Barrett -v- Director General, Department of Transport [2000] NSWADT 183

CITATION: Barrett -v- Director General, Department of Transport [2000] NSWADT 183 DIVISION: General Division APPLICANT Ronald Barrett PARTIES: RESPONDENT Director General, Department of Transport FILE NUMBER: 003266 HEARING DATES: 11/10/2000 SUBMISSIONS CLOSED: 10/11/2000 DATE OF DECISION: 12/12/2000

BEFORE: Rice S - Judicial Member APPLICATION: Bus driver - cancellation of authority - Passenger Transport Act - bus driver - cancellation of authority MATTER FOR DECISION: Principal matter LEGISLATION CITED : Passenger Transport Act 1990 Loye-v- Director-General, Department of Transport [2000] NSWADT 145 Re T and the Director of Youth and Community Services[1980] 1 NSWLR 392 CASES CITED: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Singh v Director General, Department of Transport [1999] NSWADT 96 Pfennig v The Queen (1995) 182 CLR 461 APPLICANT REPRESENTATION: M Butcherine, solicitor RESPONDENT A Wozniak, solicitor ORDERS: 1. Pursuant to s63(3)(a) the decision of the Director-General to cancel Mr Barrett's authority to drive a public passenger vehicle is affirmed; 2. Pursuant to s88(1) there is no award of costs; 3. Exhibit 3 is to be returned to Mr Barrett, and Exhibits A, B and E are to be returned to the Department..

Decision 1 For the reasons I give below, in my view the correct and preferable decision is Mr Barrett's authority to drive a public passenger vehicle should be cancelled. Application, refusal and review 2 By letter dated 1 June 2000 the Department advised Mr Barrett that it had determined to cancel his authority to drive a public passenger vehicle. The letter provided Mr Barrett with a Statement of Reasons, and advised him of his right to an internal review of the decision. 3 By letter dated 27 June 2000 from his solicitors, Mr Barrett applied for internal review of the Department's decision. 4 By letter dated 10 July 2000 the Department advised Mr Barrett that the initial decision to cancel his authority was confirmed on review. Reasons for refusal 5 An authority to drive a public passenger vehicle, issued by the Director General under ss 11 and 12 of the Passenger Transport Act (PT Act), attests to the holder of the authority being considered, among other things, to be of good repute, to be a fit and proper person, and to have sufficient responsibility and aptitude to drive a public passenger vehicle. 6 The Director-General takes account of these considerations when deciding whether to cancel an authority (s14 PT Act). 7 In the Statement of Reasons for the initial decision the delegate of the Director-General considered "the nature, seriousness and frequency of (Mr Barrett's) proven offence record", and concluded that this "proven offence record indicates that (Mr Barrett is) not a person of good repute and in all respects a fit and proper person to drive a public passenger vehicle". 8 The delegate considered "offence(s) on (Mr Barrett's) traffic records" and concluded that s/he could "not attest that you satisfy the requirements contained within section 11(2)". 9 The delegate considered Mr Barrett's "complaint record" and concluded that s/he could "not attest that you satisfy the requirements contained within section 11(2)". 10 The delegate considered "the likelihood that (Mr Barrett) will again commit non-traffic and/or traffic offences, or be the subject of further complaints," but did not record a conclusion on the issue. 11 The delegate was "not satisfied that (Mr Barrett has) sufficient responsibility and aptitude to drive a public passenger vehicle in accordance with the conditions under which public passenger vehicle is operated, or in accordance with law and custom". 12 Finally, "having regard to all the matters raised, and considering the interests and safety of the travelling public and to the general public", the delegate was "not of the opinion that (Mr Barrett is) a fit and proper person to be the driver of a public passenger vehicle". 13 In reviewing this decision, the Director-General's delegate confirmed the refusal of Mr Barrett's application, but not in more precise terms. 14 The letter to Mr Barrett dated 10 July 2000 advising of the review decision confirms the initial decision that Mr Barrett's "offence record indicates that (he is) not a person of good repute and in all respects a fit and proper person to drive a public passenger vehicle as defined under Section 11 (2) (a) and/or (b) (i) and (ii) of the Passenger Transport Act 1990". 15 The letter says that "(t)he facts and information upon which the Department's decision was taken, and were made available for this review, cast grave doubt about (sic) your aptitude to drive a public passenger vehicle and your ability to meet the requirements of Section 11 (2) (a) and/or (b) (i) and (ii) of the Passenger Transport Act 1990". 16 Finally the letter says that "(Mr Barrett's) extensive complaints history, combined with your criminal record and traffic record show that you do not have sufficient responsibility and aptitude to drive a public passenger vehicle in accordance with law and custom". 17 I note the comments I made in Loye-v- Director-General, Department of Transport [2000] NSWADT 145 regarding the manner in which the Department formulates and advises of the decision and the internal review decision. Those comments are apt in this matter. Reviewable decision 18 The reviewable decision is that of the delegate of the Director-General to cancel Mr Barrett's authority to drive a public passenger vehicle, advised to Mr Barrett by letter dated 1 June 2000. Requirements to be met 19 The issue for this Tribunal is: 'what is the correct and preferable decision on the basis of the material available to it including any relevant factual material and any applicable written or unwritten law?' (s63(1) ADTA). 20 The applicable law is in the PT Act. Section 14 enables the Director-General to cancel an authority to drive a public passenger vehicle, having regard to the purpose for which the authority is held. Section 11(2) says that the purpose of an authority is to attest that the holder of the authority: · is of good repute (s11(2)(a)) · is in all other respects a fit and proper person to be the driver of a public passenger vehicle (s11(2)(a)) · has sufficient responsibility to drive a public passenger vehicle in accordance with the conditions under which a public passenger service is operated (s11(2)(b)(i)) · has sufficient responsibility to drive a public passenger vehicle in accordance with law and custom (s11(2)(b)(ii)) · has sufficient aptitude to drive a public passenger vehicle in accordance with the conditions under which a public passenger service is operated (s11(2)(b)(i)) and · has sufficient aptitude to drive a public passenger vehicle in accordance with law and custom (s11(2)(b)(ii)). 21 It is clear from the correspondence and the Department's file that the Director-General is not satisfied, for a range of reasons, that an authority would attest to any of these matters in Mr Barrett's case. 22 I note that on the Department's file is a memo dated 14 February 1994 from the (then) Executive Director Road Transport to the General Manager Regional Operations and to Regional Managers. The memo confirms "the Department's rule" that when the holder of an authority is found guilty of a "serious offence", including "all charges relating to incidents within a public vehicle", "the Driver authority will automatically be cancelled . . . without exception". A file note on the Department's file dated 7 February 2000 says that that instruction "is still used". 23 I understand that the motive behind such a rule would be to maintain the highest standards of driver conduct and public safety. At the same time I am concerned that such a rule, with its 'automatic' effect, disregards the discretion the Director-General has under the PT Act, and relies on a presumption which is wrong in law. A criminal offence does not 'automatically' mean a person is not of good character, or not fit and proper, or without the responsibility and aptitude to drive a public passenger vehicle. Certainly the occurrence of a criminal offence will be cause for investigation perhaps leading to cancellation, but it must not operate automatically to effect a cancellation. 24 Conversely, the absence of the occurrence of a criminal offence would not be reason to take no action in the face of consistent complaints. The history and nature of complaints against Mr Barrett suggest that the considerations under s11(2) could reasonably have been addressed sooner than now. Requirement of 'good repute' 25 Being considered to be of good repute is a threshold status in s11(2). If a person is not of good repute there is, strictly, no need to consider whether they are a fit and proper person to be the driver of a public passenger vehicle. 26 Mr Barrett is not considered to not be of good repute simply because he has a criminal history. I discussed this issue in Loye, referring there to authorities ands to the Tribunal's previous decisions on the issue. Evidence of reputation 27 The Department submits that Mr Barrett has a history of offences. If that is so, a question is raised as to Mr Barrett's reputation, and I look to the available material to decide whether Mr Barrett is of good repute despite the history of offences. In my view he is not. 28 Mr Barrett was twice charged in 1993 with drink-drive offences, The first was found proven but no conviction recorded, under the s556A of the Crimes Act as it was then. The second resulted in a conviction, fine, and licence disqualification. Mr Barrett's authority to drive a public passenger vehicle was suspended while he was disqualified from driving. Although the Department in the reviewable decision took account of those convictions, it did not rely on them in submissions to me, and appropriately so. Those matters took place over seven years ago. The Department took action on them then, and the matters that have since arisen and which have caused the Department to act now are of a completely different nature. 29 The two assault matters in May 2000 are not 'convictions'. Mr Barrett was found guilty, from which I infer that the facts in issue were agreed to or proven, but the court decided, under s10 of the Crimes (Sentencing Procedure) Act 1999, to dismiss the charges without proceeding to a conviction. I note the terms of s10 of the Crimes (Sentencing Procedure) Act 1999: (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make either of the following orders: (a) an order directing that the relevant charge be dismissed 30 There can be no doubt that Mr Barrett has not been convicted of any assaults, and has no relevant history of convictions. He was however found guilty of the offences. 31 A criminal conviction it is not evidence of bad repute. The conviction merely raises a question concerning a person's repute. This is so because the conviction is arrived at in open court, on the basis of facts aired in open court, and is assumed to be public knowledge and therefore directly relevant to reputation. On that basis, in my view, a criminal charge that was aired in open court, and resulted in a finding of guilt, will similarly raise a question to be answered concerning the person's reputation, even though the charges were dismissed. Evidence of repute 32 The circumstances of the assaults can be described briefly. Mr Barrett was found, while driving a bus on a school route, to have pushed a nine year old male passenger in the chest causing him to sit down, and to be shocked and upset. As well, on another occasion, Mr Barrett was found to have taken a ten year old female passenger by the wrist and squeezed it, causing pain. 33 In addition to these assaults having been proved against Mr Barrett, the Department relies on the evidence of Mr Dippel, the father of the children who were assaulted by Mr Barrett. 34 Mr Dippel is the father of the two children who were assaulted by Mr Barrett. He gave evidence that he has spoken to about 40 parents of other children who had travelled on Mr Barrett's bus. He said that in relation to his children's involvement in the assault proceedings, those parents had given him their whole-hearted support. He said that those parents share his view that Mr Barrett is always very aggressive. 35 On the issue of Mr Barrett's reputation Mr Dippel can relevantly give evidence of what others have told him. In fact evidence of reputation must come from someone who can say what a "specific group of people" think of the person (Re T and the Director of Youth and Community Services[1980] 1 NSWLR 392), and in this Tribunal that person's evidence will be admissible for that purpose. 36 In cross-examination Mr Dippel agreed that at least some of the conversations with other parents had been at his initiative, and that in seeking support for his opinion of Mr Barrett he had described the incidents involving his children. Mr Dippel agreed that his own adverse opinion of Mr Barrett was well known. 37 I am of the view that I can place some, but not substantial, weight on Mr Dippel's evidence as to Mr Barrett's reputation. In my view Mr Dippel, because of his considerable personal involvement in the circumstances that have brought Mr Barrett to this Tribunal, and consequent feelings of hostility towards Mr Barrett, is not the best person to give reliable evidence of the way Mr Barrett is regarded in the community. 38 Mr Barrett tendered a bundle of personal testimonials (Exhibit 2). They were all prepared in early 1993 for purposes of Mr Barrett's appearance in court on drink driving charges. They demonstrate the high regard in which Mr Barrett was then held in the community. The only contemporary testimonial is from Mr Arnold. It is undated but was obtained by Mr Barrett since the assault proceedings in May 2000 (Exhibit 3). 39 Mr Arnold says of Mr Barrett "If it has been necessary to address an issue of inappropriate behaviour by children during his [bus] run has done so in a caring manner". Despite Mr Arnold's children and grandchild having been passengers on Mr Barrett's bus, I do not see how Mr Arnold can make this statement on the basis of any direct knowledge. More importantly, however, Mr Arnold appears to have been unaware at the time he wrote this testimonial that Mr Barrett had had two charges of assaulting children passengers on his bus proved against him. 40 Mr Barrett's evidence is that Mr Arnold was aware of the assault charge proceedings. But Mr Barrett says that he had told Mr Arnold what he believes to be the case: he did not assault the children, he was found not guilty of the assault, he was found by the Court to have done nothing wrong. If this is, as it appears to be, the understanding that Mr Arnold had when he wrote the testimonial, the testimonial is of little weight in assessing the question as to Mr Barrett's reputation raised by the assault matters. 41 On balance I am not satisfied as to Mr Barrett's current good reputation. Against his being of good reputation are the two assaults, proven in May 2000 in open court in the town in which he lives and works. There is no evidence that, despite this, Mr Barrett currently enjoys a good reputation. What evidence there is of Mr Barrett's reputation pre-dates or is in ignorance of the outcome of the assault proceedings. 42 Although that finding would be enough on which to decide that the decision to cancel Mr Barrett's authority should be affirmed, the Department relied on all grounds in s11(2) to cancel Mr Barrett's authority. A person, on being told that the material does not indicate that they are of good repute, is entitled to reapply for an authority on the basis of new material addressing the issue of reputation. As I am of the view that the Department was correct in deciding that other requirements in s11(2) are not met, it is appropriate that my decision to affirm the decision under review canvasses all the grounds on which that decision can be made. 'Fit and proper' 43 Even if it was the case that, despite the assault proceedings and their outcome, Mr Barrett is of good repute, it is possible for him not to be a fit and proper person to hold an authority. In my view that is the case. 44 This Tribunal is commonly guided by the approach taken by the High Court: 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 (per Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at para 63). 45 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 (per Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at para 63). 46 Considerations generally in relation to fitness and propriety have been set out by the Tribunal in Singh v Director General, Department of Transport [1999] NSWADT 96 at paras 31 and 32. 47 In my view two considerations weigh against Mr Barrett, either of which alone is a sufficient basis on which to conclude that he is not a fit and proper person to hold an authority. 48 Firstly, I consider the nature and seriousness of the assault matters to weigh against Mr Barrett being a fit and proper person to hold an authority. 49 The offences were viewed by the presiding magistrate as being of a relatively low level of seriousness, reflected in the decision to dismiss the charges. But as Mason CJ said in Bond, extracted in paragraph 44 above, "the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker". As Toohey and Gaudron JJ said at page 56 in the same case, regard is had to "the nature of the activities", and a finding is made as to whether a person is "fit and proper to undertake the activities in question". While the facts established before the magistrate may have impressed as being only at the lower end of seriousness in the criminal law, they can be assessed differently for purposes of fitness and propriety to hold an authority. 50 Mr Barrett holds an authority to drive a public passenger vehicle. His business is the transport in public passenger vehicles of school children. The facts alleged against him in relation to the assaults were established beyond reasonable doubt. In those circumstances, in my view, the conduct leading to the assault matters is of such nature and seriousness as to indicate that Mr Barrett is not a fit and proper person to hold an authority. 51 Mr Barrett believes that he was found not guilty of the assault and that he committed no crime. He believes he did not assault the children, and that he has nothing to apologise for. On the one occasion when Mr Barrett does appear to have acknowledged that he engaged in unlawful conduct, he said through his solicitors, in his for internal review on 26 June 2000, "The most recent offence is very minor". 52 Mr Barrett's lack of insight into the seriousness of the matters proved against him as a driver of a public passenger vehicle add weight to his not being a fit and proper person to hold an authority. 53 Secondly, I consider the nature, seriousness and frequency of the complaints made against Mr Barrett indicate that he is not a fit and proper person to hold an authority. 54 They Department file records 24 complaints over 16 years, from June 1993 until December 1999. 55 I have inspected the complaints on the Department's file. The Department summarised the complaints in a document on which Mr Barrett, through his solicitor, has commented. Of the complaints, 12 allege verbal abuse of school children passengers; 14 allege physical abuse of school children passengers, and 3 allege actions in breach of safety requirements. 56 Many of the complaints are serious in that they allege Mr Barrett's deliberate physical contact with children who were passengers on his bus. They allege conduct which, if true, would be a clear breach of his responsibility towards the children as members of the travelling public and, more seriously, as vulnerable people in his care. 57 None of the authors of those complaints gave evidence before me, and I make no finding as to the truth of each of the matters alleged in each complaint. What I do take account of however is the high number and frequency of complaints, the consistency in their content over a long period of time, and the range of people who have made them. 58 The objective improbability of the complaints having an innocent explanation is such that there is no reasonable view I can take other than they support an inference that Mr Barrett has conducted himself in the manner alleged (see Pfennig v The Queen (1995) 182 CLR 461 per Mason CJ, Deane ands Dawson JJ at 481 discussing the admissibility of propensity evidence to establish guilt in criminal proceedings). 59 Mr Barrett has no explanation for the large number of complaints. In answering a schedule of complaints prepared by the Department, Mr Barrett says that two letters of complaint in March 1996 are "in exactly the same terms" and are "clearly part of he same campaign against" him. 60 In his oral evidence however Mr Barrett said he doesn't believe there is a conspiracy against him, merely that some people have their own ideas as to how he should do what is a hard job. He sees the complaints as being about the same things over and over, and representing only a small proportion of the thousands of children he has driven over the years. 61 When asked about a number of complaints referring to him pushing children into their seats Mr Barrett denies ever having acted in that way. When asked about the content of a number of complaints Mr Barrett denied the conduct alleged in each complaint. When asked about records of complainants' first-hand accounts of his conduct, Mr Barrett denied the truth or accuracy of those accounts. 62 When asked if he had been aware of parents' concerns Mr Barrett said he had not been aware and has never been made aware of them. Mr Barrett places no weight on the approach made to him by a number of parents in November 1997; he believes the parents had gathered to speak to him about a problem with the conduct of a boy, not about concerns they had as to his own conduct towards children on his bus. Mr Barrett denies the account given by police of his conduct in ordering children from the bus the day before the parents approached him. 63 Mr Barrett's correspondence with the Department and his evidence impressed on me his inability or unwillingness – I do not know which – to recognise that members of the travelling public, and in particular parents on behalf of their children, are concerned about the manner in which he, as the holder of an authority, conducts himself. 64 This failure on Mr Barrett's part indicates to me the likelihood that Mr Barrett will continue to act in a manner which will give the travelling public cause for concern and complaint if he were to retain his authority. 65 On the basis of four independent grounds I am satisfied that Mr Barrett is not a fit and proper person to hold an authority. The first is the nature and seriousness of Mr Barrett's conduct which led to the assault charges which were found proven. The second is a reasonable inference as to the inappropriate nature of Mr Barrett's conduct, drawn from the volume and consistent nature of the complaints. The third is Mr Barrett's failure to recognise that his conduct, whatever it has been, gives the public cause for concern as to their safety and comfort. The fourth is that Mr Barrett is likely to continue to engage in conduct giving the travelling public cause for concern as to their safety and comfort. 66 I note that the Department relies on Mr Barrett's traffic record, to support a finding that Mr Barrett is not a fit and proper person. I do not base my finding on Mr Barrett's traffic record. Apart from the drink-driving matters on which I commented at paragraph 28 above, the record shows five infringements in 15 years, the most recent of which was in February 1997. The Department has not acted in relation to Mr Barrett's authority on the basis of this traffic record before now, and the record is insufficient, of itself, to warrant a finding that he is not a fit and proper person to hold an authority. 'Responsibility' 67 In my view the considerations which render Mr Barrett not a fit and proper person to hold an authority also indicate that he lacks sufficient responsibility to drive a public passenger vehicle in accordance with either the conditions under which a public passenger service is operated or with law and custom (s11(2)(b)(i) and (ii)). 68 Whatever the merit of the complaints against him, Mr Barrett's failure to acknowledge the concerns the travelling public has as to his conduct, and his continuing denial of any conduct which could give rise to concern, suggest to me that he does lack sufficient responsibility to drive a public passenger vehicle in accordance with, at least, the conditions under which a public passenger service is operated. 69 In answering the schedule of complaints prepared by the Department, Mr Barrett in his affidavit either cannot recall the allegations, denies them, offers a different version, or both cannot recall the allegations and denies them because the conduct alleged is contrary to his policy or practice. A letter from Mr Barrett's solicitors dated 5 May 2000, enclosing his reply to the Department's schedule of complaints, says "Mr Barrett does not concede that any of his behaviour has been improper". 70 If this is Mr Barrett's genuine attitude to the substantial number of recurring complaints, and from his evidence before me it seems to be, then that attitude demonstrates his lack of responsibility as the driver of a public passenger vehicle. Mr Barrett fails to comprehend his responsibility to take seriously the complaints concerning his conduct. Other matters 71 The Department relied on a number of other matters which are relevant to Mr Barrett's reputation, fitness and propriety, and responsibility as a driver. Those matters include specific conduct such as restraining a child from leaving the bus, keeping a child on the bus to take him to school so as to complain about the child's behaviour, threatening to put children off the bus if they 'give cheek', and lining children up on the side of the road during a bus run. Other matters of a different nature include driving without an authority, failing to maintain an occurrence book, and executing an illegal turn. 72 In light of the findings I have made to support my decision, and the inconclusive nature of the material in relation to the other matters, I make no findings in relation to the other matters. 73 I do note however that Mr Barrett's response to all aspects of his conduct on which the Department relies is one of almost complete defensiveness and denial. In light of the quantity and consistency of matters raised against him, this level of denial is either not credible, or indicative of an attitude Mr Barrett has which, as I said above, renders him both not a fit and proper person and a person who is not responsible, to hold an authority. 74 Mr Barrett relied to some extent on the financial impact on him of a decision to cancel his licence. That is not a relevant consideration for purposes of the cancellation powers in the PT Act. Even if it was, I am aware from the material before me Mr Barrett's circumstances as proprietor of a bus company are such that his livelihood is not dependent on holding an authority. That being the case, the financial considerations would not outweigh the considerations of reputation, fitness and propriety and responsibility on which I have made findings. Aptitude 75 In addition to the other considerations in s11(2) which I have looked at, the Department submits that Mr Barrett lacks aptitude within the meaning of s11(2)(b). 76 I am not sure what the meaning of 'aptitude' is for this purpose. If it has its usual meaning and is referring to Mr Barrett's 'technical ability' or 'skill' in driving a bus, then there is no relevant material before me. Another ordinary meaning of the word is 'suitability', but that would only overlap with considerations of fitness and propriety. In any event I do not need to take account of this consideration in light of my other findings. Decision 77 Mr Barrett has provided a valuable service to families in and near Dubbo for many years. His company continues to do so. Mr Barrett has been highly regarded in the community. This decision is regrettable in that it brings to an end Mr Barrett's personal involvement in an activity to which he has dedicated himself for a long time. 78 Having regard to the relevant factual material and the applicable law, I have decided that the correct and preferable decision is that Mr Barrett's authority to drive a public passenger vehicle should be cancelled. Orders 79 Pursuant to s63(3)(a) I affirm the decision of the Director-General to cancel Mr Barrett's authority to drive a public passenger vehicle. 80 Pursuant to s88(1) I make no award of costs. 81 I direct that Exhibit 3 be returned to Mr Barrett, and that Exhibits A, B and E be returned to the Department.