CITATION: Walters -v- General Manager, Tow Truck Authority of New South Wales [2000] NSWADT 114 DIVISION: General Division APPLICANT John Robert Walters PARTIES: RESPONDENT General Manager, Tow Truck Authority of New South Wales FILE NUMBER: 003166 HEARING DATES: 25/07/2000 SUBMISSIONS CLOSED: 07/25/2000 DATE OF DECISION: 08/29/2000 BEFORE: Wilson K - Judicial Member APPLICATION: Tow Truck Industry Act - tow truck operator or driver - grant of licence or certificate - Tow Truck operator or driver - grant of licence or certificate MATTER FOR DECISION: Principal matter LEGISLATION CITED : Tow Truck Industry Act 1989 CASES CITED: APPLICANT REPRESENTATION: In person RESPONDENT T Xenos, solicitor ORDERS: That the decision to refuse to grant a driver's certificate be set aside and be substituted with a decision that the applicant be granted the certificate. REASONS FOR DECISION Background 1 This is an application for review of a decision under Section 26(1)(b) of the Tow Truck Industry Act 1998 not to renew a driver's certificate held by John Robert Walters on the basis that he is no longer someone who can be considered to be a fit and proper person to hold such a certificate. The decision was taken because he did not disclose in his application for renewal that he had two convictions: one for failing to stop after an accident and another for negligent driving relating to his private driving. 2 On 11 April 2000 a Notice to Show Cause as to why his driver's certificate should be renewed was sent to Mr Walters. He responded saying that the convictions which he failed to set out in his renewal application were the result of an accident he had in his private car. As a result of the accident he had suffered concussion and shock. Further, he had been making holiday arrangements which meant that he did not pay proper attention to the document. 3 On the face of it these matters alone perhaps would not have attracted the attention of the authority in the context of deciding whether or not to renew Mr Walters' driver's certificate. However, when Mr Walters first applied for a tow truck driver's certificate he did not disclose some convictions, unrelated to driving, which had been made against him. Once these matters were brought to his attention by the authority he accepted that they were matters that he had overlooked. His driver's certificate was approved with a caution that any further convictions against him may cause the authority to review his fitness to hold a driver's certificate including a review of those offences disclosed at the time of the application. Legislation 4 Section 26 of the Tow Truck Industry Act states that the Tow Truck Authority must refuse an application for a driver's certificate on certain mandatory grounds where certain issues are raised. It also provides that in some circumstances the Tow Truck Authority may refuse to grant an application for a driver's certificate on discretionary grounds. This matter falls within the discretionary grounds as Section 26(3)(a) states that one discretionary ground for refusing to grant an application for a driver's certificate are that the applicant is not, in the opinion of the Tow Truck Authority, a fit and proper person to hold a driver's certificate. This matter involved a decision to refuse to grant a driver's certificate under Section 26(1)(b) on the basis that the applicant was not a fit and proper person under s26(3)(a) Evidence 5 At the hearing the authority submitted that Mr Walters had failed to disclose relevant matters on at least two occasions, the first of which had attracted a caution. The Authority said such behaviour was sufficient for it to take the view that he was not a fit and proper person to hold a driver's certificate. 6 Mr Walters gave evidence to the Tribunal that he had been carrying out the activities of being a licensed tow truck driver for the last two years. This was work that he was good at and that he enjoyed but he conceded that he had not paid proper attention to the documentation. 7 The Tribunal considered from Mr Walters' evidence that he had a reasonably lax view towards the regulatory requirements and he had not intentionally failed to bring this matter to the notice of the authority; as he put it, he knew that they would check his records and there was no way that he was trying to avoid detection of these matters by failing to disclose them on his application. 8 Mr Walters' case included evidence from his employer who gave a detailed reference as to his competence and reliability as a tow truck driver. Mr Walters' father also gave evidence that his son has now found himself at a turning point where he either displays greater responsibility and maturity or else he must bear the consequence of his actions. Findings 9 The Tribunal notes that there are no complaints against Mr Walters in the way in which he has carried out his duties as a tow truck driver. The task is quite an arduous one and requires a number of personal attributes which can only be found in some members of the community. 10 The Tribunal has given serious consideration to the two matters which the authority relied on in determining that Mr Walters was no longer fit and proper. The Tribunal can understand the concern of the Authority. The Tribunal has come to the view that those matters in themselves do not end the consideration as to whether or not Mr Walters is a fit and proper person. The test of fit and proper is one that must be related to the particular task at hand. The Tribunal is not satisfied that Mr Walters was intentionally dishonest in filling out this form. The Tribunal believes that it is more likely an indication of Mr Walters' failure to pay sufficient attention and turn his mind to exactly the matters required. The Tribunal considers that this experience of having the renewal of his driver's certificate declined and having to go to the lengths that he has gone to have it reinstated should be a salutary lesson for him; it should ensure that in future he complies with every letter of the regulatory requirements. If he does not do so then he is putting his own situation at peril. 11 Having reviewed all of the evidence, the Tribunal considers that whilst Mr Walters was at fault in not disclosing these matters, this does not amount to sufficient grounds to determine that he is no longer fit and proper to hold a tow truck driver's certificate. Determination 12 The Tribunal determines that the decision to refuse to grant the driver's certificate is set aside and is substituted with a decision that the applicant be granted a driver's certificate. 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.