Loye -v- Director General, Department of Transport [2000] NSWADT 145

CITATION: Loye -v- Director General, Department of Transport [2000] NSWADT 145 DIVISION: General Division APPLICANT Charles Loye PARTIES: RESPONDENT Director General, Department of Transport FILE NUMBER: 003210 HEARING DATES: 8 August 2000 SUBMISSIONS CLOSED: 08/08/2000 DATE OF DECISION: 10/16/2000

BEFORE: Rice S - Judicial Member APPLICATION: Bus driver - grant of authority - Passenger Transport Act - bus driver - grant of authority MATTER FOR DECISION: Principal matter LEGISLATION CITED : Passenger Transport Act 1990 Manwaring v R [1983] 2 NSWLR 82 Saadieh v Director-General, Department of Transport [1999] NSWADT 68 Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 CASES CITED: Goody v Oldhams Press [1967] 1 QB 333; [1966] 3 All ER R v Rowton (1865) Singh v Director General, Department of Transport [1999] NSWADT 96 Farquharson v Director General, Department of Transport [1999] NSWADT 53 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 REPRESENTATION: In person A Wozniak, solicitor ORDERS: The decision under review is affirmed

Application, refusal and review 1 By letter dated 22 March 2000 the State Transit Authority of NSW ('State Transit') acknowledged receipt of Mr Charles Loye's application for a Bus Operator position. Mr Loye was subsequently invited to attend a selection test on 14 April, and an interview on 18 April. 2 At some stage in the process of applying to State Transit for a Bus Operator position Mr Loye necessarily applied to the Department of Transport ('the Department') for a public passenger vehicle authority. 3 On 27 April the Department sought from the NSW Police Service a Criminal Record Check on Mr Loye. A printout of Mr Loye's Criminal History was generated on 1 May, and of his Traffic Record on 8 May. 4 By letter dated 10 May 2000 the Department advised Mr Loye that it had determined to refuse his application for an authority to drive a public passenger vehicle. The letter provided Mr Loye with a statement of reasons, and advised him of his right to an internal review of the decision. 5 On 17 May Mr Loye completed an application for internal review of the decision, and submitted it to the Department under cover of a letter dated 20 May 2000, along with a number of supporting documents. 6 By letter dated 6 May (sic) 2000 the Department advised Mr Loye that the review decision confirmed the initial decision to refuse his application for an authority to drive a public passenger vehicle. It is apparent from the timing of the letter and from a copy of an internal Departmental memo on the Department's file that this letter should correctly have been dated 6 June 2000. Reasons for refusal 7 An authority to drive a public passenger vehicle is issued by the Director General under ss 11 and 12 of the Passenger Transport Act (PT Act). The effect of those sections is that an authority 'attests' to the holder of the authority being considered "to be of good repute", and to be "in all other respects a fit and proper person to be the driver of a public passenger vehicle". 8 Further, an authority attests to the holder of the authority being considered "to have sufficient responsibility and aptitude to drive" the relevant vehicle in accordance with both the conditions relating to the relevant passenger service, and "law and custom". 9 An authority's purpose is to attest that the holder is so considered. In issuing an authority the Director-General must have regard to that purpose. It is therefore incumbent on the Director-General to be satisfied that an applicant for an authority is so considered. 10 The delegate of the Director-General decided in May 2000 that Mr Loye's "proven offence record indicates that (he) cannot be considered a person of good repute and in all respects a fit and proper person to drive a public passenger vehicle". This refers to two requirements found in s11(2)(a) – good repute, and fitness and propriety – and states that solely because of his criminal history Mr Loye fails both requirements. 11 In reviewing this decision the delegated internal review officer confirmed the refusal of Mr Loye's application, but for different and more extensive reasons. 12 In the delegated review officer's internal memo to the Director of the Sydney and Western Region, the officer confirms that the original decision "was justified", and states: "I find that the facts and evidence . . . cast serious doubt on Mr Loye's ability to abide by law and custom". This refers to a part only of the requirement under s11(2)(b)(ii), but for present purposes it is sufficiently clear that, in officer's view, Mr Loye could not be considered to have sufficient responsibility and aptitude to drive a relevant vehicle in accordance with law and custom. 13 The officer's letter to Mr Loye advising of the review decision confirms that the initial decision "was the appropriate cause(sic) of action". Stating reasons different from those in the internal memo, the letter states that Mr Loye's criminal record "indicates that you are not a person of good repute, and in all other respects a fit and proper person to be the holder of a public passenger vehicle authority as defined under Section 11 (2) (a) and/or (b) (I) (sic) and (ii) of the Passenger Transport Act 1990". This is a confused and inaccurate statement of the way in which s11(2) operates. The reasons given are limited to the two requirements in s11(2)(a). 14 The letter to Mr Loye further states that "your criminal record combined with your driving traffic record show that you do not have sufficient responsibility to drive a passenger vehicle in accordance with law and custom." This refers to the second of the two requirements in s11(2)(b)(ii), and narrows the finding against Mr Loye to one of insufficiency of responsibility, not of aptitude. Requirements to be met 15 The issue for this Tribunal is: 'what is the correct and preferable decision on the basis of the material available to it including any relevant factual material and any applicable written or unwritten law?' (s63(1) ADTA). 16 Section 11(2) requires Mr Loye to meet six requirements. He must show that he is considered: · to be of good repute (s11(2)(a)) · to be in all other respects a fit and proper person to be the driver of a public passenger vehicle (s11(2)(a)), · to have sufficient responsibility to drive a public passenger vehicle in accordance with the conditions under which a public passenger service is operated (s11(2)(b)(i)), · to have sufficient responsibility to drive a public passenger vehicle in accordance with law and custom (s11(2)(b)(ii)), · to have sufficient aptitude to drive a public passenger vehicle in accordance with the conditions under which a public passenger service is operated (s11(2)(b)(i)), and · to have sufficient aptitude to drive a public passenger vehicle in accordance with law and custom (s11(2)(b)(ii)).