Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Gurdler v Roads and Maritime Services [2012] NSWADT 29 Hearing dates: 17 January 2012 Decision date: 22 February 2012 Jurisdiction: General Division Before: M Chesterman, Deputy President Decision: 1. The decision under review is set aside. 2. The Applicant is to be granted a drivers certificate under the Tow Truck Industry Act 1998. 3. The interim order made by the Tribunal on 15 December 2011 is discharged. Catchwords: Tow Truck Industry Act - refusal of application for drivers certificate - 'fit and proper person' - public interest - discretionary and mandatory grounds of refusal Legislation Cited: Administrative Decisions Tribunal Act 1997 Crimes (Sentencing Procedure) Act 1999 Tow Truck Industry Act 1998 Tow Truck Industry Regulation 2008 Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 Barrett -v- Director General, Department of Transport [2000] NSWADT 183 Chaining v Commissioner of Police, NSW Police Service [1999] NSWADT 6 Ereira v Roads and Traffic Authority (No 2) [2010] NSWADT Kaldas v Tow Truck Authority of NSW [2006] NSWADT 337 Law Society of NSW v Bannister, Unreported, Court of Appeal, 27 August 1993, BC930181 Lloyd -v- Director General, Department of Transport [2001] NSWADT 201 RTA v Sharp Towing Pty Ltd and ors (GD) [2008] NSWADTAP 49 Shuttleworth v Tow Truck Authority of NSW [2006] NSWADT 301 Sleiman v Tow Truck Authority of New South Wales (GD) [2005] NSWADTAP 46 Trilin v Commissioner of Fair Trading [2003] NSWADT 222 Category: Principal judgment Parties: David Tony Gurdler (Applicant) Roads and Maritime Services (Respondent) Representation: P Lange (Applicant) Murphy's Lawyers Inc (Applicant) Smythe & Wosniak (Respondent) File Number(s): 113348 decision Factual outline 1(M CHESTERMAN (DEPUTY PRESIDENT)): In this case, the Applicant, David John Gurdler, seeks review of the refusal by the Respondent, Roads and Maritime Services ('RMS'), of an application by him for a drivers certificate under section 25 of the Tow Truck Industry Act 1998 ('the Act'). 2Since 1 November 2011, RMS has been the authority responsible for granting licences and certificates under the Act. Before then, the Roads & Traffic Authority (RTA) fulfilled these tasks. 3Mr Gurdler first obtained a drivers certificate under the Act on 27 February 2002. Since then, he has been granted a number of certificates, each of which has permitted him to operate as tow truck driver for a period of one year. 4On 24 May 2006, the RTA issued a disciplinary caution to him, on the ground of failure to wear his drivers certificate as required by the Act. In addition, a drivers certificate held by him has been revoked on two occasions. 5The ground of the first revocation, which occurred on 26 September 2007, was that his driving licence had been suspended. The reason for this was his failure to pay fines (though subsequently, he paid them). On 1 July 2008, he was convicted and fined $550 for the offence of failing to return his revoked drivers certificate. His explanation for this failure was that he had been moving house and had misplaced a number of documents. His application for a fresh drivers certificate was granted on 19 August 2009. 6The second revocation occurred on 30 October 2009 and again was prompted by the suspension of his drivers licence. His application for a fresh certificate was granted on 18 August 2010. 7For all or virtually all the time since he first obtained a certificate he has been employed as a tow truck driver by North Shore & City Towing Pty Ltd. His duties have included towing away vehicles stationed on clearways during periods when clearway restrictions are in operation. 8At about 4.30 p.m. on 12 May 2011, while carrying out his duties on a clearway in North Sydney, Mr Gurdler caused damage to a taxi that was stationed on the clearway. The nature of his conduct during this incident (hereafter 'the clear way incident') is the focus of these proceedings. 9Mr Gurdler reported the clearway incident immediately to Mr Robert Mabury, who was employed by North Shore & City Towing as the base operator. Due to pressure of work, Mr Mabury failed to report it to an appropriate person within the RTA. 10About one hour after the incident, the owner and driver of the taxi ('the victim') reported it to Kings Cross Police Station. He was advised to make a statement about it at North Sydney Police Station. He did so three days later. 11On 11 June 2011, Mr Gurdler attended North Sydney Police Station and participated in a record of interview about the clearway incident. 12On 16 June 2011, another taxi driver witnessing this incident ('the witness'), who had volunteered or agreed at the victim's request to furnish evidence, made a statement at North Sydney Police Station. 13On 28 June 2011, Mr Gurdler was charged with the offence 'Maliciously destroy or damage property < =$2000'. 14On 11 August 2011, he applied to the RTA for a drivers certificate. 15On 13 September 2011, the RTA sent him a notice under section 34 of the Act (relevant parts of this section are reproduced below), requiring him to furnish it with information about the clearway incident, in the form of a statutory declaration, by 30 September 2011. He did not comply with this requirement. 16On 21 October 2011 Mr Gurdler's application was refused, on account of his conduct at the clearway incident. 17On 15 November 2011, in response to his application (made on 27 October 2011) for internal review, RMS affirmed the decision of the RTA not to grant him a certificate. 18On 22 November 2011, he attended the Local Court at North Sydney without legal representation. He pleaded not guilty to the offence with which he had been charged. The Court found him guilty, but did not proceed to conviction. Acting under section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999, it directed him to enter into a good behaviour bond for a period of 12 months and ordered him to pay compensation of $345.95 to the owner of the taxi. 19On 23 November 2011, Mr Gurdler applied again for a drivers certificate. 20On 30 November 2011, RMS rejected this application. 21On 9 December 2011, Mr Gurdler filed an Application for Review of a Reviewable Decision in the Tribunal, together with an Application for Stay of a Reviewable Decision. The decision to which these Applications referred was the internal review decision of RMS made on 15 November 2011, affirming the RTA's refusal, on 21 October 2011, of the first of Mr Gurdler's two recent applications for a drivers certificate. 22At a hearing of the Application for Stay on 15 December 2011, the Tribunal made an interim decision in these terms: 'This application, by the Applicant to be allowed to continue to drive a tow truck pending the final determination of the matter, is granted.' 23On 17 January 2012, the hearing of the Application for Review of a Reviewable Decision took place before me. Mr Lange of counsel appeared for Mr Gurdler and Mr Wozniak for RMS. Relevant legislation 24So far as relevant in this case, section 26 of the Act provides:- 26 Restrictions on granting drivers certificate (1) RMS: (a) must refuse to grant an application for a drivers certificate on mandatory grounds, and (b) may refuse to grant an application for a drivers certificate on discretionary grounds. (2) The mandatory grounds for refusing to grant an application for a drivers certificate are as follows:... (b) that the applicant has, within the period of 10 years before the application for the drivers certificate was made: (i) been convicted, or (ii) been found guilty (but with no conviction being recorded), by a court in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law and whether or not committed before the commencement of this section,... (3) The discretionary grounds for refusing to grant an application for a drivers certificate are as follows: (a) that the applicant is not, in the opinion of RMS, a fit and proper person to hold a drivers certificate or is otherwise not competent to carry on the kind of towing work to which the proposed drivers certificate relates,... (d) that the granting of the drivers certificate would, in the opinion of RMS, be contrary to the public interest. (4) The regulations may provide additional mandatory or discretionary grounds for refusing the granting of an application for a drivers certificate. 25Section 34 provides:- 34 RMS may require further information in relation to application (1) RMS may, by notice in writing, require a person who has applied for a licence or drivers certificate or who, in the opinion of RMS, has some association or connection with the applicant that is relevant to the application, to do any of the following things: (a) to provide, in accordance with directions in the notice, such information (including financial and other confidential information), verified by statutory declaration, as is relevant to the investigation of the application and is specified in the notice,... (2) If a requirement made under this section is not complied with, RMS may refuse to consider the application concerned. 26Regulation 16 of the Tow Truck Industry Regulation 2008 (the Regulation) provides, so far as relevant:- 16 Offences that disqualify applicants for drivers certificates (1) For the purposes of section 26 (2) (b) of the Act, the following offences are prescribed (regardless of whether they were committed in New South Wales): (a) any offence involving an assault of any kind against a person, (b) any offence relating to the possession or use of a firearm or imitation firearm (within the meaning of the Firearms Act 1996 ) or other weapon, (c) any offence involving the supply or possession of a prohibited drug, or the cultivation (for a commercial purpose), supply or possession of a prohibited plant, within the meaning of the Drug Misuse and Trafficking Act 1985 , (d) any offence involving fraud, dishonesty or stealing, (e) any offence involving robbery (whether armed or otherwise), (f) any offence involving the recruitment of another person to carry out or assist in carrying out a criminal activity within the meaning of section 351A of the Crimes Act 1900 , (g) any offence involving participation in a criminal group or participation in any criminal activity of a criminal group within the meaning of Division 5 of Part 3A of the Crimes Act 1900 , 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 any of those penalties. 27The following provisions within section 10 of the Crimes (Sentencing Procedure) Act 1999 should also be quoted:- 10 Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. (2) An order referred to in subsection (1) (b) may be made if the court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond. (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. The clearway incident 28The first-hand evidence regarding this incident comprised the written statements provided to the police by the victim and by the witness and the transcript of the interview of Mr Gurdler by a police officer. 29The victim, having said that he was a taxi driver and the registered owner of a taxi, described the incident as follows in paragraphs 4 to 7 of his statement:- 4. Approximately 4.30pm I was stationary on Alfred Street and the corner of Mount Street, North Sydney. There were approximately two cabs in front of me they both received passengers and took off from the rank. I was then the first car at the front of the rank, I had my hazard lights on at this point. Suddenly a tow truck arrived and took over my vehicle and parked very close to the front of my car. The tow truck then put its flashing lights on and kept reversing into my vehicle until he was incredibly close. 5. The tow truck then get ( sic ) out of his vehicle and started taking photos of my vehicle. I then decided to reverse backwards and put my indicator on and drive off up towards Mount Street. The tow truck driver then ran up to my cab on the passenger side. He then made his right hand into a fist and he smashed downwards on my side mirror and the entire thing fell to the floor. 6. I then stopped my cab, I walked around the front of my vehicle and picked up the pieces of my mirror from the road. I then asked the two truck driver for his details but he refused to give them to me. He then told me "to fuck off". 7. The tow truck driver then went back to his tow truck and drove off towards Mount Street... 30The witness said that at the time of the incident he was driving a taxi and was parked behind the victim's taxi on Alfred Street. His account of the incident substantially corroborated the victim's account. 31Mr Gurdler's version of events, as recorded by a police officer at North Sydney Police Station, was as follows:- Well I had parked my tow truck on Alfred Street North and had moved on taxis about three times as it's a clearway. I then got out of my truck and moved between the end of my truck and the front of the taxi and went to take a photo of his registration. At this time the taxi took off and stopped beside me saying stuff like you smashed my mirror. He got out of the car. He went and picked up his mirror which I saw in pieces on the ground. He may have hit me with his mirror when he drove past but I'm not sure. He then drove off. At the beginning when I had been moving the taxis on the taxi who said I knocked his mirror off had stopped and parked then come out behind me to park on Alfred St Nth. This was before the mirror was broken. The taxis always do this go round the block to get out of the way but then return to pick up passengers from office blocks. 32The Facts Sheet presented to the Local Court at the hearing on 22 November 2011 contained an abbreviated version of the victim's account of the incident. The reasons given for refusing Mr Gurdler's application 33In the Statement of Reasons explaining the rejection, on 21 October 2011, of Mr Gurdler's application for a drivers certificate, the RTA noted that he was facing a criminal charge on account of his conduct on 12 May 2011. It stated that the holder of a drivers certificate must be shown to possess 'sufficient moral virtue and character' to be deemed 'fit and proper' to hold a certificate. 34The Statement then made the following points:- The tow truck industry has a culture and history of dishonesty, violence and intimidation. The perception of the general public is that many of those working within the industry are coarse, uncouth, intimidating and cannot be trusted. The legislation was introduced to tighten the 'fit and proper' requirements under which person are approved to participate in the industry and to ensure that it is in the 'public interest' for persons to be permitted to enter the industry. 35Having set out a short summary of the victim's account of the clearway incident, the Statement went on to indicate that the RTA 'will not tolerate certified tow truck drivers acting in an aggressive, threatening or intimidating manner while carrying out their duties'. It stated further that although Mr Gurdler had not been convicted of the offence with which he had been charged, 'the circumstances, involving you driving a tow truck at the time of the incident and the corroboration of an independent witness, lead the RTA to consider that the public interest will not be served by you being granted a tow truck drivers certificate'. 36In its concluding sentence, the Statement of Reasons indicated that Mr Gurdler's application was refused 'on discretionary grounds'. Earlier, it had cited sections 26(1), 26(3)(d) and 26(4) of the Act. These provisions, it may be noted, refer to the public interest as a discretionary ground for refusing an application, but not to the separate ground, set out in section 26(3)(a), that the applicant is not, in the opinion of the licensing authority, a 'fit and proper person' to hold a drivers certificate. 37In the Statement of Reasons (dated 15 November 2011) accompanying RMS's affirmation, following an internal review, of the RTA's decision against Mr Gurdler, express reference was made to the discretionary ground of fitness and propriety contained in section 26(3)(a) as well as the 'public interest' ground. With regard to the concept of 'fit and proper', the Statement pointed out that it called for an assessment of an applicant's 'moral rectitude and character' and that the decision maker should consider both 'the seriousness, frequency and time over which any particular conduct has occurred' and 'any matters that may demonstrate a change toward more favourable behaviour'. 38This Statement referred also to Mr Gurdler's failure to provide the information required in the notice sent to him under section 34 of the Act, commenting that this failure was 'justifiably of concern to RMS'. 39Under the heading 'Conclusion', the following observations were made:- Due to the nature of Mr Gurdler's charge, and that the incident took place while he was driving a tow truck, I am unable to be totally satisfied that he is a person of good character who can be entrusted with the responsibilities of a two truck driver... I am of the opinion that the original decision to refuse Mr Gurdler's application on discretionary grounds under sections 26(1), 26(3) and 26(4) of the Act was appropriate. Members of the public have the right to expect that tow truck drivers are adequately screened for suitability to hold a drivers certificate... Mr Gurdler's evidence 40In the course of brief testimony given at the hearing before me, Mr Gurdler stated that he is now 42 years of age, that he had first obtained a drivers licence about 25 years ago and that he had been a tow truck driver for 9 or 10 years. He stated also that he had resided in Sydney for about 37 years, that he had been married for about 13 years, that his wife was not employed and that they had two sons, aged 13 and 10. 41Mr Gurdler stated also that he had paid the compensation ordered by the Local Court and that, although he had pleaded not guilty, he was 'not interested' in appealing against his conviction. In answer to a number of questions in cross-examination, however, he claimed that the victim's and the witness's accounts of the clearway incident were not correct and that if he had had legal representation at the Court hearing he would or might have been acquitted. In answering the last question that was put to him, he testified that 'in his own mind' he did not commit the offence with which he had been charged, but that he 'accepted' the court's decision. Character evidence 42Three testimonials in Mr Gurdler's favour were tendered and admitted. None of the authors of these testimonials was required for cross-examination. 43Mr Scott Dunbar, who is a director of North Shore & City Towing, described Mr Gurdler as 'one of our greatest trade towing employees ever', adding that he was 'responsible and reliable' and 'an extremely hard working model citizen'. Mr Dunbar also expressed the opinion that Mr Gurdler should not have been found guilty, since he 'had an explanation but could not afford the legal fees'. A further suggestion by Mr Dunbar was that 'the Magistrate could see what happened and gave him a section 10(1)(b) i.e. no conviction but with a bond'. 44Mr Robert Maybury, who is the base operator of North Shore & City Towing, referred in his sworn statement to his failure to report the clearway incident to the RTA, adding that if he had 'called this in to the RTA then this would not have gone on any further'. He stated also that he had 'worked with David for many years' and that if needed he would attend and testify on Mr Gurdler's behalf. 45In an undated statement, Mr Aaron Gale said that he was employed by RMS as a senior transport operations planner. His evidence was that he had worked with Mr Gurdler 'on multiple occasions' and that Mr Gurdler was competent and courteous and had never been the subject of a complaint, either by a member of the public or by an employee. Submissions 46Mr Lange's primary submissions with regard to Mr Gurdler's action in smashing the wing mirror of the victim's taxi were as follows: (a) it was entirely aberrant and uncharacteristic behaviour on his part; (b) it constituted the sole instance of significantly unsatisfactory behaviour by him during the period of more than nine years of his employment as a tow truck driver; (c) the Local Court's decisions not to enter a conviction against him and to order that he pay only the small sum of $345.95 as compensation demonstrated that it regarded his offence as trivial; (d) the Tribunal should be guided by this assessment of his conduct provided by the Court; (e) he reported the matter immediately to his supervisor; (f) although he did not comply with the notice sent to him by the RTA under section 34 of the Act, he did supply relevant documents in due course and was at all times forthright and candid about his behaviour; (g) the testimonials in his favour, being furnished by witnesses who were well acquainted with his performance as a tow truck driver over a number of years, clearly indicated that to deprive him of the opportunity to continue in this occupation would be an unduly harsh measure; and (h) he had already suffered considerably through being prohibited from working between 12 October 2011 (the date of refusal of his application for a drivers certificate) and 15 December 2011 (the date of the Tribunal's interim decision permitting him to return to work). 47With reference to RMS's conclusion that Mr Gurdler was not a fit and proper person to work as a tow truck driver, Mr Lange relied on two paragraphs in the Tribunal's decision in Shuttleworth v Tow Truck Authority of NSW [2006] NSWADT 301. 48At [34], the Tribunal said:- 34 In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321,Chief Justice Mason explained that, at 380: 'The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.' Toohey and Gaudron JJ said at 380: "The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question." In Palumberi -v- General Manager, Tow Truck Authority of New South Wales [2001] NSWADT 206 Deputy President Hennessey adopted that well known passage in the context of the Tow Truck Industry Act 1998. 49At [37], the Tribunal said:- 37 A person who has been found to be of bad character, and not a fit and proper person to operate in an industry, may redeem him or herself: In re Davis (1947) 75 CLR 409. Character is not fixed, but is capable of change and rehabilitation: Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25. In Trilin v Commissioner of Fair Trading [2003] NSWADT 222 in the context of the Motor Dealers Act, I said: "The issue of whether a person who has been determined not to be a fit and proper person to hold a dealer licence has been so reformed that she or he is now fit and proper, is a matter of judgement. In considering that issue the Tribunal is required to take into account the nature and seriousness of the original misconduct, any events relevant to an assessment of the Applicant's fitness which have occurred since then, the candour with which the Applicant has approached the issue of past misconduct, the Applicant's explanation of the misconduct, the impact of the effluxion of time, and the Applicant's present circumstances and reputation. The Tribunal should bear in mind the warning sounded by the Court of Appeal in Law Society of NSW v Bannister (unreported Court of Appeal, 27 August 1993, BC930181) where Sheller JA, delivering the judgment of the Court, observed: "... absent some acceptable explanation of how greed and opportunity led the Solicitor to carefully plan a course of action which he knew was dishonest and deceitful, character evidence is not particularly helpful to a court or tribunal in determining whether it can be confident that there will not be a repetition."" 50In essence, Mr Wozniak's argument comprised five propositions. 51The first was that the Tribunal, in its decisions under the Act and under other acts relating to occupational licensing, had consistently held that when misconduct on the part of an applicant for, or holder of, a licence occurred (as in this case) in the course of the regulated activity, this was an aggravating factor. 52Secondly, the Act was acknowledged to be very 'savage' legislation. Mr Wozniak relied here on a passage in Sleiman v Tow Truck Authority of New South Wales (GD) [2005] NSWADTAP 46. At [30 - 32], the Appeal Panel made the following observations about the Act:- 30 According to the Second Reading Speech, this legislation was introduced in response to a report that the tow truck industry was 'infiltrated by criminal elements and pervaded by fear of intimidation, physical harm and property damage' (Hansard, 14 October 1998, p 170). It is clear that one purpose of the legislation was to remove the 'criminal elements' from the industry and that this was achieved, in part, by giving the TTA power to suspend a drivers certificate where serious charges against the driver had been laid. 31 The Parliament and the Government's concern over criminality in the industry is further reflected in cl 7 of the Tow Truck Industry Regulation 1999 which provides for automatic disqualification where the holder of a licence or certificate is convicted of: '(a) any offence involving an assault of any kind against a person, (b) any offence relating to the possession or use of a firearm or other weapon, (c) any offence involving the supply or possession of a prohibited drug (within the meaning of the Drug Misuse and Trafficking Act 1985), (d) any offence involving fraud, dishonesty or stealing, (e) any offence involving robbery (whether armed or otherwise), being an offence in respect of which the penalty imposed was imprisonment, or a monetary penalty of more than $1,000, or both.' 32 It will be seen that this provision embraces most, if not all, forms of criminality, and reaches down as far as any matter in which a fine of $1000 is imposed. Only minor convictions (as judged by the fine imposed, and the absence of a penalty of imprisonment) are left outside the catchment. 53Mr Wozniak also referred me to an extract (quoted in Ereira v Roads and Traffic Authority (No 2) [2010] NSWADT 220 at [38]) from the Second Reading Speech given by the Hon R D Dyer (Minister for Public Works and Services) on behalf of the Hon M R Egan, on the introduction of the Tow Truck Industry Bill into the Legislative Council on 27 October 1998: The Tow Truck Industry Bill provides for a comprehensive restructure of the tow truck industry, an industry that is in urgent need of reform. This bill will improve regulation of tow truck activities at an accident scene, tighten the fit and proper requirements for those who can be involved in the industry, provide for a stronger regulatory authority with an improved enforcement and policy focus and a more effective and modern disciplinary process... After extensive consultation with the industry and interest groups, Mr Anderson submitted his thorough and well-written tow truck industry review interim report on 31 May. The findings of the report were disturbing. Mr Anderson described an industry infiltrated by criminal elements and pervaded by fear of intimidation, physical harm and property damage... Industry standards will be upgraded so that applicants who have been convicted of certain criminal offences or if their drivers' licences have been cancelled or suspended will not be able to enter the industry. 54A further extract from the decision in Ereira (No 2) (at [46]) demonstrates the significance of this proposition that the Act is 'savage' legislation:- 46 A person's fitness is to be gauged in light of the nature and purpose of the activities that the person will undertake: Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127. Knowledge, ability, moral integrity and the rectitude of character necessary to fulfil the role for which a licence is sought are proper considerations: Sobey v Commercial and Private Agents Board 20 SASR 70. Criminal convictions can be of great importance in such as assessment: the more so where the activity to be undertaken requires public confidence and reliance on the propriety and integrity of the licensed person: Raymond Robbins v Business Licensing Authority (2000) VCAT 457. Thus the nature of the industry in which the person concerned wishes to operate affects a consideration of whether a person is a "fit and proper person" to operate in that industry. In Chaining v Commissioner of Police, NSW Police Service (1999) NSWADT 6 at [41] the President of this Tribunal made the following comments on the issue, in the context of the security industry: `Whether a person is `fit and proper' to hold a licence in a regulated industry will be affected by general considerations relating to the character of the person, special considerations that take account of the nature of the industry in issue and the public policy objective leading the legislature to regulate the industry. 55The third proposition in Mr Wozniak's submissions was that the offence of which Mr Gurdler had been found guilty either was, or was 'very close to', an offence within the range specified in section 26(2) of the Act as requiring mandatory, not discretionary, refusal of a drivers certificate. 56The reasoning put forward in support of this proposition was as follows. Mr Gurdler's behaviour in the presence of the victim was such as to cause the victim to fear that he might be subjected to violence. It therefore constituted an 'assault'. In RTA v Sharp Towing Pty Ltd and ors (GD) [2008] NSWADTAP 49, the Appeal Panel said, with reference to the predecessor of clause 16 of the Regulation, that the expression 'an offence involving [prescribed conduct]' should not be 'limited in its operation to a scrutiny of the terms of the offence provision', and that 'an offence may be able to be shown to involve prescribed conduct, such as dishonesty, even though the offence itself is not an offence that directly refers in its terms to that kind of conduct or can be readily characterised as an offence about that kind of conduct'. It also observed at [54] that 'the mandatory grounds provisions operate in a very draconian way in the licensing schemes with which this Tribunal is most familiar (firearms, security guards, tow truck industry)...' For these reasons, the offence of which Mr Gurdler had been found guilty was, or was 'very close to', an 'offence involving an assault of any kind against a person' within the meaning of clause 16(1)(a) of the Regulation. It followed that his application for a drivers certificate was subject to mandatory refusal under section 26(2)(b) of the Act, or was of such seriousness that discretionary refusal was entirely justified. 57Fourthly, Mr Wozniak argued that the Tribunal should take account of the duration of the bond imposed on Mr Gurdler by the Local Court, but that when determining the issue of fitness and propriety it should not be unduly influenced by the fact that the Court had elected not to enter a conviction. In support of the first limb of this proposition, he cited an observation by the Tribunal in Lloyd -v- Director General, Department of Transport [2001] NSWADT 201 (at [64]) that in a comparable context it was 'guided by the time imposed by the Courts in terms of the good behaviour bond'. In support of the second limb, he cited the following passage in Barrett -v- Director General, Department of Transport [2000] NSWADT 183 at [49]:- 49 The offences were viewed by the presiding magistrate as being of a relatively low level of seriousness, reflected in the decision to dismiss the charges. But as Mason CJ said in Bond , extracted in paragraph 44 above, "the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker". As Toohey and Gaudron JJ said at page 56 in the same case, regard is had to "the nature of the activities", and a finding is made as to whether a person is "fit and proper to undertake the activities in question". While the facts established before the magistrate may have impressed as being only at the lower end of seriousness in the criminal law, they can be assessed differently for purposes of fitness and propriety to hold an authority. 58Fifth and finally, Mr Wozniak argued that Mr Gale's testimonial was of no value because it contained nothing to indicate that he was aware of Mr Gurdler's conduct during the clearway incident. Discussion and conclusions 59Under section 63(1) of the Administrative Decisions Tribunal Act 1997, my task is to 'decide what the correct and preferable decision is', having regard to the material before me. 60I have little doubt that the account of Mr Gurdler's conduct on 12 May 2011 that I should regard as correct for the purposes of my decision is the account given by the victim to the police and corroborated by the witness. As I understood Mr Lange's argument, he did not submit to the contrary. 61In his interview at North Sydney Police Station and during cross-examination, Mr Gurdler claimed that there was another explanation for the damage caused to the victim's taxi and that if a lawyer representing him had been able to put this explanation before the Local Court he would, or at least might, have been acquitted. But at no point did Mr Gurdler provide sufficient particulars of this alternative version of events to enable its credibility to be assessed. 62After careful consideration of Mr Gurdler's conduct during the clearway incident and of the surrounding circumstances, I have decided that this one-off instance of unsatisfactory behaviour by him is insufficient to justify the conclusions that (a) he is not 'fit and proper' to hold a drivers certificate and (b) the issue of a certificate to him would not be in the public interest. Taking account of his prior record as a tow truck driver during a significant period of time, and of the testimonials provided by Mr Dunbar and Mr Mabury, I accept Mr Lange's characterisation of this behaviour as aberrant and out of character. There is no evidence before me to warrant a finding that similar behaviour on his part is likely to recur. 63In so determining, I have taken careful account of two factors tending to support the opposite conclusion. One is that Mr Gurdler, during cross-examination, appeared unwilling to accept that his behaviour did in fact constitute the offence ('Maliciously destroy or damage property < =$2000') of which he was found guilty. There was less than a full acknowledgment of his responsibility for the damage caused to the victim's taxi. The other is that his behaviour occurred while he was engaged in the regulated activity - tow truck driving - for which he seeks a certificate. In the following short passage in Kaldas v Tow Truck Authority of NSW [2006] NSWADT 337 at [14] (cited in Ereira (No 2) at [34]), the Tribunal clearly indicated that this was a relevant consideration: 14 Relationship between the offence and tow truck operations . The first group of offences with which Mr Kaldas has been charged took place in the course of his activities as a tow truck driver. They relate directly to his fitness to participate in that industry. 64It is, however, the uniqueness and short duration of this somewhat inexplicable behaviour by Mr Gurdler that leads me to believe that it does not call for deprivation of his livelihood as a tow truck driver. In the Statement of Reasons (dated 15 November 2011) accompanying RMS's affirmation of the RTA's decision against Mr Gurdler, it was said (as I noted above at [37]) that the decision maker should consider both 'the seriousness, frequency and time over which any particular conduct has occurred'. While Mr Gurdler's misconduct was undoubtedly serious, it was not frequent and the period of time during which he engaged in it was very short. 65I have derived some guidance from a Tribunal decision that I have already mentioned more than once: Ereira v Roads and Traffic Authority (No 2) [2010] NSWADT 220. In that case, the RTA refused the applicant's application for a drivers certificate under the Act and disqualified him for 10 years. The basis of these decisions by it was the applicant's conduct in two incidents, 'the Glenhaven incident' and 'the Ermington incident', occurring within a space of about nine months. In the first of them, he struck another road user in the course of an altercation between them. He subsequently pleaded guilty to a charge of assault and was fined $800. In the second incident, he assaulted a police officer. 66The Tribunal affirmed the RTA's decision, stating as follows (at [48 - 54]):- 48 In the present matter, the Applicant has been convicted of assault in circumstances that can be correctly be described as a road rage incident. In my view that is the case notwithstanding that the agreed facts placed before the court resulted in a guilty plea for a lesser assault. 49 I note Mr Jamieson's submission that the incident was not within the regulated activity. Notwithstanding that the Applicant was not working in tow truck activities at the time of the Glenhaven incident, he was driving one of the trucks owned by Fleet Towing and he had just finished his last job for the day. In my view it is merely a technical argument to assert that this incident should be treated differently to the Ermington incident because the Applicant had finished his last job for the day. 50 In my view, the circumstances of the Glenhaven incident alone are such that the refusal of the application is warranted. The Applicant reacted in an uncontrolled manner. This inability to control his temper is entirely inconsistent with the standard required of a certified tow truck driver. 51 I disagree with Mr Jamieson's submission that these incidents should not be categorised as anger management issues. In my view they clearly demonstrate that the Applicant's reacted in an uncontrolled manner. No evidence has been presented to show that the Applicant has either accepted that this is the case or taken any steps to address the situation. 52 The circumstances of the Ermington incident in fact demonstrate that the Applicant's inability to control his temper continued. I accept that some confusion may have arisen at the scene however the evidence of the Applicant's conduct and attitude is not seriously challenged. I have no doubt that the Applicant showed aggressive, offensive and argumentative behaviour towards police. Again, I agree that this conduct is entirely inconsistent with the standard required of a certified tow truck driver. In my view, he is not a fit and proper person to hold the certificate that he seeks. 53 I agree with the reasoning provided by the internal reviewer that I have set out above and I adopt that reasoning. In my view, the determination that was made by the Respondent is the correct and preferable one. 54 For completeness, it is also my view that at this time it is not in the public interest that the Applicant hold the certificate that he seeks. 67I believe the facts of the present case to be distinguishable for the important reasons that it involves one incident only, not two, and the offence committed by Mr Gurdler was malicious damage to property, not an offence against a person. 68I turn now to Mr Wozniak's claims that the offence committed by Mr Gurdler was (a) such as to require mandatory refusal of his application for a drivers certificate, or (b) 'very close' to such an offence. 69In my judgment, the former claim is clearly ruled out by the concluding words of clause 16(1) of the Regulation. Even if, as Mr Wozniak argued, Mr Gurdler's offence did 'involve an assault... against a person', it was not ' 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 any of those penalties' (emphasis added). The use of the italicised phrase here, instead of a phrase such as 'an offence punishable by', indicates that the penalty (if any) actually imposed upon the applicant, not the penalty that potentially might be imposed for the offence in question, is what matters. The relevant provision within the Act - section 26(2)(b) - expressly authorises the Regulation to include offences for which the applicant has been found guilty, but with no conviction recorded, within the range of offences requiring mandatory refusal of a certificate. But the Regulation has not in fact included any such offences. 70The decision in Ereira (No 2) is once again relevant. A short passage in it supports my interpretation of the concluding words of clause 16 of the Regulation. In paragraph [38] (from which I have already quoted), the Tribunal said:- Mr Wozniak submitted that it is clear from clause 16 of the Regulations that conviction for any offence involving an assault of any kind against a person provides the basis for a mandatory refusal to grant an application for a drivers certificate. The Applicant was fined $800. If the Applicant had been fine[d] $1000 he would have been prevented from holding a drivers certificate for 10 years (emphasis added). 71If this reasoning of mine is incorrect, a submission made by Mr Lange constitutes an independent reason for rejecting both of the claims by Mr Wozniak that I am discussing. It was that nothing in the victim's account of the clearway incident gave grounds for believing that Mr Gurdler engaged in conduct amounting to an assault. Paragraph 5 of this account (quoted above at [29]) stated that the victim was inside his vehicle when Mr Gurdler smashed the wing mirror. It could not be inferred from this paragraph that this act of Mr Gurdler placed the victim in fear for his personal safety. In paragraph 6, the victim stated that he then got out of his vehicle. He described the only subsequent conduct of significance by Mr Gurdler in the following terms: 'He refused to give them [his details] to me. He then told me "to fuck off".' Again, no assault is or could be involved. 72At the conclusion of his submissions, Mr Lange suggested that while Mr Gurdler's conduct did not warrant refusal of his application for a drivers certificate, the Tribunal might be minded to issue a caution to him. But although the Tribunal, being empowered by section 63 of the Administrative Decisions Tribunal Act 1997 to take any step that would be open to RMS, might well in an appropriate case impose such a penalty pursuant to section 41 of the Act, I am not persuaded that this case falls within any of the categories, listed in section 42, where disciplinary action may be taken. The matter was not sufficiently argued at the hearing to enable me to reach a decision on it. 73In any event, it appears to me that Mr Gurdler, having been denied the opportunity to work as a tow truck driver for some three months and having been made fully aware of the potential consequences of conduct such as he engaged in during the clearway incident, has been sufficiently 'cautioned' against repeating any conduct of this nature. 74My decision is that the decision under review should be set aside and Mr Gurdler's application for a drivers certificate under the Act should be granted. 75In addition, the interim order made by the Tribunal on 15 December 2011 should be discharged. 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: 22 February 2012