Ostrovsky v Director General, Ministry of Transport [2008] NSWADT 297

CITATION: Ostrovsky v Director General, Ministry of Transport [2008] NSWADT 297

DIVISION: General Division

APPLICANT Dimitry Ostrovsky PARTIES: RESPONDENT Director General, Ministry of Transport

FILE NUMBER: 083118

HEARING DATES: 21 August 2008, 19 September 2008, 25 September 2008

SUBMISSIONS CLOSED: 25 September 2008

DATE OF DECISION: 5 November 2008

BEFORE: Higgins S - Judicial Member

CATCHWORDS: Bus and hire car driver – cancellation of authority

Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Passenger Transport Act 1990 Passenger Transport Regulations 1990

CASES CITED: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Hughes & Vale Pty Ltd v State of New South Wales (No.2) 93 CLR 127

APPLICANT In person REPRESENTATION: RESPONDENT A Wozniak, solicitor

ORDERS: The decision of the Director General is affirmed.

REASONS FOR DECISION Background 1 This is an application by Dimitry Ostrovsky ('Mr Ostrovsky') seeking review of the decision of a delegate of the Director General of the Ministry of Transport ('the Director General') to cancel his authority to drive a public passenger vehicle (i.e. a bus or hire car). That authority was issued to Mr Ostrovsky in August 2003, pursuant to the Passenger Transport Act 1990 ('the PT Act'). The decision to cancel his authority was made on 9 April 2008 and Mr Ostrovsky lodged an application with the Tribunal for review of that decision on 14 April 2008. 2 Although the application was made without Mr Ostrovsky having made an internal review request of the Director General's decision, I am satisfied that Mr Ostrovsky lodged his application within a reasonable time after the decision was made and it is necessary for the Tribunal to deal with his application in order to protect his interest: see section 53 and 55(2)(c) of the Administrative Decisions Tribunal Act 1997. The Director General's decision to cancel Mr Ostrovsky's driver authority 3 The Director General's power to cancel a driver authority is contained in section 14 of the PT Act which provides: ' 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.' 4 Section 11(2) of the PT act sets out the purpose of a driver authority which relevantly provides: '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.' 5 On 10 September 2007, the Ministry issued Mr Ostrovsky with a warning letter after he had been observed and spoken to, on Friday 7 September 2007, about his alleged unlawful conduct when he was driving a shuttle bus at the international terminal at Sydney airport. The alleged unlawful conduct involved him leaving the seat of his bus and soliciting for passengers in the terminal at the airport. Such conduct is prohibited under clauses 97 and 233(1) of the Passenger Transport Regulation 2007 and carries substantial penalties. Prior to this date Mr Ostrovsky had already been issued with 2 infringement notices for having breached these provisions. These breaches occurred on, 4 August 2007 and 29 February 2004. 6 In the warning letter Mr Ostrovsky was warned that in the event he came to the notice of the Director General in the future, this and previous contravening conduct would be taken into account together with any other complaints and his traffic history for the purposes of considering whether his driver authority should be varied, suspended or cancelled. 7 On 22 February 2008, after having been issued with further infringement notices for similar breaches of the same Regulations (i.e. breaches committed on 16 January 2008 and 18 September 2007), the Ministry issued Mr Ostrovsky with a show cause notice as to why the Director General should not cancel his driver authority on the grounds that he could no longer attest to Mr Ostrovsky being a fit and proper person to be the holder of such an authority. The notice also set out the relevant facts on which the Director General would rely to make his decision. These included the above mentioned infringements, the fact that he had been warned in regard to this contravening conduct and also on the basis of his driving record. When he failed to respond to the notice by the due date (i.e. 14 March 2008) an officer of the Ministry contacted Mr Ostrovsky and extended the time within which he was to respond to the show cause notice. That time was extended to 2 April 2008. Mr Ostrovsky did not respond and as mentioned above, on 9 April 2008, the Director General determined to cancel Mr Ostrovsky's driver authority. Commencement of proceedings before the Tribunal 8 As mentioned above, on 14 April 2008, Mr Ostrovsky lodged an application for review with the Tribunal. He also made an application for a stay of the Director General's decision. The Tribunal granted a stay on 18 April 2008. At the time of granting the stay the Tribunal also made orders for the filing and serving of evidence by the parties and set the matter down for hearing on 23 July 2008. 9 That hearing date was vacated by consent, when on 22 July 2008, Mr Ostrovsky advised, in a facsimile, that he was 'unable to attend due to medical grounds and enclose medical certificates substantiating my illness'. The medical certificate, dated Monday 21 July 2008, stated that Mr Ostrovsky was receiving medical treatment and that for the period 'Monday, 21 July 2008 TO Wednesday, 23 July 2008 INCLUSIVE' he would be unfit to continue his usual occupation. 10 By consent, a new hearing date was set for 21 August 2008. The hearing on 21 August 2008 11 On 21 August 2008, the matter came before me for hearing. Mr Ostrovsky appeared in person and was assisted by his adult son. 12 As directed, Mr Wozniak, solicitor acting for the Director General had filed and served the Ministry's file on Mr Ostrovsky and he was ready to proceed. Mr Ostrovsky had filed no evidence and as he did not appear to understand the need for him to file evidence in response to the matters relied on by the Director General in making his findings, I adjourned the hearing to 15 September 2008 and made directions for the filing of further evidence prior to that adjourned date. 13 At this hearing Mr Wozniak also indicated to Mr Ostrovsky and the Tribunal that there was evidence that Mr Ostrovsky was seen at the international terminal driving a public passenger vehicle at or about 23 July 2008, the time Mr Ostrovsky had advised the Tribunal he was too ill to work and attend the hearing of his application. Mr Ostrovsky adamantly protested that this was the case and that he could produce evidence that he was not working. 14 I explained to Mr Ostrovsky that the Director General was entitled to rely on fresh evidence for the purposes of his review application as the Tribunal would be determining whether the Director General's decision was the correct and preferred decision as at the time of hearing and not as at the time the decision had been made. 15 By consent, Mr Ostrovsky's application review was adjourned for further hearing to 15 September 2008. The hearing of 15 September 2008 16 Prior to the hearing of 15 September 2008 the Director General filed the following statements on 21 August 2008: (a) Statement of John Costa, compliance officer, dated 7 August 2008. (b) Statement of Trevor Care, compliance officer, dated 5 August 2008. (c) Statement of Alf Peter Merlino, Chief Executive Officer of Astra Chauffeured Limousines of Australia Pty Ltd, dated 8 August 2008. 17 The statements of Mr Costa and Mr Care related to the infringement notices that were issued to Mr Ostrovsky as a result of his alleged soliciting conduct on 18 September 2007. 18 The statement of Mr Merlino was in response to a Notice, issued by the Director General under section 46M of the PT Act. The Notice required Mr Merlino to produce from his company's database records the dates and times on which Mr Ostrovsky had been engaged by the company to transport passengers pursuant to his driver authority in the period between 18 July 2008 and 28 July 2008. Exhibited to Mr Merlino's statement was schedule that was headed 'Jobs Completed 18 Jul. to 28 Jul. 2008 inclusive.' The list of jobs was by reference to the registration number of the vehicle used for each job. That registration number was TV4281 and in his statement Mr Merlino said that these were bookings completed by Mr Ostrovsky using this vehicle. The list also identified the date of each job, the start time of the job and where the job started, the finish time of the job, where the job finished. The information on this list and the evidence of Mr Merlino identified Mr Ostrovsky as having worked on 21, 22 and 23 July 2008. It identified him having had two jobs on 21 July, one job on 22 July and three jobs on 23 July. 19 Mr Ostrovsky filed two references on 21 August 2008 in support of his application. One reference was from Robert and Leslie Ottignon, managers of the Marinas Court Hotel and the other reference was from Stacey Cottle. Each referee spoke very highly of Mr Ostrovsky and the services he provided as a public passenger vehicle driver. However, they do not make any reference to the infringements that are the subject of the current proceedings. 20 Mr Ostrovsky also filed and served a two-page letter signed by him in which he explained why he failed to respond to the show cause notice and also an explanation as to why, on 18 September 2007 and 16 January 2008, he had left his bus and gone into the arrival hall of the international terminal. In regard to the show cause notice he said that his father-in-law had been very ill and had passed away on 13 March 2008. He said the passing of his father-in-law had affected his entire family and he had been busy taking care of all the funeral arrangements as well as providing emotional support for his wife, his mother-in-law and his two children to cope with their loss. This he said had been so overwhelming that he did not have sufficient time to deal with the show cause notice. He also said that he had explained this to the officer of the Ministry who had contacted him and had extended the time within which he was to respond. 21 In regard to the two infringements, Mr Ostrovsky said that on each occasion he had left his bus and gone into the arrival hall of the international terminal, as he needed to go to the bathroom. This he said Mr Costa had told him he was permitted to do. He went on to say that on the first occasion, on his way back to his bus, four people approached him and asked if he could take them to Hornsby. He said he had been approached because he was wearing a vest, which had the words 'Shuttle bus' written on the back. A similar thing happened on the second occasion, when six people approached him and asked him where the shuttle bus stand was. He said he told them to follow him and he would show them where it was. He said once he got to the bus station his bus was the only bus left so he started loading the passengers into the bus, when Charlie Rosiello, another compliance officer, told him that he would be issued with a further $5,000 fine. 22 Mr Ostrovsky also explained that he no longer worked for the shuttle bus company, as about five months ago he began working for a limousine company. That company the Tribunal understands to be Mr Merlino's company. 23 On 11 September 2008, the Director General filed and served a further statement of Mr Costa dated 4 September 2008. In this statement Mr Costa gave evidence that on 22 or 23 July 2008, while he was working at the international passenger terminal he saw Mr Ostrovsky walking inside the arrival hall. He said he approached Mr Ostrovsky and asked him if he had a pre-arranged booking to which Mr Ostrovsky responded that he did have such a booking. Mr Costa said that he saw Mr Ostrovsky proceed to a stand near the central exit doors of the arrival hall and he saw him holding up a signboard. Sometime later he saw Mr Ostrovsky walking towards the bus area accompanied by a number of adults. 24 At the hearing, on 15 September 2008, Mr Ostrovsky again appeared in person and was assisted by his adult son. 25 Mr Costa, Mr Care and Mr Charlie Rosiello gave oral evidence at this hearing and Mr Ostrovsky cross-examined each of these witnesses. Mr Costa agreed that a toilet break and a coffee break were a reasonable basis for Mr Ostrovsky to leave his bus and enter the arrival hall of the international terminal. However, he did not accept that this was what he saw Mr Ostrovsky do on 18 September 2007. Mr Costa confirmed he had said in his written statement, namely that he had seen Mr Ostrovsky early that morning walking from the arrival terminal to the bus parking area. He said he and Mr Care spoke to Mr Ostrovsky and warned him that leaving his bus and soliciting for passengers was unlawful. Mr Costa and Mr Care again saw Mr Ostrovsky at 12.50pm that day standing near the central exit door of the terminal holding a 'Hotel Shuttle' sign and speaking to a group of people. He and Mr Care again approached Mr Ostrovsky and asked him if he had any bookings to which he responded that he did not. Mr Care gave similar evidence. 26 In his cross-examination, Mr Costa also acknowledged that he had never received any complaints about Mr Ostrovsky. 27 Mr Rosiello was the officer who had issued the January 2008 infringement notice to Mr Ostrovsky. He also explained that drivers of shuttle buses and hire cars were not authorised to leave their vehicles and go into the terminal unless they had a pre-booked passenger. He said that on 16 January 2008 he saw Mr Ostrovsky within the arrival hall of the terminal. He said he was wearing a shuttle bus vest and holding up a 'Hotel Shuttle' bus sign. He agreed that he spoke to Mr Ostrovsky and then issued him with the infringement notice. 28 Each compliance officer gave evidence that soliciting was a big problem at the international terminal. Mr Costa said that last year it was such a problem that the Ministry was regularly receiving complaints from passengers about this practice. He also said that it created a problem between drivers of public passenger vehicles. The officers explained that taxi drivers were authorised to line up in their taxi in front of the terminal and collect passengers from the taxi rank area. Bus and hire car drivers were not authorised to line up in this way and were required to park in an allocated area away from the main entrance to the arrival hall. As mentioned above, these drivers were only authorised to go to the front of the terminal and into the terminal if they had a prearranged booking. Mr Care explained that these arrangements had been put into place primarily to protect the taxi operators who pay considerably more for their taxi car licences than that paid by the bus and hire car operators for their vehicle licences. 29 Mr Merlino was also made available for Mr Ostrovsky to cross-examine. He gave his evidence over the telephone and in that evidence he said that Mr Ostrovsky was a good and reliable driver, he personally had no complaints against him and customers had spoken well of him. 30 During the course of the hearing, Mr Wozniak also tendered into evidence a further list of jobs completed by Mr Ostrovsky in the period 30 March 2008 to 2 May 2008. That list had been produced by Mr Merlino's company, pursuant to a summons, prior to the 15 September 2008 hearing. That list was in the same form as the list exhibited to Mr Merlino's statement. However, it included vehicle registration numbers other than TV4281. Identified on the list are jobs that were completed on 10 April (three jobs), 11 April (five jobs), 12 April (three jobs), 13 April 2008 (one job), 14 April (one job) and 15 April (one job). 31 Mr Ostrovsky also gave evidence and was extensively cross-examined by Mr Wozniak. On being shown the two job lists of Mr Merlino, Mr Ostrovsky did not dispute that the vehicle registration numbers on these were vehicles that he drove for the company. However, when it was put to him that he had driven a hire car in April while his driver authority had been cancelled and again in July during the time he advised the Tribunal he was too sick to work and appear at the hearing of his application, Mr Ostrovsky vehemently denied this was the case. He said that the list was wrong, it was not him who had driven the vehicles on these days. He said his son, also a holder of a driver authority sometimes drove for him and he could obtain evidence from Mr Merlino to this effect and prove that he had not driven on these days. 32 As Mr Ostrovsky was not represented and in light of the seriousness of the allegations and his denials, I again adjourned the hearing of the application to give Mr Ostrovsky a further opportunity to provide the evidence he asserted he could obtain in response to the allegations. 33 By consent I adjourned the hearing of Mr Ostrovsky's application to 25 September 2008. I also made an order that the stay of the decision of the Director General was to lapse in light of the evidence that was then before the Tribunal. At the same time, I explained to Mr Ostrovsky that not withstanding this order in regard to the stay he was at liberty to make a fresh application for a stay when the matter next came before me on 25 September 2008. Hearing on 25 September 2008 34 On 22 September 2008, Mr Ostrovsky filed and served, by facsimile, an unsigned letter in which he said the following: "I Dimitry Ostrovsky would like to provide evidence for not driving a public vehicle without authority. On 14th April 2008, at 10.45am, I received a letter from the Ministry of Transport stating the cancellation of my driver authority No. GP0909. This letter was signed on 9th April 2008. I believe that there may have been a postage and delivery delay and this is the reason that I received the letter at this later date. On the same day of the 14th April 2008, at 2.30 pm, I had lodged an application for urgent stay of decision . This matter has been listed for hearing on 18th April 2008. All my jobs were completed by my Son, Shoron Ostrovsky, as we use to work for the same company. The jobs were done between the dates of the 14th April and 18th April, when my licence was granted to me on 18th April, the same day that my son had completed doing the jobs. My son's authority number is GQ8848, expiry date – 8/5/2010. My son had also completed the jobs on 21st, 22nd, and 23rd July 2008, at the time when I was unable to drive the buses due to my medical condition. Please consider my evidence in proof that I have not breached the Law. As per the previous hearing, I informed the Tribunal that I am currently working in a company that provides me with pre-booked jobs only. Please consider my appeal to have my licence suspension lifted." 35 When the matter was heard on 25 September 2008, Mr Ostrovsky appeared alone. 36 After hearing brief submissions I reserved my decision. Consideration 37 The main issues in this application are factual in nature and on the basis of my findings in this regard, whether Mr Ostrovsky is a 'fit and proper person' to be the holder of a driver authority under the PT Act. 38 It is well established that the 'question whether a person is fit and proper is one of value judgment': see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63], per Mason CJ who went on to say: '… [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.' 39 In Hughes & Vale Pty Ltd v State of New South Wales (No.2) 93 CLR 127 at p156, the High Court said that the fit and proper person test 'involved three things' namely: '… [honesty], 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.' 40 In regard to the conduct giving rise to the infringement notices of 18 September 2007 and 16 January 2008, I accept the evidence of Mr Costa, Mr Care and Mr Rosiello that on these days Mr Ostrovsky left his vehicle and solicited for passengers at the arrival hall or the entry to that hall. That is, I do not accept Mr Ostrovsky's explanation that he had left his bus to go to the bathroom and then just happened to be approached by passengers about using his services. Had he only intended to go to the bathroom he would not have taken his sign or stood at the terminal holding up that sign. 41 I also note that the offence of soliciting or touting as set out in clause 233(1) of the Passenger Transport Regulation 2007, is of general application to holders of all classes of driver authorities under the PT Act, including taxi drivers. Furthermore, the offending conduct applies not only at the airport, but anywhere within New South Wales. 42 In regard to the issue of driving while his driver authority was cancelled, again I do not accept the evidence of Mr Ostrovsky. It is noted that in his application for review Mr Ostrovsky stated that he received notice of the Director General's determination of cancellation on 11 April 2008. In the two page letter he subsequently filed (see paragraph [20] above) he said he received this determination on 9 April 2008. As set out in paragraph [34] above, in the facsimile he sent to the Tribunal on 22 September 2008, he gave yet another date, being 14 April 2008. Even if this latter date is accepted as the date he received notification of the decision the evidence remains that he drove a public passenger vehicle while his licence was cancelled. 43 In my opinion, in all probability, the date stated in his application is the date on which he was in fact notified of the Director General's decision. Accordingly on the basis of the list produced by Mr Merlino's company, Mr Ostrovsky did drive a public passenger vehicle after he had been notified of the Direcor General's decision that his driver authority was cancelled and before the Tribunal granted a stay of that decision. This is an offence under section 11(1) of the PT Act. I do not accept Mr Ostrovsky's contention that it was his son who was driving on these days. Had this been the case one would have expected his son to be present at the 25 September 2008 hearing and to have given a statement that supported his father's contentions. From his participation at the earlier hearings, Mr Ostrovsky's son was well aware of the seriousness of the allegations that were being made and the consequences these would have to his father's application for review. 44 On the same basis I do not accept Mr Ostrovsky's contention that Mr Merlino's evidence that he was driving a public passenger vehicle on 21, 22 or 23 July 2008 is wrong. 45 In my opinion, the evidence shows that Mr Ostrovsky has a very cavalier regard for the obligations that are placed on him as the holder of a driver authority under the PT Act and he all too readily changes his story to suit his own purposes. On the other hand there are no complaints from passengers or members of the public about his services as a driver of a public passenger vehicle. Indeed there is evidence of a passengers being satisfied with his services. However, these passengers are not aware of his contravening conduct. 46 On the basis of the evidence as a whole, I find that Mr Ostrovsky's conduct, the subject of the infringement notices, of driving a public passenger vehicle while his driver authority was cancelled and during the course of these proceedings, casts serious doubt over his ability to 'execute' his responsibilities as the holder of a driver authority 'truly' and also demonstrates a lack of 'knowledge to know what he ought to do' as an authorised driver under the PT Act. Accordingly I find that as at the time of the hearing of this application, it is not possible to attest that Mr Ostrovsky is fit and proper to be the holder of a driver authority under the PT Act. 47 For these reasons I find that the decision of the Director General is the correct and preferred decision and should be affirmed.