CITATION: Wilson -v Direrctor General, Department of Transport [2002] NSWADT 149 DIVISION: General Division APPLICANT PARTIES: Lee-Anne Wilson RESPONDENT Director General, Department of Transport FILE NUMBER: 023113 HEARING DATES: 07/08/02 SUBMISSIONS CLOSED: 08/07/2002 DATE OF DECISION: 08/21/2002 BEFORE: Hennessy N (Deputy President) APPLICATION: Bus driver - cancellation of authority - Long Distance Service driver - cancellation of authority - Passenger Transport Act - bus driver - cancellation of authority - Passenger Transport Act - long distance service operator - cancellation of accreditation - Passenger Transport Act - tourist service driver - cancellation of authority - Tourist Service driver - cancellation of authority MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 CASES CITED: Stasos v Tax Agents' Board of NSW 90 ATC 4950 McNamara v Arnold (unreported decision of the Supreme Court of South Australia, 26 October 1995 BC9502405 Saadieh v Director General, Department of Transport [1999] NSWADT 68 APPLICANT REPRESENTATION: In person RESPONDENT A Wozniak, solicitor ORDERS: The decision of the Director General to cancel Ms Wilson's driver authorities is affirmed. Introduction 1 On 24 April 2002, the Director General cancelled the two driver authorities Ms Wilson held under the Passenger Transport Act 1990 (PT Act). The authorities were a long distance and tourist bus driver authority and an authority to drive buses, except those providing long-distance or tourist services. The last category includes school route buses. 2 The cancellation arose from the contents of an anonymous letter received by Ms Wilson's employer, alleging, among other things, that Ms Wilson had been found guilty and/or had been convicted of certain offences and that she regularly drank alcohol after work. The Department investigated these allegations and decided to cancel her authorities. The Director General had four main areas of concern. They were: · the convictions for assault and malicious damage, · two relatively recent speeding fines Ms Wilson had incurred while driving a coach, · the fact that in her application to renew her authorities Ms Wilson had denied that she had any convictions, pending charges or traffic offences; and · Ms Wilson's alcohol consumption. Jurisdiction 3 The Tribunal has jurisdiction to hear this matter pursuant to s 52(1) of the PT Act. That section states that: Any person whose application under Part 2, 4 or 4A has been refused, or whose accreditation, authority or authorisation has been varied, suspended or cancelled may apply to the Administrative Decisions Tribunal for a review of the refusal, variation, suspension or cancellation. 4 These proceedings were heard in Tweed Heads on 7 August 2002 when Ms Wilson gave oral evidence. She was not legally represented. Legislation 5 Under s 11 of the Passenger Transport Act 1990 (PT Act) a person who drives a public passenger vehicle (which includes school route buses) must have an authority. Section 14 of the PT Act gives the Director General the power to cancel a person's authority in certain circumstances. That section states that: Having regard to the purpose of an authority, the Director-General may at any time vary, suspend or cancel any person's authority. 6 Section 11(2) sets out the purpose of an authority in the following terms: 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. 7 The issue for the Tribunal is whether the Director General made the correct and preferable decision in cancelling Ms Wilson's authorities. (See s 63 of the Administrative Decisions Tribunal Act 1997 (ADT Act.)) Evidence and findings 8 The evidence in this case consisted of the Department's file and court papers relating to offences for which Ms Wilson has been convicted or found guilty, with no conviction recorded. Most of the evidence was not in dispute. 9 Ms Wilson has been driving buses for about 7 years. She began working as a casual bus driver in 1996 and obtained a permanent position in 1998. She said that she has never been involved in an accident or had any complaints against her. Her employer provided her with a reference which stated that several passengers have sent in letters praising Ms Wilson's ability as a bus driver. In the employer's view Ms Wilson is a "good employee" and is always "punctual, courteous and trustworthy." Ms Wilson provided three references from passengers who expressed the view that she was an excellent bus driver. None of these passengers stated that they knew of her criminal history. 10 In 1998 Ms Wilson was convicted of malicious damage to a motor vehicle. The incident occurred when Ms Wilson visited her former de facto partner. When he refused to speak to her, Ms Wilson became angry and kicked a motor vehicle causing damage. She was fined $200 in relation to this offence and ordered to pay compensation of $420. She was well affected by alcohol at the time of this incident. 11 On 31 May 2001 Ms Wilson was found guilty, with no conviction recorded, of assaulting a police officer and failing to give police her name and address. The incident occurred when the police were called to a domestic dispute involving Ms Wilson on 6 May 2001. Ms Wilson had been drinking and was engaged in a dispute with her de facto partner. Police asked her to accompany them to the police station but she refused to co-operate. The Magistrate did not record a conviction on this occasion but placed Ms Wilson on a bond to be of good behaviour for 12 months. 12 Following a similar incident on 12 August 2001, while still on the good behaviour bond, Ms Wilson was charged with obstructing police. She was convicted and fined $300. 13 A further incident occurred on 14 October 2001 when Ms Wilson was involved in a fight with two women about a barking dog. The dog belonged to her former de facto partner with whom she had recently split up. When returning to collect some of her possessions the two women, who were neighbours, asked her to do something with the dog. The conversation escalated into an argument and Ms Wilson assaulted both the women. She then kicked their car and caused damage. She was fined a total of $2,400 and ordered to pay a similar amount in compensation to the women for their injuries and the damage to the vehicle. 14 In closing submissions in relation to the offences committed on 14 October 2001, Ms Wilson's solicitor made the following points: Your Worship, she's taking positive steps also to reduce her alcohol consumption which has led to . . . both of those prior offences, so she's now on medication to restrict that and tells me that she's previously, back when that first offence occurred, she was affected by alcohol. Certainly on the occasion in May of last year I appeared for her and know that she was well affected by alcohol. On this occasion she wasn't. She had three light beers, Your Worship. 15 In relation to alcohol consumption, the anonymous letter which alerted the Department to Ms Wilson's situation, stated that: "This person can be found most afternoons drinking alcohol at the Tugun Bowls Club." Ms Wilson denied that she drank "most afternoons" at the Tugun Bowls Club. She said that she has cut back her alcohol consumption to two or three light beers a night. She said that she knows she cannot drink more than that because she starts driving at 7 am and there cannot be any alcohol in her blood at that time. She admitted to having been on medication to prevent her from drinking excessively but said that she had only ever drunk three or four full strength beers a night even at the peak of her problem drinking. 16 This is one part of Ms Wilson's evidence that I do not accept. In order to justify taking medication to prevent excessive alcohol consumption Ms Wilson would have to have been drinking significantly more than three or four beers a night. Furthermore the fact that Ms Wilson was affected by alcohol on each occasion when police were called suggests that Ms Wilson had a bigger problem with alcohol than she is willing to admit. It may be that she has addressed that problem and is no longer drinking excessively, but in the absence of any medical evidence supporting her claim I am not satisfied that excessive consumption of alcohol is no longer an issue or that it is unlikely to be a problem in the future. 17 On 3 November 2000 and 22 June 2001, Ms Wilson was convicted of exceeding the speed limit by less than 15 km per hour while driving a coach. Her explanation for these fines was that she was running late. She says she now understands that there is no excuse for speeding. 18 On 22 January 2002, only a few weeks before she was due to appear in the Local Court on the most recent charges, Ms Wilson filled in an application to renew her bus authorities. She answered "No" to both the following questions: Have you been convicted of any criminal offences (not traffic offences), which you have not yet told us about, since your authority was issued or last renewed, or do you have any criminal charges pending? Have you had any traffic offences (not parking fines), that you have not yet told us about, since your authority was issued or last renewed? 19 The only excuse Ms Wilson could offer for these false statements was that she was in a hurry to fill out the form. I find that Ms Wilson knew that she was not telling the truth when she answered these questions. She was due to appear in the Local Court within a few weeks of lodging this application and she was hoping that the Department would not find out about her prior conviction or the pending charges against her, all of which were recorded in Queensland. 20 Ms Wilson says that her life has changed because she is not living with her former de facto partner and is no longer taking medication for depression or to reduce her alcohol intake. Reasons and decision 21 The term "fit and proper person" is not capable of any objective definition. Chief Justice Mason in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63] said that: "The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration." 22 The meaning of being of "good repute" was discussed by Wadell J in Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 393. Wadell J defined reputation in the following terms: A person's reputation, in fact and in law, is to be found in the estimate of his moral character entertained by some specific group of people, such as those who live in the neighbourhood of his residence, those who work with him or those with whom he associates in his occupation or profession. . . Evidence of conviction for a criminal offence is, however, admissible as evidence, indeed, most cogent evidence of bad reputation. 23 However a person's reputation and character is not immutable. In Stasos v Tax Agents' Board of NSW 90 ATC 4950 the Court considered the meaning of "fit and proper" in the general context of persons holding specified offices or vocations as well as in the specific context of Tax Agents (at 4,957) the Court noted that: "(w)here the issue is whether a person who has been guilty of misconduct is at a time somewhat after that misconduct a fit and proper person to exercise a particular occupation carrying with it privileges and responsibilities, it will be relevant whether that person has understood the error of his ways." 24 The presence of dishonesty was taken very seriously by the Supreme Court of South Australia in McNamara v Arnold (unreported decision of the Supreme Court of South Australia, 26 October 1995 BC9502405 at 10). Matheson J said that: In this matter, even if the Tribunal merely looks at the [appellant's] dishonest answer on the application form, this conduct brings into question the honesty of the [appellant]. Honesty is a quality implicit in the notion of a fit and proper person. 25 In Saadieh v Director General, Department of Transport [1999] NSWADT 68, I 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. These factors were: · 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. 26 In relation to the nature, seriousness and frequency of any criminal offences, Ms Wilson has been convicted (or found guilty with no conviction being recorded) of six offences over a period of six months in 2001. The offences relate to domestic or neighbourhood disputes, the most serious of which are the most recent offences committed in October 2001. All these offences were committed when Ms Wilson was affected, to some extent, by alcohol. 27 These offences are all relatively recent. While Ms Wilson says that she is no longer drinking alcohol to excess, I find that she underestimated the amount she was drinking when she went on the medication. I am not satisfied, on the basis of her word alone, that she is no longer drinking to excess or that there is no likelihood that she will not drink to excess in the future. 28 She has been fined on two occasions in the recent past for speeding while driving a coach. 29 She has been dishonest in the manner in which she completed her application for renewal of the driver authorities. I accept Mr Wozniak's submission that the Department relies heavily on the honesty of applicants because it does not have the resources to do a criminal record check in relation to every applicant. The public cannot be protected from unfit drivers, unless all applicants provide honest answers on the application form. 30 In Ms Wilson's favour, she has apparently not had any complaints lodged against her by passengers and she enjoys a good reputation among the travelling public. Her employer also regards her highly. While the assaults and other offences did not occur during the course of her employment, both her lack of honesty and her alcohol consumption are matters which are of considerable concern. 31 On the basis of all the evidence and the submissions by the parties, I find that it cannot be attested that Ms Wilson is of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle. After a reasonable period of acting honestly and responsibly, Ms Wilson may be able to satisfy the Director General (or the Tribunal on review) that she is a suitable person to drive such a vehicle. One matter that would need to be addressed by medical evidence in any future application is Ms Wilson's alcohol consumption. Orders 32 The decision of the Director General to cancel Ms Wilson's driver authorities 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.