CITATION: Murray v Department of Transport and Infrastructure [2010] NSWADT 295 DIVISION: General Division APPLICANT Michael Murray PARTIES: RESPONDENT New South Wales Department of Transport and Infrastructure FILE NUMBER: 103134 HEARING DATES: 17 September 2010 SUBMISSIONS CLOSED: 17 September 2010 DATE OF DECISION: 13 December 2010 BEFORE: Wilson R - Judicial Member LEGISLATION CITED : Passenger Transport Act 1990 Saadieh v Director-General, Department of Transport [1999] NSWADT 68 CASES CITED: Lo v Director-General, Department of Transport [2002] NSWADT 101 Lal v Director-General, Department of Transport [2001] NSWADT 74 Jawad v Director-General, Department of Transport [2003] NSWADT 55 APPLICANT In person REPRESENTATION: RESPONDENT A Clachers, solicitor ORDERS: 1. The decision under review is set aside 2. The applicant is granted an authority under the Act to drive a Private Hire Vehicle pursuant to sections 40 and 40B of the Act. REASONS FOR DECISION 1 The applicant has brought these proceedings seeking to review an unfavourable decision by the respondent made under the provisions of the Passenger Transport Act 1990. The applicant applied to the respondent for the grant of an authority to drive a Private Hire Vehicle, this being an authority of the type for which the Act makes provision (exhibit R1 page 16). This application was received by the respondent on 21.07.09 and, following enquiries, was refused on 18.08.09, the decision being notified to the applicant by letter dated 27.08.09. 2 The reasons for decision appear in exhibit R1. The refusal to grant the authority sought was based, essentially, upon the applicant's conviction on 01.05.09, at the Downing Centre Local Court, upon a count of assault occasioning actual bodily harm whilst in the company of others (s.59(2) Crimes Act 1900 (NSW)). A custodial sentence was imposed, to be served by way of periodic detention. The circumstances relating to the commission of this crime are contained in the Local Court file, exhibit R2. 3 The relevant circumstances are set forth in the judgment of the Court and the Facts Sheet tendered in evidence in those proceedings. It appears that on Saturday 02.06.07 the applicant, with two of his male friends, became involved in a physical altercation with another male person, referred to in the judgment as the victim, who was accompanied by his female friend at the time. This occurred in a pubic street near a hotel which the 5 persons involved had left a few minutes earlier. As the victim and his female friend were walking along the footpath a glass bottle smashed on the ground near his feet. The applicant and his two friends were walking close behind. A verbal exchange then occurred following which a fight broke out between the 4 males. It is not clear how this actually started, but it sufficient to say that the applicant and his two friends, during the course of the affray that followed hit the victim with closed fists and knocked him to the ground and continued to hit him whilst he lay prone. The victim got to his feet and the applicant and his friends continued to hit him with closed fists. The fight appeared to then stop for a moment and one of the applicant's friends picked up the victim's mobile telephone and handed it to the victim's female friend. It then appears from the judgment that the victim took hold of the jumper that one of the applicant's friends was wearing, whereupon the fight recommenced. The applicant, and his friends, then struck the victim a number of times knocking him to the ground again. The applicant struck the victim again whilst he was on the ground. At this point one of the applicant's friends kicked the victim in the face rendering him unconscious. The applicant and his friends then walked away along the footpath. During the altercation the victim's female friend was struck by a glancing blow by the applicant. The victim suffered quite serious injuries, although he eventually recovered from them. 4 It appears that there was another female person present just before and during the altercation. This was Ms Baseley, a friend of the applicant, her statement dated 07.05.08 appears in exhibit R2. Ms. Baseley was sober at the time, as she had arrived at the hotel as the applicant was leaving. She describes the applicant as being quite drunk and speaking loudly and slurring his words. The importance of her evidence is that she explains the broken bottle: it appears that the one of the applicant's male friends had punched a plastic bottle sitting upon a concrete structure of some sort whereupon the applicant then punched a glass bottle which was sitting on the same location. The glass bottle then shattered on the ground at the feet of the victim and his female friend. This statement also records that the victim became angry when the glass bottle broke and that he, the victim, then made the first aggressive act towards the applicant or one of his friends. The Local Court Magistrate noted that the evidence was not clear as to how the fight started; consequently the applicant's conviction was based upon his conduct after the fight had commenced. Ms. Baseley also states that the applicant and his friends were still present when an ambulance arrived at the scene. On this latter point, her version of the conclusion of the altercation differs from what appears in the statement of facts. The judgment of the Local Court Magistrate records that the applicant and his friends were seen decamping west along the footpath of New South Head Road, Double Bay, but is silent as to whether this was before or after the ambulance arrived. 5 It is common ground that the applicant had been drinking very heavily that night, as had been his two friends, and was very intoxicated at the time of the incident. This simply explains his conduct, rather than excusing it. The applicant does not contend that it does. A guilty plea was entered by the applicant to the charge and he was duly convicted and sentenced. An appeal to the District Court was lodged on severity (of sentence only), but this did not proceed, the Court file indicating that it was dismissed on jurisdictional grounds. 6 Prior to this conviction, the applicant had no criminal record and there have been no further incidents since then. Also, apart from this incident, the applicant does not have a history of violence. 7 The Passenger Transport Act 1990 provides for the granting of an authority to drive a Private Hire Vehicle, it being necessary to obtain such an authority before offering this type of service (s.40(1) and (2)). The power to grant an authority is, inter alia, subject to 2 conditions in particular that are material here. First, when deciding whether to grant or refuse an authority to an applicant, the decision maker is required to have regard to the purpose of authorisation under the relevant Division of the Act (s.40B(1)). This purpose is specified in s.40(3) as being, in summary terms, to attest to the applicant's good reputation; to attest that the applicant is a fit and proper person to be a driver of a private hire vehicle; and to attest that the applicant has sufficient responsibility and aptitude to drive such a vehicle. The second condition is that the applicant must satisfy any criteria established by the regulations or the decision maker (.40B(2)). This second condition is mandatory and the relevant criteria must be satisfied before an authority may be granted. There is no dispute that the applicant satisfies these conditions. 8 The first condition however, which is the condition in issue in this matter, is expressed differently. All that the section ex facie requires is that the decision maker take into account as a relevant consideration the purpose of authorisation under the Division. This would appear to establish that, provided the relevant consideration is in fact taken into account, the power to grant or refuse an application is a matter of broad discretion. If this be so, the power is therefore not fettered other than as the section, or the Act, expressly provides. This approach would mean that if, taking this consideration into account, a determination is made that an applicant is not of good repute, or is not a fit and proper person to drive the type of vehicle in question, the authority could still be granted if other circumstances should so warrant it. Such a construction does not have much to commend it. Consequently, the authorities have not interpreted this condition in this way. There is a long line of authority in this Tribunal establishing that, not only is the purpose of granting an authority a relevant consideration that must be taken into account, it is the only relevant consideration (see for example Saadieh v Director-General, Department of Transport [1999] NSWADT 68). Therefore, if evidence is adduced that is not relevant to this purpose, such evidence is not admissible in the proceedings. This approach can be most clearly seen in the authorities dealing with suspension of existing authorities where it has been clearly established that any economic hardship arising from suspension is not relevant to the issue (see, for example, Lo v Director-General, Department of Transport [2002] NSWADT 101; Lal v Director-General, Department of Transport [2001] NSWADT 74; Jawad v Director-General, Department of Transport [2003] NSWADT 55) Consequently, in the present matter the only evidence that is relevant is that which goes to the applicant's reputation and whether or not he is a fit and proper person, or is sufficiently responsible and has the aptitude, to drive a private hire vehicle. 9 In this regard, the Tribunal notes that the applicant, in part, relied upon the fact that he is the holder of a real estate agent's licence under relevant legislation. However, as the respondent submits, the criteria involved in granting this particular licence is not before the Tribunal and therefore the grant of this licence, per se, is of little moment in these proceedings. Of course, the fact that the applicant is gainfully and responsibly employed as a real estate agent is a different matter as this fact does speak towards the applicant's reputation and fitness as an individual. 10 The first point to note is that the issue before the Tribunal does not concern punishment, this having already been dealt with by a judicial body with appropriate jurisdiction. Rather, the purpose of the Tribunal's enquiry is to determine whether any inferences can be drawn from the applicant's commission of the crime for which he was convicted as to the personal attributes which the legislation requires the decision maker to consider. Clearly, the crime for which the applicant was convicted is sufficiently serious, given that it involves a high level of violence and unwarranted injury to another human being, so as to question the applicant's reputation as well as his fitness, aptitude and responsibility to drive a private hire vehicle. However, the starting point is to determine as clearly as possible what the commission of the crime in question says about the applicant's reputation and these several personal attributes which must be considered in a case of this nature. The involvement of alcohol is critical to this assessment. The testimonial evidence before the Tribunal clearly shows that the applicant, prior to this incident, was a person of good repute and well regarded by others by reason of his nature and helpful disposition. The testimonials in evidence show that this is still the case. This evidence is significant as the persons who gave the testimonials were advised of the applicant's conduct which gave rise to his conviction. Indeed, the applicant discussed the event with his employer when he next returned to work. In passing, the Tribunal notes that at that early point he showed genuine contrition (testimonial Ms Shields-Gillman 27.01.09 exhibit R2). 11 It is true that a single incident of wrongdoing, should the circumstances be apposite, may well affect a person's reputation, for either a limited period or for the rest of that person's life. This may eventuate even where the person has otherwise lived an unblemished life and, prior to the incident, enjoys a good reputation. However, the evidence clearly establishes that this is not the case here, for the reasons that follow. The applicant's good reputation has not in fact been affected by his conduct on the night in question. As the testimonial evidence shows, he is still highly regarded by responsible members of the community who know him well. 12 It is equally true, that a single incident like the one under consideration may show that a person's personal attributes, despite his or her good reputation, are in fact such that a responsible decision maker may properly decline to grant an authority under the Act to that person. A person's conduct, for example, may demonstrate an inclination towards dishonesty, violence or irresponsibility. Cleary, the applicant's conduct may well suggest a disposition towards violence, particularly when associated with heavy drinking. It reflects also upon his responsibility. If either inference be drawn then it would necessarily follow that the applicant possesses attributes that would make him unfit to hold an authority under the Act. 13 In the present case, the applicant was strongly affected by the deaths of two of his close friends in December 2005 and November 2006. He explains that he believes that this led him into excessive drinking on the night in question. The applicant however accepts that whilst this may explain his consumption of alcohol that night, it does not in any way excuse his conduct during the course of the affray. As noted above, this conduct makes open the inference that the applicant is disposed towards violence when associated with heavy drinking. However, even though this inference is open, the Tribunal is persuaded that it is not the proper one to be drawn in the circumstances of this matter. The applicant has no history of violence and the testimonial evidence that he is not of this nature is most persuasive. The fact that the applicant deeply regrets his actions that night is also significant in this regard as it shows that the applicant is able to appreciate the enormity of his conduct. To this should be added the applicant's responsible attitude towards his employment and career, his social mindedness and his compassion for others, these attributes being clearly established by the evidence before the Tribunal. On this evidence the Tribunal is persuaded that the applicant's conduct does not in fact reflect adversely upon his reputation nor upon his fitness to hold an authority under the Act. This conduct was not premeditated, was a single isolated occurrence and is not at risk of being repeated. As such, full effect should be given to the testimonial evidence which demonstrates the applicant's good reputation and admirable personal and work related attributes. The Tribunal finds, therefore, that the applicant is a person of good repute who has the necessary fitness, responsibility and aptitude to hold the authority under the Act which he seeks. 14 Consequently, with this finding, the decision under review is set aside and in substitution therefore the applicant is granted an authority under the Act to drive a Private Hire vehicle, there being no dispute that the applicant otherwise satisfies the requirements of the Act. 15 There is one further argument to note. At hearing, the respondent also relied upon an alleged deception by the applicant when he made his application for an issue of an authority under the Act. This alleged deception, the respondent argued, indicated that the applicant was not a fit and proper person for present purposes. When declaring the fact that he had been charged the applicant stated, in the application form," Minor assault-self defence" (exhibit R1, page 15, question 23). The deception is said to come about by reason of the use of the words minor assault, whereas in truth, given that the applicant was acting in concert with two other males, the assault cannot properly be described as a minor one. This is correct in a sense. However, as the assault did not involve the use of any weapons and as the injuries to the victim were as described in the statement of facts, it is also correct to subjectively place the assault towards the lower end of a scale based on the seriousness of the offence. The Tribunal also notes that the entries on page 15 were made at two different times. The applicant initially made the entry, using the words minor assault in particular, when the several charges against him were pending in the Local Court and then subsequently amended other parts of the entry upon his conviction. Given that the applicant otherwise disclosed specific details of the offence for which he was convicted, so that appropriate enquiries could be effectively made, the Tribunal is not satisfied that the applicant intended to practise any deception by using the words minor assault. Consequently, the Tribunal is not persuaded that this entry should be given any weight in determining whether the applicant is a fit and proper person to hold the authority sought. Orders 1. The decision under review is set aside 2. The applicant is granted an authority under the Act to drive a Private Hire Vehicle pursuant to sections 40 and 40B of the Act. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.