Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lather v Roads and Maritime Services [2017] NSWCATOD 124 Hearing dates: 15 May 2017 Date of orders: 18 August 2017 Decision date: 18 August 2017 Jurisdiction: Occupational Division Before: D Dinnen, Senior Member Decision: (1) I set aside the Respondent's reviewable decision of 8 December 2016. (2) I grant the Applicant's application under the Act to be authorised as a private hire vehicle driver in accordance with these reasons. Catchwords: ADMINISTRATIVE LAW - Merits Review – authority to drive private hire vehicle – criminal convictions – good behaviour bonds – reputation – fit and proper Legislation Cited: Administrative Decisions Review Act 1997 Passenger Transport Act 1990 Cases Cited: Australian Broadcasting Tribunal v Bond (Bond Media Case) [1990] HCA 33; 170 CLR 321 Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16 Grenfell v Director General Department of Finance and Services [2013] NSWADT 57 Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 Loye v Director General, Department of Transport [2000] NSWADT 145 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 Sobey v Commercial Agents Board (1979) 22 SASR 70 Z v Director General, Department of Transport [2000] NSWADT 87 Category: Principal judgment Parties: Naresh Lather (Applicant) Roads and Maritime Services (Respondent) Representation: Solicitors: In Person (Applicant) Smythe Wozniak Lawyers (Respondent) File Number(s): 2017/00023486 Reasons for decision 1. On 18 September 2016, Naresh Lather ("the Applicant") applied to Roads and Maritime Services ("the Respondent") for authorisation to drive a private hire vehicle. 2. On 6 October 2016 the Respondent refused the Applicant's application for authorisation to drive private hire vehicles, pursuant to section 40B of the Passenger Transport Act 1990 ("the Act"), on the basis that his history of criminal convictions and the recent expiry of good behaviour bonds imposed on him meant that they could not attest that he was of good repute or a fit and proper person as required by s40(3)(a) of the Act. On 8 December 2016 the Respondent's decision was affirmed ("the reviewable decision"). The law 1. The Application was made pursuant to s52 of the Act which relevantly provides that a person whose application under Part 4A of the Act (which includes an application for an authorisation to drive private hire vehicles) has been refused, may apply to the Tribunal for an administrative review, under the Administrative Decisions Review Act 1997 ("the ADR Act"), of the refusal. 2. Section 63 of the ADR Act requires the Tribunal, in determining an application concerning an administratively reviewable decision such as the Decision, to decide what the correct and preferable decision is having regard to the material then before it (including material not previously available to or considered by the administrator) and any applicable written or unwritten law, and authorises the Tribunal to affirm, vary or set aside the administratively reviewable decision. If the Tribunal sets aside that decision the Tribunal is to make a decision in substitution for that decision or remit the matter for reconsideration by the administrator who made the decision. 3. Section 40 of the Act states: 40 Authorities (1) RMS may, by the issue of authorities under this Division, authorise persons to drive private hire vehicles, subject to and in accordance with this Division. A person authorised under this Division is referred to in this Part as an "authorised private hire vehicle driver". (2) A person who drives a private hire vehicle is guilty of an offence unless the person is an authorised private hire vehicle driver. Maximum penalty: 100 penalty units. (3) The purpose of an authority under this Division is to attest: (a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a private hire vehicle, and (b) that the authorised person is considered to have sufficient responsibility and aptitude to drive a private hire vehicle: (i) in accordance with the conditions under which the private hire vehicle service concerned is operated, and (ii) in accordance with law and custom. (4) The regulations may create categories or grades of authorities. (5) Without limitation, the regulations may provide that subsection (2) does not apply in specified circumstances, including, for example, when a private hire vehicle is being driven to a place to have it repaired or serviced. Consideration 1. The Applicant was convicted on 9 October 2014 of offences of affray and reckless wounding in company, which resulted in a suspended sentence of 7 months' imprisonment and good behaviour bonds of 18 months' and 9 months' duration. 2. The Applicant gave evidence that the charges had arisen from an altercation with a stranger, which had escalated from a verbal argument over his wife. His wife's statement was not taken by attending police. He had pleaded guilty at the earliest possible opportunity to the charges, was always upfront about his conviction, and was incredibly remorseful. He had no prior criminal history or involvement in any criminal activity, and prior or subsequent history of violence. The good behaviour bonds expired by 9 April 2016. 3. The Applicant worked as a courier delivery driver for a number of years, and then in the security industry until his security licence was revoked in 2014 as a result of his criminal convictions. He resumed work as a courier delivery driver in 2014 until he was unable to continue deliveries due to increasing pain from back and shoulder injuries in early 2017. He wished to obtain the subject authorisation as he believed his experience as a courier delivery driver suited him to driving private hire vehicles: I am a good driver and you can see it from my driving history. I have 7-8 years driving experience. But due to medical condition, I am unable to do courier / delivery job now. That's why I want to apply for public passenger vehicle driver authority. But after refusal of application, there is no way to go. I am always in stress for future. One mistake ruined my life. I have nothing to do. I can only do driving job and passenger vehicle driving is best suited job for me. I have learnt from my mistake, and deserve an opportunity to prove myself… I admit responsibility for the offence and prove my honesty. I also show genuine remorse; and made efforts to rehabilitate myself during last two year time. 1. The Applicant provided a number of written character references for the purpose of these proceedings. 2. It is uncontroversial that the statutory regime under the Act is protective, not punitive. Good repute as well as fitness and propriety must be assessed in the context of the work which the licence entails, in this case driving a private passenger vehicle. The test is directed towards maintaining and encouraging appropriate standards in the passenger transport industry. 3. In Sobey v Commercial Agents Board (1979) 22 SASR 70 at 76, Walters J said in relation to the licensing of commercial and private agents, that the expression means that an applicant must show that he or she …is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails. 1. Determining whether someone is of good repute and a fit and proper person involves the exercise of a discretion or, put another way, a "value judgment" based on all the evidence: Australian Broadcasting Tribunal v Bond (Bond Media Case) [1990] HCA 33; 170 CLR 321: 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. 1. As Toohey and Gaudron JJ went on to say in the Bond Media Case: 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. 1. While there is an "area in which a decision-maker has a genuinely free discretion", any discretionary power must be exercised "reasonably": Minister for Immigration and Citizenship v Li [2013] HCA 18 at [63] and [66]; [2013] HCA 18; 249 CLR 332 at 362 and 363 (Hayne, Kiefel and Bell JJ.) 2. Criminal convictions can provide the basis for a finding that an individual is not a "person of good repute", as expressed in Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 393: "Evidence of conviction for a criminal offence is ... most cogent evidence of bad reputation". 1. However, a person's reputation is not static. As noted by Deputy President Hennessy said in Z v Director General, Department of Transport [2000] NSWADT 87 at paragraph 36, a person can "live down" their bad reputation and reform their bad character. Even if a person has been 'unfit' in the past, the question is whether they are now a fit and proper person to perform a particular role. 2. The meaning of fit and proper person in the context of issuing a driver authority was considered by the NSW ADT Appeal Panel in the matter of Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16 at 20. In that matter Deputy President Hennessy said that the determination of fitness and propriety is a question of fact for the decision maker to determine objectively on the basis of all of the evidence. The content of fitness and propriety was defined as having 3 components -"honesty, knowledge and ability" (Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 at para 9). 3. The Tribunal has considered the assessment of criminality in relation to fitness and propriety in Grenfell v Director General Department of Finance and Services [2013] NSWADT 57 (at 15) ("Grenfell"). Judicial Member Molony said: "The issue of whether a person is fit and proper due to past criminal conduct 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". 1. On the evidence before me, I find that the Applicant has the requisite knowledge and ability to be a private vehicle driver. His driving history includes only one traffic offence in 2013, in the context of his engagement as a courier delivery driver for a number of years. His only medical restriction relates to continuous lifting or carrying capacity resulting from right shoulder pain for which he is under specialist review and treatment. The respondent did not submit that this restriction had any impact on the Applicant's relevant ability as a private hire vehicle driver. 2. The Applicant's honesty is also not in question. He was upfront about his criminal convictions in making the application to the respondent for the authorisation, and to the Tribunal. There has been no suggestion of any dishonesty by the Applicant. 3. The references provided by the Applicant are relevant to the determination of the Applicant's reputation. Neither the reference from his spiritual Temple or his accountant referred to his criminal convictions, so I place little weight on those references. The references from his friends and colleague provided some relevant detail regarding the purpose of the reference for the subject application, his convictions, remorse and attempts to rehabilitate, and reputation in his community, and so I give those references weight in supporting the applicant's submissions regarding his reputation and fitness and propriety. I reject the Respondent's submission that the Applicant's references, like those in Loye v Director General, Department of Transport [2000] NSWADT 145, were insufficient to demonstrate a reformed character or reputation on the basis that there was specific reference made to his remorse and requests for a second chance in the context of his convictions. I accept that the Applicant's reputation was damaged in the past by his criminal convictions, but on my consideration of all the evidence, I don't agree that his reputation is in any way currently damaged. He acknowledges his mistakes. He is remorseful and regretful of his actions. He is open and honest about his role in what occurred and its consequences. The conduct which resulted in his convictions occurred in a unique and limited context, over three years ago. Whilst serious offences, there has been no reoccurrence of the criminal conduct and I believe the Applicant when he says that there will not be any reoccurrence. This is supported by the expiration of time since the 2014 convictions without further incident. 4. For the above reasons, on the basis of the evidence before the Tribunal, I am satisfied that the applicant is of good repute and in all other respects a fit and proper person to hold an authorisation as a private hire vehicle driver. ORDER 1. I set aside the Respondent's reviewable decision of 8 December 2016. 2. I grant the Applicant's application under the Act to be authorised as a private hire vehicle driver in accordance with these reasons. ********** 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: 18 August 2017