CITATION: Gallahar v Director General, Ministry of Transport [2007] NSWADT 171 DIVISION: General Division APPLICANT PARTIES: Matthew Edward Gallaher RESPONDENT Director General, Ministry of Transport FILE NUMBER: 063412 HEARING DATES: 2 May 2007 SUBMISSIONS CLOSED: 2 May 2007 DATE OF DECISION: 3 August 2007 BEFORE: Higgins S - Judicial Member CATCHWORDS: Bus driver - cancellation of authority - Bus operator - cancellation of accreditation - Passenger Transport Act - bus driver - cancellation of authority - Passenger Transport Act - bus operator - cancellation of accreditation MATTER FOR DECISION: Principal matter Passenger Transport (Bus Services) Regulation 2000 LEGISLATION CITED : Passenger Transport (Drug and Alcohol Testing) Regulation 2004 Passenger Transport Act 1990 Passenger Transport Regulations 1990 Australian Broadcasting Tribunal v Bond [1990] 170 CLR 321 Director General, Department of Transport v Z [2002] NSWADT at 37 Farquharson v Director General, Department of Transport [1999] NSWADT 53 CASES CITED: Goody v Oldhans Press Ltd [1967] 1 QB 33 Hughes & Vale Pty Ltd v State of New South Wales [1955] 93 CLR 127 Re T v The Director of Youth & Community Services [1982] 1 NSWLR Singh v Director General, Department of Transport [1999] NSWADT 9 APPLICANT In person REPRESENTATION: RESPONDENT A Wozniak, solicitor ORDERS: The decision of the respondent is affirmed REASONS FOR DECISION Background 1 This is an application by Matthew Gallahar ('the applicant') seeking review of a decision of a delegate of the Director General of the Ministry of Transport ('the respondent'), pursuant to the Passenger Transport Act 1990 ('the PT Act'), to cancel the applicant's driver authority and to refuse his application for re-accreditation as a bus operator. 2 The grounds relied on by the respondent in making his decision was that the applicant had failed to satisfy him that he was a person of good repute and otherwise a fit and proper person; see ss.7 and 11 of the PT Act. The factual circumstances on which the decision was based related to four specific incidents of alleged inappropriate conduct. Three of these related to convictions of the applicant for three separate mid range PCA driving offences. These occurred in 198 at Cooma, in 2004 at Windsor and in 2005 at Parramatta. The remaining incident related to the applicant having incorrectly ticked the 'No' box on his application for re-accreditation form against the question "Have you been convicted of any offences within the last 5 years?" 3 In his application for review, the applicant asserted that he was a fit and proper person to hold the subject accreditation and driver authority and that he was considered to be of good repute and in all other respects fit and proper to be responsible for the operation of a public passenger vehicle. He went on to state that he had demonstrated his capacity to meet the requisite standards of financial viability, safety of passengers and the public and vehicle maintenance for the purposes of accreditation for a bus operator. At the hearing, Mr Gallaher gave evidence in which he explained the circumstances surrounding his convictions and the reasons why he had ticked the 'No' box in his renewal application for his accreditation. His evidence is discussed more fully below. Licence history Bus Operator Accreditation 4 The applicant was issued with an accreditation under the PT Act as an operator of long distance and tour services on 12 April 1999. At the time the applicant was trading as 'Snowy Mountains Taxi Service' and operating from Jindabyne. His accreditation related to three bus/coaches. In the letter from the respondent to the applicant advising him of his operator accreditation, the respondent informed him that he was required at all times to comply with the provisions of the PT Act and the Passenger Transport Regulations 1990 and the accreditation standards for long distance and tour services. He was also informed that the respondent may at any time vary, suspend or cancel his accreditation if (a) there was a breach of the accreditation standards, (b) it was found that false information had been provided in his application for accreditation, or (c) where there was a serious or persistent failure by the applicant to observe the terms and conditions of a service contract. 5 The material filed by the respondent does not indicate how long the initial accreditation remained in force. On 7 November 2005, the applicant submitted to the respondent a re-accreditation application form. The application was made in the name of the applicant alone and his address was stated to be East Kurrajong. As mentioned above, it is this application form, which is the subject of this application. In support of his application the applicant's accountant submitted a letter dated 9 November 2005. However the respondent wrote to the applicant informing him that the letter was inadequate and drew his attention to the need for his accountant to make a statement as to the applicant's financial viability. 6 On 6 April 2006, the respondent wrote to the applicant advising him that as of 30 June 2006, all current accreditations were to be cancelled if re-accreditation had not taken place (see legislative provisions below). The respondent further advised the applicant that if his accreditation was to be processed by 30 June 2006 he was required to urgently submit by 15 June 2006 a corrected financial viability letter from a 'qualified accountant' in NSW and 100 points of identification certified by a Justice of the Peace. On 1 June 2006, the applicant's accountant wrote to the respondent in regard to the applicant's financial viability to operate a bus service. The applicant was subsequent advised, orally and in writing, by an officer of the respondent that his accountant's statement was inadequate and what was required in order to comply with the respondent's requirements. 7 Not long after the officer of the respondent wrote to the applicant, that officer or another officer made enquiries as to possible driving related infringements by the applicant. It was through this process that the respondent identified the abovementioned convictions. After identifying these convictions, on 6 July 2006, the respondent issued a Notice to Show Cause to the applicant as to why the respondent should not refuse his application for re-accreditation and not suspend or cancel his bus driver authority. The applicant, through his solicitor, responded to the Show Cause Notice. On 1 September 2006, the respondent notified the applicant that he had determined to refuse his application for a bus operator re-accreditation or to cancel his bus operator accreditation forthwith as well as cancelling his bus driver authority. Following an internal review request by the applicant, through his solicitor, the respondent confirmed the original decision. Driver Authority 8 The material filed by the respondent indicates that the applicant was issued with a driver authority to drive a public passenger bus on 6 July 1998. The respondent's material also indicates that the applicant's ongoing suitability to be the holder of such an authority was not questioned until 2006 when enquiries were made about the applicant's driving record for the purposes of his application for re-accreditation. Relevant Legislation 9 The PT Act regulates the operators of and drivers involved in public passenger services which include buses, taxi cabs and private hire vehicles. Part 2, Division 1 of the PT Act relates to the accreditation of operators other than operators of taxi cabs and private hire vehicles. Division 2 of that Part relates to driver authorities for drivers of public passenger transport vehicles other than taxi cabs and private hire vehicles. It is the provisions in these divisions which are relevant to this application. Accreditation 10 S.7(1) of the PT Act creates an offence where a person carries on a public passenger service such as a bus service which operates within or partly within New South Wales, where that person is not an accredited service operator for that service. 11 S.7(2) of the PT Act sets out the purpose of accreditation of a service operator under Division 1. That sub-section provides as follows: '7(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 (c) to the degree and in the manner required in respect of services of the kind specified in the accreditation.' 12 The criteria which are to be met by applicants for accreditation to carry on bus services is set out in cl.5A of the Passenger Transport (Bus Services) Regulation 2000 ('PT (Bus Services) Regs'). 13 S.9A of the PT Act makes provision for the issue and renewal of accreditation. That section provides as follows: '9A Issue and renewal of accreditation (1) An accreditation, unless sooner suspended or cancelled, remains in force for a period determined by the Director General and specified in the particulars of accreditation, that is renewable from time to time on payment of a fee, if any, fixed under s.15 for the renewal. (2) Procedures for renewal may be settled by the Director General subject to any provision in that behalf made by the regulations.' 14 The regulations contain two express provisions in respect to the renewal of an accreditation. These are cl.12N and 12O which provide as follows: '12N Renewal of accreditation (1) For avoidance of doubt, the accreditation under Division 1 of Part 2 of the Act of an operator of a bus service can be renewed only if the renewal fee referred to in s.9A(1) of the Act is paid before the end of the period during which the accreditation is in force. (2) This clause is subject to Clause 12O in respect of an existing accreditation (within the meaning of that clause) of an operator of a bus service. 12O Existing accreditation (1) For the purposes of Clause 8 of Schedule 3 to the Act, the date described in respect of an existing accreditation of an operator of a bus service is as set out in this clause and sub-clause (2): (a) the prescribed date in relation to a holder of an existing accreditation who applied for renewal of the accreditation, and paid the renewal fee, on or after 1 January 2006 but before 1 April 2006, is 30 June 2006 and (b) the prescribed date in relation to the holder of an existing accreditation who applies for renewal of the accreditation, and pays the renewal fee, on or after 1 April 2006 but before 1 January 2007, is 31 March 2007. (2) The prescribed date in relation to a holder of an existing accreditation who does not apply for renewal of their accreditation, or pay the renewal fee, as set out in sub-clause (1), is 31 March 2007. (3) The holder of an existing accreditation referred to in sub-clause (2) is not eligible to apply for renewal of the accreditation concerned, but may apply for a new accreditation. (4) In this clause: "existing accreditation" means an accreditation referred to in clause 8 of Schedule 3 to the Act "renewal fee" means the fee referred to in section 9A of the Act.' 15 Schedule 3 of the PT Act contains savings and transitional provisions consequent upon the enactment of Acts, specified in cl.2 of that Schedule, in so far as they amended the PT Act. 16 The conditions of an accreditation generally are set out in 9B of the PT Act and cl.5B of the PT (Bus Services) Regs set out further conditions in respect to an accreditation to operate a bus service. It is unnecessary to set these out as they are not relevant for the purposes of this application. 17 S.10 of the PT Act makes provision for the variation, suspension or cancellation of an accreditation. That provision provides as follows: '10 Variation, suspension or cancellation of accreditation (1) Having regard to the purpose of accreditation, the Director General may at any time vary, suspend or cancel any person's accreditation. (2) The accreditation of a corporation is automatically cancelled when there is no designated director or manager for the purposes of section 2(a).' Driver Authority 18 S.11(1) creates an offence where a person drives a public passenger vehicle (other than a ferry) and that person is not the holder of an appropriate authority under Division 2 of Part 2 of the PT Act. S.11(2) sets out the purpose of an authority under that Division. That provision provides as follows: ' 11(2) The purpose of an authority under this Division is to attest: (a) 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 (b) the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates: (i) in accordance with the conditions under which a public passenger service is operated, and (ii) in accordance with law and customs.' 19 The conditions of an authority are set out in s.11B of the PT Act. It is unnecessary to set these out as they are not relevant for the purposes of this application. S.14 of the PT Act makes provision for the variation, suspension or cancellation of an authority. That section provides as follows: '14 Variation, suspension or cancellation of authority Having regard to the purpose of an authority, the Director General may at any time vary, suspend or cancel any person's authority.' Evidence 20 There is generally no dispute about the circumstances surrounding the applicant's convictions for the three mid-range PCA offences. These circumstances and the applicant's explanation in regard to these are as follows: (a) 4 March 1998 – this conviction related to an offence that was committed on 30 January 1998 while the applicant was driving a taxi along Kosciuszko Road in Jindabyne. The police stopped him on that day as part of their random breath testing exercise. On being tested he was found to have a reading of 0.130 grams alcohol/100 mls blood. At the time the applicant admitted to having consumed alcohol during the afternoon and it is noted from the police fact sheet that whilst he was driving the taxi, it was not in operation as he had been driving it to test repairs that he had made on the vehicle. The applicant was convicted of the offence, fined and disqualified for a period of 6 months. The applicant appealed the severity of the sentence and on appeal, the District Court confirmed the conviction and the fine that had been imposed by the Local Court but reduced the disqualification period from 6 months to 4 months. In his evidence the applicant explained that he started driving taxis and buses as an owner/operator at the beginning of 1997 in the Snowy Mountains area. Later that year he took over the Jindabyne taxi company which he sold in 2001. In the meantime he had begun his owner/driver passenger bus business in the area. In regard to this offence the applicant explained that he had been conducting the repairs to his decommissioned taxi in the sun, that he had a few beers and had decided to test drive the vehicle when he was pulled over at the random breath analysis area. He emphasised that he was not carrying passengers in the vehicle and that he had pleaded guilty to the offence. (b) 21 October 2004 – on this date the Windsor Local Court convicted the applicant in respect of a mid-range PCA offence that was committed on Saturday, 4 September 2004 at about 8.05 pm. The Court also imposed a fine of $1,200.00 and disqualified the applicant from driving for a period of 9 months commencing from the date the offence occurred. On this occasion the applicant was driving a white Toyota Utility and police stopped him on seeing his erratic driving. His breath analysis reading was 0.140 grams alcohol/100 mls blood. The applicant explained that after the sale of his taxi and bus business, he and his family came back to Sydney where he established a small mechanical business. He continues to operate that business but has from to time assisted his father in law who operates a bus for the disabled. While he has been doing some part time driving of this bus, he has not acquired any other buses for the purposes of his accreditation. In respect to this offence the applicant explained that he was driving the vehicle in his own personal time. He said he had been at a lunch with a friend and that they had had a few beers. He then went on to his friend's place where he had another two beers. (c) 18 October 2005 – on this date the Local Court at Parramatta convicted the applicant of an offence that was committed on 20 July 2005 at about 9 pm. He was stopped by the police and was driving a grey coloured Toyota Hilux Utility. He was found to have a breath analysis reading of 0.100 grams alcohol/100 mls blood. In convicting the applicant, the Court imposed a 3 year bond which was to be supervised by the NSW Probation Service and required the applicant to obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation, $1,500 in fines and disqualified him from driving for a period of 3 years commencing 20 July 2005. The applicant appealed the severity of the sentence to the District Court. On 2 May 2006, the District Court confirmed the conviction, the 3 year bond and the $1,500 fine. The Court set aside the disqualification and in lieu thereof disqualified the applicant from driving for 12 months commencing on the date the offence occurred and expiring on 19 July 2006. The Court also quashed the habitual offenders declaration and recommended that the applicant undertake the Sober Driver's Programme. In respect to this offence the applicant explained that he had been celebrating the birth of his son. He said he had had three beers over a very short period of time and that he was not a habitual drinker in that he does not drink every day. He said that it was not until he attended counselling and education following his 2005 conviction that he became fully aware of the consequences of his actions in driving a vehicle when he had consumed alcohol. Prior to this he was also unaware of how much he could drink before he reached the prescribed limit. He went on to say that the Sober Driver Programme had been very simple and effective in that he now adopted a policy of if he drank he didn't drive and if he drove, he did not drink. 21 Later in his evidence the applicant explained that he had been present during the 1997 Thredbo landslide. While he was present he did not receive any counselling and now realises that he had suffered some depression as a result of what he had seen and what effect the incident had had on his business. It was the tribunal's understanding that this was a possible explanation put forward by the applicant in respect to the 1998 offence. In respect to the 2004 offence, the applicant explained that at the time he was in a very emotional state due to having received a diagnosis that his daughter had diabetes. The 2005 offence he stated was committed at a time when he was very joyous because he was celebrating the birth of his son. In both cases, he acknowledged that his drinking and driving was an error of judgment. 22 In respect to his response 'No' to the question concerning convictions on his re-accreditation application form, the applicant stated while he was aware that he had been convicted of the above mid-range PCA offences he did not regard these as being criminal. He also went on to state that he did not read the application form in detail and therefore misunderstood the particular question. Consideration 23 As the grounds relied on by the respondent in its decision to refuse the applicant's re-accreditation application and to cancel the applicant's driver authority are the same it is appropriate to first deal with the concepts of 'good repute' and 'otherwise fit and proper person' in s.7(2) and 11(2) of the PT Act. In this regard, it is well established that both must be satisfied. Good repute 24 The Appeal Panel considered the meaning of 'good repute' in Director-General, Department of Transport v Z [2002] NSWADT AP 37 at [38]. In this regard the Appeal Panel said: 'Good repute refers to the way reasonably-minded people assess an individual's current reputation, with reasonably precise knowledge of those matters that put the person's reputation in doubt. The fact that the person produced evidence from witnesses who vouch in general terms for the person's reputation cannot be conclusive. Equally, care must be taken, as we see it, not to use the "good repute" requirement as a way of bringing into consideration stereotypes or assumptions which offend, for example, against human rights or anti-discrimination standards'. 25 In the same decision, at [20], the Appeal Panel cited with approval the following statement of Waddell J in Re T v The Director of Youth & Community Services [1982] 1 NSWLR 392 at 399: 'This definition ['reputation', Shorter Oxford Dictionary , 1973, 1083] makes it clear, as is the law, that a person's reputation is to be found in the estimate of his moral character entertained by some specific group of people, such as by those who live in the neighbourhood of his residence, those who work with him, or those with whom he associates in his occupation or profession'. 26 At [21], the Appeal Panel also cited with approval the following dicta of Lord Denning in Goody v Oldhams Press Ltd [1967] 1 QB 33 in relation to convictions: '[Previous convictions] stand in a class by themselves. They are the raw material from which bad reputation is built up. They have taken place in open court. They are matters of public knowledge. They are accepted by people generally as giving the best guide to his reputation and standing. They must of course be relevant, in this sense, they must be convictions in the relevant sector of his life and have taken place within a relevant period such as to affect his current reputation…' 27 In this application, the applicant has three convictions for mid range PCA offences. Of these two were committed within 12 months of each other and they are relatively recent. In respect to the most recent offence the applicant remains subject to a good behaviour bond. The first offence however was committed more than 9 years ago. The recent offences were not committed while the applicant was driving a public passenger vehicle however the first offence was committed while the applicant was driving a taxi that was decommissioned. 28 When considered as a whole and the recency of the latter offences, in my opinion, a finding that the applicant is not a person of good repute is arguable. At the same time, as pointed out by the respondent, the applicant has failed to present any references from persons he works with or knows which may establish the contrary. In light of the applicant being unrepresented and on the basis of my findings in respect to the applicant's fitness and propriety, I do not propose to make any finding in respect to the applicant's reputation. Fitness and propriety 29 It is well established that an assessment of whether a person is 'fit and proper' involves different considerations from those relevant to 'good repute': Singh v Director-General, Department of Transport [1999] NSWADT 9 at 25 to 28, Farquharson v Director-General, Department of Transport [1999] NSWADT 53 at 27. 30 The term 'a fit and proper person' was considered in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. In that decision, at [63], the Chief Justice Mason made the following statement in regard to the meaning of this term: '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.' 31 The meaning of the term was also considered in Hughes & Vale Pty Ltd v State of New South Wales (No.2) 93 CLR 127. In that decision, at 156, Dixon CJ, McTiernan and Webb JJ said the following in relation to the purpose of the fit and proper person test: '… is to give the wider scope for judgment and indeed for objection. "Fit" (or idoeneus) with respect to an office is said to involve three things, honestly, knowledge and ability; "honesty" to execute it truly, without malice, affection or partiality; knowledge to know what he ought to do; and ability as well as a state as embodied that he may intend and execute his office, when need is, diligently and not for impotency or poverty neglected.' 32 It is well established that the 'fitness and propriety' of a person must be considered in the context of what the person will be authorised to do if the licence is granted: see Hughes and Vale Pty Ltd (supra) and Bond (supra). And in this regard consideration is to be given to the objectives of the legislation under which that licence will be issued. In this case the objectives are those set out in s.4 of the PT Act. Paragraph 4(e) provides that the objectives include the encouragement of 'public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services.' These objectives apply equally to those who are to be accredited operators and those who are to be issued with a driver authority under Part 2 of the PT Act. 33 Specific provisions have been made for the testing of operators and drivers licensed under the PT Act for the presence of drug and alcohol and the consequences of an operator or driver having more than the prescribed amount of alcohol. These are found in the Passenger Transport (Drug and Alcohol Testing) Regulation 2004 and cl.3 of that Regulation defines the prescribed concentration of alcohol for the purposes of the Regulation to mean a concentration of 0.02 grammes or more of alcohol in 100 mils of blood. This is considerably less than what was contained in the applicant's blood when he was charged with the abovementioned offences. In this context the applicant's convictions are extremely serious. 34 While the applicant's most recent offences were not committed while he was driving a bus, in my opinion, they remain relevant to his conduct as an authorised operator and driver under the PT Act. These convictions, together with the earlier conviction cannot be described as an isolated incident. The earlier conviction also indicates that the applicant has not hesitated to drive a passenger vehicle when having more than the prescribed level of alcohol in his blood. Such conduct clearly places passengers at risk and I am not satisfied that the applicant fully appreciates that risk. Although the applicant stated he had learnt from his attendance at the Sober Driver Programme of the consequences of his drinking and driving and that he had now adopted a policy of not drinking and driving, I am not satisfied that this is the case. In this regard the applicant provided no supporting independent evidence, from the course, a psychologist, his father in law or otherwise. Instead I found the applicant to be extremely defensive when question by Mr Wozniac for the respondent in regard to his conduct. The applicant's explanation of the stress and consequent depression he suffered as a result of the 1997 Thredbo landslide and the effect that had on his business may continue to be a contributing factor to his subsequent offences. If that is the case, the applicant has provided no evidence to indicate that these stresses and his depression have been appropriately addressed by him or otherwise treated in some way. Furthermore, in his evidence the applicant appeared to have no knowledge of the alcohol limits that are prescribed in the Passenger Transport (Drug and Alcohol Testing) Regulation 2004. 35 For these reasons I find, on the material before the tribunal, that the applicant lacks the requisite knowledge and ability in the manner described by Dixon CJ, McTiernan and Webb JJ in Hughes & Vale Pty Ltd (supra). Accordingly I find that the applicant is not in all other respects 'fit and proper ' to be: (a) responsible for the operation of a public passenger service, and (b) the driver of a public passenger vehicle. 36 This does not prevent the applicant from being found 'fit and proper' at some time in the near future, in the event he can produce material which satisfies the respondent that he has addressed his inappropriate drinking and driving and that he fully understands the requirements of the PT Act and the relevant regulations made pursuant to that Act in so far as he is accredited to be a public passenger operator and or an authorised driver of a public passenger vehicle. 37 The above findings are sufficient to dispose of this application. However, I wish to raise two further matters that arise from this application. The first matter is the applicant's incorrect response in his re-accreditation application form. In this regard I accept the explanation given by the applicant as to why he ticked 'No' in response to the question of whether he had any convictions in the last five years. That is, I accept that he failed to read this question and other questions on the form and that he did not regard the offences for which he had been convicted as being criminal. This of course is no excuse, he should have read the questions carefully and answered them correctly. But I do not find that the applicant was knowingly dishonest when he ticked the 'No' box. 38 The remaining matter concerns the question as to whether the applicant's re-accreditation application was refused or whether the applicant's accreditation was cancelled. In his internal review determination the respondent purported to make both decisions. Which was the applicable one having regard to the provisions of the PT Act and the regulations was not argued by either party and the tribunal assumes that this was primarily due to the respondent being able to rely on the same grounds for either decision. While this may be correct, in my opinion, the respondent should have made it expressly clear as to whether the decision is a refusal of an application or a cancellation of an existing accreditation. 39 For the reasons set out above I find that the decision of the respondent is the correct and preferred decision and order that the decision of the respondent 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.