Kalache v Tow Truck Authority of New South Wales [2004] NSWADT 238

CITATION: Kalache v Tow Truck Authority of New South Wales [2004] NSWADT 238 DIVISION: General Division APPLICANT PARTIES: Khaled Kalache RESPONDENT Tow Truck Authority of New South Wales FILE NUMBER: 043334 HEARING DATES: 13/10/2004 SUBMISSIONS CLOSED: 10/13/2004 DATE OF DECISION: 10/14/2004

BEFORE: Hennessy N - Magistrate (Deputy President) APPLICATION: Stay of proceedings MATTER FOR DECISION: Preliminary matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Tow Truck Industry Act 1989 CASES CITED: Williamson v Director-General, Department of Transport [2000] NSWADT 16 APPLICANT REPRESENTATION: C Blake, senior counsel RESPONDENT D Jordan, counsel ORDERS: The decision of the Tow Truck Authority to suspend the applicant's Tow Truck Driver's Certificate is stayed pending further order of this Tribunal; The hearing of this matter be expedited

Introduction 1 Mr Kaled Kalache is the sole director of Kalache's Investments Pty Ltd, a company which operates a tow truck business. He has a tow truck driver's certificate which allows him to drive a tow truck. On 8 October 2004 the Tow Truck Authority suspended his certificate on the basis that Mr Kalache and others were charged with conspiracy to defraud the National Bank of $316,000.00. The Tow Truck Authority formed the view that it was not in the public interest for Mr Kalache to continue to hold a tow truck driver's certificate. 2 Mr Kalache asked the Tribunal for a stay of the suspension pending an urgent hearing. The reasons Mr Kalache gave for requesting a stay were that he was intending to plead not guilty to the charge and if he loses his Certificate he will not be able to operate his tow truck business. 3 An internal review has not been finalised in relation to the decision, but I am nevertheless satisfied, pursuant to s 55(2) of the Administrative Decisions Tribunal Act 1998 (ADT Act), that it is necessary to deal with the application in order to protect Mr Kalache's interests and the application was made within a reasonable time following the decision of the administrator. Should a stay be granted? 4 What is a stay? The staying of a decision is designed to put a person back into the situation that they were in prior to the decision being made. Section 60(2) of the ADT Act gives the Tribunal power to make such orders "staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application." In this case, if the decision were stayed, Mr Kalache would be in the position of having a current driver's certificate. 5 Securing the effectiveness of the determination. Before granting a stay the Tribunal must be satisfied that it is necessary to "secure the effectiveness of the determination" (ADT Act s 60). The effectiveness of the Tribunal's ultimate decision will not be preserved if, for example, the applicant loses his or her business in the meantime, suffers irreparable losses or loses money for which he cannot be compensated. (Williamson v Director-General, Department of Transport [2000] NSWADT 16 at [15] and [17].) If a stay is not granted, Mr Kalache will not be able to drive a tow truck. That is the business in which he is engaged. Mr Kalache will suffer significant financial loss if he cannot drive a tow truck in the course of his business. I am satisfied for those reasons that a stay is necessary to "secure the effectiveness of the determination." 6 Desirability of a stay. The Tribunal's next task is to consider whether it is desirable to grant a stay after taking into account: a) the interests of any persons who may be affected by the determination of the application, and (b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and (c) the public interest. (Section 60(3)) 7 Interests of any person affected by the determination . Mr Kalache is dependent on the income from driving a tow truck to support his family and meet his financial commitments. I accept that it is unlikely that he would be able to obtain alternative employment, at least in the short term, which would provide an income comparable to that which he is presently receiving. He would suffer significant financial loss if a stay were not granted. Similarly it is likely that the employees of the company will lose their jobs unless the decision is stayed. 8 Public interest. Relevant factors to be taken into account in assessing the public interest are: · the nature and seriousness of the charges; · whether they relate to the activity for which the applicant is licensed; and · whether public safety may be prejudiced if the applicant continues to operate. 9 Seriousness of the charges. It is not the Tribunal's role to determine whether Mr Kalache is innocent or guilty. I must simply examine the seriousness of the charges and the circumstances of those charges. (Williamson v Director-General, Department of Transport [2000] NSWADT 16 at [15] and [17].) Both parties agreed that the matter with which Mr Kalache has been charged is serious. The charges relate to the purchase of low value residential real estate and the sale of those properties at grossly inflated prices. It is alleged that Mr Kalache and his wife purchased a residential property for $155,000 in December 2000 and that Fadi Sleiman (Mr Kalache's uncle) used a false identity to apply for a loan. The property was then sold for $395,000. Those are the only relevant details that I had before me at the stay hearing. 10 The provisions of the Tow Truck Industry Act suggest that the legislature takes criminal activity within the tow truck industry extremely seriously. There are provisions that oblige the Tow Truck Authority to refuse a licence if the person (or a close associate) has been convicted, or been found guilty with no conviction being recorded, of certain offences including any offence involving fraud, dishonesty or stealing. The Authority may refuse a licence on the ground that a person is not a fit and proper person to hold a licence. In addition, the Authority can take disciplinary action, including suspending a licence, if a person has been charged with an indictable offence. 11 Relationship between the offence and tow truck operations. The offences with which Mr Kalache has been charged did not take place in the course of his activities as a tow truck driver. However, because the charges allege that Mr Kalache engaged in fraudulent conduct, they are relevant to his suitability to participate in that industry. 12 Public safety. Finally, there was no suggestion that there would be any threat to public safety if Mr Kalache were permitted to continue to drive a tow truck in the short term. Conclusion 13 Mr Kalache has been charged with a serious offence involving fraud and dishonesty. That offence relates to the purchase of a home in 2000, nearly four years ago. The stay is sought in order to allow Mr Kalache to continue to drive a tow truck for a few weeks until a hearing on the substantive issue can take place. If he is not allowed to continue to drive, his business will suffer. Although it is not in the public interest for people who may have acted fraudulently to operate in the tow truck industry, that public interest is not significant enough in the circumstances of this case to override the potentially serious short term financial consequences to Mr Kalache that would result if a stay were not granted. Order The decision of the Tow Truck Authority to suspend the applicant's Tow Truck Driver's Certificate is stayed pending further order of this Tribunal. The hearing of this matter be expedited.