Price v Director General, Department of Transport [2002] NSWADT 26 (27 February 2002)

Last Updated: 16 May 2002

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Price -v- Director General, Department of Transport [2002] NSWADT 26

PARTIES: APPLICANT

Kenneth Barry Price

RESPONDENT

Director General, Department of Transport

FILE NUMBERS: 013243

HEARING DATES: 15/01/2002, 13/02/2002

SUBMISSIONS CLOSED: 13/02/2002

DECISION DATE: 27/02/2002

BEFORE: Hennessy N (Deputy President)

LEGISLATION CITED: Passenger Transport Act 1990

CASES CITED: Ghachame -v- Director General, Department of Transport [2000] NSWADT 113

Hoban v Davey (1972 1 NSWLR 59

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

Saadieh v Director General, Department of Transport [1999] NSWADT 68

APPLICATION: Bus driver - cancellation of authority

Long Distance Service driver - cancellation of authority

Passenger Transport Act - bus driver - cancellation of authority

Passenger Transport Act - long distance service driver - cancellation of authority

Passenger Transport Act - private hire vehicle driver - cancellation of authority

Private hire vehicle driver - cancellation of authority

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

D Jones, solicitor

RESPONDENT REPRESENTATIVE: RESPONDENT

A Wozniak, solicitor

ORDERS: The Director General's decision to cancel the applicant's taxi authority, private hire vehicle authority long distance and tourist bus authority and authority to drive buses, except those providing long-distance or tourist services, is set aside.

Reasons for Decision:

Introduction

1 On 24 September 2001 the Director General affirmed his decision to cancel all four driver authorities held by Mr Price under the Passenger Transport Act 1990 (PT Act). The authorities were a taxi driver authority, a private hire vehicle driver authority, a long distance and tourist bus driver authority and an authority to drive buses, except those providing long-distance or tourist services. The last category includes school route buses and will be referred to in this decision as a route bus authority. At the hearing the Director General's representative had no objection to having the decision to cancel Mr Price's taxi and private hire vehicle authorities set aside. I made that order at the hearing. I reserved my decision in relation to the other two authorities.

2 The reason for the cancellation of the long distance and tourist bus driver authority and the route bus authority was that a school child, who I will refer to in this decision as "AB", had alleged that Mr Price had bitten her on the forearm in the course of a journey on a school bus on 23 March 2001. The child was eight years old at the time. Mr Price denies the allegation and says that he blew a "raspberry" on the girl's arm, but did not bite her.

Proceedings

3 These proceedings were heard in Sydney on 15 January 2002 when Mr Price gave oral evidence. The matter was adjourned, part heard, to 13 February 2002 to hear evidence from Mr Bond, a fellow employee of Mr Price, in Raymond Terrace.

Issue and legislation

4 Under s 11 of the Passenger Transport Act 1990 (PT Act) a person who drives a public passenger vehicle (which includes school route buses) must have an authority. Section 14 of the PT Act gives the Director General the power to cancel a person's authority in certain circumstances. That section states that:

Having regard to the purpose of an authority, the Director-General may at any time vary, suspend or cancel any person's authority.

5 Section 11(2) sets out the purpose of an authority in the following terms:

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.

Jurisdiction

6 The Tribunal has jurisdiction to hear this matter pursuant to s 52(1) of the PT Act. That section states that:

Any person whose application under Part 2, 4 or 4A has been refused, or whose accreditation, authority or authorisation has been varied, suspended or cancelled may apply to the Administrative Decisions Tribunal for a review of the refusal, variation, suspension or cancellation.

Evidence

7 The evidence before the Tribunal consisted of:

· oral evidence from Mr Price and Mr Bond;

· the Department's file;

· photographs of the bruise on AB's forearm;

· a note from Dr Smith who saw AB a few days after the allegations were made;

· a report from Dr D Gibson dated 5 February 2002, giving an opinion on the cause of the bruising; and

· a letter from Mr Bond, a fellow employee of Mr Price, to their employer dated 23 May 2001.

8 Mr Price gave evidence that he was born on 17 September 1946 and is trained as a fitter and machinist. After a period studying and working in New Zealand, Mr Price returned to Australia in 1996 and applied for various public passenger transport authorities. He worked for a taxi company for approximately 2 years from 1997 to 1999. On 31 May 1999 Mr Price took up a position with a company doing school bus runs. He regularly drove three round trips in the morning and three in the afternoon. No adverse reports of any consequence have been made against Mr Price during the period of just over two years that he was driving school buses.

9 Mr Bond is a casual bus driver who has held bus driver authorities for some 25 years. He worked with the same bus company as Mr Price for approximately two and a half years. Mr Bond told the Tribunal that one afternoon he told Mr Price in a casual conversation that he should be careful because he was being too familiar with the children who caught the bus. He said he did not report his concerns to any higher authority at that time. Mr Price denied that Mr Bond had ever spoken to him about his conduct in relation to children on the school bus.

10 After AB made the allegations, Mr Bond's employer asked him to record any concerns he had about Mr Price. Mr Bond wrote a letter to his employer dated 23 May 2001 in which he said, in part, that:

On more than one occasion, I spoke to him (Mr Price) about his familiarity with the children, for example slapping the bottoms of young girls as they got on or off the bus and touching and tickling both males and females on the body whilst waiting to collect the children from school.

I said to him that he should be very careful about the way he was familiar with the children as there could be repercussions with their parents somewhere down the track.

11 Mr Bond admitted that the children who rode on the bus seemed to like Mr Price. Mr Price said he was well liked by the children and had attended picnics and swimming carnivals with them.

12 Mr Price swore an affidavit in relation to proceedings for unfair dismissal in the Industrial Relations Commission. In that affidavit he said, among other things, that:

On Friday 23 March 2001 I was driving my regular school bus route returning the children home from school in the afternoon. Seated directly behind me were two young girls, one of whom I know to be AB. As I was driving I felt a hand grabbing at the back of my hair on a number of occasions. On one occasion I quickly took hold of the hand a blew a raspberry on the forearm region without opening my mouth. I could not tell at that time whose arm it was. With this, the children in the bus including AB began to laugh. AB got up out of her seat and began to walk down the corridor of the bus pretending to wipe her arm on the other children in the bus. Many of the children were laughing whilst she pretended to do this. AB took her seat again behind where I was sitting. I next felt a hand grab my hair at the back of my head and I was forced into an upward looking position. I quickly pulled forward and regained my composure. I said to the girls directly behind me: That is enough. With this I continued driving the bus without any further incident.

13 The only evidence from the children on the bus is a transcript of notes taken by Mr Matt Spruce, Operations Officer with the Department of Transport. He spoke to AB and to one other child, Q, who was on the bus when AB alleged Mr Price bit her. These notes state that AB, who is eight years old, was sitting with Q on a seat directly behind Mr Price. The notes go on to record that:

AB said that she was tapping the driver on the shoulder and pulling his hair. The driver reached back with his left arm and pulled AB's left arm, causing her to fall into the aisle. AB then got back up and sat down on the window side of the same seat. (Her friend moved to the aisle seat.) AB continued to pull the driver's hair and the driver reached back with his right arm, pulled AB's left arm forward and bit it. AB again pulled the driver's hair and the driver bit her again. AB continued to pull the driver's hair and for the third time the driver bit AB on the left arm. AB said that the third bite was hard and it caused her to cry. She was still crying when she got off the bus and she reported what had happened to her mother.

14 Mr Spruce noted that Q was also eight years old. His notes go on to record that:

Q said that she was sitting behind the driver on the window seat next to AB. She said that both of them were tapping the driver on the back and that AB began pulling the driver's hair. The driver then reached back with his left arm and pulled AB into the aisle with his left arm. AB got back up and sat in the same seat and both girls began pulling the driver's hair. The driver then pulled AB's arm forward and "slobbered' on it. They pulled the driver's hair again and then he grabbed her arm and bit AB's arm again harder.

15 Another departmental officer made notes of his conversation with another child on the bus, P, who gave the following version of events:

P told me he was sitting on the seat on the opposite side of the aisle to AB. AB was near the window and sitting next to Q. AB and Q were poking around at the driver who was trying to grab AB's arm but missed a couple of times. This behaviour continued while the bus was moving until eventually the driver grabbed AB's arm while it was near him and quickly turned his head around and bit AB on the arm. AB pulled her arm away and the driver quickly looked toward the front. This occurred while the bus was moving.

While still on the bus he could see little teeth marks in AB's arm from his seat.

16 There is a letter on the Department's file from AB's mother which reports that AB came home from school that day crying and told her that the bus driver bit her. AB's mother took AB to her local doctor, Dr Smith, on Monday 26 March 2001. Dr Smith's notes are difficult to decipher but they appear to say "bite mark bruise right forearm from school bus driver."

17 The Commissioner referred the photographs of AB's forearm and other relevant documents to Dr D Gibson for an opinion. He stated that:

In my opinion, the photographs show a bruise which was probably caused by the blowing of a "Raspberry" onto the forearm of this girl. The force involved would have been significant to cause this amount of bruising. This was probably with the mouth open.

18 Mr Price denied that he bit AB on the arm or anywhere else. He admitted grabbing AB's arm but said that the bruise on AB's arm is not the result of anything that he did.

19 Mr Price said that in hindsight he regrets blowing a raspberry on AB's arm. He now knows that he should not touch the children at all and realises that his conduct was inappropriate. If the same thing happened again he would stop the bus and speak to the children. He conceded that if he had bitten a child, he should not be driving buses.

Findings of fact

20 My findings of what happened must be made on the civil standard of "the balance of probabilities." I find that Mr Price was very friendly towards the children and was well liked. He interacted with them in a way which sometimes involved touching them in a playful manner.

21 Mr Bond told Mr Price in a casual conversation that he should be careful because his familiarity with the children may lead to problems in the future. Mr Bond gave direct and credible evidence on this point which I accept. Contrary to what appears in his letter of May 2001, I do not accept that Mr Bond spoke to Mr Price on more than one occasion. In his oral evidence Mr Bond only referred to one occasion. Mr Price denies that this conversation occurred, but it is possible that Mr Price has forgotten about it. No one else, including his employer, has ever raised any concerns with Mr Price about his behaviour with the children.

22 My finding as to whether Mr Price bit AB or blew raspberries on her arm must be made in circumstances where the only evidence from the children is hearsay evidence which has not been tested through cross-examination. I make no criticism of the Director General for not calling the children to give evidence but I cannot give untested hearsay evidence much weight because it is not reliable. Mr Price categorically denies that he bit AB on the arm.

23 The medical notes from Dr Smith are of very little probative value in determining whether Mr Price bit AB or not. While the notes appear to record "bite mark bruise", Dr Smith did not prepare a report, nor did he give any evidence before the Tribunal. The words "bite mark bruise" may have been recorded as a result of what AB or her mother told Dr Smith, rather than an independent assessment by him as to the cause of the bruise. The evidence from Dr Gibson is also equivocal. He says that the bruising was probably caused by the blowing of a raspberry. He does not offer an opinion as to whether the bruise is also consistent with a bite. Nevertheless I accept his evidence that if the bruise was caused by blowing a raspberry, it mast have been blown with significant force.

24 I find that on 23 March 2001 AB and Q were pulling Mr Price's hair and tapping him on the shoulder while he was driving the school bus. There were a series of playful exchanges between Mr Price and AB, including Mr Price blowing a raspberry on AB's arm on at least one occasion. AB reacted by laughing and continuing to pull Mr Price's hair. Finally Mr Price reached around and grabbed AB's arm and blew a raspberry with considerable force on her forearm.

25 I also find that Mr Price is genuinely remorseful about his conduct and now realises that his behaviour was not appropriate. In these circumstances it is highly unlikely that Mr Price would act in the same or a similar manner again.

Decision and reasons

26 Punitive effect of cancellation. A question which arose in these proceedings is the punitive effect on Mr Price of not being able to retain all his public passenger authorities. I made some observations on this question in Ghachame -v- Director General, Department of Transport [2000] NSWADT 113 at [63] to [64]:

There are several avenues by which a taxi driver can be punished, including being issued with infringement notices, being temporarily suspended from driving and being prosecuted for breaches of the Regulations or of the criminal law. The ability to suspend, cancel or refuse to grant a person's licence, while having a punitive effect on a driver, is predominantly designed to protect the public. In Hoban v Davey (1972 1 NSWLR 59) Sugerman J at 63-6 and Mason JA at 72, characterised provisions under the Commercial Agents and Private Inquiry Agents Act 1963 in a similar way. Sugerman P said at 65 and 66 that:

The scope and purpose of the Commercial Agents and Private Inquiry Agents Act, and in particular of the restrictions on licensing contained in s 10(10) thereof and the provisions for cancellation of licences and disqualification of the holders in ss 11-14, seem to be predominantly the protection of the public rather than the punishment of offenders. . . .

In the Act at present in question either permanent disqualification or disqualification for a period specified by the court is available for matters which so obviously concern the protection of the public as that the agent is not of good fame and character or is not a fit and proper person to hold a licence.

27 On the basis of this analysis, I do not accept Mr Jones' submission that Mr Price has been adequately punished for the incident in question and that an authority should be re-issued on that basis. The real question is whether Mr Price has the requisite character, reputation, responsibility and aptitude to meet the public's reasonable expectations of school bus drivers.

28 Good repute. The meaning of being of "good repute" was discussed by Wadell J in Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 393. Wadell J defined reputation in the following terms:

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.

29 Mr Price has not been charged with or convicted of any criminal offence in relation to this or any other incident. The highest Mr Wozniak could put his submission in relation to repute was that if the Tribunal made a finding that Mr Price bit or otherwise physically held and put his mouth on a child's arm that finding would adversely affect his reputation. I am not satisfied that a possible future loss of reputation is relevant to the question of whether it can be attested that Mr Price is of good repute at the moment. I find that there is no evidence of bad repute and that Mr Price is a person of good repute.

30 Fit and proper person. In relation to the question of whether Mr Price is a fit and proper person to drive buses, relevant considerations were set out by Chief Justice Mason in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at [63]:

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."

31 The comments of Toohey and Gaudron JJ at 380 are also relevant:

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.

32 In Saadieh v Director General, Department of Transport [1999] NSWADT 68 the Tribunal said that:

Taking into account the terms of the legislation and the case law interpreting similar provisions, there are a number of factors that need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. These factors include:

· 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.

33 In this case, Mr Price has not been convicted of any criminal offences, nor is his driving record an issue. He had a good rapport with the children who travelled on the bus. The sole basis for the cancellation of these authorities is a single incident where he forcefully blew a raspberry on the arm of a child as a means of attempting to distract her from pulling his hair and tapping him on the shoulder.

34 Mr Price's conduct was totally inappropriate and caused the child and her family a great deal of distress. Nevertheless, the context in which it occurred must be taken into account. Mr Price chose to distract AB and Q by playfully grabbing AB and blowing on her forearm. On one occasion this blowing was done so forcefully that it caused a bruise. This incident, while serious, is in context, at the low end of the scale of the kind of the conduct which could be classified as improper conduct of a physical nature.

35 I have found, and Mr Wozniak conceded in his submissions, that the likelihood of Mr Price engaging in similar conduct again is slim.

36 In all the circumstances I am satisfied that Mr Price is of good repute and in all other respects a fit and proper person to hold a long distance and tourist bus driver authority and a route bus authority.

Order

37 The Director General's decision to cancel the applicant's taxi authority, private hire vehicle authority long distance and tourist bus authority and authority to drive buses, except those providing long-distance or tourist services, is set aside.