Taylor v Director General, Department of Transport [2001] NSWADT 17 (9 February 2001)

Last Updated: 6 June 2001

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Taylor -v- Director General, Department of Transport [2001] NSWADT 17

PARTIES: APPLICANT

Kenneth Allan Taylor

RESPONDENT

Director General, Department of Transport

FILE NUMBERS: 003045

HEARING DATES: 10/11/2000

22/11/2000

06/12/2000

SUBMISSIONS CLOSED: 06/12/2000

DECISION DATE: 09/02/2001

BEFORE: Rice S - Judicial Member

LEGISLATION CITED: Evidence Act 1995

Administrative Decisions Tribunal Act 1997

Passenger Transport Act 1990

CASES CITED: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

McDonald v Director General of Social Security [1984] FCA 57; (1984) 1 FCR 354

Macedonian Teachers Association of Victoria Inc v Human Rights &Equal Opportunity Commission & Anor [1998] 1650 FCA 21 December 1998

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Qamar v Director General Department of Transport [2000] NSW ADT 92

Wright v Wright (1948) CLR 191

Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

Singh v Director General, Department of Transport [1999] NSWADT 96

APPLICATION: Bus driver - cancellation of authority

Passenger Transport Act - bus driver - cancellation of authority

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

A Monzo, barrister

RESPONDENT REPRESENTATIVE: RESPONDENT

A Wozniak

ORDERS: 1 .Pursuant to s63(3)(b) I vary the decision of the Director-General to suspend Mr Taylor's authority to drive a public passenger vehicle by making it a decision to cancel Mr Taylor's authority to drive a public passenger vehicle.

2 .Pursuant to s88(1) I make no award of costs.

3. I direct that Exhibit 1 be returned to Mr Taylor, and that material produced under summons by the Department of Community Services be returned to Mr David Croke in the Legal Services section of that Department.

Reasons for Decision:

Decision

1 For the reasons I give below, in my view the correct and preferable decision is that Mr Taylor's authority to drive a public passenger vehicle should be cancelled.

Application, refusal and review

2 For many years, and relevantly in 1999, Mr Taylor held an authority to drive a public passenger vehicle. Such an authority is issued by the Director General under ss 11 and 12 of the Passenger Transport Act (PT Act). It "attests" to the holder of the authority being considered, among other things, to be of good repute, and to be a fit and proper person to drive a public passenger vehicle.

3 On or about 14 December 1999 Mr Taylor was summonsed to appear in Moree Local Court on 10 January 2000 to face a charge of assault.

4 By letter dated 15 December 1999 the Department advised Mr Taylor that it had determined to suspend his authority to drive a public passenger vehicle.

5 The Statement of Reasons advised that the delegate of the Director-General considered "the fact that (Mr Taylor had) been summonsed may mean that (he is) not a fit and proper person to be the holder of a Public Passenger Driver Authority", and "the fact that the alleged offence was committed while (he was) engaged in (his) occupation as a bus driver means that (he) breached a duty of trust and may do so again in the future if (he) were authorised".

6 Mr Taylor applied for internal review of the Department's decision, and by letter dated 21 January 2000 the Department advised Mr Taylor that the initial decision to suspend his authority was confirmed on review.

7 On review the Director-General's delegate confirmed the refusal of Mr Taylor's application, saying that Mr Taylor's "alleged behaviour casts sufficient doubt on (his) reputation to prevent the Director-General from making a positive attestation in accordance with s11 of the Act".

Reviewable decision

8 The reviewable decision is that of the delegate of the Director-General to suspend Mr Taylor's authority to drive a public passenger vehicle, advised to Mr Taylor by letter dated 15 December 1999.

9 Mr Taylor appealed against that decision to this Tribunal in February 2000. The matter was listed for a hearing on 7 June 2000. That date was vacated on Mr Taylor's application, who asked that the hearing not take place until after the conclusion of the assault proceedings. Those proceedings did not conclude until 21 August 2000. It had been anticipated that the Magistrate hearing the assault matter would hear this application for review under authority of the Administrative Decisions Tribunal, but that did not eventuate. I heard the matter on 10 November in Sydney, 22 November in Moree and 6 December in Sydney.

Nature of proceedings

10 Mr Taylor is the operator of the bus company in Moree which bears his name. He has a long career as a bus driver and operator. He is understandably concerned to ensure that the decision by the Department to suspend his authority is the correct preferable one having regard to all the relevant material and law. It is unsurprising therefore that in the proceedings counsel on his behalf in a manner tested the material on which the Department relied in making the reviewable decision, and made strong submissions concerning that material.

11 It is in that context that I make clear the nature of the exercise this Tribunal performs. The Tribunal undertakes `merits review': a review of the merits of the original decision, with the obligation to reconsider all the material first considered, together with any further relevant material, so as to either confirm the original decision, vary it, or set it aside and substitute another. "The duty of the tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view was objectively the right one to be made" (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77).

12 These are not adversarial proceedings in which the applicant carries an onus of proof. The applicant, by making the application, triggers a process of merits review by the Tribunal. The applicant does not take on the responsibility of having to prove a case, nor does an applicant cause an administrator to have to prove a case. The applicant and the administrator are before the Tribunal as parties by virtue of s67(2) Administrative Decisions Tribunal Act (ADT Act).

13 The Tribunal's role is to have regard to the material and law and to decide the correct and preferable decision that ought to be made. It makes its own decision in place of the administrator's, and "there is no presumption that the decision of the administrator is correct" (McDonald v Director General of Social Security [1984] FCA 57; (1984) 1 FCR 354 at 357).

14 When there is a fact in issue as to the existence of which the Tribunal must be satisfied, it must be satisfied to the civil standard of proof: on the balance of probabilities (McDonald at 357).

15 Counsel for Mr Taylor submitted that in having regard to facts alleged but not proved against Mr Taylor in the criminal proceedings, I should, in relation to any facts that must be established, be satisfied to what he calls "the much higher standard of `comfortable satisfaction' otherwise known as the Briginshaw test".

16 The Briginshaw test is not of course a standard of proof which is different from the civil standard of `balance of probabilities'. "(T)he Briginshaw principle does not recognise any intermediate standard of proof. It merely provides guidance as to how the civil standard of proof is to be approached when serious allegations are made in the course of civil proceedings" (Macedonian Teachers Association of Victoria Inc v Human Rights &Equal Opportunity Commission & Anor [1998] 1650 FCA 21 December 1998). Briginshaw identifies the need in certain matters for the civil standard to be reached on the basis of clear or cogent proof, rather than on evidence of some lesser probative value (see Odgers Uniform Evidence Law 4th edition at [140.3] citing Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 at pp449-450; Heydon Cross on Evidence 6th Aust edition at [9050] citing Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 per Dixon J at pp362-3; definition of `probative value' in Evidence Act 1995 (NSW) Dictionary, Part 1 - Definitions).

17 Counsel referred to a decision of this Tribunal, differently constituted, Qamar v Director General Department of Transport [2000] NSW ADT 92 in which it was said, at paras 30 and 31:

30 The case against Mr Qamar is, obviously, circumstantial. Given the serious nature of the allegations, they must be proven to the Briginshaw standard. That is, while the applicant bears the legal onus of proof, the evidential onus, which falls on the respondent, is a high one. In Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, the High Court considered the reasoning process and standard of proof required to prove crime in civil proceedings. The classic formulation was stated by Dixon J:

...Reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of the given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters, "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences... It is often said that such an issue as fraud must be proved "clearly", "unequivocally", "strictly" or "with certainty"... This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil case may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is obtained...

31 There must be clear and unequivocal proof, on the balance of probabilities, that M Morris was touched and harassed, and that Mr Qamar was the taxi-driver responsible.

18 It is not the case in this Tribunal, and the decision in Qamar does not suggest otherwise, that the civil standard of proof must be met on the basis only of evidence that meets the Briginshaw test. Administrative decisions cannot as a rule be elevated to a level that requires in all cases proof on the balance of probabilities "at the high end of the scale" (Heydon Cross on Evidence 6th Aust edition at [9050] citing Wright v Wright (1948) CLR 191 at 210), that is to say, on evidence of the highest probative value.

19 Certainly in some matters it might be appropriate for the Tribunal be satisfied on the basis of evidence meeting the Briginshaw standard. Such matters would include one such as Qamar where the Tribunal was engaged in determining whether the applicant had engaged in conduct which was at least highly socially unacceptable if not criminal in nature.

20 The question raised by counsel for Mr Taylor is whether this a matter is one which calls for satisfaction on the basis of evidence which meets the Briginshaw standard.

21 It is not the case that an adverse finding as to reputation must always be based on evidence which meets the Briginshaw standard. I have formed a view on Mr Taylor's reputation, the consequence of which is that his authority to drive a public passenger vehicle is cancelled. When the consequence of a decision is, as a possibility, loss of livelihood, perhaps it is appropriate.

22 As it happens, the evidence on which I form a view on Mr Taylor's reputation and fitness and propriety is of the Briginshaw standard.

23 My decision is based on findings of a Local Court Magistrate at the conclusion of a hearing conducted by legally represented parties in accordance with the rules of evidence; as I explain below I make no finding as to Mr Taylor's actual conduct.

24 As well my decision is based on the honestly stated opinions of members of the community in which Mr Taylor lives and works; as I explain below, the hearsay character of the evidence, and allegations of bias, do not affect the probative value of this evidence for the purpose of assessing reputation and fitness and propriety.

25 I look to more than "slender and exiguous proofs" (Briginshaw at p350 per Rich J in Heydon Cross on Evidence 6th Aust edition at [9050]),and have carefully weighed the testimony, closely examined the facts proved as a basis of inference, and reached a level of comfortable satisfaction (per Rich J).

Requirements to be met

26 The issue for this Tribunal is: what is the correct and preferable decision having regard to the available material, including any relevant factual material and any applicable written or unwritten law? (s63(1) ADT Act).

27 The applicable law is in the PT Act. Section 14 enables the Director-General to suspend or cancel an authority to drive a public passenger vehicle, having regard to the purpose for which the authority is held. In section 11(2):

(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.

28 The decision to be made is whether Mr Taylor can be 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" such that an authority can attest to that status.

29 It is clear from the correspondence and the Department's file that the Director-General decided that an authority would attest to neither Mr Taylor's being of good repute, nor his fitness and propriety to be the driver of a public passenger vehicle. Having regard to the material, I agree with the administrator's view that there is no basis for suggesting that an authority would not properly attest to the other matters in s11(2).

Evidence

30 Evidence of Mr Taylor's not being of good repute comes from the testimony of Roslyn Woods, John Clissold, Julie Monckton, Julie Ann Woods, and Gabrielle Williams, all of whom were cross-examined on behalf of Mr Taylor. Further evidence is in written statements, and in complaints made to the Department on the Department's file.

31 Evidence of Mr Taylor being of good repute comes from the certificates and written testimonials tendered on his behalf. Evidence of his being a fit and proper person to hold an authority comes from those documents, his own evidence, and his driving history.

32 The findings of the Local Court in the assault proceedings are relevant both to Mr Taylor's reputation and to his fitness and propriety.

Criminal proceedings

33 Mr Taylor has no history of criminal offences. He defended a complaint that he assaulted a passenger on a bus he was driving. After a hearing that complaint was dismissed. It was the initiation of those criminal proceedings which raised for the Department a question as to Mr Taylor's reputation. The criminal proceedings form part of the material I have regard to.

34 Drawing from the findings of the learned Magistrate (pages 227 and 228), the circumstances of the alleged assault can be described briefly. Mr Taylor was driving a school bus with school children passengers. He had occasion to stop the bus and to walk down the aisle between the seats. There was physical contact between Mr Taylor's hand and the back of the head of a school child passenger. The issue in the criminal proceedings was whether the contact was intentional, ie whether Mr Taylor deliberately struck the child as was alleged, or whether the contact was unintentional.

35 The learned Magistrate dismissed the assault allegation:

It seems to me that the two propositions are equally as tenable as the other. That in fact she (Ms Woods) was given a clip around the back of the ear and, on the other, the contact was accidental as described by Mr Taylor . . . When . . . one is as tenable as the other, then the prosecution have not satisfied me beyond a reasonable doubt" (at p 235).

36 Earlier in his reasons His Worship said, after describing the evidence given by children for the prosecution:

I think each of those children gave a very credible account of what they believe they had observed and what they believed they could remember (at p 230).

37 However,

the certitude . . . of their evidence was in fact broken down under cross examination so . . . (that) what they believed they saw and what they believed they remembered . . . may not (have been) in fact what they believed they saw and what they believed they remembered (pp230-1).

38 I understand from this that the learned Magistrate could not rely on the evidence of the witnesses for the prosecution not because he doubted their honesty or motive, but because he did not find their recollection reliable.

39 His Worship observed that "there was no dispute that there was physical contact" between Mr Taylor and Ms Woods. However each of the prosecution witnesses "ultimately agreed . . . that the contact . . . may not have been intentional" (at p231).

40 The allegation of the assault was not relitigated before me. I have not been asked to make in these proceedings a finding as to the occurrence or not of the facts alleged in the criminal proceedings.

41 The transcript is in evidence as relevant material I have regard to.

42 From the transcript quoted in paragraph 35 above, the following is apparent. The accusation that Mr Taylor intentionally struck a child is, in the words of the learned Magistrate after hearing the evidence, "tenable". The allegation was not established "beyond a reasonable doubt" nor, it would seem, clearly on the balance of probabilities. But nor is the allegation without foundation, fanciful, contrived, vexatious, or with some similar character which would cause me to disregard it. That Mr Taylor intentionally struck a child passenger is as tenable a proposition as Mr Taylor's not having done so.

43 I make no finding in these proceedings as to the allegation. I have regard to the findings of the learned Magistrate. In my view those findings, and the fact that they were delivered in open court in the town where Mr Taylor lives and works, are relevant to an assessment of Mr Taylor's reputation, and raise a real question as to whether Mr Taylor is of good repute.

Members of the community

44 I heard evidence of Mr Taylor's not being of good repute from Roslyn Woods, John Clissold, Julie Monckton, Julie Ann Woods, and Gabrielle Williams. Further evidence is in written complaints made to the Department.

45 Counsel for Mr Taylor submitted that the evidence from these witnesses as to Mr Taylor's reputation should be given little weight because it was biased, and was based on hearsay.

46 As to the issue of hearsay, evidence of reputation is, of its nature, hearsay. It is evidence of from a person of what a number of people say and think. As long as the evidence is not relied on to establish the truth of what people say and think, but only that they say and think it, such evidence is admissible under the ordinary rules of evidence (see Cross on Evidence 6th Aust edition at [33820] and authorities cited there), and under the Evidence Act NSW (s59).

47 This Tribunal can comfortably have regard to evidence of reputation if that evidence is relied on merely to establish reputation, without needing to rely on its power to not be bound by the rules of evidence.

48 As to the issue of bias, it was suggested to the witnesses in cross-examination, and to me in submissions, that because of family connections or some other grievance against Mr Taylor, the witnesses were improperly motivated to give evidence against Mr Taylor, or biased in their views.

49 It was not suggested that any of the witnesses was lying when giving evidence of Mr Taylor's reputation. Each of them gave truthful evidence of their opinion of Mr Taylor, and of the opinion of Mr Taylor which they know that others hold.

50 I am concerned only with assessing the honestly held views of Mr Taylor, whatever influenced those views, and whatever caused the witnesses to give evidence of those views. Mr Taylor's reputation is a matter on which the witnesses were able to, and did, give truthful and relevant evidence.

51 In this matter I am concerned with Mr Taylor's reputation, and not concerned with the truth or otherwise of Mr Taylor's conduct which is implied or asserted by those expressing their views as to his reputation.

52 Turning to the evidence which was given, as residents of the same town where Mr Taylor lives, and as parents of passengers on buses driven by Mr Taylor, the witnesses Roslyn Woods, John Clissold, Julie Monckton, Julie Ann Woods, and Gabrielle Williams gave relevant evidence of Mr Taylor's reputation. They are members of a relevant "specific group of people" for purposes of Mr Taylor's reputation (see Re T and the Director of Youth and Community Services[1980] 1 NSWLR 392), and are members of the community who, in terms of the objects of the PT Act (s4(e)), have "reasonable expectations . . . for safe, reliable and efficient passenger transport services".

53 The witnesses' evidence is that Mr Taylor has a reputation for aggressiveness, both physical and verbal, towards children passengers, and of driving in a manner which is to dangerous the children passengers. Their evidence was consistent with written statements from Cheryl Bellette and Lynne Glascott, parents of children who were passengers on buses driven by Mr Taylor.

54 Neither Ms Bellette nor Ms Glascott were available for cross-examination. To the extent that their evidence goes to Mr Taylor's reputation, I cannot see that anything would have been gained by cross-examination unless it were suggested that views they have expressed of Mr Taylor are not genuinely held. I see no basis on which such a suggestion could have been made, and none was made in submissions. Accordingly their evidence is relevant to an assessment of Mr Taylor's reputation.

55 The Department's file is in evidence as Exhibit C pursuant to s58(1)(b) of the ADT Act. The file shows a series of complaints received concerning Mr Taylor.

56 The file shows that in April 1997 a complaint was made by a parent of a schoolchild passenger that Mr Taylor had suspended the child from riding on the bus, and about the manner in which the parents were advised by Mr Taylor of the suspension. It was alleged that Mr Taylor was in breach of the relevant Code of Conduct. The letter of complaint also referred to an earlier incident in which Mr Taylor was alleged to have attended the school and "verbally abused and swore" at a schoolchild. The records show that the student's rights to travel were reinstated and that a Departmental Field Officer discussed the complaint with Mr Taylor.

57 In December 1997 a complaint was made by a parent of schoolchildren passengers that Mr Taylor had required the children to assist in cleaning the bus. The records show that the Department wrote to Mr Taylor referring to the complaint and requiring him to cease the practice immediately.

58 In May 1998 the Departmental Field Officer discussed with Mr Taylor a complaint by a parent of a schoolchild passenger that he had spoken rudely to the child, and that he had refused to carry the child after the complaint was made. Mr Taylor was directed to carry the child.

59 The complaint in May 1998 refers explicitly to Mr Taylor's reputation. A file memo from the Field Officer states that the parent

"had heard other reports of Mr Taylor's actions with other school students. For example, physically `kicking them off the bus and pulling them by the ears' ".

60 In May 1999 complaints were made by a parent of a schoolchild passenger that Mr Taylor, in April 1999, did not allow a schoolchild passenger off at his stop, and refused to carry a schoolchild without her pass. This complaint was conveyed to Mr Taylor who gave an explanation in writing.

61 Further in May 1999 a complaint was made by a parent of a schoolchild passenger that Mr Taylor refused to co-operate with arrangements necessary to give effect to an Apprehended Violence Order which the child had against another schoolchild.

62 In August 1999 a complaint was made by a parent of a schoolchild passenger that Mr Taylor had been seen striking two children, and that he had deliberately braked the bus to make children fall. The assault referred to became the subject of the Local Court proceedings.

63 That complaint was repeated in August 1999 by another parent of schoolchildren passengers. This complaint referred to a police investigation. It was this complaint which precipitated Mr Taylor's licence being suspended pending the outcome of the assault proceedings.

64 I make no finding as to the truth of the matters alleged in the complaints on the Department's file. I have regard to the complaints themselves as evidence of Mr Taylor's reputation.

65 The complaints are all from parents of children who were passengers on buses driven by Mr Taylor. They indicate to me that, consistently with the oral evidence I heard and the written statements in evidence Mr Taylor has a reputation for aggressiveness, both physical and verbal, towards children passengers, and of driving in a manner which is dangerous to the children passengers.

Evidence for Mr Taylor

66 Mr Taylor tendered a bundle of personal certificates and testimonials (Exhibit 2). No oral evidence was called in relation to Mr Taylor's reputation, and no further detail was provided regarding the certificates and testimonials.

67 A 1995 certificate from Telecasters Australia predates the period 1997-1999 during which the complaints and concerns which bear on Mr Taylor's reputation arose. In any event, I do not think that recognition of the generosity of Taylor's Bus and Coach Service is necessarily relevant to Mr Taylor's personal reputation.

68 I would say the same of the following:

1987 Lions Club Certificate of Appreciation to Taylors Coaches

1990 Moree Technology High School Certificate of Appreciation to Taylor's Coach and Bus Service

1995 Scout Association `Thank You' certificate to Taylors Coach Service

69 A July 2000 certificate of recognition of support awarded to Taylor's Coach and Bus Service in relation to the Sydney Olympics and Paralympics, is in the same period as the evidence from the witnesses and the Department's file concerning Mr Taylor's reputation. I do not think, however, that it is necessarily relevant to Mr Taylor's personal reputation.

70 I would say the same of May 1999 and July 2000 certificates of appreciation awarded to Taylor's Coach and Bus Service by Moree on Gwydyr Rotary for support of Carp Muster 2000.

71 A 1996 Certificate of Appreciation to Ken Taylor for assisting a Moree Police and Emergency Services exercise predates the period 1997-1999 during which the complaints and concerns which bear on Mr Taylor's reputation arose. In any event it is not apparently relevant to Mr Taylor's reputation.

72 A 1982 certificate of Life Membership of the Apex Club of Moree, to the extent to which the certificate refers to "service . . . to the community Apex serves", may, had such a statement been contemporary, have had some bearing on Mr Taylor's reputation among the members of the travelling public in Moree. However the certificate significantly predates the period 1997-1999 during which the complaints and concerns which bear on Mr Taylor's reputation arose.

73 Mr Taylor tendered personal testimonials, all explicitly or apparently written during the year 2000, from Louise Quinn Group Leader 1st Moree Scout Group, Perry James OAM, HR Harbourne OAM, BF Foreman Secretary of Moree on Gwydyr Rotary Club Inc, Sandra D Dillon, Sandra O'Mullane, Marilyn Shearer, and Kay E Hunter.

74 Ms Quinn, Mr James and HR Harbourne appear to have personal experience of Mr Taylor's bus driving, on scout trips in the 1970s and perhaps more recently, on school charters in the 1970s and 1980s, and on junior rugby league trips at some time.

75 Ms Quinn refers to Mr Taylor as "a very careful and confident driver" who "made sure all the safety rules were adhered to". Mr James found Mr Taylor "to be a most courteous and co-operative operator". HR Harbourne makes no direct reference to Mr Taylor's reputation as a bus driver.

76 The relevance of this material is limited by its predating the period 1997-1999 during which the complaints and concerns which bear on Mr Taylor's reputation arose.

77 Ms Dillon, Ms O'Mullane, Ms Shearer and Ms Hunter are all parents of children who have been driven on school buses by Mr Taylor.

78 Ms O'Mullane children travelled on buses driven by Mr Taylor "between the years 1976 and 1984". Her knowledge of Mr Taylor's "concern . . . for the welfare and safety of the children" is explicitly limited "to (her) knowledge during these years".

79 Ms Shearer refers to her "four children and now my granddaughter" travelling on Mr Taylor's buses, in which time she has "found Mr Taylor to be a very fair and approachable man".

80 Ms Hunter's children travelled on buses driven by Mr Taylor "over a ten year period from 1973 to 1983". She says "At all times I was very happy with Mr Taylor's treatment of our children, and as far as I am aware there were no incidents of physical abuse perpetrated by Mr Taylor".

81 The relevance of this material is limited by the fact that the periods referred to by Ms O'Mullane, Ms Shearer and Ms Hunter significantly predate the period 1997-1999 during which the complaints and concerns which bear on Mr Taylor's reputation arose, except to the extent that Ms Shearer has knowledge through her granddaughter of Mr Taylor being "very fair and approachable".

82 Ms Dillon's children "travelled on Mr Taylor's bus . . . from February 1997 . . . to mid-September 1999". Her "children enjoyed the bus travel and at all times (she) . . . felt very confident with Mr Taylor's services". Ms Dillon does "not know Mr Taylor socially and (her) first meeting with him was associated with (her) children's school travel. (She has) always found him courteous, professional and very responsible. (She has) always felt (her) children safe in his bus."

83 Ms Dillon's written evidence is contemporary and addresses the very issues raised by the Department in relation to Mr Taylor's reputation. Her opinion of Mr Taylor is in direct contrast to that of the witnesses who appeared for the Department and that of those who complained to the Department.

`Good repute'

84 Mr Taylor appears to continue to enjoy a good reputation among those who have known him well for many years, and those who know of his bus driving some years ago. Clearly however Mr Taylor now suffers from a poor reputation among those who know of his bus driving in recent years. Ms Dillon has a good opinion of Mr Taylor as a bus driver in recent years, but she appears to be alone in that view, or can be assumed to be in a significant minority based on the weight of the material before me.

85 I am satisfied that an authority could not properly attest to Mr Taylor being of good repute. This is apparent from the totality of the oral evidence I heard, the written statements, the complaints to the Department, and the fact that in open court in the rural community where Mr Taylor lives and works, a magistrate found that an allegation that Mr Taylor struck a school child passenger was tenable on the evidence.

86 That is enough on which to decide that the correct and preferable decision to suspend or cancel Mr Taylor's authority should be affirmed. There is as well the question of Mr Taylor's not being a fit and proper person.

`Fit and proper'

87 The question whether a person is fit and proper "to undertake the activities in question" (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 per Toohey and Gaudron JJ para 56) "is one of value judgment . . . (and) the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker (Bond per Mason CJ at para 63).

88 In exercising this "value judgment" I take account of Mr Taylor's reputation, as well as the nature, frequency and seriousness of conduct alleged and complaints made against him, the likelihood of him repeating the conduct, and his driving record (see eg Singh v Director General, Department of Transport [1999] NSWADT 96 at paras 31 and 32).

89 No material was placed before me which reflected adversely on Mr Taylor's driving record. I consider his fitness and propriety on the basis that he has no traffic offences as a driver.

90 I have described in paragraphs 33 to 43 above the history of criminal proceedings against Mr Taylor. The learned Magistrate did not dismiss the allegation of assault as false; he found it to be tenable although not established beyond reasonable doubt.

91 In the absence of relevant evidence I cannot and do not make any finding as to whether Mr Taylor committed the conduct alleged in the criminal proceedings. I consider the Magistrate's finding, that the allegation against Mr Taylor was tenable, indicates, when considered with the complaints I describe below, that Mr Taylor is not a fit and proper person to hold an authority.

92 I consider the nature, seriousness and frequency of the complaints made against Mr Taylor indicate that he is not a fit and proper person to hold an authority.

93 From the complaints the following is apparent.

94 Mr Taylor has in recent years consistently given members of the local community reason to complain about his behaviour. The complaints identify recurring behaviour: impatience with and aggression towards school children bus passengers, and driving in a manner which is dangerous to the safety of the school children passengers.

95 The complaints have not been tested before me, and I make no finding as to the truth of each of the matters alleged in each complaint. What I do take account of however is the regular occurrence of the complaints over the past three years, the consistency in their content, and the range of people who have made them.

96 In my view it is improbable that the complaints are all untrue or at least unfounded. They support an inference that Mr Taylor has conducted himself in the manner alleged, that is to say with impatience and aggression towards school children bus passengers, and driving in a manner which is dangerous to the safety of the school children passengers.

97 Further, the history of correspondence on the Department's file shows a tendency on Mr Taylor's part to not take seriously the questions raised about his conduct. I note the result of an Accreditation Audit recorded by a Field Officer in a file memo dated 1 June 1998:

Mr Taylor does not deal with complaints very well. Mostly he does not respond to written complaints and rarely follows up on telephoned complaints.

98 On the basis of this material, I am satisfied that an authority could not properly attest to Mr Taylor being a fit and proper person to drive a public passenger vehicle.

99 On that basis, quite apart from a decision as to Mr Taylor's reputation, the correct and preferable decision to suspend or cancel Mr Taylor's authority should be affirmed.

Decision

100 Mr Taylor has for many years been a respected member of the Moree community, and an invaluable service provider to families and community groups. His company continues to provide that service. This decision is regrettable in that it effectively brings to an end Mr Taylor's life-long career as a driver.

101 The Director General has in s14 a discretion to "at any time vary, suspend or cancel" a person's authority. There is no prescribed limit on the period of any suspension.

102 Mr Taylor's authority was suspended in December 1999 pending the criminal proceedings, and he applied to this Tribunal for review of that decision. My decision is as to the correct and preferable decision which should now be made, and I have the powers available to me that are available to the Director General. In the circumstances I consider it is appropriate to cancel Mr Taylor's authority rather than to suspend it.

103 Having regard to the relevant factual material and the applicable law, I have decided that the correct and preferable decision is that Mr Taylor's authority to drive a public passenger vehicle should be cancelled .

Order

1. Pursuant to s63(3)(b) I vary the decision of the Director-General to suspend Mr Taylor's authority to drive a public passenger vehicle by making it a decision to cancel Mr Taylor's authority to drive a public passenger vehicle.

2. Pursuant to s88(1) I make no award of costs.

3. I direct that Exhibit 1 be returned to Mr Taylor, and that material produced under summons by the Department of Community Services be returned to Mr David Croke in the Legal Services section of that Department.