Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Tubie v Commissioner of Fair Trading [2020] NSWCATOD 8 Hearing dates: 16 January 2020 Date of orders: 24 January 2020 Decision date: 24 January 2020 Jurisdiction: Occupational Division Before: Emeritus Prof GD Walker, Senior Member Decision: Decision under review affirmed. Catchwords: LICENSING – tow truck drivers – certificate application rejected – suspensions within 3 years. Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Tow Truck Industry Act 1998 (NSW) Tow Truck Industry Regulation 2008 (NSW) Cases Cited: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; Eskander v Department of Fair Trading [2019] NSWCATOD 49; Moujalli v Roads and Maritime Services [2014] NSWCATOD 63. Texts Cited: DC Pearce, Statutory Interpretation in Australia, 9th edn, Lexis Nexis Butterworths 2019, pp 38 – 39. Category: Principal judgment Parties: Corey C Tubie (Applicant) New South Wales Commissioner of Fair Trading (Respondent) Representation: Solicitors: Applicant (Self Represented) Smythe Wozniak Lawyers (Respondent) File Number(s): 2019/00320754 Publication restriction: Nil Reasons for decision 1. The applicant Mr Corey C Tubie applied to this tribunal on 11 October 2019 for review of a decision made on 12 August 2019 by a delegate of the respondent to refuse his application for a tow truck driver certificate under the Tow Truck Industry Act 1998 (TTI Act). 2. He had applied for the certificate on 17 May 2019, an earlier application having been rejected for incompleteness on 3 May 2019. The later application was refused on 19 June 2019, and the applicant applied for an internal review of that decision on 2 July 2019. The reviewing officer affirmed the decision on 12 August 2019. 3. The ground for the decision was that the applicant's driver licence had been suspended on more than one occasion during the period of 3 years immediately preceding the application for the tow truck driver certificate. In those circumstances refusal was mandatory. 4. A tribunal directions hearing was held on 19 November 2019 at which the applicant was directed to file witness statements and other materials by 13 December 2019. He did not attend, or participate in, the directions hearing and did not file any material. The matter was set down for hearing on 16 January 2020, and the applicant indicated that he would participate by telephone. On that date he did not appear and could not be contacted despite several attempts to reach him by telephone. The matter thus proceeded ex parte. Applicable legislation 1. Section 26(1)(a) of the TTI Act provides that the Secretary must refuse to grant an application for a driver certificate on mandatory grounds. Section 26(2) of the Act sets out the mandatory grounds for refusing to grant an application for a driver certificate, while s 26(4) states that the regulations may provide additional mandatory or discretionary grounds for refusing the granting of an application for a driver certificate. 2. Clause 18 of the Tow Truck Industry Regulation 2008 sets out additional grounds on which an application for a driver certificate must be refused. In particular, cl 18(1)(b) stipulates that where the applicant's driver license has been suspended or cancelled (other than for fine default under the Fines Act 1996) on more than one occasion during the period of 3 years immediately preceding the application for the tow truck driver certificate was made, the certificate should be refused. For the purposes of cl 18(1), it does not matter that any of the period of disqualification, suspension or cancellation occurred during only part of the 3-year period: cl 18(2). 3. The issue in this case is whether the applicant's driver certificate is subject to mandatory refusal by reason of cl 18(1)(b). The evidence 1. The respondent called no oral evidence but relied on the s 58 documents (exhibit R1). The applicant did not adduce any evidence. Applicant's submissions 1. The applicant made no submissions in support of his tribunal review application, but in his letter of 2 July 2019 addressed to the respondent requesting an internal review of the decision to refuse his application he made certain points that can be regarded as his position on the merits of the matter. 2. Those points were: * he felt that he should be able to hold the licence; * it is a requirement for his employment and he needs it in order to be able to support himself; * he feels that he has been punished for the instances that occurred while he served the suspensions and he feels that he is being further punished by reason of the outcome of his application; * he asks that he be provided with some leniency and for the licence to be approved. Consideration 1. This tribunal has jurisdiction to review the respondent's determination by reason of s 9 of the Administrative Decisions Review Act 1997 (ADR Act) and s 45 of the TTI Act. Under s 63 of the ADR Act, the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the respondent's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77. 2. The TTI Act established the Tow Truck Authority, which had responsibility for licensing tow truck operators and granting driver certificates. The authority's administrative functions were transferred to Roads and Maritime Services and later, from 1 July 2017, to New South Wales Fair Trading. It is an offence to drive or to stand a truck on a road without a driver certificate: s 23. Applications for driver certificates are to be made to Fair Trading, which may grant them: s 27. Section 26 sets out both mandatory and discretionary grounds for refusing a driver certificate. In Mr Tubie's case, his application was refused on mandatory grounds as set out in s 26(4) and cl 18(1)(b). 3. Section 26(1)(a) provides that the respondent "must refuse to grant an application for a drivers certificate on mandatory grounds". Section 26(4) states that "The regulations may provide additional mandatory or discretionary grounds for refusing the granting of an application for a drivers certificate". 4. Interpretation of the legislation needs to take account of the industry's history of crime and violence that created a need for the present legislation. A review of the industry commissioned by the then State government found a pervasive culture of violence, unconscionable conduct and dishonesty (Review of the Tow Truck Industry in New South Wales by the Hon. Peter Anderson, Final Report, December 1998). Mr Anderson's interim report provided the basis for the Tow Truck Industry Bill 1998. In his second reading speech, the Minister for Transport said that the report had "described an industry infiltrated by criminal elements and pervaded by fear of intimidation, physical harm and property damage". 5. In his final report, Mr Anderson noted that the reforms adopted in that Bill (now the TTI Act) represented a unanimous commitment on the part of the government, the opposition, other parties and all independent members of the Legislature. The reforms included measures to "Increase the standards for entry to and removal from the industry" (para 1.3) and the second reading speech referred to the Bill's provisions to "tighten fit and proper requirements for those who can be involved in the industry" as being among the legislation's primary objectives: Eskander v Department of Fair Trading [2019] NSWCATOD 49, [38]. 6. In similar vein, the tribunal has said that members of the public have a right to expect that tow truck drivers are adequately screened for suitability to hold a drivers certificate: Moujalli v Roads and Maritime Services [2014] NSWCATOD 63, [9]. 7. Nothing in the evidence suggests that Mr Tubie has any criminal background or associations, but the mandatory refusal provisions, including those provisions dealing with an applicant's traffic history, form part of the Legislature's overall strategy for increasing the standards for entry to the industry. As the legislation is unambiguous and leaves no room for doubt, the literal approach to its interpretation is appropriate: D C Pearce, Statutory Interpretation in Australia, 9th edn, Lexis Nexis Butterworths 2019, pp 38- 39. 8. The applicant's traffic record (exhibit R1, p 47) relevantly shows: 1. 23 January 2018: Excess speed suspension of unrestricted licence to commence on 27 February 2018 until 26 May 2018 inclusive; 2. 6 January 2017: Demerit points suspension of P2 licence to commence on 10 February 2017 until 9 May 2017 inclusive; 3. 10 May 2017: Demerit points suspension extended to 10 May 2017. 1. On that basis, the applicant would remain subject to mandatory refusal of a drivers certificate until 10 May 2020. In addition, it should be noted that on 28 May 2018, he was sent a demerit points warning letter. As the driving record in exhibit R1 is not completely up-to-date, it is possible that the applicant has accumulated further offences since then, in which event that date would be pushed further into the future. 2. At earlier stages in the course of this application, the applicant has raised a number of contentions as to why he should be granted a licence. He feels that he should be able to hold such a licence and points out that it is a requirement for his employment, which he needs in order to be able to support himself. He feels that he has been punished already for the violations that occurred while he served the suspensions and believes he is being further punished because of the outcome of his application. He asks for some leniency. 3. Licensing requirements, however, are not designed to be punitive but are a regulatory mechanism intended to protect the public. More importantly, however, his assertion that he needs the certificate for his employment, as well as his other contentions, might be relevant to an exercise of discretionary power, but in this case, it is clear that the mandatory refusal provisions apply and that there is no discretion to waive or modify their application. 4. I therefore find that the mandatory refusal provisions apply because of the applicant's driver licence suspensions within the three-year period and that the respondent's decision to refuse the applicant a truck driver licence must be affirmed. Order 1. Decision under review 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: 24 January 2020