King v Ministry of Transport [2004] NSWADT 50

CITATION: King v Ministry of Transport [2004] NSWADT 50 DIVISION: General Division PARTIES: APPLICANT Peter FILE NUMBER: 033251 HEARING DATES: 11/12/2003 SUBMISSIONS CLOSED: 12/11/2003 DATE OF DECISION: 03/10/2004

BEFORE: Montgomery S - Judicial Member APPLICATION: Bus driver - suspension of authority - Passenger Transport Act - bus driver - suspension of authority MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Crimes Act 1900 Passenger Transport Act 1990 B v Director General, Department of Transport [2001] NSWADT 203 Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 Farquarson v Director General, Department of Transport [1999] NSWADTR 53 CASES CITED: McDonald v Director General of Social Security (1984) 1 FCR 354 Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 Saadieh v Director General, Department of Transport [1999] NSWADT 68 Williamson v Director General, Department of Transport [2001] NSWADT 3 APPLICANT REPRESENTATION: K Byrnes, solicitor RESPONDENT A Wozniak, solicitor ORDERS: The decision of the Director General, Ministry of Transport, suspending Mr King's authority to drive a public passenger vehicle, is set aside

Background 1 These proceedings relate to a decision made by a delegate of the Director General, Ministry of Transport ("the Director General") to suspend the public passenger vehicle driver authority number D00269 held by Mr. Peter King ("Mr. King"). In making the determination the Director General relied on advice received from the New South Wales Police Service that criminal charges had been brought against Mr. King alleging that he had obtained money by deception. Mr. King was advised of the Director General's decision by letter dated 21 July 2003. The suspension was stated to apply until such time as the criminal charges have been finalised. 2 Mr. King is a bus driver. He is 42 years of age, has dependants and has no other source of income. He has held a driver's authority since 1992. He has had no breaches of that Authority since he acquired it. He has had a long career in the passenger transport industry and is understandably concerned to ensure that the decision by the Director General to suspend his authority is the correct and preferable one having regard to all the relevant material and law. 3 Mr. King was provided with written reasons for the Director General's decision. The reasons stated: "The Ministry of Transport has a continuing obligation under the Passenger Transport Act, 1990 to ensure only fit and proper persons drive public passenger vehicles. I have considered: (a) The nature, seriousness and frequency of your proven offence record; (b) The likelihood that you will again commit non-traffic offences. I am not satisfied that you have sufficient responsibility and aptitude to drive a public passenger vehicle in accordance with the conditions under which a public passenger vehicle is operated, or in accordance with law and custom. Your proven offence record indicates you are not a person of good repute and in all respects a fit and proper person to drive a public passenger vehicle. Therefore, I cannot presently attest that you are a fit and proper person to hold a public passenger authority in accordance with Section 11(2) of the Passenger Transport Act, 1990. Having regard to all matters raised, and considering the interests and safety of the travelling public and the general public, I am not of the opinion that you are a fit and proper person to be the driver or a public passenger vehicle. Therefore, you do not meet the required standards for authorisation as the driver of a public passenger vehicle. Accordingly the determination has been made to suspend your public passenger vehicle driver authority. You are advised that should the above-mentioned charges be proven, your authority to drive a public passenger bus will be cancelled." 4 Mr. King applied for internal review of the Director General's decision, and a different delegate conducted that review. By letter dated 19 August 2003 the Director General's delegate advised Mr. King that the initial decision to suspend his authority was confirmed on review. The Statement of Reasons provided by the Director General's delegate advised: "The purpose of an authority is to attest 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 that the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates in accordance with the conditions under which a public passenger service is operated and in accordance with law and custom. The Ministry does not question whether Mr King has sufficient responsibility and aptitude to drive public passenger services but believes that it cannot attest to his good repute and propriety. Whilst the offence of obtaining money by deception has not been proved the prevalence, voracity and seriousness of the allegations in media reports causes the Ministry to doubt that Mr King would be regarded in good repute and with appropriate propriety. I have considered: (a) The nature, seriousness and frequency of your proven offence record; (b)The likelihood that you will again commit non-traffic offences. I am not satisfied that you have sufficient responsibility and aptitude to drive a public passenger vehicle in accordance with the conditions under which a public passenger vehicle is operated, or in accordance with law and custom. Your proven offence record indicates you are not a person of good repute and in all respects a fit and proper person to drive a public passenger vehicle. Therefore, I cannot presently attest that you are a fit and proper person to hold a public passenger authority in accordance with Section 11(2) of the Passenger Transport Act, 1990. Having regard to all matters raised, and considering the interests and safety of the travelling public and the general public, I am not of the opinion that you are a fit and proper person to be the driver or a public passenger vehicle. Therefore, you do not meet the required standards for authorisation as the driver of a public passenger vehicle." Reviewable decision 5 The reviewable decision is that of the Director General to suspend Mr. King's authority to drive a public passenger vehicle. On 10 September 2003 Mr. King applied to this Tribunal for review of that decision. The matter was listed before the Deputy President on 30 September 2003 and at that time she made directions for the filing of documents and the matter was listed for hearing on 11 December 2003. Leave was granted for Mr. Byrnes to appear by telephone. Nature of proceedings 6 The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all the material first considered, together with any further relevant material, so as to either confirm the original decision, vary it, or set it aside and substitute another. "The duty of the tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view was objectively the right one to be made" (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77). 7 These are not adversarial proceedings in which Mr. King carries an onus of proof. Mr. King, by making the application, triggers a process of merits review by the Tribunal. Mr. King does not take on the responsibility of having to prove a case, nor does he cause the Director General to have to prove a case. Mr. King and the Director General are before the Tribunal as parties by virtue of section 67(2) of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"). 8 Section 63(1) of the ADT Act provides that in determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. It makes its own decision in place of the administrator's, and "there is no presumption that the decision of the administrator is correct" (McDonald v Director General of Social Security (1984) 1 FCR 354 at 357). 9 When there is a fact in issue as to the existence of which the Tribunal must be satisfied, it must be satisfied to the civil standard of proof, that is, on the balance of probabilities (McDonald at 357). Requirements to be met 10 The issue for this Tribunal is: what is the correct and preferable decision? The Act sets out the applicable law. Section 14 of the Act enables the Director General to suspend or cancel an authority to drive a public passenger vehicle, having regard to the purpose for which the authority is held. 11 Section 11(2) of the Act provides: "(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) that 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 custom." 12 The decision to be made is whether Mr. King can be 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" such that an authority can attest to that status. 13 It is clear from the correspondence and the Ministry's file that the Director General decided that an authority would attest to neither Mr. King's being of good repute, nor his fitness and propriety to be the driver of a public passenger vehicle. Evidence 14 No oral evidence was presented at the hearing. The Ministry's file was put in evidence and the Director General relied on the documents contained within that file. Mr. King did not present evidence on his own behalf, however several written testimonials were provided in support of his application. The Director General's case 15 As indicated above, the Director General asserts that the nature of the charges brought against Mr. King and the media publicity surrounding the bringing of those charges is such that Mr. King could no longer be considered to be of good repute. 16 In support of this submission Mr. Wozniak for the Director General also referred the Tribunal to the Charge Sheet and Facts Sheet prepared by the NSW Police Service in relation to the charges. The Facts Sheet alleged: "The victim in this matter the National Australia Bank Ltd commenced a business relationship with Anthony Patrick King born 28/12/61 and his twin brother Peter James King who are the Directors of King Bros. Holding Pty Limited (King Bros.) of Port Macquarie. This relationship commenced in November, 2000. The National Australia Bank believes false representations and statements were made by the King brothers at that time and possibly throughout the business relationship. The National Australia Bank has extended a total of $173,416,219.00 in borrowed funds to King Bros. Bus Company on five occasions between December 2000 and January, 2003. Statutory Declarations were presented to the NAB by Tony and Peter King in support of a "Sale and Lease Back" finance facility provided by the NAB to King Bros, on or about 19 December, 2000. This "Sale and Lease Back" facility had a limit of $100,000,000.00 for items of capital equipment which included 144 'used' buses. In essence, Tony and Peter King each provided to the NAB a personally signed statutory declaration dated 18 December, 2000 relating to these 144 'used' buses. The declarations each state that King Bros. was the owner of 144 "used" buses, and that it had acquired ownership from CBFC Ltd and Esanda Ltd. The "Sale and Lease Back" finance facility provided that in the event that King Bros. defaulted, the National Australia Bank could sell the 144 "used" buses. King Bros. defaulted under its finance facility which ultimately led the National to appoint Receivers and Managers (Martin Madden & David Winterbottom) over the assets of King Bros. and related companies that had provided security to the National. Upon appointment the receivers and managers completed an inventory and review of the company's records and assets. As a result of this inventory King Bros. does not own or have in its possession any of the buses described in the statutory declarations provided by Tony and Peter King respectively. On further examination of the Statutory Declarations provided by Tony and Peter King the alleged 'used' Mercedes buses are itemised and identified by Chassis Numbers with the prefix of 'WEB'. Information obtained from Mercedes Benz is that their Custom Passenger Coaches have a chassis number with a prefix of 'WBB' and have never had any of their coaches with a chassis number prefix WEB. Evidence of this fact will be completed later in this investigation." 17 Mr. Wozniak also referred the Tribunal to a document contained on the Ministry's file, which is said to be a copy of an article that appeared in the Newcastle Herald on 23 July 2003. The article refers to a court appearance by Mr. King in relation to the charges. Mr. Wozniak submitted that the media coverage given to the charges laid against Mr. King would have lead to a public perception that Mr. King is not of good repute. 18 Mr. Wozniak also referred the Tribunal to decisions in the matters of Farquarson v Director General, Department of Transport [1999] NSWADTR 53 and B v Director General, Department of Transport [2001] NSWADT 203 as authorities for the principle that the Director General should suspend an authority to drive public passenger vehicles in circumstances where a regulated person has been charged with a serious criminal offence. He also referred to the decision in Williamson v Director General, Department of Transport [2001] NSWADT 3 where the Deputy President of this Tribunal stated: "21 While these allegations are serious and may, if proved, lead to the cancellation of Ms Williamson's authorities, the question the Tribunal must answer is whether they are sufficiently serious to justify the suspension of her driving authorities pending the Local Court's findings. In my view, the suspension of an authority is justified where a person's reputation or fitness to drive a taxi is sufficiently compromised by allegations or findings of impropriety for it to be in the public interest that the person not drive until those issues are addressed or resolved. 22 The Director General is not required to wait for the outcome of criminal or other proceedings before making a decision about suspension or cancellation of a person's authority." 19 Mr. Wozniak submitted that the Director General was entitled to act on the material which was available at the time the determination to suspend Mr. King's authority was made. The Director General is under no obligation to wait until the Local Court matter is finalised prior to taking action against Mr. King. On the basis of the information that was available at the time, the Director General determined to suspend Mr. King licence pending the outcome of the Local Court matter. If the charges are not proven, Mr. King's authority will be reinstated. If a conviction is recorded against Mr. King then his authority will be cancelled. Mr. King's case 20 Mr. Byrnes provided written submissions in support of Mr. King's application. He said that Mr. King has pleaded not guilty to the allegation. The matter has been adjourned on a number of occasions at the request of the Prosecution and has not yet been listed for a committal Hearing. He argued that this suggests the difficulty the Prosecution is having in proving the case. 21 Mr. Byrnes submitted that contrary to the assertions made by the Director-general's delegate, Mr. King has no "proven offence record". He has been charged with an offence to which he has entered a plea of not guilty. He further submitted that the offence itself does not involve any allegations relating to the use or operation of a public passenger vehicle. In relation to Mr. King's "likelihood of re-offending" Mr. Byrnes submitted that it should be noted that Mr. King has no prior criminal convictions of any nature. Given that he has not been found guilty of any offence the likelihood of him re-offending must be very low. He also stated that Mr. King had made himself available to the police at all times in relation to the charges. He was arrested and granted bail and lived in the local area. He reports to police on a regular basis as a condition of his bail. Unlike his brother, he had not disappeared nor was he held in custody. 22 Mr. Byrnes stated that Mr. King's only expertise is in the bus industry. His only means to generate any income for himself and his family is by working as a bus driver. He simply doesn't have the training or expertise to work in some other occupation. 23 Mr. Byrnes submitted that the authorities to which Mr. Wozniak referred can be distinguished on their facts. He argued that the charge of obtaining money by deception brought under section 178BA of the Crimes Act 1900 has a maximum penalty of imprisonment for 5 years. This should be contrasted with the maximum penalty of life imprisonment for the charge involved in Farquarson; a maximum penalty of $110,000 for each offence in the Williamson matter and the fact that the allegation in "B" was one of indecent assault of a student. 24 Mr. Byrnes submitted that it is important to note that the allegations in Williamson related to breaches of the very regulations governing the operation of a public passenger vehicle. Further, in that case, the Tribunal noted the number of allegations, compared to only one in Mr King's case. 25 With respect to the Director General argument that great weight should be place on media reports regarding the charge against Mr. King as forming the basis upon which he would not be regarded as a person of good repute, Mr. Byrnes submitted that it would be a curious outcome, and one contrary to law, for a person's suitability to hold a Driver's Authority to be dependent upon the level of media interest in other Court proceedings in which that person was involved. In any event, Mr. Wozniak was able to point to only one newspaper article to support his contention. There was no evidence of any public outcry in his local area or of any letters to the editor of the Newcastle Herald or of any other newspaper. In contrast, there is evidence that a lot of public opinion is supportive of Mr. King. 26 Several written testimonials were provided in support of Mr. King's application. These testimonials each stated that the author had known Mr. King for some period of time and stated that he was regarded as an excellent employer and a person of good repute. 27 In addition to the testimonials, a letter from McCaffertys Greyhound Pty Ltd ("McCaffertys") confirms the prospect of a job offer as a bus driver if Mr. King has a driver authority. Mr. Byrnes submitted that the fact that McCaffertys would consider employing Mr King indicates that, in their eyes, he is a fit and proper person to hold an authority. 28 In summary Mr. Byrnes submitted that in circumstances where he has not been convicted of any offence, Mr King's past good record demonstrates that he is a suitable person to drive a public passenger vehicle. The Director General's decision should therefore be set aside. Finding 29 While I note that the Tribunal's role is to review the Director General's decision on the basis of the material available at the hearing, the reasons for decision offered by the Director General's delegate give some cause for concern. In particular the reasons provided by the Director General's delegate for the original decision referred to Mr. King's "proven offence record" when in fact there was no such proven offence record. Similarly the reasons provided following the internal review referred to "The nature, seriousness and frequency of your proven offence record". The Director General's delegate also observed that "The Ministry does not question whether Mr King has sufficient responsibility and aptitude to drive public passenger services" and yet concluded "I am not satisfied that you have sufficient responsibility and aptitude to drive a public passenger vehicle …". 30 While this may merely indicate a lack of attention to detail on the part of the delegate, it may also suggest that the delegate had formed an opinion that was adverse to Mr. King on the basis of material that could not rightly be considered. Either explanation gives cause for concern. 31 In this application, I have considered all of the evidence and the submissions presented before the Tribunal. In particular I have had regard to the following issues: - the preliminary nature of the allegations and that while charges have been laid in relation to the allegations of obtaining money by deception, no determination has been made in regard to those charges; - the seriousness of the conduct to which the allegations relate; - the responsibility of the Director General under section 11 of the Act and the Act's objects; - the interim nature of the decision to suspend; - Mr. King's previous good character and the references provided on his behalf; - Mr. King's denials of the allegations; and - the limited role the Tribunal has in reviewing the decision to suspend, and only that decision. 32 Repute is what others think. A person's reputation, in fact and in law, is to be found in the estimate of his moral character entertained by some specific group of people, such as 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: Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 per Waddell J at page 393. 33 Whilst the testimonials provided on behalf of Mr. King make no reference to these proceedings or the author's knowledge of the charges brought against Mr. King, it is reasonable in the circumstances to think that the authors were aware of those charges. In my opinion, these testimonials are sufficient to balance any negative inference that would be otherwise drawn from the level of media interest in the criminal proceedings. It is particularly significant that McCaffertys has indicated that it would consider employing Mr. King as a coach captain based out of its Northern New South Wales depot. That letter stated: "With Mr. King's previous employment with our company he would be an asset to our company in both tour and long distance express coach driving." 34 In my opinion, the McCaffertys statement should be considered as indicative of how Mr. King is regarded within the industry. In the circumstances it is unlikely that the author would not have been aware of the charges brought against Mr. King. The other testimonials indicate how he is regarded in his community and as an employer. 35 As I have indicated above, I have been referred to a number of authorities, which are said to be relevant to the issues of this matter. I do not share Mr. Wozniak's view of the relevance of those authorities. In my opinion Farquharson is authority for the principle that while it is a tenet of the criminal law that a person is innocent until proven guilty, the Act allows for an authority to be suspended where the person is no longer considered to be of good repute and/or a fit and proper person to be the driver of a public passenger vehicle. This principle has been adopted by the Tribunal in several subsequent matters including Williamson and "B". 36 I agree with the view expressed by the Deputy President in Williamson that the suspension of an authority is justified where a person's reputation or fitness to drive is sufficiently compromised by allegations or findings of impropriety for it to be in the public interest that the person not drive until those issues are addressed or resolved. It is for the Tribunal to determine whether Mr. King's reputation or fitness to drive has been so compromised by these allegations that he should not be permitted to drive until the issue has been resolved. 37 In my view, the authorities referred to by the Director General can each be distinguished on their facts. Whilst there can be no doubt that the charges brought against Mr. King are extremely serious, they fall within a different category to those in the cited authorities. In this respect I agree with Mr. Byrnes. I note in particular that the alleged conduct was not conduct within the regulated activity and that Mr. King's record as an authorised driver is unblemished. 38 In Farquharson the Tribunal's President stated: "Powers of suspension are, by their nature, designed to provide a temporary form of intervention pending further developments or further consideration or action by the administrator. A power of suspension, as compared to outright cancellation, does carry the (marginal) benefit for the licensee in not placing at risk the licence itself." 39 I note that at the time of hearing over six months had passed from the time that Mr. King was charged. A further three months have now passed. It does not appear that the charges are likely to be resolved in the foreseeable future. In those circumstances, the suspension has taken on a different character to that considered in Farquharson. In my view the overriding consideration must be the risk to the public should Mr. King's authority be returned so that he were allowed to again drive buses. 40 In Saadieh v Director General, Department of Transport [1999] NSWADT 68, the Tribunal's Deputy President set out a number of factors, based on the terms of the legislation and the case law interpreting similar provisions, that need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. These factors were: - the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted; the nature, seriousness and frequency of any complaints made against the applicant; - the applicant's driving record; - the applicant's reputation in the community; and - the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences. 41 Those factors are equally applicable to the issue of an applicant's suitability to hold an authority to drive buses. There is no evidence of any charges against Mr. King other than that referred to above. Nor is there any evidence to suggest that any complaints have ever been brought against Mr King. His driving record appears to be unblemished. The likelihood that Mr King will re-offend, be the subject of further complaints or commit further traffic offences must be ascertained in the light of those factors. In my opinion, the likelihood must be considered to be extremely remote. 42 I agree that on the basis of the material which was available to the Director General, the obligations on the Director General to make decisions in the public interest and for the protection of the travelling public, and the serious nature of the allegations, it was reasonably open to the Director General to determine that serious questions had been raised in relation to Mr. King's suitability to hold a drivers authority. In those circumstances it was reasonable for the Director General to determine that Mr. King's authority should be suspended pending the outcome of the criminal matter. However, the additional material that was available at the hearing in the form of the testimonials, and in particular the McCaffertys statement, leads me to the view that Mr. King's continued suspension is not justified. Accordingly, the Director General's should be set aside. 43 I note however that I have formed this view on the basis of the material available at the day of hearing. It may well be that new material has become available since the hearing. I also note that should Mr. King be convicted of the offence for which he has been charged he can expect that his authority will be cancelled. Order The decision of the Director General, Ministry of Transport, suspending Mr. King's authority to drive a public passenger vehicle, is set aside.