Set aside by Appeal : CITATION: Sharp Towing Pty Ltd and ors v Tow Truck Authority of New South Wales [2008] NSWADT 57 DIVISION: General Division FIRST APPLICANT Sharp Towing Pty Ltd SECOND APPLICANT Reggie Agius PARTIES: THIRD APPLICANT Alison Agius RESPONDENT Tow Truck Authority of New South Wales FILE NUMBER: 073253, 073254, 073255 HEARING DATES: 19 November 2007 SUBMISSIONS CLOSED: 19 November 2007 DATE OF DECISION: 20 February 2008 BEFORE: Leal S - Judicial Member CATCHWORDS: Tow Truck Industry Act - tow truck operator or driver - disqualification - grant of licence or certificate MATTER FOR DECISION: Preliminary matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Tow Truck Industry Act 1998 Tow Truck Industry Regulation 1999 CASES CITED: Jacobs v Commissioner of Police New South Wales Police Service [2003] NSWADT 180 FIRST APPLICANT In person SECOND APPLICANT In person REPRESENTATION: THIRD APPLICANT In person RESPONDENT A Wozniak, solicitor The Tribunal retains a discretion in relation to each of the three matters before it: 1. The decision to disqualify Rennie Agius from holding a Tow Truck Drivers Certificate for five years until 24 August 2012. ORDERS: 2. The decision to refuse the application by Alison Agius for a Tow Truck Driver's Certificate. 3. The decision to refuse the application by Sharp Towing Pty Ltd for a Tow Truck Operators Licence. 4.The three matters are to be listed for Directions on Tuesday 4 March 2008 at 2pm to obtain a further hearing date. REASONS FOR DECISION Introduction 1 Alison Agius is the director of the tow truck company Sharp Towing Pty Ltd, which has held a Tow Truck Operators Licence since 2001. Her husband, Rennie Agius, is employed by Sharp Towing Pty Ltd. 2 Following complaints that Sharp Towing Pty Ltd had invoiced for towing work which exceeded the maximum charges for towing, salvage and storage, the Tow Truck Authority prosecuted Alison Agius, Rennie Agius and Sharp Towing Pty Ltd under section 58 of the Tow Truck Industry Act 1998. This section provides that a licensee or certified tow truck driver must not contravene any condition of the licence or driver's certificate. 3 Alison Agius, on behalf of Sharp Towing Pty Ltd, pleaded guilty to 22 offences under section 58 of the Tow Truck Industry Act 1998. On appeal against severity to Parramatta District Court, Sharp Towing Pty Ltd was ordered to pay, for each of the 22 offences, a fine of $100 and court costs of $70 in addition to professional costs of $5000. 4 Rennie Agius pleaded guilty to 23 offences under section 58 of the Act. On appeal against severity to Parramatta District Court, he was ordered to pay, for each of the 23 offences, a fine of $150 and court costs of $70 in addition to professional costs of $5000. 5 Alison Agius pleaded guilty to five offences under section 58 of the Tow Truck Industry Act 1998. On appeal against severity to Parramatta District Court, she was ordered to pay, for each of the 5 offences, a fine of $100 and court costs of $70 in addition to professional costs of $5000. 6 On 25 August 2007, a decision was made by the Tow Truck Authority to disqualify Rennie Agius from holding a tow truck drivers certificate for five years until 24 August 2012. 7 On 27 August 2007, a decision was made by the Tow Truck Authority of New South Wales to refuse the application by Alison Agius for a tow truck driver's certificate. 8 On 27 August 2007, a decision was made by the Tow Truck Authority of New South Wales to refuse the application by Sharp Towing Pty Ltd for a tow truck operator's licence. 9 Rennie Agius has applied to this Tribunal for a review of the decision to disqualify him from holding a tow truck drivers certificate until 24 August 2012. Alison Agius has applied for a review of the decision to refuse her application for a tow truck drivers certificate and Sharp Towing Pty Ltd has applied for a review of the decision to refuse the company's application for a tow truck operator's licence. 10 The Tribunal has jurisdiction to determine these matters pursuant to section 45 of the Tow Truck Industry Act 1998 and section 63 of the Administrative Decisions Tribunal Act 1997. 11 The three matters were heard before me on 19 November 2007. At this hearing, Mr Wozniak for the Tow Truck Authority of New South Wales submitted that I had no option but to affirm the decision by the Tow Truck Authority to refuse to grant a tow truck operator's licence to Sharp Towing Pty Ltd. 12 Mr Wozniak submitted that as Sharp Towing Pty Ltd had been convicted of offences under section 58 of the Act, this meant that the company had been 'convicted by a court in New South Wales of an offence prescribed by the regulations.' According to Mr Wozniak, this brings Sharp Towing Pty Ltd within the ambit of section 18 of the Tow Truck Industry Act 1998 which provides that the Tow Truck Authority (and on review this Tribunal) must refuse to grant an application for a licence on mandatory grounds, one of which is where an applicant has been convicted on an offence prescribed under the regulations. 13 The offences prescribed by the Regulations are set out in Regulation 7 of the Tow Truck Industry Regulation 1999 which states, in part, as follows: Offences that disqualify applicants for licences: section 18(2)(b) and (3)(i) (1) For the purposes of section 18 (2)(b) and (3)(i) of the Act, the following offences are prescribed (regardless of whether they were committed in New South Wales): (d) any offence involving fraud, dishonesty or stealing, being an offence in respect of which the penalty imposed was imprisonment, a direction under a community service order that the offender perform community service work for 100 or more hours or a monetary penalty of $1,000 or more, or a combination of those penalties. 14 Section 58 of the Tow Truck Industry Act 1998 provides as follows: (1) A licensee must not contravene any condition of the licence. Maximum penalty: 50 penalty units or imprisonment for 6 months, or both. (2) A certified driver must not contravene any condition of the driver's certificate. Maximum penalty: 50 penalty units or imprisonment for 6 months, or both. 15 Mr Wozniak submitted that an offence under section 58 of the Tow Truck Industry Act 1998, of which Sharp Towing Pty Ltd, Alison Agius and Rennie Agius were convicted, is an offence 'involving fraud, dishonesty or stealing.' 16 Mr Wozniak further submitted that I had no option but to affirm the decision by the Tow Truck Authority to refuse to grant a tow truck drivers certificate to Alison Agius. This was on the basis that Alison Agius had been 'convicted by a court in New South Wales of an offence prescribed by the regulations' and so came within the ambit of section 26 of the Tow Truck Industry Act 1998 which provides that the Tow Truck Authority (and on review this Tribunal) must refuse to grant an application for a licence on mandatory grounds, one of which is where an applicant has been convicted on an offence prescribed under the regulations. The offences prescribed are contained in regulation 7, which is set out above. Mr Wozniak submitted that an offence under section 58 of the Tow Truck Industry Act 1998, for which Alison Agius was convicted and which is set out above, is an offence 'involving fraud, dishonesty or stealing' and so is caught by regulation 7. 17 There would appear to be no mandatory grounds for disqualifying a certified driver from holding a drivers certificate for a specified period, as is the case with Reggie Agius. It is my understanding that Mr Wozniak does not dispute that this Tribunal has a discretionary power on review of the decision by the Tow Truck Authority to disqualify Reggie Agius from holding a drivers certificate until 24 August 2012. 18 The issue for me to determine is whether an offence under section 58 of the Tow Truck Industry Act 1998 is an offence coming within the terms of regulation 7. If it does, the Tow Truck Authority (and on review, the Tribunal) has no discretion in relation to the matters of Alison Agius and Sharp Towing Pty Ltd and must accordingly refuse to grant a drivers certificate to Alison Agius and refuse to grant a licence to Sharp Towing Pty Ltd. 19 If an offence under section 58 of the Tow Truck Industry Act 1998 is to come within the ambit of regulation 7, it must be an offence involving 'fraud, dishonesty or stealing.' Mr Wozniak submits that the actions of Alison Agius and Sharp Towing, as set out in the prosecution facts, disclose such 'fraud, dishonesty or stealing', thereby bringing the matters within the reach of regulation 7. 20 I do not accept Mr Wozniak's reasoning. As Higgins JM observed in Jacobs v Commissioner of Police, New South Wales Police Service [2003] NSWADT 180, the matter in issue is answered by considering the elements of the offence for which an applicant for a licence has been convicted and not by considering the particular facts surrounding the conviction. Had Parliament intended the latter it would have made reference to the conduct the subject of the conviction, instead of referring to the offences themselves. 21 Section 58 of the Tow Truck Industry Act 1998 creates an offence for the contravention of any condition of a licence. No mens rea is required. All that needs to be proven is that the condition was contravened. There is no requirement that fraud, dishonesty or stealing be found in the contravention. On this basis, I find that an offence under section 58 does not fall within the ambit of section 18(1) of the Tow Truck Industry Act as a mandatory ground for refusing to grant an application for a licence, nor does it fall within section 26 of the Act as a mandatory ground for refusing to grant an application for a drivers certificate. 22 I find that the Tribunal retains a discretion in relation to each of the three matters before it: the decision to disqualify Rennie Agius from holding a Tow Truck Drivers Certificate for five years until 24 August 2012; the decision to refuse the application by Alison Agius for a Tow Truck Driver's Certificate and the decision to refuse the application by Sharp Towing Pty Ltd for a Tow Truck Operators Licence. ORDERS 23 The Tribunal retains a discretion in relation to each of the three matters before it: 1. The decision to disqualify Rennie Agius from holding a Tow Truck Drivers Certificate for five years until 24 August 2012. 2. The decision to refuse the application by Alison Agius for a Tow Truck Driver's Certificate. 3. The decision to refuse the application by Sharp Towing Pty Ltd for a Tow Truck Operators Licence. 4. The three matters are to be listed for Directions on Tuesday 4 March 2008 at 2pm to obtain a further hearing date. 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.