Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Kamis v Director-General, Department of Transport and Infrastructure [2011] NSWADT 21 Hearing dates: 27 October 2010 Decision date: 02 February 2011 Before: S Higgins Deputy President Decision: The decision of the Director-General is affirmed. Catchwords: Bus driver and Private hire vehicle driver - cancellation of driver authority - failure to meet regulation 29 tenure requirements - traffic offences - failure to disclose offences - fitness and propriety of applicant Legislation Cited: Administrative Decisions Tribunal Act 1997 Crimes (Sentencing Procedure) Act 1999 Passenger Transport Act 1990 Passenger Transport Regulations 2007 Road Transport (Driver Licensing) Act 1998 Cases Cited: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 Hoballah v Department of Transport and Infrastructure [2010] NSWADT 294 Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 Nehma v Director General, Department of Transport [2002] NSWADT 242 Re T and Anor and the Director of Youth and Community Services [1980] NSWLR 292 Category: Principal judgment Parties: Jacklyn Kamsis (Applicant) Director-General, Department of Transport and Infrastructure (Respondent) Representation: M Vasta (Applicant) A Wozniac (Respondent) File Number(s): 103143 REASONS FOR DECISION Introduction 1Ms Jackyln Kamis, the applicant, has sought review of a decision of a delegate of the Director-General to cancel her driver authority, issued to her under the Passenger Transport Act 1990 (the PT Act), which authorised her to drive a bus and a private hire vehicle. 2On 21 May 2010, a delegate of the Director-General wrote to Ms Kamis to inform her that her driver authority to drive a private hire vehicle had been cancelled as she had failed to meet the tenure requirements for the authority as prescribed under regulation 29 of the Passenger Transport Regulations 2007 (the PT Regulations). A letter in similar terms was written, on 26 May 2010, by another delegate of the Director-General, in regard to her driver authority to drive a bus. 3Regulation 29, inter alia, provides that an applicant for a driver authority 'must hold a driver licence that is not a ... restricted licence, ... or conditional licence (other than a conditional licence the sole condition of which is that the holder must wear corrective lenses at all times while driving)' and also have held a 'an Australian driver licence for a total of at least 12 months in the 2 years immediately preceding the date of the application': see regulation 29(2)(b) and (c). At the time of the Director-General's letter, Ms Kamis' driver licence was the subject of a demerit point suspension that commenced on 9 April 2010 and was due to expire on 8 July 2010. This was not the first time Ms Kamis had her driver licence suspended. 4On 15 June 2010 Ms Kamis made an application for review of the decision to cancel her driver authority. On 27 July 2010, on the application of Ms Kamis, the Tribunal granted a stay of the decision of the delegate of the Director-General to cancel her driver authority. That stay was not effective until 21 August 2010 when her driver licence was due to be restored. 5The Director-General appears to have decided some time after the stay was granted that the original decision to cancel Ms Kamis' driver authority was wrong and another decision was to be made. On 6 September 2010, another delegate of the Director-General determination to cancel Ms Kamis' driver authority pursuant to section 14 and 40E of the PT Act. The conduct relied on by the Director-General in reaching his decision was Ms Kamis' driving record, her driving offences, her failure to report those offences and the fact that she had been detected driving a private hire vehicle on 19 May 2010, when her driver authority had been suspended due to her driver licence being suspended. 6It is this latter decision that is the subject of review in this application. I assumed that this was an internal review decision. However, in the event I am wrong in my assumption I make an order under paragraph 55(3)(b) of the Administrative Decisions Tribunal Act 1997 to the effect that it is necessary for the Tribunal to deal with the application, notwithstanding there has been no internal review. Relevant legislation 7Division 2 of Part 2 of the PT Act makes provision for the issue of a driver authority to drive 'public passenger vehicle', which includes a bus: see sections 3 and 11of the PT Act. Sub-section 11(1) makes it an offence to drive a public passenger vehicle without an authority issued under that Division. Where an authority has been issued under that Division, section 14 provides that 'having regard to the purpose of an authority', the Director-General 'may at any time vary, suspend or cancel any person's authority.' 8The purpose of an authority issued by the Director-General under this Division of Part 2 of the PT Act is set out in sub-section 11(2), which provides as follows: 11 Authorities (1).... (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. 9Division 5 of Part 4A of the PT Act makes provision for the issue of a driver authority to drive a private hire vehicle. Sub-section 40(1) makes it an offence to drive a private hire without an authority issued under that Division. Where an authority has been issued under that Division, sub-section 40E provides that 'having regard to the purpose of authorisation under this Division, the Director-General may at any time vary, suspend or cancel' a person's authority to drive a private hire vehicle. 10Sub-section 40(3) in this Division sets out the purpose of an authority to drive a private hire vehicle, which provides as follows: 40 Authorities (1)... (2)... (3) 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 HYPERLINK "http://www.austlii.edu.au/au/legis/nsw/consol_act/pta1990248/s3.html" \l "driver" driver of a HYPERLINK "http://www.austlii.edu.au/au/legis/nsw/consol_act/pta1990248/s3.html" \l "private_hire_vehicle" private hire vehicle , and (b) that the authorised person is considered to have sufficient responsibility and aptitude to drive a HYPERLINK "http://www.austlii.edu.au/au/legis/nsw/consol_act/pta1990248/s3.html" \l "private_hire_vehicle" private hire vehicle : (i) in accordance with the conditions under which the HYPERLINK "http://www.austlii.edu.au/au/legis/nsw/consol_act/pta1990248/s3.html" \l "private_hire_vehicle" private hire vehicle service concerned is operated, and (ii) in accordance with law and custom 11Regulation 29 of the PT Regulations sets out criteria for authorisation to a public passenger vehicle, including a bus and a private hire vehicle. That regulation relevantly provides as follows: 29 Criteria for authorisation to drive public passenger vehicles (1) For the purposes of sections 12 (2), 33B (2) and 40B (2) of the Act, the criteria that an applicant for an authorisation to drive a public passenger vehicle must meet before the application is granted are the criteria set out in subclauses (2)-(4). (2) The applicant: (a) ... (b) must hold a driver licence that is not a learner licence, probationary licence, provisional licence, restricted licence, driver licence receipt or conditional licence (other than a conditional licence the sole condition of which is that the holder must wear corrective lenses at all times while driving), and (c) must have held an Australian driver licence for a total of at least 12 months in the 2 years immediately preceding the date of the application, and (d) ... (e).... (3)... (4) ... (5) In this clause: "Australian driver licence" means: (a) a driver licence, or (b) a licence issued under a law in force in a State or internal Territory authorising the holder to drive a motor vehicle on a road or road related area, being a licence that is not a learner licence, probationary licence, provisional licence, restricted licence, driver licence receipt or conditional licence (other than a conditional licence the sole condition of which is that the holder must wear corrective lenses at all times while driving). 12Under regulation 44 of the PT Regulations holders of a driver authority under the PT Act are required to notify, within 7 days, the Director-General of any alleged offence (other than a parking offence). That regulation relevantly provides as follows: 44 Driver to notify Director-General of alleged offence (1) The driver of a HYPERLINK "http://www.austlii.edu.au/au/legis/nsw/consol_reg/ptr2007339/s27.html" \l "public_passenger_vehicle" public passenger vehicle must, in accordance with this HYPERLINK "http://www.austlii.edu.au/au/legis/nsw/consol_reg/ptr2007339/s10.html" \l "clause" clause , furnish the Director-General with written details of the following: (a) any alleged offence (other than a parking offence) with which the driver is charged by a police officer, (b) any penalty notice issued to the driver in respect of an alleged offence (other than a parking offence) that relates to the driving of a motor vehicle. Maximum penalty: 10 penalty units. (2) ... (3) In the case of a charge that is laid by a police officer, or a penalty notice relating to the driving of a motor vehicle that is issued, on or after the commencement of this HYPERLINK "http://www.austlii.edu.au/au/legis/nsw/consol_reg/ptr2007339/s10.html" \l "clause" clause (other than a charge or a penalty notice in respect of a parking offence), the details are to be furnished within 7 days after the laying of the charge or the issue of the notice. The evidence in relation to Ms Kamis' driving record and offences 13At the hearing of her application, Ms Kamis relied on the statement she had filed together with 3 references. Ms Kamis also gave oral evidence and was cross-examined by Mr Wozniac, solicitor for the respondent. 14Mr Wozniac, on behalf of the respondent tendered into evidence the respondent's file concerning Ms Kamis and a bundle of Court Attendance Notices, issued by the respondent on 20 October 2010, for 23 alleged breaches of sub-section 40(2) of the PT Act and 16 alleged breaches of paragraph 254(2)(a) of the Road Transport (Driver Licensing) Act 1998. 15Ms Kamis is 44 years of age. She was issued with a driver authority to drive buses on 17 January 2005. Subsequently, on 6 April 2006, Ms Kamis' authority was extended to include an authority to drive a private hire vehicle. It was the evidence of Ms Kamis that since this time she has only driven a private hire car vehicle and this was the only aspect of her driver authority that she sought to have restored. However, as the same issues arise in respect of her driver authority to drive a bus I have treated her application as covering both aspects of her driver authority. 16Driving record Ms Kamis was issued with an unrestricted New South Wales driver's licence in February 1987. Her RTA traffic record identifies a number of traffic offences and fine default suspensions prior to the date on which she was issued with her driver authority. These have not been considered any further for the purpose of this application. 17Since being issued with her driver authority, the following driving offences have been recorded against her: ·6 offences of exceeding the speed limit by more than 15km/h but no more than 30km/h (i.e. on 21/01/2006, 04/03/2007, 28/03/2007, 18/04/2007, 01/01/2007 and 09/03/2009). The most recent offence was committed when Ms Kamis was driving within a school zone ·an offence of exceeding the speed limit by more than 10km/h but no more than 20km/h (i.e. 10/11/09) ·an offence of disobeying a traffic light (i.e. 01/09/2007) ·2 offences of driving while using a hand held mobile phone (08/09/2006 and 05/05/2009) ·2 offences of providing a false name/address (i.e. 19/09/2008 and 05/05/2009) ·An offence of failing to notify change of address within 14 days (i.e. 19/09/2008) ·an offence of driving whilst her driver licence was suspended (i.e. 05/05/2009) 18Offences dealt with by the Local Court Of the abovementioned offences, the offences that occurred on 19 September 2008 and on 5 May 2009, were dealt with by the Local Court. The Director-General's file contained a copy of the Court documents (including the police fact sheet) in relation to each of these proceedings. 19The circumstances giving rise to the offences that occurred on 19 September 2008 were as follows: ·on this day, Ms Kamis was the front seat passenger in a vehicle being driven by her almost 17 year old daughter when the vehicle was stopped by police conducting a stationary random breath and drug test; ·when asked by police what her name was and the type of driver licence she had, Ms Kamis' daughter gave police a false name, address and category of driver licence. After being told to stop lying by police, Ms Kamis' daughter provided her correct name and address. Police ascertained from Ms Kamis' daughter, in the absence of her mother, that she was the holder of a learner driver licence, but no learner driver plates were displayed on the vehicle; ·police then asked Ms Kamis if she was supervising her daughter while she was driving. Ms Kamis responded by saying 'Yeah of course'. When police asked her to produce her licence she said 'I don't have it with me love'. She was then cautioned and asked if she held a current unrestricted licence, to which she responded 'Yes'. Ms Kamis was then asked what relationship the driver of the vehicle was to her - she responded by saying 'She's my niece'. When requested by police to provide her details she gave false details. The police then searched the handbag that was on the floor of the vehicle, which Ms Kamis had said belonged to her sister. Police found details of Ms Kamis in the handbag, which did belong to her, and on making further enquiries police found that her driver licence had been suspended due to demerit points from 24 April 2008 to 23 October 2008; ·on the basis of their findings, the police charged Ms Kamis with the offence of providing a false name/address and failing to notify the RTA of her change of address. 20Ms Kamis pleaded guilty to both charges and was convicted and fined $150.00. 21It was the evidence of Ms Kamis that on this day she had been notified that her niece was seriously ill at the emergency department at a nearby hospital. She had travelled to the hospital independently of her daughter and when she found that her daughter had driven to the hospital on her own she 'could only think of the safest way for her to get home, that being for me to be in the passenger seat. I guess I acted as a mother, not a suspended driver.' In her oral evidence, Ms Kamis acknowledged that what she had done was wrong. 22The circumstances giving rise to the offences that occurred on 5 May 2009 were as follows: ·on the day in question, the vehicle Ms Kamis was driving was stopped by police as she was seen driving using a hand held mobile phone; ·when asked by police for her driver's licence she said she had left it at home. She was then asked what her details were and she again gave false details (i.e. the same false details she had given previously); ·she was arrested by the police and as she was being taken to the local police station she admitted to providing false details and that her driver licence had been suspended. A RTA check revealed that her licence had been suspended on 17 March 2009 until 14 May 2009; ·the police charged Ms Kamis with an offence of driving while her licence was suspended, an offence of using a hand-held mobile phone while driving and an offence of providing a false name /address. 23On 27 May 2009, Ms Kamis pleaded guilty to each charge. She was fined $350 for the offence of using a hand-held mobile phone and $500 for the offence of providing a false name /address. In regard to the offence of driving while her licence was suspended the Court made an order, under paragraph 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999, discharging Ms Kamis on condition that she enter into a good behaviour bond for a term not exceeding 2 years. 24In her oral evidence, Ms Kamis also acknowledged that she had been wrong in driving the vehicle and in providing false details. 25Warnings At no time did Ms Khamis inform the Department of the charges made against her or the penalty notices that were issued to her. However, on becoming aware of the convictions arising from the offences that occurred on 19 September 2008 and 5 May 2009, the Department issued Ms Kamis with a written warning. 26The first warning letter was sent on 28 November 2008. In that letter, Ms Kamis was warned that in determining any future action against her driver authority, the Ministry (now Department) would take into consideration 'any known complaints, arrests, convictions, proven offences and traffic history', including those that had already been recorded. She was also warned that this may result in her driver authority being varied, suspended or cancelled. 27The second warning letter was sent on 21 December 2009. In this letter the Department noted that Ms Kamis' driver licence had been suspended, on 22 October 2008, due to 'demerit points' and that she had failed to inform the Department of this as required under regulation 44 of the PT Regulations. The letter set out the matters taken into account when deciding to cancel or suspend a driver authority issued under the PT Act followed by a warning, in the same terms of the earlier warning letter. 28Suspensions of driver licence On 26 November 2007, Ms Kamis' driver license was made subject to good behaviour conditions for 149 days and it is not disputed that since 24 April 2008 the RTA has suspended her driver licence on a number of occasions, the total number of days being 364 days. As I have already mentioned the most recent suspension of Ms Kamis' driver licence was on 9 April 2010. 29On 19 May 2010, Alper Elgun, a compliance officer with the Department, saw Ms Kamis driving a hire car vehicle at Terminal 3 at Sydney Airport. On the following day, Mr Elgun ascertained that the driver licence of Ms Kamis' was suspended. According to a file note prepared by Mr Elgun, he telephoned Ms Kamis on that day and she informed him that her driver licence had been suspended due to a fine default, which she had now paid. On further enquiries with RTA, Mr Elgun found that Ms Kamis driver licence remained suspended. Accordingly, he issued an infringement notice to Ms Kamis alleging that she had, on 19 May 2010, driven a private hire car vehicle without the appropriate driver authority. He also sent Ms Kamis the abovementioned letter of cancellation of her driver authority to drive a private hire vehicle (see paragraph 2 above). 30Subsequent to Ms Kamis making her application for review, the Department issued a number of Court Attendance Notices in regard to Ms Kamis having driven a hire car vehicle without the appropriate authority under the PT Act. As these were still the subject of proceedings before the Local Court at the time of the hearing of this application, I have considered them no further for the purpose of this application. However, I have had regard to the circumstances that gave rise to the infringement notice that was issued by Mr Elgun on 20 May 2010. 31According to the RTA records the driver licence of Ms Kamis was suspended, on 22 December 2009, due to her defaulting in paying outstanding fines. That suspension was recorded as commencing on 11 January 2010. Prior to this, in October and August 2009, Ms Kamis' driver licence had been suspended for similar reasons. 32The 22 December 2009 fine default suspension is recorded as having been lifted on 10 February 2010. 33In regard to the suspension of her driver licence from 9 April 2010, the RTA record shows that this suspension was due to 'demerit points'. The RTA record also shows that Ms Kamis was issued with a 'demerit points' warning letter on 10 February 2010. It was after the issue of this letter that Ms Kamis was issued with a fine for exceeding the speed limit by more than 10 km/h on 10 November 2009. The fine was issued on 4 March 2010 and she was informed of her demerit point suspension on the following day. 34It is noted that Ms Kamis had also been issued with 'demerit points' warning letters prior to 10 February 2010. These letters were issued on 11 August and 8 September 2009 and according to the RTA record covered the same range of traffic offences (i.e. the traffic offences that had occurred on 5 May 2009, 9 March 2009 and 1 September 2007) that were recorded in her letter of 10 February 2010. 35In her statement, Ms Kamis said that 'unbeknown' to her a letter was sent 'in about March 2010' advising her that her licence had been suspended. She said she did not receive that letter as she was living with her sister at that time due to an illness. In support of this she attached a letter from the hospital that identified the dates on which she had been hospitalised for this illness. I note that Ms Kamis was hospitalised on 5 occasions and only for a very short period of time on each occasion. The first time was in early July 2007 and she was not hospitalised again until early February 2010. In February 2010, Ms Kamis was hospitalised on 3 occasions, on 5 February for 3 days, on 8 February for 3 days and on 23 February for 1 day. She was not hospitalised again until 30 March 2010 for 1 day. 36Ms Kamis said that she was not on notice that she had reached 12 demerit points. Good repute and otherwise a fit and proper person 37It is well established that being a "fit and proper person" and of and a person of "good repute" are distinct concepts, both of which must be satisfied for the purpose of sections 11(2) and 40(3) of the PT Act: see Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 at [19] and ff. and Nehma v Director General, Department of Transport [2002] NSWADT 242 at [5]. 38In Re T and Anor and the Director of Youth and Community Services [1980] 1 NSWLR 392, at 389, Waddell J explained the meaning of 'repute' of a person as follows: '...is to be found in the estimate of his moral character entertained by some specific group of people, such as by 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. The importance of a person's reputation is that it is an estimate of his character, or some aspect of his character, upon which the persons in such a group are generally, although not necessarily unanimously, agreed. It is this essential nature of reputation which makes it a reliable guide to a person's character. ...' 39The references tendered into evidence by Ms Kamis indicate that those who know her consider her to be a person of good repute. Two references are from friends of Ms Kamis, who say they have known her for some time. The other reference is from Ms Kamis' employer, who said he has used her services for the last 4 years. However, her employer is the only referee who makes reference to the fact that her driver authority had been cancelled. Yet none of the referees mention the convictions of Ms Kamis or the circumstances that gave rise to these convictions. 40Accordingly, I am unable to attest to Ms Kamis being a person of good repute. 41It is well established that the concept of a person's fitness and propriety is to be considered having regard to the nature and purpose of the activities that person will be or is authorised to undertake. Furthermore, it is a question that involves a value judgment having regard to the circumstances of each case: see Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, at [63], per Mason CJ. 42In considering whether a person is fit and proper to undertake the activity for which he/she has sought a licence the Tribunal has frequently cites with approval the test posed by the equivalent ACT Tribunal dealing with an equivalent legislative scheme in Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 per Curtis P, which was in the following terms: 'One must put oneself, so far as possible, in the position of a member of the public who might travel in a taxi driven by the applicant and ask whether that member of the public, knowing of the applicant's criminal record and what he has done ... to rehabilitate himself, would object to the applicant as the driver of the taxi.' 43It was the contention of the Director-General that given her driving record, her convictions of giving a false name and address and her offence of driving while her licence was suspended Ms Kamis was not a fit and proper person. Ms Kamis on the other hand, acknowledged that her driving record had not been good. However, she submitted that her breaches were technical in nature, she had not breached any traffic laws for 12 months, as at the date of hearing, her driver licence was no longer suspended and she had enrolled into a driver awareness program due to commence on 18 November 2010. 44In my view, since she obtained her driver authority, the driving record of Ms Kamis cannot be viewed as trivial. In my view they are serious as they reflect on Ms Kamis' lack of candour and honesty. What is of particular concern is that Ms Kamis acted in this way on a number of occasions. They also demonstrate Ms Kamis' lack of regard for the safety of others, the law and the requirements imposed on her as an authorised driver under the PT Act. 45Given the August and September 2009 warning letters sent by RTA to Ms Kamis about the position of her demerit points, I find it difficult to accept her explanation that she was not aware of the possibility of her driver licence being suspended. I also find it difficult to accept her explanation that she was not aware that her driver licence was suspended. According to the RTA records that letter was sent on 5 March 2010 and she was not hospitalised at that time. She had been out of hospital for 8 days and did not go back again for another 25 days. Consequently, I am also concerned about the response Ms Kamis gave to Mr Elgun when he contacted her on 19 May 2010. 46The fact that Ms Kamis enrolled in a driver awareness program does not in my view adequately address the more serious lack of candour and honesty aspects of her conduct or her apparent disregard of her obligations under the PT Act and Regulations. While she said she now acknowledges that what she said to the police was wrong, given her most recent response to Mr Elgun and her evidence before the Tribunal I am not persuaded that she fully understands the seriousness of her conduct. 47Accordingly, I find on the material before the Tribunal at the time of hearing that I cannot attest to Ms Kamis being a fit and proper person to be the driver of a hire car vehicle or a bus. Sufficient responsibility and aptitude 48In light of my findings it is unnecessary for me to deal with this aspect of Ms Kamis' application. However, I wish to raise one issue in regard to the submissions of the Director-General concerning the requirements of paragraphs 29(2)(b) and (c) of the PT Regulations. 49It is my understanding that the Director-General contended that this regulation equally applied to persons who were holders of an authority under the PT Act. That is, where a holder of an authority under the PT Act has his/her driver licence cancelled, suspended or made subject to conditions, paragraphs 29(2)(b) and (c) equally applies to that person. I have some difficulty in accepting this contention, but make no findings in regard thereto. I note the recent decision of Judicial Member Molony in Hoballah v Department of Transport & Infrastructure [2010] NSWADT 294 where at [62] he found that the requirements in regulation 29 were not conditions 'imposed on an authority, but is one of the criteria which an applicant for a taxi-cab authority must satisfy in order to obtain an authority.' As mentioned above, that regulation equally applies to applicants for a driver authority to drive a hire car vehicle and a bus. Nevertheless, I accept that it is essential for the holder of a driver authority under the PT Act to have a current driver licence when that person is driving a public passenger vehicle. And where a person does not have a current driver licence and drives a public passenger vehicle the Director-General can take this into account in determining to suspend or cancel that person's driver authority. Conclusion 50For the reasons stated above I find that the decision of the Director-General to cancel Ms Kamis' driver authority issued under the PT Act is the correct and preferred decision. Accordingly the appropriate order is to affirm the decision of the Director-General. ********** 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. Decision last updated: 02 February 2011