Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Skocic v Roads and Maritime Services [2014] NSWCATOD 25 Hearing dates: 22nd January 2014 Decision date: 31 March 2014 Before: A Scahill, Senior Member Decision: The decision under review is set aside. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Passenger Transport Act 1990 Passenger Transport Regulation 2007 Category: Principal judgment Parties: Zeljko Skocic (Applicant in person) Roads and Maritime Services (Respondent) Representation: Zeljko Skocic (Applicant in person) S Wozniak Solicitors (Respondent) File Number(s): 133352 reasons for decision 1The Applicant Mr Skocic has brought these proceedings seeking review of a determination by the Respondent that the Applicant's authority to drive buses be cancelled under the provisions of the Passenger Transport Act 1990. This determination was made on 26th November 2013. Reasons for cancellation 2The Respondent had become aware of 2 criminal convictions of Mr Skocic in the Ryde Local Court on 30 August 2013 through data matching. The convictions were for Assault occasioning actual bodily harm and Common Assault. As a result of the convictions Mr Skocic had been placed on a good behaviour bond for 2 years and fined $600 pursuant to Section 9 of the Crimes (Sentencing Procedure) Act 1999. The victim had been Mr Skocic's wife. 3The Respondent wrote to Mr Skocic on 16 October 2013 asking him to show cause as to why his driver authority should not be cancelled. The Respondent's Statement of Reasons said that the Respondent could no longer attest that Mr Skocic was a fit and proper person for the purpose of being authorised to drive a public passenger vehicle. 4Mr Skocic's solicitors responded to the Show Cause letter with a submission dated 5th November 2013. 5On 26 November 2013, the Respondent wrote to Mr Skocic advising it had determined to cancel his driver authority. The Statement of Reasons set out that the reason for the cancellation was that the convictions in Ryde Local Court on 30 August 2013 meant that the respondent could no longer attest to Mr Skocic as being a fit and proper person to hold a driver authority. 6Mr Skocic lodged his Application for Review in the ADT on 30 November 2013. He was granted a stay of the cancellation by the ADT pending the outcome of the Application on 4th December 2013 - with a condition that he continue counselling. Legislation concerning the grant of a bus driver authority 7Section 11 of the Passenger Transport Act 1990 sets out that to drive a bus in NSW it is necessary to be issued with an authority by the Respondent RMS. Prior to issuing that authority RMS must be satisfied that the purpose is met: 11 (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. 8Section 14 of the Act confers powers to vary, suspend or cancel an authority that has been issued. In exercising any of these powers, the Respondent is required to have regard to the purpose of the authority. Accordingly when considering cancellation of an existing authority the Respondent must consider whether the applicant is of good repute, fit and proper, and has the responsibility and aptitude to drive a public passenger vehicle. 9In this matter the Respondent has not questioned Mr Skocic's responsibility and aptitude in relation to driving a bus. Nor does this Tribunal. 10Clause 44 of the Passenger Transport Regulation 2007 requires a driver of a pubic passenger vehicle to advise the Respondent with written details of any alleged offence within 7 days of the laying of the charges. The Applicant in fact did not do this prior to the decision to cancel his authority. The offences came to light through data matching. The Respondent has not pressed this as a matter justifying cancellation of the Mr Skocic's authority. 11The Respondent has determined that it can no longer attest to Mr Skocic being fit and proper. Summary of facts of Assaults 12There was little factual dispute between the parties in relation to the matters for which Mr Skocic had been convicted. 13The Respondent's section 58 documents contained documents from the Ryde Court file. The Respondent relied on the summary of facts which appears as part of the police charge sheet. In short, the convictions arose out of 2 incidents at the Applicant's home with his wife - one on Saturday 4th May and another on Friday 24th May 2013. In the first incident on the 4th May 2013 according to the facts sheet an altercation between the Applicant and his wife in relation to money escalated resulting in the Applicant and his wife assaulting each other. The Applicant injured his wife by cutting her with a razor blade he was holding at the time of the assault. The Police attended, spoke only with Mr Skocic as his wife had left the house and applied for an Apprehended Violence Order on the Applicant's behalf. The application for an Apprehended Violence Order to protect the Applicant did not proceed when the matter came before the Court on 17 May 2013 as Mr Skocic did not wish to pursue it. 14The second incident occurred on 24th May 2013 when the Applicant's wife asked the Applicant to buy some laundry powder. The Applicant responded by grabbing his wife's face and squeezing her jaw area saying to her "I'm going to break your mouth and your jaw, don't put me down in front of the kids." The Applicant's wife then complained to the Police about the two incidents and the Police applied for a Provisional Apprehended Domestic Violence Order on 29 May 2013. The 2 matters came before the court on 30 August 2013. The Applicant pleaded guilty to both matters. 15Mr Skocic was convicted of the two offences. The Court directed Mr Skocic to enter into a Good Behaviour Bond under section 9(1) of the Crimes (Sentencing Procedure) Act 1999 to commence on 30 August 2013 for a period of 24 months. The conditions were that Mr Skocic: "must be of good behaviour and appear before the court during the bond term if required. To accept the supervision and guidance and comply with all reasonable direction of the Probation and Parole Service for as long as deemed necessary. obey (sic) all reasonable directions for counselling, educational development or drug and alcohol rehabilitation, anger management and domestic violence and report to the Parramatta Probation office within 7 days." 16The Tribunal understands that should Mr Skocic not comply with the bond the consequences specified were that he may have to appear before the court again. The court may take no action or change the bond conditions or cancel the bond and convict and sentence him. 17He was fined $600. The Applicant's evidence 18Mr Skocic gave sworn oral evidence. He said that he is 40 years of age; is married and has 4 children. He has been employed as professional bus driver with his current employer since December 2002. He adopted the submissions made by his solicitor on 5th November 2013 in response to the show cause letter he had received from the Respondent. 19In short the submission stated: * Mr Skocic had not obtained legal advice in relation to the criminal charges; * He had not been aware of the obligation to advise the RMS of his conviction; * He had been embarrassed and upset by the convictions and had kept the matter secret; * The circumstances of the assaults were in the context of marital disharmony and financial pressures; * Mr Skocic was the major provider for his family; * He did not have other employable qualifications; * Mr Skocic and his wife were undertaking relationship counselling and anger management counselling; * Originally the police had deemed Mrs Skocic the aggressor in the first of the 2 assaults; * Mr Skocic had no prior criminal convictions; * Mr Skocic had been commended for exemplary performance during his bus driving career; and * That he remained of good fame and character and continued to be fit and proper to hold a bus driver authority. * 20In support of this, the submission included 3 written references from Barry Wallace Supervisor/Duty Manager (retired) at Willoughby Bus Depot, Earl Donaldson supervisor (retired) Willoughby Bus Depot and Gary Way Divisional President RTBU Tram and Bus Division. Both Mr Wallace and Mr Donaldson had supervised Mr Skocic at work. Each of the referees indicated they understood the nature of the convictions and expressed the behaviour as being out of character. Each attested to his dependability and his good standing as a bus driver. 21In his oral evidence, Mr Skocic said he had originally been a motor mechanic, had started bus driving part-time and had become a full-time bus driver in November 2004. He said that over the 11 years as a bus driver he had not been subject to many complaints and that more than ½ of the complaints that had been made related to bus fares. 22He referred to a complaint that had been made in April 2009 which appeared in the Respondent's section 58 documents. The written complaint alleged that Mr Skocic had been abusive towards and sworn at a female car passenger whose male partner had parked in a bus stop. Mr Skocic denied swearing at the woman. He was issued a formal warning by his employer and attended additional Customer Service Training. Mr Skocic considered that his customer skills were good. 23In relation to the 1st assault on Saturday 4th May 2013, Mr Skocic said that he had been at home cleaning floor tiles with a razor blade. His wife had an argument with their daughter. He made a comment to his wife who spat on his head twice. He then extended his arm from his position on the floor and the razor blade cut his wife's arm. It was an accident - he had not intended to cause harm. 24His wife sought medical attention. Originally the police had sought an Apprehended Violence Order on Mr Skocic's behalf - however when the Application came to Court he did not wish to proceed with it. 25In relation to the second assault at home on Friday 24th May 2013 he said it arose out of an argument with his wife about money. He bore the burden of paying the family's mortgage and working meant that he did not see the children and he missed them. He conceded that these were not the first times he had assaulted his wife. 26He had received a court attendance notice in relation to the two matters - he had not been arrested. He pleaded guilty to both of them. He did not wish to borrow more money to obtain legal advice. Had he realised the impact that the convictions would have on his drivers authority he would have pleaded 'not guilty'. 27He sees his parole officer fortnightly. He had 10 counselling sessions through Medicare. They had finished in the previous week. He would now be obliged to pay to continue them. He thought that he had been responding to the stress of being the major provider and not seeing his children. He thought that he had changed - he was now more easy going. He conceded under cross-examination that the consequences of breaching the bond had made a change in his behaviour. 28He had no problems with co-workers and referred to the references he had provided from former supervisors Messrs Donaldson and Wallace and colleague Mr Wray. He had explained to them about the convictions for the assaults. 29He said he had done something stupid. Evidence of Mrs Skocic 30Mrs Skocic's evidence was that she had been assaulted many times by her husband prior to the offences in May 2013 - but not since. She and her husband still lived together. She had attended 9 of the sessions of counselling required by Ryde local Court as part of her husband's good behaviour bond. She said that the physical threats no longer existed as she thought her husband understood that if he breached the bond he may be subject to further sanctions - including imprisonment. He now walked away from conflict. She thought he had learned his lesson. Applicant's Submissions 31Mr Skocic submitted that he had never taken the problems in his personal life into his workplace. He did not see himself as presenting any danger to the public or any road users. He was the same person he was prior to his conviction for the assaults. He had not presented or experienced any difficulties in his workplace. He continued to be a fit and proper person to hold a driver authority. He needed to retain his bus driver authority to support his family and cancellation would cause him financial hardship. Further, members of the public would not be aware of his convictions. Respondent's Submissions 32The Respondent relied on the evidentiary material in the section 58 documents. 33The Respondent submitted that it was the RMS's role to be aware on the public's behalf of whether a bus driver was a fit and proper person and the RMS's role to attest to this. Posed with the choice of 2 buses driven one by a driver with 2 convictions for assault and another without convictions - the Respondent submitted that a member of the public would choose the latter bus. 34The evidence from Mrs Skocic who appeared to be a reliable witness was that the assaults had been regular. While the Applicant said that he had changed, Mrs Skocic had said that it was fear of the consequences of breaching the bond that had caused the Applicant to cease the assaults rather than a change in his attitude to her. 35The Respondent submitted that the fact that the assaults had ceased because of the bond did not render the Applicant a fit and proper person again. His mental attitude continued. While the Applicant had commenced counselling - he had not completed it. His efforts at rehabilitation involved only signing a bond and attending an incomplete course of counselling. He should reapply for his bus driver's authority after he had finished counselling. There was insufficient evidence to attest to the contention that the Applicant was now a fit and proper person to hold a bus driver's authority. 36The Respondent referred the Tribunal to Loye's case, Loye -v- Director General, Department of Transport [2000] NSWADT 145. In that matter the Tribunal made a distinction between the considerations of whether an Applicant was of "good repute" as required prior to issuing of an authority and whether the Applicant was a "fit and proper person". The Respondent submitted that on this basis, the fact of criminal convictions may contribute to a person being of bad repute. The Tribunal notes that Loye's case also referred to the finding of Mason CJ in ABT v Bond that whether a person is fit and proper is a value judgment - with the decisonmaker responsible for evaluating the seriousness of the conduct. 37The Respondent also relied upon the Tribunal's finding in the matter of Singh -v- Director General, Department of Transport [1999] NSWADT 96 at 34. This matter dealt with the refusal of a taxi driver authority to an Applicant who had a history of breaching an apprehended violence order - as well as a history of another assault and some traffic infringements. In Singh's case at 34 the Tribunal observed that "The fact that the breaches of the order relate to his personal life does not mitigate their severity in any way." 38The Respondent referred the Tribunal to Lal's case, Lal v Director-General, Department of Transport [2001] NSWADT 74 as authority for the proposition that hardship arising from the consequence of suspending an authority is not a relevant consideration in determining correct and preferable decision. The Role of the Tribunal on Review 39The authorities accept that the Tribunal's review is for the purpose of determining the correct and preferable decision by way of a merits review. See Sterjovski v Director-General, Department of Transport [2002] NSWADT 10 at paragraphs 10, 11 and 12. Relevant Case Law on "fit and proper". 40The meaning of fit and proper person in the context of issuing a driver authority was considered by Deputy President Hennessy of the NSW ADT Appeal Panel in the matter of Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16 at 20. "When deciding whether a person is a 'fit and proper person', the question of whether the community would have confidence that any improper conduct will not re-occur is relevant: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 94 ALR 11. Otherwise, the determination of fitness and propriety is a question of fact for the decision maker to determine objectively on the basis of the all evidence. That question is not to be determined through the eyes of a reasonable member of the travelling public. Nor is it correct, as was suggested in Farquharson, to take account of the likely perceptions of the travelling public as one of the relevant factors in deciding whether an applicant is a fit and proper person." 41In drawing this conclusion, the Appeal Panel had analysed and confined the interpretation of an earlier line of administrative review cases. These included Farquharson and Maythisathit and Registrar of Motor Vehicles [1996] ACTAAT 165. These cases had broadly decided that the opinion of the travelling public was relevant to determining whether an applicant for or holder of a driver authority was a fit and proper person. 42The Appeal Panel in Murray preferred the approach of the High Court to the phrase "fit and proper person" as set out in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 94 ALR 11; 64 ALJR 462; 21 ALD 1. The ABT was required to refuse a licence if it was not satisfied that the applicant or the holder of a licence was a "fit and proper person". Toohey and Gaudron JJ stated (at 380) that: 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 the same case, Mason CJ stated at [63] that: 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. 43The Appeal Panel's decision in Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16 (8 April 2011) was subject of comment by the President of the Tribunal, Judge K P O'Connor, in the case of Nasour v Director-General, Transport NSW [2011] NSWADT 91 at 34: "A judgement as to the perception of reasonably-minded members of the travelling public remains, in my view, a relevant consideration for an administrator, when considering the 'repute' of a driver, or the driver's 'aptitude and responsibility'." Findings of Fact 44The Tribunal notes Mr Skocic's criminal convictions for 2 assaults which occurred in May 2013 in his home in relation to his wife. The Tribunal also accepts on the basis of both Mr and Mrs Skocic's evidence that there had been prior instances of violence by Mr Skocic towards his wife. The Tribunal also accepts Mrs Skocic's evidence that since these assaults - there have been no further assaults. 45The Tribunal also accepts that Mr Skocic's employer has had no cause to take action in relation to Mr Skocic's behaviour towards members of the travelling public- other than the warning in relation to the incident in April 2009. 46The Tribunal accepts the assertions by former supervisors and a current colleague, Messrs Wallace, Donaldson and Way, that in spite of Mr Skocic's conviction on the 2 assault charges, they continue to consider him to be of good repute. 47 The testimonial evidence clearly shows that the Applicant's reputation in his workplace is that he is not a person inclined to violence. This has not changed amongst those who have provided testimonials by reason of the knowledge of the incident. 48There is no persuasive evidence that Mr Skocic's behaviour in the workplace is a cause of concern. Discussion of and Findings on the Relevant Law 49The Tribunal notes that the significant considerations in this matter are the requirements under section 11 of the PTA that the holder of an authority be 'of good repute and in all other respects fit and proper with sufficient responsibility and aptitude to drive the vehicle.' 50This Tribunal adopts the determination of the ADT Appeals Panel in Murray's case in relation to the steps it must take to establish whether Mr Skocic continues to be a fit and proper person. That is, that the determination of fitness and propriety is a question of fact for the decision maker to determine objectively on the basis of the all evidence. 51This Tribunal also adopts the ADT Appeals Panel's view in Murray's case that fitness and propriety must be considered in the context of the activities in which the person will be engaged. 52At the same time the Tribunal also accepts the ADT President's finding in Nasour's case that a judgement as to the perception of reasonably-minded members of the travelling public is a relevant consideration for an administrator considering the repute of a driver, or the driver's aptitude and responsibility. The Respondent has submitted in relation to fitness and propriety that a member of the travelling public would not consider Mr Skocic to be fit and proper. I accept that a member of the travelling public might not consider Mr Skocic to be of good repute as a result of his convictions for assaulting his wife. This is one of a number of considerations the Tribunal must weigh up. 53The decision to cancel an authority in the light of fitness and propriety was considered in the matter of Saadieh v Director-General, Department of Transport [1999] NSWADT 68. Saadieh's case sets out factors for consideration by a decision maker concerning cancellation of an authority. These echo considerations set out by the High Court as set out above in ABT v Bond - Australian Broadcasting Tribunal v Bond [1990] HCA 33 at 380. Those considerations where cancellation is involved, are set out in Saadieh's case at 17: "the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted; the nature, seriousness and frequency of any complaints made against the applicant; the applicant's driving record; the applicant's reputation in the community; and the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences." 54The Tribunal's analysis in the terms set out in Saadieh's case, is as follows. Mr Skocic has been convicted of 2 serious acts of violence in relation to his wife. Mrs Skocic says there have been other acts of violence. There is a record of complaints against Mr Skocic from members of the travelling public in his employment. These are not in a serious category and apparently not of concern to his employer or former supervisors. His driving record is not of concern. While no evidence has been presented of his reputation in the community, the Tribunal finds that the fact of the assaults and the Court's findings would diminish Mr Skocic's reputation in the community if known. On balance the Tribunal thinks it unlikely on the basis of Mr Skocic's evidence and that of Mrs Skocic that he will reoffend in this way. There is no reason before the Tribunal to think that he will be the subject in the future of significant complaints by the public or commit traffic offences. 55In the matter of Truong, Truong v Department of Transport and Infrastructure [2010] NSWADT 279 the Tribunal considered that the matters of Farquharson and Sterjovski establish that a relevant consideration is whether the alleged impropriety has a direct or indirect nexus with the activity which the authority licenses (Farquharson v Director General, at 20). A direct nexus would arise where the allegation was that an authorised driver assaulted a person whilst conveying that person as a passenger (Sterjovski v Director-General, Department of Transport [2002] NSWADT 10). However, even where this is not the case, the circumstances surrounding the allegation could still provide a nexus whereby an allegation can be seen to impact on either a person's reputation or fitness in such a way that a relevant authority under the Act held by that person ought to be cancelled. For example, a bus driver who is charged with driving his own private vehicle whilst excessively intoxicated: in such a case the allegation concerns conduct occurring outside the authorised activity of driving a bus yet, by reason that the conduct demonstrates neglect of the road rules, has a sufficient nexus with the activities licensed by the authority held under the Act. Therefore, where the allegation concerns conduct outside the activity licensed by the authority, cancellation may still follow, provided that the allegation bears upon, or has a logical nexus with, the holder's reputation or fitness to hold the authority. 56In this matter the Tribunal finds that there is not such a direct nexus between Mr Skocic's criminal behaviour towards Mrs Skocic and his activity in driving a public passenger vehicle. The offences occurred outside the public sphere and did not involve driving activities. Findings on the Law and Facts 57This Tribunal takes the approach of the ADT Appeals Panel in the matter of Murray. That leaves the determination of fitness and propriety as a question of fact for the decision maker to determine objectively on the basis of the all evidence. Further, fitness and propriety is to be considered in the context of an authority to drive a public passenger bus. There are no significant issues raised in relation to Mr Skocic's behaviour in driving a bus. The references provided by Mr Skocic's previous superiors and current colleague indicate that he has not engaged in violent behaviour towards passengers or colleagues. There is not a significant history of complaints against him in the workplace. 58The Tribunal finds that Mr Skocic's violent behaviour towards his wife has been compartmentalised to his home life. Further, the Tribunal has heard from Mrs Skocic that the assaults have not continued and that Mr Skocic has made attempts to change his behaviour through counselling and a readiness to walk away from conflict. This was not information available to the decision maker. 59 There is no doubt that members of the public would consider Mr Skocic's violent behaviour towards his wife abhorrent. The Tribunal was not presented with evidence as to this view from a member of the travelling public. However, the Tribunal accepts the Respondent's submissions that the fact of the behaviour and the Court's findings would likely mean that members of the travelling public would not consider Mr Skocic to be of good repute. This likely opinion of members of the travelling public is one of the considerations for a decision maker. At the same time this Tribunal also accepts the assertions contained in the 3 references presented by Mr Skocic that the assaultive behaviour was out of character in his superiors' and colleagues workplace experience of him. They appear to continue to hold him in good repute. The Tribunal places more weight on this view of his superiors and his colleague of Mr Skocic's good repute in the context of driving a public passenger vehicle than of members of the travelling public who may not know Mr Skocic as well. 60The Tribunal has not taken into account the hardship that cancellation of Mr Skocic's authority will cause to him and his family. Conclusion 61The Tribunal accepts that members of the travelling public may well consider that the offences impact negatively upon Mr Skocic's repute. The Tribunal balances against this against the expressions of support for Mr Skocic's repute from former supervisors and current colleagues who have been made aware of Mr Skocic's offences. The Tribunal finds that Mr Skocic is of good repute in relation to being the driver of a public passenger vehicle as set out in section 11(2) (a) of the PTA. 62The Tribunal further accepts, having weighed all the circumstances - including the nature of the offences, the fact that the assaults have ceased at present, Mr Skocic's attempts at rehabilitation, Mrs Skocic's evidence that she thinks the behaviour is unlikely to reoccur and the fact that there have been no significant concerns about Mr Skocic's behaviour in his workplace that Mr Skocic is at present a fit and proper person to be the driver of a public passenger vehicle - as set out in section 11(2) (a) of the PTA 63In view of these findings and reasons the correct and preferable decision is that the decision under review should be set aside, and the Tribunal will so order. 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: 31 March 2014