Kaldas v Tow Truck Authority of NSW [2006] NSWADT 337

CITATION: Kaldas v Tow Truck Authority of NSW [2006] NSWADT 337

DIVISION: General Division

APPLICANT PARTIES: Hany Kaldas RESPONDENT Tow Truck Authority of NSW

FILE NUMBER: 063390

HEARING DATES: 07/11/06

SUBMISSIONS CLOSED: 11/07/2006

DATE OF DECISION: 11/29/2006

BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: Stay of proceedings

MATTER FOR DECISION: Preliminary matter

Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Tow Truck Industry Act 1998 Tow Truck Industry Regulation 1999

CASES CITED: Williamson v Director-General, Department of Transport [2000] NSWADT 16

APPLICANT D Leamey, Barrister REPRESENTATION: RESPONDENT A Wozniak, Solicitor

ORDERS: The application to stay the decision of the Tow Truck Authority not to grant Mr Kaldas a Tow Truck Driver's Certificate is refused.

REASONS FOR DECISION Introduction 1 Mr Kaldas operates a tow truck business called Maroubra Bay Towing Services. On 30 October 2006 the Tow Truck Authority refused to renew Mr Kaldas' Tow Truck Operator's Licence and his Tow Truck Driver's Certificate. Mr Kaldas asked the Tribunal for a stay of both decisions pending an urgent hearing. The Tribunal granted a stay in relation to the Operator's Licence but not in relation to the Driver's Certificate. That meant that Mr Kaldas could continue to operate his business comprising four tow trucks and three employees, but could not drive a tow truck himself. I gave short reasons for refusing the stay in relation to the Driver's Certificate. Mr Kaldas has requested written reasons for that decision. 2 During the course of the hearing I raised the question as to whether a stay could be granted in relation to the refusal of an application as distinct from a revocation of suspension decision. Mr Wozniak, representing the Tow Truck Authority, conceded that the Tribunal did have jurisdiction to stay the application in this case and I accepted that concession. 3 An internal review has not been finalised in relation to the suspension decisions, 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 Kaldas' interests and the application was made within a reasonable time following the decision of the administrator. 4 The Tow Truck Authority's reason for refusing Mr Kaldas' application for a Driver's Certificate was that he was not a fit and proper person to hold such a certificate and/or that it was not in the public interest for him to do so. The Tow Truck Authority formed that view because Mr Kaldas has recently been charged with several criminal offences. The first group of charges relates to events which occurred on 5 July 2006. On that day, Mr Kaldas allegedly became involved in an argument with another tow truck driver and removed the keys from his truck. It is alleged that he then threw the keys away before struggling with and fighting the other driver. Police and ambulance attended and Mr Kaldas was charged with affray and not behaving in orderly and civil manner. According to Mr Kaldas, he was the victim and not the perpetrator in relation to this incident. 5 The second group of charges relates to events which occurred on 17 June 2006 when it is alleged that Mr Kaldas and others refused to leave licensed premises after being requested to do so by a security officer. Mr Kaldas is said to have argued with, threatened and repeatedly assaulted the security officer. He was charged with assault occasioning actual bodily harm, affray and failure to quit licensed premises. He says he was intoxicated at the time. Mr Kaldas has pleaded not guilty to all these charges and the matters are likely to be listed for hearing in the Local Court early in 2007. 6 The Tow Truck Authority also took into account earlier allegations of domestic violence and a conviction under the Tow Truck Industry Act in 2002 for not complying with the direction of an authorised person at the scene of an accident. What is a stay? 7 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 Kazak would be in the position of having a current driver's certificate. Securing the effectiveness of the determination. 8 Before granting a stay the Tribunal must be satisfied that a stay 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]. Mr Kaldas has four tow trucks and three employees. He has a contract with the NRMA Motoring and Services as a Road Service Towing provider for the provision of salvage towing services. Mr Kaldas says that he does all those jobs personally because of his skill and experience. If he has to employ someone else to do this work, he will lose money for which he will not be compensated even if his application is ultimately successful. Alternatively he will be in breach of his contract. I am satisfied for those reasons that a stay is necessary to "secure the effectiveness of the determination." Appropriateness of a stay 9 The Tribunal's next task is to consider whether it is appropriate 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: ADT Act, s 60(3). 10 Interests of any person affected by the determination . Mr Kaldas and his family are the main people whose interests will be affected by any determination. Mr Kaldas is dependent on the income from driving a tow truck to support his family and meet his financial commitments. Despite the fact that he is able to continue to operate his business, he will be out of pocket if he is not able to drive a tow truck himself. However, there was no evidence of the precise extent of that loss, except that it was said that Mr Kaldas would not be able to fulfil the conditions of his contract with the NRMA. I do not know whether any other employee is available to fulfil the requirements of the NRMA contract, nor the level of income Mr Kaldas may expect to receive from running the business, but not driving. 11 Administrator's submissions. Mr Wozniak submitted that the seriousness of the criminal charges against Mr Kaldas justify ensuring that he does not continue to drive tow trucks until those charges have been heard. 12 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. 13 Seriousness of the charges . It is not the Tribunal's role to determine whether Mr Kaldas is guilty or not 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]. The charge of assault occasioning actual bodily harm is a serious one. The charge relating to affray and not behaving in an orderly and civil manner is slightly less serious. I note that Mr Kaldas says that he was the victim rather than the perpetrator in relation to the incident with another tow truck driver. 14 Relationship between the offence and tow truck operations. The first group of offences with which Mr Kaldas has been charged took place in the course of his activities as a tow truck driver. They relate directly to his fitness to participate in that industry. The second group of charges do not relate to incidents which took place in the course of Mr Kaldas driving a tow truck or operating his business, nevertheless they are of a similar nature to the first group of charges in the sense that they both allege that Mr Kaldas had an argument with someone and that there was physical contact between them. 15 Public safety. If the other tow truck driver is regarded as a member of the public, there is a potential risk to public safety if Mr Kaldas is permitted to continue to drive. I am satisfied of that risk despite the references which Mr Kaldas tendered in support of his good character. Conclusion 16 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. In addition, the Authority can take disciplinary action, including suspending a licence, if a person has been charged with an indictable offence. 17 Mr Kaldas has been charged with several offences including assault occasioning actual bodily harm. I have not taken into account the older matters alleging domestic violence or the conviction in 2002 for not complying with the direction of an authorised officer at the scene of an accident. The stay is sought in order to allow Mr Kaldas to continue to drive a tow truck until the merits of the Tow Truck Authority's decision not to grant him a driver's certificate is determined. The hearing has been postponed pending the charges being determined by the Local Court early in 2007. If Mr Kaldas is found guilty of an assault offence and receives a fine of more than $1,000, he will be disqualified from holding a tow truck driver's certificate for ten years: Tow Truck Industry Regulation 1999, Reg 15. 18 If Mr Kaldas is not allowed to continue to drive, his financial situation and that of his business will decline. However there was no evidence of the extent of the financial loss that Mr Kaldas would suffer if he is allowed to continue to operate his business, but not allowed to drive a tow truck. Given the relative seriousness of the offences for which Mr Kaldas has been charged and the fact that one group of charges relates to an incident with another tow truck driver, it is not appropriate to grant a stay to allow Mr Kaldas to continue driving a tow truck pending the determination of this matter. Order The application to stay the decision of the Tow Truck Authority not to grant Mr Kaldas a Tow Truck Driver's Certificate is refused.