Doidge v Ministry of Transport [2005] NSWADT 218

CITATION: Doidge v Ministry of Transport [2005] NSWADT 218 DIVISION: General Division APPLICANT PARTIES: Kenneth Doidge RESPONDENT Ministry of Transport FILE NUMBER: 053111 HEARING DATES: On the papers SUBMISSIONS CLOSED: 06/12/2005 DATE OF DECISION: 09/26/2005

BEFORE: Montgomery S - Judicial Member APPLICATION: Bus driver - suspension of authority - Passenger Transport Act - bus driver - suspension of authority MATTER FOR DECISION: Principal matter LEGISLATION CITED : Passenger Transport Act 1990 Basham v Director General, Department of Transport [2000] NSWADT 170 CASES CITED: Health Care Complaints Commission v Litchfield, Matter No. CA40748/96 (8 August 1997) Rasheed v Director General, Department of Transport [2000] NSWADT 5 APPLICANT REPRESENTATION: L Longbottom, Solicitor RESPONDENT A Wozniak, Solicitor ORDERS: The decision under review is affirmed

REASONS FOR DECISION 1 Mr Doidge is a bus driver. He has been driving a school bus for the past seventeen years and transports approximately seventeen students each school day. His authority to be the driver of a public passenger vehicle is held under the Passenger Transport Act 1990 ("the Act"). 2 By letter dated 16 March 2005 a delegate of the Director General of the Ministry advised Mr Doidge of the decision to suspend his authority to drive a public passenger vehicle. Mr Doidge lodged an application for review of the decision under section 52 of the Act. I determined to hear the matter in the absence of an internal review. I note however that such a review was subsequently undertaken and the decision was made that Mr Doidge's authority be cancelled. 3 The Ministry's decision followed a number of complaints from members of the Kangaroo Valley community to the Ministry. It was alleged that on 16 March 2005 Mr Doidge was displaying inappropriate behaviour while driving a school bus. It is not in dispute that Mr Doidge has been diagnosed as schizophrenic and receives medical treatment for that condition. It is apparent from the Ministry's file that Mr Doidge has been the subject of complaints over a long period of time, however there is no history of Mr Doidge exhibiting violent behaviour towards any of the school children in the period since he commenced driving the bus. 4 As a result of the most recent complaints a meeting was held in Kangaroo Valley on 17 March 2005. Mr Doidge did not receive notice of the meeting until some time after it had taken place and therefore he did not attend the meeting or make arrangements for a representative to attend the meeting on his behalf. The Ministry's officers subsequently conducted a series of interviews with students who travel on Mr Doidge's bus and this lead to the action taken in relation to his authority. 5 The issue for determination is whether Mr Doidge is a person of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle. Each of the parties has made written submissions in relation to this matter. By agreement this decision is to be made on the basis of those submissions and the other material filed without the need for hearing. The Ministry's case 6 Mr Wozniak relies on the material contained in the Ministry's file as supporting the decision under review. He submits that the test relevant to this matter is set out in section 11(2) of the Act. That section provides that the purpose of an authority is to attest 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 is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates. More is required of Mr Doidge than simply being capable of driving the bus. 7 The Ministry contends that there is sufficient information in the Ministry's file to indicate there are concerns and that there is no positive evidence from Mr Doidge that he satisfies those matters. 8 Material on the Ministry's file suggests a long history of concern about Mr Doidge's conduct. In May 1997 HealthQuest considered Mr Doidge's condition was satisfactory provided it was controlled but suggested that if problems occurred later, then the matter should be revisited. Mr Wozniak submits that there is no doubt that the problems that occurred after that time led to these proceedings. It appears that the complaints against Mr Doidge relate to his failure to take medication. His authority was suspended on 5 February 2004. That suspension was lifted on 27 May 2004 and Mr Doidge was required to advise the Ministry within 24 hours of a change in medical treatment. It seems that his medication was changed prior to the March 2005 incident but he did not comply with that requirement. 9 Following the commencement of these proceedings HealthQuest was requested to do an assessment on Mr Doidge however he did not arrive for the assessment. Mr Doidge claimed he could not find the location however Mr Wozniak urged the Tribunal to note that Mr Doidge had previously been to HealthQuest at the same location. 10 Mr Wozniak submitted that Mr Doidge's problems re-occur over the passage of time. He contends that the problems in this matter are of even greater concern because school children are involved. It is of further concern where the school bus run is so small and problems are occurring. The complaints about Mr Doidge have been of the same nature and whilst it may be that to some extent he has been treated prejudicially in his community, it is ultimately the community and the community perception of him that establishes his fitness and propriety and repute. In such a case as this the repute of Mr Doidge is more affected by residing in a smaller community than it otherwise would if he resided in a large city. Accordingly the concern of the parents and children in this instance are more important. 11 Mr Wozniak referred to the decision of Basham v Director General, Department of Transport [2000] NSWADT 170 which in turn refers to the decision of Rasheed v Director General, Department of Transport [2000] NSWADT 5. In particular he refers to paragraphs 54 – 55 of Basham where it is stated: "54 I agree with this statement of the correct approach to be taken. I also refer to the formulation of the test for 'fit and proper character', in the case of a taxi driver, that I cited in Rasheed at [28]: '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 … to rehabilitate himself, would object to the applicant as the driver of the taxi.' 55 The above principles apply equally to the applicant as a driver of school buses, not taxis. Also, in my opinion, the members of the public to whom the decision maker in this case should have regard include the parents of the school children who are driven or might be driven by the applicant." 12 Mr Wozniak submitted that there is no evidence provided by Mr Doidge to satisfy the standard that is required of him and more so there is ample evidence contained within the Ministry's file as to serious concerns in relation to Mr Doidge's conduct. 13 The Ministry contends that if it were to accept that Mr Doidge will take his medication and notify the Ministry of any change in medication, this would amount to a condition being placed upon the authority. In this regard Mr Wozniak referred to the New South Wales Court of Appeal decision in Health Care Complaints Commission v Litchfield, Matter No. CA40748/96 (8 August 1997). In that matter the Court held that the necessity for imposing a condition on the appellant's registration (that the doctor only saw female patients with a chaperone) demonstrated he was unfit to practice medicine and in those circumstances the only appropriate orders was one dismissing the appeal. 14 Mr Wozniak submitted that the same situation exists in this matter. Should the Tribunal wish to impose a condition that Mr Doidge holds his authority only on the basis that he takes his medication, then such a condition not only would become difficult to enforce but also demonstrates that the Tribunal itself has concerns. Mr Doidge's case 15 Mr Doidge has not given evidence in this matter and has not been subjected to cross-examination. Ms Longbottom made detailed submissions to address the issues raised by the Ministry. Mr Doidge questions whether the complaints warrant the suspension of his bus authority. He contends that the complaints are provided by a very small cross-section of the Kangaroo Valley Community and appear to relate to incidents that are alleged to have occurred on one day, the 16 March 2005. 16 Ms Longbottom submits that appropriate weight should be given to the 22 March 2005 report of Dr Warren Kealy-Bateman, Senior Registrar in Psychiatry with Illawarra Health, and the testimonials provided in support of Mr Doidge. In his report Dr Kealy-Bateman states that Mr Doidge has no history of harm to himself or others and that he denies that he has threatened with intent to harm any students on the bus. Dr Kealy-Bateman also stated that he continues to hold the view that Mr Doidge is capable of driving the bus. In Dr Kealy- Bateman's opinion Mr Doidge's new medication is "superior medication" to the medication Mr Doidge was previously receiving and the new medication typically causes a more limited range of side-effects than the previous medication Mr Doidge was receiving. 17 Several testimonials have been submitted in support of Mr Doidge. Ms Longbottom submits that these testimonials demonstrate that members of Mr Doidge's community hold him in high repute. 18 In relation to the Ministry's concern at Mr Doidge's failure to notify of the change in his medication Ms Longbottom stated that she was instructed that Mr Doidge did not notify the Ministry because he was unaware that the change in medication amounted to a change in medical treatment warranting the Ministry being informed. She stated that Mr Doidge undertakes to notify the Ministry of any change in his medication or treatment regardless of its nature. 19 Ms Longbottom also submits that the Ministry has placed undue emphasis on events relating to Mr Doidge that had occurred prior to 2005. Although it is conceded that Mr Doidge has previously been the subject of investigations by the Ministry it is submitted that it is important to recognise that the outcomes of each of the previous investigations was that the claims were not substantiated. This conclusion has only been reached after the Ministry's completion of a thorough investigation of the allegations made against Mr Doidge. Ms Longbottom argues that allegations made more than five years ago should not be considered as evidence of Mr Doidge's reputation in the community today. Findings 20 This is a difficult matter insofar as it relates to issues of Mr Doidge's health. These health issues are directly linked to his reputation in the community. 21 Mr Doidge has chosen not to give evidence in relation to the complaints made against him. Consequently I have not had the advantage of his explanation of the events that lead to the suspension and ultimately the cancellation of his authority, his answers to the complaints or any indication of how he would handle situations in the future should they occur. Therefore the inference is that Mr Doidge simply denies the alleged conduct. 22 Similarly, I have not had the advantage of hearing from Mr Doidge's psychiatrist. There is little evidence before me that allows me to form a view on whether or not Mr Doidge can be considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates. There is limited material that would allow an assessment of Mr Doidge's reputation. 23 On the material before me, I find that I agree with Mr Wozniak's argument that there is ample evidence contained within the Ministry's file as to raise serious concerns in relation to Mr Doidge's conduct. It is apparent from the testimonials that some members of the community hold Mr Doidge in high regard. However, in my view the evidence presented on Mr Doidge's behalf is insufficient to allay those concerns. 24 I also agree with Mr Wozniak's argument that the applicable test is whether a member of the public, including the parents of the school children who might travel in a bus driven by Mr Doidge, knowing of Mr Doidge's conduct, would object to Mr Doidge as the driver of a school bus. 25 On the evidence before me, I am satisfied that such members of the public would not be comfortable with Mr Doidge as the driver of a school bus. It follows, in my view, that I am unable to attest that Mr Doidge 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 that he is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates. 26 Accordingly, it is my view that the Ministry made the correct and preferable decision. The decision should therefore be affirmed. Order The decision under review is affirmed.