on a public passenger service by means of a bus or other vehicle. The purpose of the accreditation is to ensure, among other things, that the accredited person has demonstrated the capacity to meet the government's standards of operation. So far as it is relevant, section 7 of the Act provides that: (1) A person who: (a) carries on a public passenger service by means of a bus or other motor vehicle; guilty of an offence unless the person is an accredited service operator for that service. Maximum penalty: 1,000 penalty units. (2) The purpose of accreditation under this Division is to attest: (a) that the accredited person is (or, in the case of an accredited corporation, the designated directors and managers of the corporation are) considered to be of good repute and in all other respects fit and proper to be responsible for the operation of a public passenger service; and (b) that the accredited person has demonstrated the capacity to meet the government's standards of: (i) financial viability; and (ii) safety of passengers and the public; and (iii) vehicle maintenance, to the degree and in the manner required in respect of services of the kind specified in the accreditation. (3) Standards for the purposes of subsection (2) (b): (a) may be prescribed by the regulations; or (b) to the extent that they are not so prescribed, may be determined and published by the Director-General and made available to interested persons. (4) Any person wishing to obtain from the Director-General a copy of a standard published under subsection (3) (b) must pay the fee (if any) prescribed by the regulations. (5) Standards published under subsection (3) (b) may be re-determined by the Director-General from time to time, and are to be re-published and made available as occasion requires. 6 In this case the Director General alleged that Mr Berry does not have the capacity to meet the government's standards in relation to safety of passengers and the public and that he does not have sufficient responsibility and aptitude to provide services in accordance with those standards. The specific standards that Mr Berry is alleged to have breached are set out in a document entitled "Requirements for vehicle Monitoring Devices and Speed Limiters - Long Distance, Tourist and Charter Bus Services." That document states, in part, that: It is a requirement for accreditation as an operator of a long distance, tourist or charter bus service that the operator monitors and records the operation of the service on a regular basis, and be able to produce records for inspection on request by the Director General. * The monitoring devices are to be used on all occasions the vehicles are operated. The monitoring devices are not required to be used when the vehicles are being used to provide a regular passenger service or a school bus service under a Regular Passenger Services Accreditation. * Operators may choose either to: (1) fit a vehicle-specific monitoring device used in conjunction with log books; or (2) fit a driver-specific monitoring device. Please note, operators choosing driver specific monitoring devices are required under the Traffic Act to use these in conjunction with log books for journeys which go beyond a 100 kilometre radius of the depot. 7 The precise status of this document is not clear. I assume that no regulations have been prescribed pursuant to s 7(3)(a) of the Act and that the document referred to above has been determined and published by the Director General under s 7(3)(b). Evidence 8 Mr Berry has been driving buses for some 30 years and has been an accredited bus operator since July 1997. Until now, he has never come to the adverse attention of the Director General. The effect of his written submissions and his evidence was that while he always used a log book, he was not aware that tachographs had to be used for journeys of less than 100 kms from the depot or when a vehicle was hired. He says he was not aware until 7 February 2000 that he was required to have a vehicle monitoring device fitted at all times. He said he thought using a log book was sufficient. 9 In 1997 Mr Berry attended the course that must be completed before a person can receive an accreditation. In December of that year his marriage broke up and he says his former wife still has the Certificate of Coach Management Book which sets out the standards required of an accredited operator. He says he thought he could hire a bus and drive it without a tachograph as long as the Accreditation was on display. Mr Berry wrote that he now knows and understands that tachos have to be used at all times and "this will never happen again." 10 On 9 February 2000 the Director General wrote to Mr Berry advising him that his accreditation had been suspended and that if he wished to make written submissions he should do so. Mr Berry did make some submissions as a result of this letter which included an explanation for his failure to use a tachograph as well as several character references. 11 On 1 March 2000 the Director General wrote to Mr Berry setting out the results of the internal review of the decision to suspend his accreditation. That review affirmed the original decision. 12 On 7 March 2000, the Director General issued Mr Berry with a "Notice of Continued Suspension of Accreditation". This is the decision that is under review. This letter also advised Mr Berry that after taking into account his submissions, it had been determined not to cancel his accreditation. The letter went on to say that the "accreditation will remain suspended until such time as the current investigation into your operation is completed and any further action the Department considers appropriate is finalised." Reasons for decision to suspend accreditation 13 In the Statement of Reasons accompanying this decision, the relevant officer set out the facts on which he relied. In summary those facts are that Mr Berry operated a public passenger service on five occasions using a vehicle that was not fitted with a vehicle monitoring device. It was also alleged that Mr Berry admitted that he was aware, prior to 11 December 1999, of the need for vehicles which provide long distance, tourist and charter services to be fitted with vehicle monitoring devices. The Director General's reasoning, in part, was that the services were operated in contravention of the standards demonstrates that Mr Berry does not have sufficient responsibility and aptitude to provide services in accordance with government standards. Previous findings in relation to Mr Berry's financial viability were not pursued by the Director General. Reasoning and decision 14 The circumstances leading up to the suspension of Mr Berry's accreditation are not totally clear to me. Mr Berry was not able to give a straightforward chronological account of what had happened, nor was he entirely consistent in the responses he gave on cross examination. However, there is no doubt that Mr Berry admits the breach of the standards in relation to not fitting a tachograph. Because there was no direct evidence from any Departmental officers who undertook the investigations, I am not prepared to make a finding as to whether Mr Berry deliberately ignored the standards or whether he genuinely did not know what was required of him. In any event, such a finding makes no difference to my conclusion which is that Mr Berry, either deliberately or negligently, failed on at least 5 occasions to fit a tachograph on vehicles which required them. This is a basic requirement for bus operators and demonstrates that he does not currently have sufficient responsibility and aptitude to provide services in accordance with government standards. Despite Mr Berry's promise that such incidents will never happen again, I find that the Director General made the correct and preferable decision in continuing the suspension of his accreditation. 15 Mr Berry cannot recall the details of the course he attended in 1997 and has not had access to the relevant manual for most of the period during which he has been operating as an accredited service provider. In these circumstance and given the fact that accredited operators have the overall responsibility for the safety of passengers, I recommend that Mr Berry again complete the course required prior to accreditation. If he completes the course satisfactorily, the Director General should consider restoring Mr Berry's accreditation. 16 The decision of the Director General to continue the suspension of Mr Berry's accreditation to operate long distance and tourist services is affirmed.