CITATION: Gatland v Ministry of Transport [2007] NSWADT 266 DIVISION: General Division APPLICANT Stephen James Gatland PARTIES: RESPONDENT Ministry of Transport FILE NUMBER: 053284 HEARING DATES: 20 August 2007 SUBMISSIONS CLOSED: 24 September 2007 DATE OF DECISION: 19 November 2007 BEFORE: Montgomery S - Judicial Member CATCHWORDS: Passenger Transport Act - bus operator - grant of accreditation MATTER FOR DECISION: Principal matter LEGISLATION CITED : Passenger Transport Act 1990 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 CASES CITED: Kornits v Ministry of Transport (GD) [2007] NSWADTAP 48 Loye v Director General, Department of Transport [2000] NSW ADT 145 Stephen James Gatland REPRESENTATION: Ministry of Transport ORDERS: The decision under review is affirmed. REASONS FOR DECISION 1 Mr Gatland is employed as a maintenance supervisor dealing with medical gases related to cryogenics. He holds a public passenger driver authority and was previously involved in the tourist and charter industry. Mr Gatland wishes to establish an airport shuttle service between Great Lakes and Taree and seek to be accredited to operate that service. 2 On 31 May 2005 he submitted an application to the Ministry of Transport for accreditation to operate a Public Passenger Service. A delegate of the Director-General of the Ministry of Transport determined to refuse the application pursuant to section 10 of the Passenger Transport Act 1990 ("the Act"). The delegate considered that Mr Gatland was not a fit and proper person to be the operator of a public passenger tourist service. Mr Gatland sought an Internal Review of the refusal however the original decision to refuse accreditation was affirmed. Mr Gatland has applied to the Tribunal for external review of the determination. For various reasons the matter was not ultimately heard until August 2007. Background 3 The decision to refuse accreditation was based on an assessment of Mr Gatland's background and in particular his 2003 conviction for drug related offences. It is common ground that Mr Gatland complied with all terms of the Bond and the periodic detention order that related to his conviction. 4 For some time prior to May 2005 he operated a bus service ("the service") with his then partner. Mr Gatland had completed a Certificate of Coach Management but neither he nor his partner held a Long Distance, Tourist and Charter Service Accreditation. They depended on the services of a Mr William Rankin who they employed as the operations manager of the service. They understood that Mr Rankin held the required accreditation. In about May 2005 an officer of the Ministry advised them that Mr Rankin was not appropriately accredited. 5 Mr Gatland was subsequently prosecuted for breaches of the Act in relation to operating the service without accreditation between 22 March 2005 and 26 July 2005 and for advertising a service that was required to be accredited, between 4 May 2005 and 8 December 2005. He pleaded guilty to the offences and was fined $3000 plus $2000 costs in connection with the first matter and fined $1000 in relation to the advertising matter. Applicable legislation 6 Section 7 of the Act provides: 7 Accreditation (1) A person who carries on a public passenger service by means of a bus or other vehicle (other than a vessel), being a service operating within, or partly within, New South Wales, is guilty of an offence unless the person is an accredited service operator for that service. Maximum penalty: 1,000 penalty units. (2) The purpose of accreditation under this Division is to attest: (a) that the accredited person is (or, in the case of an accredited corporation, the designated directors and managers of the corporation are) considered to be of good repute and in all other respects fit and proper to be responsible for the operation of a public passenger service, and (b) that the accredited person has demonstrated the capacity to meet the government's standards of: (i) financial viability, and (ii) safety of passengers and the public, and (iii) vehicle maintenance, to the degree and in the manner required in respect of services of the kind specified in the accreditation. (3) Standards for the purposes of subsection (2)(b): (a) may be prescribed by the regulations, or (b) to the extent that they are not so prescribed, may be determined and published by the Director-General and made available to interested persons. (3A) Different standards for the purposes of subsection (2)(b) may be prescribed or determined under subsection (3) for different classes of public passenger services and different classes of operators of public passenger services. (4) Any person wishing to obtain from the Director-General a copy of a standard published under subsection (3)(b) must pay the fee (if any) prescribed by the regulations. (5) Standards published under subsection (3)(b) may be re-determined by the Director-General from time to time, and are to be re-published and made available as occasion requires. 7 Section 8 of the Act gives the Director General the power to accredit persons applying for accreditation. Section 8 of the Act provides: 8 Procedure (1) Having regard to the purpose of accreditation, the Director-General may accredit persons applying for accreditation. 8 The Tribunal has jurisdiction to hear this matter under section 52(1) of the Act which states that any person who has been refused accreditation may apply to the Tribunal for a review of that decision. The Ministry's case 9 The Ministry's case is that Mr Gatland is not a fit and proper person to hold an accreditation because of his convictions and in particular his previous conduct in breach of the Act. The original basis for refusing the application was Mr Gatland's drug related convictions however Mr Wozniak contends that the breaches of the Act are more recent and more significant because they are breaches within the regulated industry. 10 It is common ground that Mr Gatland pleaded guilty to the offences. Mr Wozniak points to Mr Gatland's evidence that he did not apply for the accreditation until he became aware that Mr Rankin was not appropriately accredited. At the very least, this means that Mr Gatland was aware that the service was not accredited as at 31 May 2005. Mr Gatland was aware that his application for accreditation was refused from early July 2005. Mr Wozniak contends that in light of the admission that the he continued to operate the service at least until and 26 July 2005, the Tribunal should find that Mr Gatland was operating the service in the knowledge that he was not accredited to do so. 11 The Ministry also relies on a statement of Ms Penelope Edds dated 13 December 2005 in which Ms Edds sets out an account of a conversation she had with Mr Gatland on Wednesday 7 December 2005. She stated that in the conversation Mr Gatland indicated that he was prepared to provide a charter bus service. She stated that: 6. Steve then went on to say that he does not do the short services around town anymore, because for one person it would cost too much. He said "It costs $90 for the bus and so for one person it would be too much. I can only do it for 10 to 20 people at a time. I have a 21 seater plus the driver and I'll go wherever you want - to Sydney, Queensland, Forster. Next weekend I'm doing a 50th birthday party for some people. I'll go around and pick everyone up, take them where they want to go and then take them home again." 7. I asked Steve if he needed much notice for a trip and he said, "I prefer a bit of notice, but I could do it at short notice, depending on bookings." 12 Ms Edds did not attend the hearing and was not available for cross-examination. Nevertheless, Mr Wozniak contends that this evidence suggests that Mr Gatland had continued to operate the service at least until December 2005 and that he did so knowing that he did not hold the requisite accreditation. This, and the fact that he was convicted of breaching the Act, contradicts Mr Gatland's assertion that he has an understanding of the requirement to comply with the applicable legislation. 13 Mr Wozniak submits that Mr Gatland's evidence in regard to whether there is a need for a service operating from the Forster/Tuncurry/Pacific Palms area to Taree airport is irrelevant to the issue to be determined by the Tribunal. That is, whether Mr Gatland is a fit and proper person for the purposes of the accreditation. He submits that the relevant issues are the convictions that Mr Gatland has in relation to the drug matters and subsequently the offences under the Act. Mr Wozniak submits that the charges for which Mr Gatland was convicted are criminal offences satisfied on the criminal standard of proof. 14 Mr Wozniak urged caution in attributing weight to the testimonials provided on behalf of Mr Gatland. He submitted that for a reference to be of assistance to the Tribunal it needs to be apparent that the person expressing the view was aware of any criminal history of the applicant and also show the purpose for which they were expressing the view. In support of that contention he referred to the views expressed by Judicial Member Rice in Loye v Director General, Department of Transport [2000] NSWADT 145 . Loye was cited with approval in the Appeal Panel in Kornits v Ministry of Transport (GD) [2007] NSWADTAP 48. At paragraph [29] the Appeal Panel stated: 29 Appeal Panel's conclusion. The Tribunal in Loye v Director General, Department of Transport [2000] NSWADT 145 gave some weight to evidence of Mr Loye's reputation but found that the evidence was insufficient, in the face of his history of convictions, to establish that he was of good repute. Applying the reasoning in this decision, the Tribunal gave limited value to the references which did not refer to the fact that Mr Kornits was at risk of having his driver authority cancelled. Mr Kornits was legally represented before the Tribunal and had a reasonable opportunity to tender character references in support of his case. The Tribunal did not make an error in limiting their value to attest to Mr Kornits' fitness to drive a taxi. Mr Kornits should not be permitted to have his case heard again on the merits because of the inadequacy of his evidence at first instance. 15 Mr Wozniak submits that little weight should be given to the testimonials that Mr Gatland has provided as they do not specifically address the issue to be determined by the Tribunal. 16 There is no dispute that Mr Gatland has completed the Certificate of Coach Management Course, however Mr Wozniak submits Mr Gatland subsequently committed offences under the very legislation that he professes to understand as a consequence of his completion of that course. Mr Wozniak submits that Mr Gatland's application should be dismissed and that the decision of the Director General should be affirmed. Mr Gatland's case 17 Mr Gatland provided two affidavits in support of his application. He also provided oral evidence at the hearing and was subjected to cross-examination. He also provided several testimonials to support his assertion that he is a fit and proper person to hold the accreditation that he seeks. The testimonials also provide support for his contention that there is a need for the shuttle bus service between the Forster/Tuncurry/Pacific Palms area and Taree Airport. 18 Mr Gatland's memory of dates was hazy however he maintains that he has a good recollection of conversations. He does not dispute his convictions however he disputes the evidence provided on behalf of the Ministry which suggests that he continued to operate the service after May 2005 notwithstanding the fact that he was aware of the accreditation requirement. He disputes Ms Edds' account of the conversation that he had with her on 13 December 2005. Mr Gatland contends that the account of the conversation is incomplete and fails to record that fact that that he what he had indicated to Ms Edds was what he intended to do if he became accredited. 19 He conceded that advertisements for the service continued after May 2005 through to December 2005 but he stated that this beyond his control. He said that he attempted to cancel the advertisements but he was unable to do so. He said that he was threatened with legal action for failure to pay for the advertisements. 20 Mr Gatland's evidence was that he was aware of the need for accreditation prior to undertaking the Certificate of Coach Management course in 2004. He stated that he intended to apply for accreditation before he came aware of the fact that Mr Rankin was not appropriately accredited but that he only applied for the accreditation after he became aware of that fact. His application was lodged on 31 May 2005 and he accepts that he was convicted of operating the service up to 26 July 2005. 21 Mr Gatland contends that he is a fit and proper person to hold the accreditation. He says that he has a clear understanding of the requirement to comply with the relevant legislation and provided evidence of having obtained suitable qualifications to support the accreditation that he seeks. Accordingly, he submits, the accreditation should be granted. Findings 22 The issue to be determined is whether the correct and preferable decision is that Mr Gatland should be granted an accreditation. The accreditation should not be granted unless the Tribunal is able to attest that Mr Gatland is considered to be of good repute and in all other respects fit and proper to be responsible for the operation of a public passenger service. 23 Mr Gatland does not fail to be of good repute simply because he has a criminal history. An assessment of repute is a matter for the Tribunal, weighing all the evidence. I am satisfied on the evidence before me that Mr Gatland is considered to be of good repute. 24 Assessing fitness and propriety involves considerations different from those relevant to 'repute'. It is possible that a person is of good repute, but that on examination they are found not to be a fit and proper person for a particular purpose. The Ministry asserts that Mr Gatland is not a fit and proper person to hold the accreditation. 25 The meaning of the expression 'fit and proper' has been considered in numerous matters before this Tribunal and other forums. 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." 26 A number of factors that are relevant and should be taken into account in determining whether Mr Gatland is suitably fit to obtain an accreditation. Those factors include the nature, seriousness, and frequency of the offences for which Mr Gatland has been convicted and the likelihood that he will re-offend. It has been demonstrated that Mr Gatland has had a history of involvement in the public transport business and that history involved non-compliance with accreditation standards. The evidence suggests that this non-compliance occurred despite the fact that Mr Gatland was aware of the requirements imposed on operators of the kind of service that he operated. In my view this conduct is not to be treated lightly. Strong evidence would need to be provided to satisfy me that circumstances had changed to the extent that this is outweighed by factors in favour of Mr Gatland. Evidence of that nature has not been presented to the Tribunal. 27 I note that Mr Gatland disputes Ms Edds' account of the conversation that he had with her on 13 December 2005. I also note that Ms Edds was not available to allow her evidence to be tested. In light of the fact I do not propose to put weight on Ms Edds' evidence to the extent that Mr Gatland has contradicted it. 28 The requirements of the accreditation standards are set out for operators to understand their responsibility within the public transport system. Persons involved in the operation of such services are required to ensure that they operate the service in accordance with the law. At this time I cannot be confident that Mr Gatland has an adequate understanding of the requirements that he must meet. Nor am I confident, notwithstanding his convictions, that he accepts that he has failed to comply with the law in operating the service. I agree with the Ministry that, in the face of his history of convictions, the evidence was insufficient to establish that Mr Gatland is a fit and proper person to hold the accreditation. 29 I am satisfied that on the basis of the evidence before me and the material contained in the departmental files that Mr Gatland does not meet the standards required by the community for granting the accreditation he seeks. In my view, the correct and preferable decision is that at this time he should not be granted the accreditation. If Mr Gatland is able to obtain the evidence to outweigh the evidence of the conduct that lead to his convictions, the Ministry may well take a different view should he choose to reapply in the future. However, for now the decision to refuse his application for accreditation should be affirmed. Order The decision under review 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.