El-Khawli v Roads and Traffic Authority [2011] NSWADT 253

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: El-Khawli v Roads and Traffic Authority [2011] NSWADT 253 Hearing dates: 21 June 2011 (Submissions closed 1 July 2011) Decision date: 07 November 2011 Jurisdiction: General Division Before: C Huntsman, Judicial member Decision: The decision is affirmed Catchwords: Mandatory refusal of application for drivers certificate; whether licence disqualified on separate occasions; notice of disqualification Legislation Cited: Tow Truck Industry Act 1998; clause 18 of the Tow Truck Industry Regulation 2008 Cases Cited: The Queen v White [1967 - 68] 122 CLR at 467: Category: Principal judgment Parties: George El-Khawli (Applicant) Road and Traffic Authority (Respondent) Representation: Counsel Miles Condon (Applicant) David Rayment (Respondent) Solicitors Sage Solicitors (Applicant) Smythe Wozniak Legal (Respondent) File Number(s): 113101

REasons for decision

Background 1By letter dated 18 February 2011, posted 22 February 2011, the Roads and Traffic Authority (the respondent) refused the application for a Tow Truck Drivers Certificate, made by Mr El-Khawli, the applicant. The applicant applied for internal review of the decision and on 11 April 2011 the application was refused. On 13 April 2011 the applicant applied for review of the decision by the tribunal. 2The statement of reasons for the internal review decision records that the respondent decided, pursuant to section 26 of the Tow Truck Industry Act 1998 (the Act) and clause 18 of the Tow Truck Industry Regulation 2008 (the Regulation) that the respondent must refuse the application for a drivers certificate on mandatory grounds. The internal review decision, statement of reasons, details that at the time the decision was made, in February 2011, the following evidence was relied upon: that on 25 June 2008 the applicant's tow truck drivers certificate was disqualified for five years ("the disqualification decision"); and, the applicant's driver's license was disqualified on two occasions within the past three years. The two occasions cited by the respondent were the two convictions before Waverley Local Court on 27 May 2008: (i) drive whilst disqualified - disqualified for one year from 27 May 2008 plus a good behaviour bond for two years; and (ii) negligent driving - disqualified for six months from 27 May 2008. 3The respondent notes, in the statement of reasons, that the applicant submits that the two offences arose out of the same set of circumstances and cannot be categorised as two separate occasions of loss of license. The respondent, in the statement of reasons, states that the applicant was charged with, and convicted of, two separate offences and the court treated these as separate and distinct offences, setting different disqualification periods for each. The respondent states that the fact that the court allowed these disqualification periods to run concurrently does not alter the fact that the court ordered two separate disqualifications arising from two distinct offences. The respondent notes that, in addition, the applicant is still within the five-year disqualification period for his tow truck drivers license, and states thatthe applicant remains disqualified from holding a tow truck driver certificate until June 2013. 4In his application for review, the applicant states that he has not been disqualified, suspended or cancelled from holding a driver's license on more than one occasion during the period of three years before the application for a driver certificate was made, and therefore the mandatory grounds for refusing to grant the drivers certificate are not applicable. The applicant further states that the decision by the respondent to disqualify the applicant from holding a drivers certificate for five years from 25 June 2008 is ultra vires, and the respondent could not make such a decision. He further states that he is a fit and proper person to hold a tow truck drivers certificate. 5It was agreed by the parties in the current proceedings that the applicant had previously made applications to the tribunal which had been dismissed by consent of the parties. In particular, on 25 January 2011, an application for review of a decision of the respondent was dismissed by the tribunal by consent (file number 103177) (that application states that review is sought of :"Tow Truck Authority Disqualification until 2013"). The file in that matter is before the tribunal in the present matter, and documents in the file include a decision of the respondent of 24 September 2009 refusing an application by the applicant for a tow truck drivers certificate. It is also recorded by the parties that there had been previous proceedings at the tribunal by the applicant, which had also been dismissed by consent (file 103063). It is noted that the reasons for refusing the applicant's application for a Tow Truck Drivers Certificate in the current matter are similar to those recorded by the respondent in the reasons for the decision of 24 September 2009. 6The current application before the tribunal is for review of the decision of the respondent (the internal review decision of April 2011), whereby the respondent refused the applicant's application of January 2011 for a Tow Truck Drivers Certificate. 7At the close of the hearing on 21 June 2011 the parties indicated that they wished to provide further written submissions on the issue of whether there had been service of the notice of disqualification in June 2008, and the impact of this issue on the current proceedings. I made directions to enable such submissions to be filed and served and indicated that I may proceed to reserve the decision after reading the submissions or may list the matter for further directions. After reading the submissions I decided to reserve the decision and these written reasons constitute the tribunal's order and reasons for decision.