Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lee v Roads and Maritime Services [2014] NSWCATOD 12 Hearing dates: 16 January 2014 Decision date: 14 March 2014 Jurisdiction: Occupational Division Before: N Isenberg, Senior Member Decision: The decision under review is affirmed Catchwords: Bus driver - conditional licence - fit and proper person - Vehicle Monitoring Data Legislation Cited: Passenger Transport Act 1990 Civil and Administrative Tribunal Act 2013 Cases Cited: Shi v Migration Agents Registration Authority [2008] HCA 31 Lamb v Ministry of Transport [2005] NSWADT 82 Category: Principal judgment Parties: Wesley Lee aka Xiang Li (Applicant) Roads and Maritime Services (Respondent) Representation: W Lee (Applicant in person) with the assistance of an interpreter Smythe Wozniak (Respondent File Number(s): 133264 reasons for decision 1In September 2013 the Respondent formed the view that the Applicant was not a fit and proper person with sufficient responsibility and aptitude to drive a bus in accordance with the conditions under which the public passenger service is operated and in accordance with law and custom. Accordingly it decided to cancel his driver authority. The Applicant seeks review of that decision. 2On 1 January 2014, the NSW Civil and Administrative Tribunal (NCAT) was established. On its establishment the ADT was abolished (see s 7 and cl 3 of Schedule 1 of the Civil and Administrative Tribunal Act 2013 (the CAT Act). By reason of cl 7 of Schedule 1 of the CAT Act, this application is taken to be an application before the NSW Civil and Administrative Tribunal (NCAT), with the provisions of the GIPA Act continuing to apply. The relevant legislation 3The relevant legislation for the purposes of this application for review is the Passenger Transport Act 1990 ('the Act'). 4Clause 29 of the Passenger Transport Regulation 2007('the Regulation') sets out criteria for authorisation to drive public passenger vehicles, which include that an Applicant must hold a driver licence that is not a conditional licence. 5Section 11 of the Act states: 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: in accordance with the conditions under which a public passenger service is operated, and in accordance with law and custom. 6Section 14 of the Act states: Having regard to the purpose of an authority, RMS may at any time vary, suspend or cancel any person's authority. 7Section 53B of the Act states in part: If an accreditation, authority, authorisation or licence under this Act is suspended or cancelled or otherwise ceases to be in force, the person to whom it was granted must immediately return it to the RMS. 8Clause 40 of the Regulation states in part: The driver of a public passenger vehicle must not: (b) negligently or wilfully move or drive or cause the vehicle to be moved or driven so that any person is subjected to the risk of injury. 9Clause 44 of the Regulation states in part: (1)The driver of 'a public passenger vehicle must, in accordance with this clause, furnish RMS with written details of the following: any alleged offence (other than a parking offence) with which the driver is charged by a police officer, 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. Clause 235 of the Regulation states: An accredited operator or an authorised driver who changes his or her (or, in the case of an accredited operator that is a corporation, its) name or residential address must, within 7 days after the change, give written notice of the change and of the new name or address to RMS. The authorised driver must also give the written notice required by subclause (1) to the operator of each of the public passenger vehicles that the driver drives. Background to the cancellation decision 10The Respondent received information received that on 24 July 2013 at 5.10pm on the Hume Highway near Alpine, the Applicant was found by Mittagong Highway Patrol to be driving a bus TV3600 ('the bus') at a dangerous speed (132kph) whilst conveying 40 passengers from Canberra to Sydney. As a result he was issued with infringements for a number of offences i.e. "Exceed speed Class C Heavy Vehicle special speed limit > 20Km/h" and 2 x work diary offences ('the July offences'). 11The Respondent considered that driving the bus loaded with 40 passengers at 32 kph over the heavy vehicle special speed limit of 100kph risked the safety of the passengers and other road users. 12This was the third occasion the Applicant had been caught speeding whilst driving a coach within the previous 3 years. 13In his response to the 'Notice to Show Cause' the Applicant provided the Respondent with what purported to be a Vehicle Monitoring Data (VMD) record for the bus on the date of incident. That VMD record was examined closely by officers of the Respondent who found it showed the bus was stationary between 4pm and 6pm, that it at the time of the recorded offence. The Respondent considered this indicated that VMD record the Applicant supplied had been either tampered with or simply did not belong to the bus. Further developments since cancellation 14Section 52(1) of the Act gives the Tribunal jurisdiction to review the cancellation decision. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the Respondent, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31. 15 Since the date of the cancellation there have been some developments that affect consideration of the Applicant's ability to hold a bus driver's licence. 16A copy of the Applicant's driving record was provided to the Tribunal. The Applicant had, at the time of the July offences, been on a good behaviour bond for a period of 12 months commencing on 15 June 2013, conditional upon his not committing any driving offences during that period. The consequence of a breach of the condition was that his licence would be suspended for 6 months. Following the July offences, his licence was suspended from 15 January 2014 until 15 July 2014. A copy of the notification to that effect was provided to the Tribunal. The suspension is not able to be appealed: s.196 Criminal Procedure Code. CONSIDERATION 17It is prerequisite for a person who holds an authority to drive a bus to hold an unconditional driver's licence: cl. 29 of the Regulation. The Applicant does not meet this mandatory criterion. As a consequence he is unable to hold a bus driver's authority: Lamb v Ministry of Transport [2005] NSWADT 82. 18Even if this were not so, I am unable to be satisfied that the Applicant has sufficient responsibility and aptitude to drive a coach in accordance with the conditions under which a public passenger service is operated, and in accordance with law and custom. 19The Applicant has a very poor record and the majority of his demerit points are due to exceeding speed limits. The July offences related to speeding at a dangerous level i.e. 32kph over the legal speed limit whilst conveying public passengers. The Applicant contended that because the bus is old he did not think it could reach that speed. In his evidence the Applicant re-iterated that he did not think a 1988 bus could go that fast and thought its maximum speed was about 100kph. He did not however deny that he was travelling at the recorded speed. I consider that driving a bus in excess of the speed limit by 32kph is an activity which, by virtue of the speed alone, subjected his passengers, and possibly other road users, to the risk of injury. This constitutes a breach of cl.40(b) of the Regulation. 20The Applicant had been detected speeding on 2 other occasions whilst driving a coach/bus, namely 7 November 2010 and 28 April 2011. In relation to the first, he said he was late getting passengers to the international airport for a flight. In relation to the second, he said that he had not noticed that it was a school zone. That the Applicant had 3 speeding offences while driving a bus in less than 3 years suggests to me that he does not have sufficient responsibility and aptitude to be a driver of bus, especially as one of those offences related to speeding in a school zone. 21The Applicant also claimed that he had a problem with his eyes which water when he is driving and may affect his 'ability to judge'. He produced a medical certificate in relation to an opthalmic appointment in August 2013. Far from being helpful as an explanation for speeding, it raises concerns about the Applicant's physical fitness for the role of bus driver. 22The Applicant also failed to notify RMS of his traffic offences. This constitutes a breach of cl.44 of the Regulation. The Applicant said he was unaware that he had to notify the Respondent of his offences but I do not consider this to provide a reasonable excuse for his failure to comply with his obligations. 23A review of the Applicant's driving record showed that he had changed his name to Wesley LEE on 3 June 2013 but had failed to notify the Respondent. This constitutes a breach of cl.235(1) and (2) of the Regulation. The Applicant explained that his English is not good and had assumed that in notifying 'the RTA' about his change of name that this would flow to his bus driver's authority. I accept that this was a legitimate expectation by the Applicant and I have not taken this breach into account in coming to my final view. 24The Applicant said he had been driving in China for many years without incident. (He provided a reference from a Mr Yu in support of this contention.) While this may be the case, in my view, to permit the Applicant to continue to drive a bus is an unacceptable risk to the travelling public, given his poor driving record, especially driving at a speed such that his passengers, and possibly other road users were subjected to the risk of injury. While I do not find that he deliberately misled the Respondent in relation to his driving offences, he clearly failed to comply with his obligations to keep the Respondent informed. 25Of particular concern to me was that, in an attempt to address the Respondent's concerns the Applicant had provided what purported to be the relevant VMD record for the bus. The Applicant's explanation for the VMD showing that the bus was stationary at the time of the July offences was that the VMD was faulty and he denied that he would have been required to collect passengers at 0600 hrs as was recorded by the VDM as the starting time. I reject this explanation. It is clear to me that the VMD record the Applicant supplied had been either tampered with or belonged to a different bus. His preparedness to submit such a record was dishonest and in my view, honesty is central to any consideration of whether someone is a fit and proper person. There is a community expectation that bus drivers will not only provide safe public passenger services but the community also expects honesty from bus drivers. 26I therefore find that the Applicant is not a fit and proper person with sufficient responsibility and aptitude to drive a bus in accordance with the conditions under which the public passenger service is operated and in accordance with law and custom. 27The decision under review is therefore affirmed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 17 March 2014