Trapani v Tow Truck Authority of New South Wales [2007] NSWADT 35

CITATION: Trapani v Tow Truck Authority of New South Wales [2007] NSWADT 35

DIVISION: General Division

APPLICANT PARTIES: John Trapani RESPONDENT Tow Truck Authority of New South Wales

FILE NUMBER: 063367

HEARING DATES: 10/11/2006

SUBMISSIONS CLOSED: 12 January 2007

DATE OF DECISION: 13 February 2007

BEFORE: Pearson L - Judicial Member

CATCHWORDS: Tow Truck Industry Act - tow truck operator or driver - grant of licence or certificate - Tow Truck operator or driver - grant of licence or certificate

MATTER FOR DECISION: Principal matter

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

APPLICANT In person REPRESENTATION: RESPONDENT A Wozniak, solicitor

ORDERS: The decision of the respondent to refuse the issue of the applicant with a tow truck drivers certificate is affirmed

REASONS FOR DECISION Background 1 On 29 August 2006 the applicant applied for a tow truck drivers certificate. The application was refused on 19 September 2006, on the basis that the applicant had been disqualified from holding a drivers certificate until 1 June 2010 and that this was a mandatory ground for refusal under section 26 of the Tow Truck Industry Act 1998 (the TT Act). That decision was affirmed on internal review on 3 October 2006. 2 On 11 October 2006 the applicant applied to the Tribunal for review of the decision. The applicant stated as his reasons for application: Members of the Tow Truck Authority of NSW lied to me about certain requirements. They also did not inform me about certain options that I was entitled to, to correct certain issues. 3 The matter was scheduled for hearing on 10 November 2006. On that occasion the respondent was directed to file and serve its evidence and submissions by 24 November 2006, and the applicant was directed to file and serve any response in writing by 12 January 2007. On that occasion I advised the parties that I was satisfied that the issues for determination could be adequately determined in the absence of the parties, and that the matter would be determined on the papers. The respondent filed submissions and evidence on 17 November 2006. No written response has been received from the applicant. Relevant legislation 4 Under section 23 of the TT Act a person must hold a drivers certificate to drive or operate a tow truck. Applications may be made to the Tow Truck Authority of New South Wales (the TTA) for a drivers certificate under section 25 of the TT Act. Section 26 of the TT Act sets out the restrictions on the granting of a drivers certificate: 26 Restrictions on granting drivers certificate (1) The TTA: (a) must refuse to grant an application for a drivers certificate on mandatory grounds, and (b) may refuse to grant an application for a drivers certificate on discretionary grounds. (2) The mandatory grounds for refusing to grant an application for a drivers certificate are as follows: (a) that the applicant is under the age of 18 years, (b) that the applicant has, within the period of 10 years before the application for the drivers certificate was made: (i) been convicted, or (ii) been found guilty (but with no conviction being recorded), by a court in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law and whether or not committed before the commencement of this section, (c) that the applicant does not hold a full driver licence or does not, if the applicant resides in another State or Territory, hold a licence issued under the law in force in that State or Territory which, in the opinion of the TTA, is the equivalent of a full driver licence, (d) that the applicant is disqualified from holding a drivers certificate. (3) The discretionary grounds for refusing to grant an application for a drivers certificate are as follows: (a) that the applicant is not, in the opinion of the TTA, a fit and proper person to hold a drivers certificate or is otherwise not competent to carry on the kind of towing work to which the proposed drivers certificate relates, (b) that the applicant does not hold the qualifications and experience prescribed by the regulations in respect of the class of drivers certificate sought by the applicant, (c) that the applicant has not satisfactorily completed such training courses as may be approved for the purposes of this section, (d) that the granting of the drivers certificate would, in the opinion of the TTA, be contrary to the public interest. (4) The regulations may provide additional mandatory or discretionary grounds for refusing the granting of an application for a drivers certificate. (5) A reference in subsection (2) (c) to a full driver licence is a reference to a driver licence other than a provisional licence, restricted licence or learner licence as referred to in the Road Transport (Driver Licensing) Act 1998. Consideration and reasons 5 Based on the documents provided by the respondent I find that the applicant applied on 25 October 2004 for a drivers certificate under the TT Act. On 1 June 2005 the application was refused on discretionary grounds under section 26(3)(a) and (d) of the TT Act. On that same date a delegate of the respondent advised the applicant that disciplinary action had been taken pursuant to section 41 of the TT Act, and that the applicant was disqualified from holding a drivers certificate until 1 June 2010. On 18 August 2005 the applicant applied to the Tribunal for review of these decisions. The Tribunal records confirm the respondent's submission that this application was dismissed on 11 October 2005. 6 The dismissal of the application for review means that the decision to disqualify the applicant from holding a drivers certificate until 1 June 2010 stands. The applicant is disqualified from holding a drivers certificate until 1 June 2010. Section 26(2)(d) of the TT Act states that this is a mandatory ground for refusing to grant an application for a drivers certificate, and section 26(1) states that the TTA must refuse to grant the application. 7 Under section 63(2) of the Administrative Decisions Tribunal Act 1997 this Tribunal exercises all the powers and functions of the original decision-maker, as conferred by the relevant legislation. Neither the TTA nor the Tribunal has any option but to refuse the certificate given the mandatory grounds in section 26 of the TT Act. Order 8 The decision of the respondent to refuse to issue the applicant with a tow truck drivers certificate is affirmed.