Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lin v Roads and Maritime Services [2019] NSWCATOD 79 Hearing dates: 20 May 2019 Date of orders: 23 May 2019 Decision date: 23 May 2019 Jurisdiction: Occupational Division Before: K Ransome, Senior Member Decision: 1. The decision under review is affirmed. Catchwords: ADMINISTRATIVE REVIEW – bus driver authority – driving offences – dishonest in filling out application form - whether of good repute and fit and proper person to be the driver of a public passenger vehicle Legislation Cited: Administrative Decisions Review Act 1997 Passenger Transport Act 1990 Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Director General, Transport New South Wales v AIC [2011] NSWADTAP 65 Loye v Director General, Department of Transport [2000] NSWADT 145 McNamara v Arnold (unreported decision of the Supreme Court of South Australia, 26 October 1995 BC9502405) Re T and the Director of Youth and Community Services [1980] 1 NSDWLR 392 Saadieh v Director General, Department of Transport [1999] NSWADT 68 Wilson v Director General, Department of Transport [2002] NSWADT 149 Category: Principal judgment Parties: Fan Lin (Applicant) Roads and Maritime Services (Respondent) Representation: Applicant in person Smythe Wozniak (Respondent) File Number(s): 2019/00059805 REASONS FOR DECISION 1. The applicant, Mr Fan Lin, applied for an authority to drive a bus. His application was refused on the basis that he is not a fit and proper person or a person of good repute. That decision was affirmed on internal review and Mr Lin has asked the Tribunal to review the decision. The legislation 1. Under s 12 of the Passenger Transport Act 1990 (the Act) Roads and Maritime Services (RMS) may grant a person a bus driver authority which permits a person to drive a public passenger vehicle. The purpose of an authority is to attest that the 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: s 11(2) of the Act. 2. The authorised person is also required under s 11(2) to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates: 1. in accordance with the conditions under which a public passenger service is operated, and 2. in accordance with law and custom. 1. The issue to be determined in this case is whether Mr Lin is of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle. The role of the Tribunal is to determine what is the correct and preferable decision having regard to the material before it (s 63 Administrative Decisions Review Act 1997). Background 1. Mr Lin was first issued with a driver's licence in September 2006 and is currently the holder of a heavy vehicle driver licence. He states he has driven trucks for about seven years and for four months up to the refusal of this application for a bus driver authority was an Uber driver. Mr Lin does not have a criminal record but has committed a number of driving offences dating back to 2007. 2. The focus of the evidence in this case is Mr Lin's driving record. Mr Lin's licence was suspended for three months in October 2007 for an offence of exceeding the speed limit by more than 30 km per hour but not more than 45 km an hour. Since then he has had four offences of not wearing a seat belt, one for using a mobile phone when not permitted, one for negligent driving, two for disobeying turning signs and two others relating to parking where not permitted. He received a fine for each offence. His licence was suspended for four months in September 2014 on the basis of the number of demerit points he had accrued. Mr Lin's last traffic offence was in August 2016. Throughout his driving history Mr Lin has accumulated 35 demerit points. 3. A further matter relevant to the issues to be determined is the information provided by Mr Lin on the application form for the bus driver authority. When he filled out his application form, Mr Lin ticked yes to the question which asked whether he had ever had his driver licence suspended, cancelled, disqualified or refused for any reason and referred to the 2014 suspension. He did not refer to the 2007 suspension. In relation to a further question on the form which asked whether in the last five years he had been issued with a Traffic Infringement Notice (fine) or had been before the courts for any traffic offences, Mr Lin ticked the no box. The respondent's case 1. RMS submits that bus drivers are responsible for a greater number of passengers than taxi drivers and once they are issued with an authority, they are able to drive buses carrying children. This puts a particular onus upon bus drivers to drive responsibly and safely within the law. RMS referred to the driving history of Mr Lin and noted that it appears that he is getting better as a driver with no recent offences. However, he has a lengthy history of regular offences and his licence has been suspended twice. Overall, as noted above, he has accumulated 35 demerit points since his licence was issued in 2006. 2. RMS submits that Mr Lin needs to establish a longer period of good driving before being issued with a bus driver authority, particularly in circumstances where that authority will permit him to drive vehicles carrying large numbers of passengers, including children. 3. RMS submits that Mr Lin's dishonesty in filling out the application form and not disclosing his traffic offences or the earlier suspension of his licence goes to Mr Lin's fitness and propriety. RMS states that Mr Lin must have known that he had committed offences even if he could not remember exact details such as dates when those offences occurred. The applicant's case 1. Mr Lin does not dispute any element of his driving record. He stressed that his earlier offences are now quite old and were obtained when he much younger. He said he has matured and that is evident from his lack of recent infringements. Mr Lin also said that as a truck driver there was an increased chance, because of the long driving hours, that he would make a mistake and thus commit an offence. 2. Mr Lin referred to his work as an Uber driver and said he had completed 936 trips without committing a single offence. He provided examples of comments from customers which attested to his skills. He also noted that, as an Uber driver, he carried a variety of passengers including women, children and the elderly. He said he has shown himself capable of handling a heavy vehicle through his truck driving experience. 3. Mr Lin referred to information on the Transport NSW website about becoming a bus driver for State Transit. The information states that bus drivers must have a good driving record and a good driving record is usually considered to be: * No more than six demerit points lost * No drink driving offences in the last three years * No more than one loss of licence in the last three years * Overall number of offences recorded against your licence is not excessive. 1. Mr Lin points out that he has committed no driving offences for almost three years and has never been convicted of a drink driving offence. He did not lose his licence in the last three years and only lost three points during that time. 2. In relation to the non-disclosure of his driving record on the application form, Mr Lin said he was honest about whether his licence had been suspended in the past but could not remember the exact driving offences he had committed. He said he did not do anything to check his record. Good repute and fit and proper 1. At issue is whether the Tribunal can "attest" that Mr Lin is of good repute and in all other respects a fit and proper person to hold a bus driver authority. Most of the decided cases have dealt with an authority under the now repealed s 33 of the Act to be a taxi-cab driver. The provision in s 33 was identical to that currently in s 11 of the Act relating to drivers of public passenger services and the cases are therefore apposite. 2. In Director General, Transport New South Wales v AIC [2011] NSWADTAP 65 the Appeal Panel stated at [12] that by using the word "attest" the Parliament has sought "to emphasis the idea that the conferral of an authority involves a declaration of public trust". 3. The Appeal Panel went on to say that the expression "good repute and in all other respects a fit and proper person" is meant "to be expansive in scope allowing for a broad range of personal attributes to be assessed, and for consideration to be given to the person's general standing in the community, especially among those who know the person well and are fully informed as to any matters of concern". The Panel then discussed the concepts of "good repute" and "fit and proper" (at [13]): "repute" goes to the public estimation of the person while "fit and proper" goes to such matters of character "as to whether the applicant is possessed of sufficient moral integrity and rectitude of character as to permit him or her to be safely accredited to the public without further inquiry". 4. In Re T and the Director of Youth and Community Services [1980] 1 NSDWLR 392 Wadell J stated when discussing the meaning of "good repute": A person's reputation, in fact and in law, is to be found in the estimate of his moral character entertained by some specific group of people, such as those who live in the neighbourhood of his residence, those who work with him or those with whom he associates in his occupation or profession . . . Evidence of conviction for a criminal offence is, however, admissible as evidence, indeed, most cogent evidence of bad reputation. 1. A criminal history is not, however, of itself evidence of bad repute, but does create a presumption that the person has, among those who know of that history, a bad reputation. It puts the onus on the person to establish their good reputation: Loye v Director General, Department of Transport [2000] NSWADT 145 at [29]. 2. In Saadieh v Director-General, Department of Transport [1999] NSWADT 68 at [17], in the context of a taxi licence, the Tribunal identified factors relevant to fitness and propriety as including: * the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted; * the applicant's reputation in the community; and * the likelihood that the applicant will reoffend, be the subject of further complaints or commit further offences. 1. While Mr Lin does not have a criminal record, he has a significant record of driving offences and the factors in Saadieh remain relevant in that context. 2. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 388 Toohey and Gaudron JJ said: 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. 1. In Wilson v Director General, Department of Transport [2002] NSWADT 149 where an applicant for a bus driver authority had been dishonest on the application form, the Tribunal referred to the Supreme Court of South Australia decision in McNamara v Arnold (unreported decision of the Supreme Court of South Australia, 26 October 1995 BC9502405 at 10). In that decision Matheson J said that: In this matter, even if the Tribunal merely looks at the [appellant's] dishonest answer on the application form, this conduct brings into question the honesty of the [appellant]. Honesty is a quality implicit in the notion of a fit and proper person. Consideration 1. In relation to the omissions on the application form, Mr Lin knew he was not telling the truth when he answered those questions. He states that he could not remember the exact details of the offences. However, he made no effort to find out nor did he answer the question in general terms, stating that he had some offences but could not remember dates or the exact nature of the offences. The only available conclusion is that he made an error of judgement and sought to conceal his poor driving history, including his disqualification from driving in 2007. 2. Mr Lin has not provided any evidence of his general reputation in the community which would indicate that he otherwise has a good reputation among those who know him. 3. Turning to Mr Lin's driving history itself, it must be acknowledged that Mr Lin has never committed an offence involving alcohol. He has, however, committed an offence of negligent driving and his licence has been suspended twice. Since obtaining his licence in 2006, he has accrued 35 demerit points which is a very high number. 4. In Mr Lin's favour is the fact that he has not committed any recent driving offences, including during the period he was an Uber driver undertaking numerous trips. I accept that he has shown some maturity in recent years and an ability to abide by the law. 5. Mr Lin's explanation, however, that as a truck driver there was an increased risk he would offend is not tenable. The fact that a driver may be on the road for lengthy periods when compared to someone who does not drive for a living does not absolve the person of the obligation to comply with the law. Mr Lin's attitude would indicate he still has some way to go in reaching a position where it could be said he fully understands his obligations as a driver, particularly as a driver responsible for passengers in his vehicle. 6. Insufficient time without any infringements has passed and Mr Lin's dishonesty when filing out the application form is a matter of considerable concern. It was incumbent upon him to provide honest answers and he did not do so. I find that it cannot be attested that Mr Lin is of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle. Order 1. The decision under review is 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: 23 May 2019