Truong v Department of Transport and Infrastructure [2010] NSWADT 279 (24 November 2010)

Last Updated: 25 November 2010

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Truong v Department of Transport and Infrastructure [2010] NSWADT 279


DIVISION:
GENERAL DIVISION

PARTIES:
APPLICANT
Kenneth Truong

RESPONDENT
Department of Transport and Infrastructure



FILE NUMBERS:
103221

HEARING DATES:
30 September 2010

SUBMISSIONS CLOSED:
30 September 2010



DATE OF DECISION:
24 November 2010

BEFORE:
Wilson R - Judicial Member





LEGISLATION CITED:
Passenger Transport Act 1990; ss 11, 12 & 14

CASES CITED:
Lo v Director-General, Department of Transport [2002] NSWADT 101
Lal v Director-General, Department of Transport [2001] NSWADT 74
Jawad v Director-General, Department of Transport [2003] NSWADT 55
Farquharson v Director-General, Department of Transport [1999] NSWADT 53
Williamson v Director-General, Department of Transport [2001] NSWADT 3
Saadieh v Director-General, Department of Transport [1999] NSWADT 68
Stepanyan v Ministry of Transport [2009] NSWADT 26
Sterjovski v Director-General, Department of Transport [2002] NSWADT 10
(B v Director-General, Department of Transport [2001] NSWADT 203
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at [63]

TEXTS CITED:


APPLICATION:
Suspension of authority to drive passenger vehicles held under the Act; relevant principles.

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
S Bull, solicitor
RESPONDENT
A Wozniak, solicitor


ORDERS:
1. The decision under review to suspend the authority held by the applicant under the Passenger Transport Act 1990 is set aside.


Reasons for Decision:

REASONS FOR DECISION

1 The applicant has brought these proceedings seeking to review a determination by the respondent that the applicant’s authority to drive buses be suspended under the provisions of the Passenger Transport Act 1990. This determination was made on 27.08.10.

2 The applicant was born in Vietnam and came to Australia in 1988. He is now 40 years of age and is married and has a son, 8 years of age. He has been employed as professional bus driver with his current employer since 18.09.05, however, following the respondent’s determination, his employment was also suspended.

3 The relevant events are as follows. On 13.08.10 the applicant attended the premises of his parent’s-in-law to pick up his son and, whilst there, became involved in an altercation with persons from a neighbouring property. The evidence suggests that there had been tension between the applicant’s parent’s-in-law and their neighbours for a little while, although previously they had lived peacefully as neighbours for a good number of years. On the day before, that is, 12.08.10, the applicant had also attended the premises of his parent’s-in-law to collect his son and, whilst there, had an altercation of some kind with the same neighbours. Details of this incident the day before are not in evidence and all that is known is that the applicant alleges that he was threatened by the neighbours, or one of them, whereupon he, the applicant, called the local police. The police attended on that day and conciliated the matter.

4 However, the altercation on 13.08.10 developed into a more serious incident. On that day the applicant and two of the neighbours, a father and an adult son, came to blows and, it is alleged, the applicant in fact injured the other two men with a knife. The father was wounded significantly, the neighbour’s son less so. The police were called with the consequence that the applicant was charged with serious assault offences, which are still pending. This summary of facts appears from the police charge sheet, which the applicant tendered in the proceedings (exhibit A1). The police charge sheet records the injuries to the father as stab wounds but the injury to the neighbour’s son is described as a small laceration to the finger. The evidence presented to the Tribunal does not permit any detailed findings to be made as to what actually occurred on that day: the nature of the knife is not known, nor is the stature of the other two men involved in the altercation; there are no detailed witness statements in evidence and there has been no cross-examination of any of the actors involved. Therefore how the altercation started initially, and then later developed, is at large and no detailed findings may be made in this regard. The parties, in fact, have not requested any determination by the Tribunal as to the factual issues involved concerning the altercation, but have accepted, as common ground, that the applicant has been charged with two serious breaches of the criminal law. The decision below suspending the applicant’s authority was based essentially upon the fact that the applicant has been so charged and upon the fact that he did not report these charges to the respondent as the law requires. Given that the evidence is of the nature described above it is not appropriate to endeavour to reach any detailed findings about the altercation. To do so would be too dangerous as there is too much scope for error. For example, normally the words stab wounds would carry the implication that the wounds suffered by the father were inflicted by an intentional stabbing, rather than unintentionally whilst the physical altercation was in progress. This implication should not be employed here, given the state of the evidence and the position adopted by the parties.

5 The Act confers power upon the applicant to grant authorities of the type held by the applicant (s.12(1)) and creates penalties for the driving of relevant vehicles in the absence of any such grant (s.11). A simple reading of the sections themselves suggests the following considerations. There are two conditions precedent to any such grant: first, the respondent must have regard to the purpose of the authority (s.12(1)) when determining an application for the issue of an authority under the Act; secondly, an applicant must meet any relevant criteria specified in the regulations (s.12(2)). The first condition provides for a mandatory relevant consideration, which must be taken into account, the relevant purpose being specified in s.11(2)(a) and (b). In essence the purpose is to attest the applicant’s good reputation, fitness, responsibility and aptitude. The second condition provides mandatory criteria which must be satisfied before an authority may issue. As s.12(1) employs the words may grant it is possible that there is a residual discretion to refuse to grant an authority even if the two condition precedents are satisfied. It is also possible that there is also a residual discretion to grant an authority even if the applicant is found to be not a fit and proper person, as the first condition only specifies that the purpose of an authority is a relevant consideration that must be taken into account, rather than specify a condition that must be satisfied. Whilst a possibility though, this appears to be an unlikely construction, as the authorities discussed below demonstrate. However, if the second condition is not satisfied there can be no residual discretion to grant an authority. Thus there is a significant difference between the terminology used in s.12(1) and s.12(2). The relevance of this aspect of the power to grant an authority is that it assists in the proper construction of the additional power of suspension, this being the power that was exercised so as to give rise to the decision under review.

6 Section 14 of the Act confers powers to vary, suspend or cancel an authority that has been issued. In exercising any of these powers, the respondent is required to have regard to the purpose of the authority, as the section so requires. This provides for a relevant consideration that must be taken into account, namely the purpose for which the authority is granted, which purpose is specified in s.11(2)(a) and (b) as being the purpose of attesting that the applicant is of good repute, fitness, responsibility and aptitude. Thus, when considering suspension of an existing authority consideration must be given to the purpose of the authority, which purpose is specified in s. 11(2). However, section 14 contains no reference to any mandatory criteria, a significant difference to the provisions of s.12. Consequently, it could be that the s.14 power of suspension is a discretionary one, the only requirement being that the purpose of the authority (as defined in s.11) must be taken into account.

7 However, the construction of the relevant sections of the Act is not at large, as the Tribunal has had occasion to consider them a number of times in the past. The respondent has, most helpfully, taken the Tribunal in detail through all of the relevant authorities. They demonstrate the following principles. First, the economic consequence of suspending an authority, whereupon the holder of the authority will be unable to pursue his or her normal employment or business activities, is not a relevant consideration (Lo v Director-General, Department of Transport [2002] NSWADT 101; Lal v Director-General, Department of Transport [2001] NSWADT 74; Jawad v Director-General, Department of Transport [2003] NSWADT 55). Whilst these authorities do not discuss the point in any detail, they clearly establish this first principle and show that it is one which the Tribunal has accepted for a significant number of years, even in suspension cases. Whilst a decision to suspend an authority pending determination of the criminal charges has a limited duration, and therefore would seem, quite naturally, to bring economic considerations into play, established authority should not be disturbed without good cause and after proper argument.

8 The authorities just discussed establish that the economic consequences of suspension, that is, hardship, are irrelevant to the exercise of the power. Therefore, it is implicit in these authorities that the legislation dictates that the decision under review, and the Tribunal’s own decision, ought to turn upon the purpose of the authority simpliciter and that only matters that are relevant to this purpose ought to be taken into account. Thus, the power to suspend an authority is not a broad discretionary power. Consequently, no considerations may be taken into account save those that are relevant to this purpose. The power to suspend must have regard to, and only to, the purpose for which the authority is granted. The power therefore is not a general discretionary one and it must be exercised by considering only the specified purpose. Therefore, whilst the applicant did press economic hardship, this is not a relevant consideration in these types of proceedings.

9 The second principle, or set of principles, established by the authorities, in a case like the present, concerns the nature of, and the circumstances surrounding, the charges against the applicant. They are still pending. One charge is indictable, the second most likely being a back-up summary charge. Significant penalties attend the indictable matter. On this point, the principles to be distilled from the leading authority of Farquharson v Director-General, Department of Transport [1999] NSWADT 53 have been set out in the decision of the Deputy President in Williamson v Director-General, Department of Transport [2001] NSWADT 3: first, it is not the Tribunal’s role to determine the guilt or innocence of the applicant as to the matters with which he or she is charged; secondly, the Tribunal is to have regard to the seriousness of, and circumstances concerning, those charges; and thirdly, whilst it is a tenet of the criminal law that a person is presumed innocent until proven guilty, the legislation allows for an authority to be suspended where the person is no longer considered to be "of good repute and/or a fit and proper person" to hold the authority which is relevant to the proceedings (see paragraph 17 thereof). Thus, the fact that the criminal charge is pending does not constitute a bar to the exercise of the suspension power. Further, the Deputy President said, "the question the Tribunal must answer is whether they (the charges) are sufficiently serious to justify the suspension of her (the applicant) driving authorities pending the Local Court’s findings. In my view, the suspension of an authority is justified where a person’s reputation or fitness to drive a taxi is sufficiently compromised by allegations or findings of impropriety for it to be in the public interest that the person not drive until those issues are addressed or resolved" (at paragraph 21). These words by the Deputy President provide a clear statement as to how the Tribunal should approach its decision in cases involving the suspension of an authority where the holder of the authority is subject to criminal charges which have not yet been determined. The Tribunal is required to treat such charges as yet unproven allegations and to ask whether those allegations per se suffice, by reason of their seriousness and surrounding circumstances, to compromise a person’s reputation or fitness to hold the authority in question to the extent that, in the public interest, the authority should be suspended until the charges have been resolved. The case at hand does not of course involve any findings of impropriety at this stage, but only allegations of serious impropriety, namely that the applicant has breached the criminal law by conduct that constitutes a serious breach of the criminal law.

10 The approach in suspension cases differs to some extent to that involved where a decision has been made to cancel an authority (see Saadieh v Director-General, Department of Transport [1999] NSWADT 68). Where cancellation is involved, an important consideration is whether or not it is likely that the holder of an authority would re-offend (Stepanyan v Ministry of Transport [2009] NSWADT 226). However, it is difficult to engage this type of consideration in suspension cases where the alleged offence has not been proven at the material time. This is no doubt the reason why the authorities have established that in suspension cases the relevant question to ask is whether a person’s reputation or fitness has been compromised in any way, a more general approach.

11 The authorities also establish that a relevant consideration is whether the alleged impropriety has a direct or indirect nexus with the activity which the authority licenses (Farquharson v Director General, op cit at paragraph 20). A direct nexus would arise where the allegation was that an authorised driver assaulted a person whilst conveying that person as a passenger (Sterjovski v Director-General, Department of Transport [2002] NSWADT 10) and also where there has been a fraudulent use of documents associated with the conveyance of a passenger (Stepanyan op cit). However, even where this is not the case, the circumstances surrounding the allegation may yet suffice to provide a nexus whereby an allegation can be seen to impact on either a person’s reputation or fitness in such a way that a relevant authority under the Act held by that person ought to be suspended pending resolution of the allegation. For example, a bus driver who is charged with driving his own private vehicle whilst excessively intoxicated: in such a case the allegation concerns conduct occurring outside the authorised activity of driving a bus yet, by reason that the conduct demonstrates neglect of the road rules, has a sufficient nexus with the activities licensed by the authority held under the Act. The President of the Tribunal noted this in Farquharson op cit at paragraph 20. Therefore, where the allegation concerns conduct outside the activity licensed by the authority suspension may still follow, provided that the allegation bears upon, or has a logical nexus with, the holder’s reputation or fitness to hold the authority.

12 A further principle is that, when applying the test as specified in s.11(2) of the Act, the objects of the Act, namely to encourage the provision of services that meet expectations as to safety, reliability and efficiency, should be considered (B v Director-General, Department of Transport [2001] NSWADT 203; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10). The relevance of the objects of the Act are clearly brought into play by the express words of s.11(2)(a) and (b): the purpose of the authority is to attest that a person is considered to be of good repute; to be a fit and proper person to be the driver of a public passenger vehicle; and to have sufficient responsibility and aptitude to drive such a vehicle in accordance with the conditions of the authority and in accordance with law and custom.

13 The Tribunal notes that whilst the applicant was first minded to argue the relative strength and weaknesses of the evidence in the criminal matters, ultimately he did not press this approach in light of the abovementioned authorities and the respondent’s submission that evidence concerning guilt or innocence is irrelevant. Consequently, there is no need in these proceedings to investigate the extent to which the circumstances surrounding the charges could involve consideration of facts that would be relevant to guilt or innocence when the charges are heard by a competent Court. The Tribunal also notes that whilst many of the authorities in fact refer to the question whether the decision under review was justifiable, this was just a convenient reference for the purpose of developing the principles under consideration. All of the authorities accept that the Tribunal’s review is for the purpose of determining the correct and preferable decision by way of a merits review (Sterjovski v Director-General, Department of Transport [2002] NSWADT 10 at paragraphs 10, 11 and 12; B v Director-General, Department of Transport [2001] NSWADT 203 at paragraphs 14 and 15).

14 Each case will of course turn upon its own individual facts, at least to the extent that they can be established in a hearing like the present where the Tribunal is not called upon to reach any determination as to the guilt or innocence of the applicant as to the relevant charges. The relevant circumstances have been set out above. The altercation is rendered serious by reason that the allegation is that a knife was used and that one of the combatants suffered injuries occasioned by, it is alleged, the applicant’s use of the knife. The mere fact that the applicant has been charged with serious offences arising from this altercation could certainly affect his reputation amongst those who know him well and could equally affect his fitness to hold an authority under the Act, at least until proper factual determinations have been made in due course. However, the circumstances concerning the charges must also be considered. Here, the relevant circumstances are the facts that the altercation occurred at the applicant’s parents-in-law’s premises; that neither guilt nor innocence have yet been established; that the altercation was not associated with any activity which the applicant’s authority licensed; that it was a heated and impromptu incident rather than pre-mediated conduct; that the applicant has no history of this type of altercation, nor any other criminal history; that he has enjoyed a good reputation in the past and is not known as a person inclined to violence; that his reputation has not been affected by this incident amongst those persons who have provided testimonials; and that his employer, who has its own obligations under the Act to ensure the fitness of its employees, is willing to continue the applicant’s employment as a driver should the applicant’s suspension be set aside.

15 A person’s reputation concerns the way in which a person is regarded by others in the community (Farquharson op cit). It is a question of fact. However, whether a person is a fit and proper person (for a particular purpose) involves the making of a value judgment. Thus the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker, as is the weight to be given to matters favouring the person whose fitness is under consideration (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at [63]). This approach has been followed in this Tribunal (Lo v Director-General, Department of Transport [2002] NSWADT 101). Also, as the words of s.11(2)(a) show, what must be considered specifically is whether the applicant is a fit and proper person to be the driver of a public passenger vehicle. Thus the question is not at large.

16 The testimonial evidence clearly shows that the applicant’s reputation is that he is not a person inclined to violence and that he has a kindly and helpful disposition. This has not changed amongst those who have provided testimonials by reason of the knowledge of the incident. Consequently, it is unlikely that the incident has in fact caused any changes to his reputation and, on the balance of probabilities, such a finding of fact is apposite. This same evidence, together with the fact that the applicant has no adverse history of violence, demonstrates that the applicant in fact is not a person who has a violent nature. Also, the circumstances in which the altercation occurred are not such as to suggest that the applicant is not a fit and proper person to hold an authority under the Act. There is no substantial nexus between his conduct on that occasion and the activities which he undertakes as a holder of an authority under the Act. Also, the applicant’s involvement in the altercation was an isolated instance and he has no history of any similar matters, indeed the evidence is to the contrary. There are times when it is appropriate to give a great deal of significance to the fact that a person has previously lived all of his or her life as a valuable and well regarded member of the community. This case is one instance where the applicant’s many years of good conduct should stand to his credit. Therefore, the Tribunal finds, as matters presently stand, that the applicant is a fit and proper person for the purposes of s.11 of the Act. Minds may of course differ, however in the circumstances to hand the Tribunal finds that the charges arising from the altercation do not compromise the applicant’s reputation, nor his fitness to hold an authority under the Act.

17 There is an additional matter that should be dealt with in these reasons. The altercation in issue occurred on 13.08.10 and on 14.08.10 the applicant was charged with having committed offences arising from this incident. The applicant himself suffered injuries in the altercation and was unfit for work between 16.08.10 and 20.08.10. He in fact returned to work on 23.08.10. The suspension decision was made on 27.08.10. Clause 44 of the Passenger Transport Regulation 2007 requires a driver of a pubic passenger vehicle to advise the respondent with written details of any alleged offence within 7 days of the laying of the charges. The applicant in fact did not do this prior to the decision to suspend his authority. The respondent has accordingly relied upon this circumstance in these proceedings as demonstrating, both by itself and in combination with the laying of the charges, that the applicant is not a fit and proper person to hold an authority under the Act. The applicant asserted that he was unaware of the obligation to report the charges. Given the short period of time involved between the laying of the charges and the decision to suspend, and taking into account the applicant’s own injuries, the failure to report within the prescribed period does not compromise the applicant’s reputation, nor his fitness to hold an authority. It would be otherwise of course if the applicant had taken any positive steps to conceal the fact that he had been charged, but there is no evidence before the Tribunal to this effect.

18 The Tribunal notes that the applicant was issued with a warning by the respondent on 05.04.07 concerning the display of his authority whilst driving a passenger vehicle. The authority on that occasion could not be properly retained in the holder provided on the vehicle and the difficulty was resolved in consultation with the applicant’s employer. This matter is not significant and the respondent does not press otherwise.

19 In view of these findings and reasons the correct and preferable decision is that the decision under review should be set aside, and the Tribunal will so order.