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Administrative Decisions Tribunal of New South Wales |
Last Updated: 9 March 2011
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Australian Broadcasting Tribunal v Bond (1990) HCA 33;
(1990) 170 CLR 321
Chaining v Commissioner of Police, NSW Police Service [1999] NSWADT 6 Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) HCA 28; (1955) 93 CLR 127 Saadieh v Director-General Department of Transport [1999] NSWADT 68 Sobey v Commercial and Private Agents Board 20 SASR 70. |
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1 Mr Fisher has held an authority to drive buses, in accordance with the Passenger Transport Act 1990 ("the Act"). He was granted that authority in December 2009. He drove buses in Canberra for a short time after receiving his authority and then commenced driving a school bus in the Yass area. He continued in that role until June 2010. 2 In July 2010 the Respondent determined to suspended Mr Fisher's authority. It subsequently determined to cancel the authority. The notice of cancellation was issued by letter dated 2 September 2010. 3 Mr Fisher has applied to the Tribunal for external review of that determination. The matter came before me for hearing on 21 December 2010. Following the hearing I reserved my decision.
Background
4 It is common ground that allegations were made in regard to Mr Fisher's conduct as a driver of the school bus. Mr Fisher has denied the allegations. The sequence of events that lead to the determination to cancel Mr Fisher's authority is not in dispute. The chronology as set out in the reasons for the determination are: 5 On 25 June 2010 a complaint was made to both Deanes Transit Group ("Deanes") and NSW Police, concerning alleged inappropriate behaviour and remarks to school students, and unsafe driving practices by a Deanes' driver. The Respondent was advised that the driver had been interviewed by Deanes' management on 25 June and by NSW Police on 26 June 2010, and had denied most of the allegations but had made some admissions. 6 The allegations are as follows: -
- Driver allows female students to sit against the front dashboard of the bus whilst in motion.- Driver allows students to steer the bus whilst in motion.
- Driver flirts with female students and allows them to kiss and cuddle him.
- Driver gives lollies to some students.
- Driver gives his phone number to students on the bus and lets them know he is single.
- Driver has asked complainant's daughter whether she is a 'V' or an 'S'. When asked by the student what he meant he replied 'Virgin or Slut'.
- Driver gestures suggestively to female students and makes offensive remarks.
- Driver allows some students to swear and bass other students around.
7 Due to concerns of safety for school students, Mr Fisher's driver authority was suspended on 16 July 2010. 8 On 27 July 2010 the Respondent received Mr Fisher's application for an internal review. In a statement attached to the application Mr Fisher denied that he had made admissions in the earlier interviews, rather that he had admitted that certain incidents did occur. His statement then detailed his versions of the various incidents and allegations, and his involvement in them. 9 An internal review conducted on 2 August 2010 affirmed the original decision to suspend. A letter conveying the outcome of the internal review was sent to Mr Fisher on 2 August 2010. 10 Mr Fisher applied to the Tribunal for external review of the determination. His application for an urgent stay of the suspension came before me on 3 August 2010. The stay was refused and the matter was listed for hearing at Yass Local Court on 31 August 2010. That matter was subsequently adjourned because the Respondent advised of its intention to cancel the authority. 11 On 9 August 2010 the Respondent obtained a statement from the Principal of Yass High School ("the Principal"). The Principal confirmed that on 25 June 2010 a female student ("the student") had reported an incident to him, in which it was alleged that Mr Fisher had spoken inappropriately to her on the school bus. It was alleged that the incident involve a discussion concerning whether the student was a 'V' or an 'S', referring to a virgin or a slut. The Principal also confirmed that he was informed that similar conversations had taken place on the bus between Mr Fisher and other students. 12 The Principal stated that he was also advised of other allegations, involving unsafe driving practices, distribution of sweets, playing favourites with students and allowing bus discipline to be enforced by certain students. 13 On 10 August 2010 the Respondent obtained a statement from the student's mother, who advised that the matters first came to her notice on 25 June 2010, from both Deanes and the Principal. 14 The student's mother confirmed that she had met with the Principal on the same day. The student then drafted a written statement which was later provided to NSW Police and Deanes. 15 On 10 August 2010 the Respondent obtained a statement from another parent ("the parent"), who has children travelling on the same school bus. The parent had made a complaint to Deanes on 25 June 2010, based on information from her children in relation to incidents and inappropriate behaviour involving Mr Fisher as the bus driver, which they had witnessed on the bus. 16 The parent stated that her children had recounted a particular incident where Mr Fisher made a rude gesture to female students, making a V with his fingers and sticking his tongue through if. The parent also stated that her children informed her that on one occasion Mr Fisher had spoken to a female student stating that in order to have sex, she needed to practice by licking on a lollipop, and that this conversation had occurred in the presence of young Kindergarten students. The parent also stated that her children had also mentioned occasions when you had referred to some female students as sluts.
Applicable Law
17 Section 52(1) of the Act confers jurisdiction on the Tribunal to review a decision to cancel an authority. In reviewing this decision, the task of the Tribunal is to determine what is the correct and preferable decision, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law: section 63 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"). 18 Section 14 of the Act allows the Respondent to suspend or cancel a person's authority having regard to the purpose of an authority. That purpose is set out in section 11(2) of the Act which provides:
11 Authorities...
(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.
(3) The regulations may create categories or grades of authority.
19 Clause 96 of the Passenger Transport Regulation 2007 states:
96 Driver not to carry passengers on certain portions of busThe driver of a bus must not:
(a) carry any passenger on any portion of the bus not set apart or intended for the conveyance of passengers, or
(b) in the case of a two-decked bus, permit any passenger to stand on the upper deck of the bus, or
(c) permit any person to occupy any portion of the driving seat or of the bus on the right-hand side of that seat and abreast of it, or
(d) permit any person to be on any portion of the bus in front of the driving seat.
Maximum penalty: 5 penalty units.
The Respondent's case
20 The Respondent filed and served a copy of its file. The file contains documents in relation to the matters referred to in the determination and noted above and provides evidence of the complaints made against the Applicant. It is not evidence as to the truth of those complaints. Mr Wozniak, the Respondent's solicitor, referred to a number of documents in the file that relate to complaints made against the Applicant and the steps taken by the Respondent in relation to those complaints. 21 In particular Mr Wozniak referred to a handwritten complain from the student, transcripts of interviews with the Principal, the student's mother and the parent, a statement by Sergeant Jeffrey Ludkin of Yass Police Station and an Event entry that Sergeant Ludkin recorded in the New South Wales Police Force COPS data base on the afternoons of 25 and 26 June 2010. Sergeant Ludkin attended the hearing, gave evidence and was cross-examined.
Sergeant Ludkin
22 The COPS entry recorded by Sergeant Ludkin states:
On the afternoon of Friday 25th June 2010 police received a call from Paul Bills, the Principal of Yass High School. Bills informed police of a complaint made by [the student]. The nature of the complaint is as follows.[The student] catches a school bus from her home address to Yass High School where she is a pupil in Year 7. The particular school bus run is known as the "Wallaby" bus and is operated by Transborder Buses in the ACT. The POI is the regular driver of this particular run. [The student] states over this time period she has observed a number of episodes of behaviour by the bus driver including letting children sit on the dashboard of the bus whilst the bus is in motion, letting children steer the bus whilst the bus is in motion. It is alleged the driver hands out lollies to children on the bus and has on occasions cuddled children on the bus.
On Tuesday 22nd of June 2010 it is alleged the bus driver said to [the student], "Are you a slut or a virgin." It is unknown what other conversation took place at this time. It is alleged that on Thursday 24th June 2010 a further conversation took place between the bus driver and [the student] which lead to [the student] calling the bus driver a paedophile. [The student] has been interviewed by the principal of Yass High School in the presence of her mother. The principal was of the opinion that [the student]'s complaint was genuine.
Police have made arrangements for [the student] to attend Yass Police Station A.M. on Saturday 26/6/10 to be interviewed about the matter.
The Operations Manager at Transborder Buses has been spoken to and appraised of the situation. He advised police that the driver had already reported having an altercation with [the student]. The CCTV system on that particular bus was found to be faulty and no evidence can be gathered from the system to support [the student]'s allegations. It has been replaced with a fully operative unit.
Transborder buses have reported the incident to the Department of Transport.
Inquiries continuing.
On the morning of Saturday 26th June 2010 the POI Michael Fisher attended Yass Police Station in company with an Operations Manager from Deans Transit the parent company of Transborder Buses.
Fisher informed police that he had been having disciplinary issues with the students on the bus and [the student] was one of the worst behaved students. Fisher informed that bullying between students was a common occurrence as was offensive language and the students often called each other Sluts and Virgins and spoke to each other in code but he had since found out the codes stood for offensive words. Fisher informed police that this incident in question actually occurred on Thursday 3rd June 2010. He states on this day the students were particularly offensive to each but in a light hearted manner calling each other Sluts and Virgins and as a joke he has stated to [the student] "Are you a slut or a virgin?" The POI states he was merely joining in the banter between the children but in no way was the remark intended to be interpreted as a sexual advance by him towards the student. The POI also conceded that his management of the students had been extremely poor and it was a common occurrence for students to ride in the aisle, swing on the bars and sit on the dash board whilst the bus was in motion. He states he also gives children on the bus lollies but this was to reward well behaved students .
The POI was upset whilst talking to police and had formed a belief his employment would be terminated.
Police have been advised that the Bus Company is proposing to take disciplinary action against the POI however are waiting for advice from the Department of Transport. The POI is being removed from the run immediately until their inquiries are completed.
Police will attend Yass High School and speak to the students concerned in regards to their behaviour on the bus whilst it is in transit.
The mother of [the student] also attended Yass Police Station and was advised of the results of police inquiries. The mother has initiated a formal complaint with the company. She is happy with the proposed action. [The student] had made a handwritten statement about the matter and by consent this was forwarded to the bus company Operations Manager by Police.
23 In his statement dated 16 August 2010 Sergeant Ludkin states:
4. On the afternoon of Friday 25th June 2010 I received a telephone call from [the Principal]. [The Principal] informed me that he had received a complaint from [the student] in relation to the driver of her school bus.5. [The Principal] informed me that [the student] is a resident of ... and catches a school bus known as the "Wallaby" bus from a bus stop near her residence to Yass High School. [The Principal] told me he had been informed that the driver of this bus allows children to sit on the dashboard of the bus whilst the bus is in motion, lets children steer the bus whilst the bus was in motion, the driver handed out lollies to children and cuddled children. I was also informed that on the 22nd June 2010 it is alleged the driver of the bus said to [the student] "Are you a slut or a virgin." On Thursday 24th of June 2010 a further conversation took place between [the student] and the driver of the bus. At the conclusion of this conversation it is alleged [the student] called the driver a Paedophile.
6. I made a number of inquiries in relation to this matter and established the driver of the school bus was Michael Fisher. I also established that the operator of the bus was Deanes Transit Group. I contacted [the student's mother] and made arrangements for them to attend Yass Police station on the 26th June 2010. I also spoke with David Field the Depot Manager of Deanes Transit Group and Gavin Payne the Operations Manager of Deanes Transit Group. I was informed that the CCTV on the "Wallaby" bus was not functioning and that there was no CCTV footage available of the incident. I was also informed that Michael Fisher has reported having an altercation with [the student].
7. On the morning of Saturday 26th June 2010 Michael Fisher attended Yass Police Station in company with Gavin Payne, the Operations manager of Deanes Transit Group. I had conversation with Mr Fisher and Mr Payne which lasted approximately half an hour. During that conversation I explained the nature of the complaint. Mr Fisher informed me that he had been having disciplinary issues with students on the bus and that [the student] was one of the worst behaved students. He stated that bullying between students was common as was the use of offensive language including the words "Sluts" and "Virgins." Mr Fisher stated that it was common that the students spoke to each other on the bus in codes which he initially did not understand but had since learnt what the codes meant and that they referred to offensive words.
8. Mr Fisher stated an incident took place between he and [the student] on the 3rd June 2010 and not the 22nd of June 2010 as alleged by [the student]. He informed me on this day the students were being particularly offensive to each other in a light hearted manner calling each other "Sluts" and "Virgins". Mr Fisher stated he joined in this conversation and said to [the student] , "Are you a slut or a virgin?" He did this merely to join in the conversation between students and in no way was it his intention to cause any offence to any person on the bus.
9. Mr Fisher was informed of the allegations that students were permitted to ride on various locations in the bus not designed to carry passengers and it was common for students to ride in the aisle, swing on the bars and sit on the dash board whilst the bus was in motion. He also informed me that he did carry lollies on the bus for himself but also occasionally gave lollies to students to reward good behaviour.
10. Mr Fisher was extremely upset and remorseful when talking with me. He informed me that it was his belief that his employment would be terminated.
11. Later that morning [the student] attended Yass Police Station in company with [the student's mother]. [The student] made a number of allegations about Mr Fisher and the conduct of students on the school bus. These allegations were consistent with the conversation I had the previous evening with [the Principal] and were consistent with the admissions made by Mr Fisher. [the student] handed me a hand written statement she had written herself in relation to this matter. I read this letter, made a copy of it and handed the original back to [the student]. I later forwarded a copy of this letter to Gavin Payne at Deanes Transit group. I understand the Department of Transport were also forwarded a copy of this statement.
12. I formed an opinion that the matter was best dealt with through the disciplinary processes available to Deanes Transit Group and the Department of Transport.
13. I have since been informed that a second complaint was made by [the parent] in regards to Mr Fisher and his conduct on the school bus. I have known [the parent] for approximately six months. On Friday 13th August 2010 I spoke to [the parent] about this matter. [The parent] informed me she has daughters that use the "Wallaby" school bus and they had also complained to her about the conduct of Mr Fisher. The nature of the complaint was similar to the complaint made by [the student],
24 Under cross-examination Sergeant Ludkin indicated if there were discrepancies between his recollection of events as recorded in his statement and those recorded in the COPs entry, the Tribunal should accept that the COPs entry was made close to the time of the interviews and is likely to be the more accurate of the two. 25 The Respondent's case is essentially as set out in the reasons for decision provided in relation to the determination. The Respondent contends that as the driver of a public passenger vehicle Mr Fisher was entrusted to convey students on a school bus however he engaged in inappropriate behaviour and conversations with school students and unsafe driving practices whilst he was the driver of the bus. 26 The Respondent submits that the fact that Mr Fisher behaved in such a manner whilst he was the driver of a public passenger vehicle casts grave doubts on his fitness to hold a public passenger vehicle driver authority and his ability to carry out the duties and responsibilities of the position according to law and custom. It further submits that future passengers would find it unacceptable to be in a public passenger vehicle driven by a person to have behaved in such a manner. 27 Mr Wozniak says that, based on the above facts and law, it can no longer be attested that Mr Fisher meets the required standards for authorisation as a public passenger vehicle driver. Accordingly, he says that the decision to cancel Mr Fisher's authority should be affirmed.
Mr Fisher's case
28 Mr Fisher attended the hearing, gave evidence and was cross-examined. He relies on an unsworn statement that he adopted for the purpose at the hearing and a number of references. The authors of the references each indicated that they considered Mr Fisher to be a person of good character. 29 In his statement dated 26 July 2010 Mr Fisher provided a response to the various issues raised by the Respondent. He wrote:
In your incident report you have stated that you have been advised that I have admitted to both my employer and the police to a series of allegations. This is not correct. What I have agreed to is that incidents did occur but my involvement in those incidents is not as indicated in the incident report. My involvement in these incidents has been grossly misrepresented and I provide below details of the events and my involvement as a bus driver.I believe that I have not done anything unprofessional that warrants my suspension or dismissal and that I am a victim of a spiteful accusation from a 12 year old student passenger [the student] who does not behave on the bus run.
Overview
On 25 May 2010, I started 2 new runs which continued to 25 June (Wombat - Yass school run & Yass to Canberra Route 981/982 runs). On this bus (a flat floor wheelchair bus) during this period there was no yellow line on the floor near the driver to indicate to students or adults where they could or could not stand. I recall in my induction that passengers were to stand behind the yellow line. Without this yellow line, which I understand is in other buses, it makes it difficult for both driver and passenger to accurately specify where a passenger can or cannot stand.
I was informed on 25 June 2010 that the bus did not have a working video security system for the duration of the time I was doing these runs. If it had been working it would provide you with a better view of what was happening on these runs and support my position.
Distribution of lollies
I did have lollies on the bus for my own use. On one occasion I accidentally left the bag of lollies beside the ticket machine. As a result, some students asked for the lollies. I offered these lollies to those students who were behaving, as a reward for good behaviour. Some students on the bus do not behave or follow instructions to be seated and hence they did not get a lolly. I had the lollies there for a couple of days.
At the end of a shift I mentioned this to my manager (David Field), he advised that it would be better to not have the lollies on the bus as it could create problems. I subsequently did not take lollies on any bus run. However, on subsequent trips students demanded lollies and some demanded them as they did not get them previously. After I removed the lollies, one student had some of her own lollies on the bus and some other students thought I had handed them out again and they were upset that I had not distributed them to others. I recall that one of these students [the student], who did not get a lolly, was upset and retaliated by making a slanderous accusation about me as she left the bus, on 24 June 2010 morning run. I subsequently reported this incident to Gavin Freeman (my supervisor).
Standing forward of the driving seat
Firstly, the allegations do not identify specific dates when the incidents took place or on which bus or on which run. It makes it difficult for me to be able to accurately address these allegations without specific details being made known to me.
On 25 May 2010, I started 2 new runs which continued to 25 June 2010 (Wombat - Yass school run & Yass to Canberra Route 981 run). During the school run kids occasionally came up to me to let me know where they were to get off as I was still learning where students were to get off. On this bus (a flat floor wheelchair bus) there is no yellow line on the floor near the driver to indicate to students where they could or could not stand. I did not allow students to stand where they could obscure my vision or stand where I thought it would be unsafe. Students did not stand forward of the driver's seat, they occasionally came near the driver's seat to advise me where they were to be let off. There were times that I turned off the buzzer as the students were constantly pressing the buzzer for fun in spite of being advised not to, which required them to walk forward to advise me when they needed letting off. I have been informed that the buzzer on other Deanes (Transborder) buses doing the other morning runs is permanently off and passengers walk forward to advise the driver when to be let off. Based on the practice of turning the buzzer off in other buses I assumed that it was okay by Deanes for this to happen.
Often in the afternoons, the bus was full and students stood to let older adults sit, this resulted in students standing at the front section of the bus (in a position that did not obscure my driving view). In some cases I asked students to stand to let the older adults have a seat, occasionally those students were reluctant to assist. There were some students who were trouble makers and I asked them to sit rather than stand to avoid problems. One of those students ([the student] - who I understand is the complainant), together with her sister and brother, were constantly misbehaving, moving around the bus and refusing to stay seated when told. When they were not on the bus the other students were better behaved.
I have been informed that the bus did not have a video security system that was working for the duration of the time I was doing these runs. If it had been working it would provide you with a better view of what was happening on these runs.
Student kiss
On either 22 or 23 June 2010, on an afternoon run, two students (brother and sister) came up to the front of the bus to get off. As I reached (turned to the right) for the button to open the door to let them off (the button is located on the right of the driving compartment), the female student asked for a jolly and reached to the bag to get some. As my face was turned to the right to press the door button she gave me a quick kiss on the cheek, said thank you and left the bus. This was a shock to me and I did not respond to the situation nor did I encourage it to occur. This incident was totally out of my control to prevent. This student did say to me the following day that she was sorry for the kiss and was concerned that her action could get me into trouble. If you have doubts about these facts I believe you need to contact this student to verify the above events.
I understand that [the student] was still on the bus at that time of this event and would have seen this incident.
Inappropriate language
During the 2nd or 3rd week of my run, on an afternoon school run, I noticed that [the student] was constantly moving among seats cuddling boys, sitting on their laps and generally messing around. I could vaguely hear them referring to each other using letters like T, V, S. This type of discussion had been occurring among student for a number of days prior to this incident. As a consequence, I asked [the student], as she and her brother and sister were getting off the bus what was going on, why she was being teased and what was being said. They explained that T was for Tart, V for Virgin or some other word and S for Slut. I was shocked at the use of these words as they are not words I would normally use, it was the students who used these words. I did not ask [the student] if she was a virgin or a slut and strongly deny my involvement in the use of these offensive words.
Final comments
Following the 24 June 2010 incident which involved [the student] making a slanderous accusation about me and my reporting this to my manager, the bus company contacted [the student]'s school about her behaviour and the school contacted [the student]'s parents. I provided the police with a statement as did [the student].
My report to the police was in respect of the slanderous accusation and the above inappropriate language. Contrary to your incident report, I do not recall my discussion with the police involving the issues of students standing forward in the bus or the kiss incident.
I believe that this complaint has come about because I raised concerns with the bus company about a slanderous accusation made by [the student] towards me. Her reaction has been to raise a series of accusations as revenge to my taking this matter up with the bus company.
You have mentioned that you have evidence from the NSW Police and Deanes Transit Group about this incident. As I have not been given a copy of either pieces of evidence, I am unable to address any issues raised in those reports, apart from what you have put in your statement of reasons or to accurately refute what they may have been said. As a matter of procedural fairness I request a copy of that evidence so I can properly address concerns raised if necessary.
Shortly before I started this run, my motor home was stolen and burned. This incident and the subsequent dislocation to my life has been a constant concern to me and may have affected my judgement in the early stages of my new bus run, when a number of these alleged incidences occurred.
30 Mr Fisher maintained a consistent position in his evidence before the Tribunal. However, Mr Fisher struggled to answer questions put to him by Mr Wozniac. He clearly has difficulty in comprehending the seriousness of the allegations. 31 Mr Bradbury, Mr Fisher's solicitor, submitted that the Tribunal should prefer Mr Fisher's explanation of the events and should find that Mr Fisher is a fit and proper person to hold an authority. He submitted that in these circumstances the correct and preferable decision is to set aside the determination and allow Mr Fisher's employer to determine whether he should be able to continue his employment as a bus driver.
Discussion
32 The issue to be determined by the Tribunal is whether the decision of the Respondent was the correct and preferable decision in all the circumstances. The Tribunal's decision must be made on the basis of all relevant factual material. 33 This requires a determination of the question of whether or not Mr Fisher can be considered to be a fit and proper person for the purposes of authorisation as a bus driver pursuant to the Act. I must consider whether he can be regarded as being of good repute; and having sufficient responsibility and aptitude to drive a public passenger vehicle. 34 Chief Justice Mason in Australian Broadcasting Tribunal v Bond (1990) HCA 33; (1990) 170 CLR 321 at (63) said that:
"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."
35 Toohey and Gaudron JJ said at 380:
"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. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question."
36 A person's fitness is to be gauged in light of the nature and purpose of the activities that the person will undertake: Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) HCA 28; (1955) 93 CLR 127. Knowledge, ability, moral integrity and the rectitude of character necessary to fulfil the role for which a licence is sought are proper considerations: Sobey v Commercial and Private Agents Board 20 SASR 70. Thus the nature of the industry in which the person concerned wishes to operate affects a consideration of whether a person is a "fit and proper person" to operate in that industry. 37 In Chaining v Commissioner of Police, NSW Police Service (1999) NSWADT 6 at (41) the President of this Tribunal made the following comments on the issue, in the context of the security industry:
`Whether a person is `fit and proper' to hold a licence in a regulated industry will be affected by general considerations relating to the character of the person, special considerations that take account of the nature of the industry in issue and the public policy objective leading the legislature to regulate the industry.
38 The concepts of "fit and proper" and "good repute" were also discussed in Saadieh v Director-General Department of Transport (1999) NSWADT 68 where the Deputy President set out a number of factors based on the terms of the legislation and case law that need to be taken into account in determining a person's suitability and fitness to obtain an authority. These factors were:
- The nature, seriousness and frequency of any criminal offences for which the Applicant 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.
39 It is not in dispute that Mr Fisher does not have any criminal history. Nor is there any suggestion that he has a driving record that should prevent him from driving buses. I am satisfied that Mr Fisher is well regarded by those individuals who provided references on his behalf. However, there is nothing to indicate that they are aware of these proceedings. For the references to be given full weight, it is important that the referees be advised of the nature of proceedings and comment as to whether they consider that the nature of the complaints made against Mr Fisher are out of character. 40 The significant issue is the nature and seriousness of the complaints made against him and the likelihood that he will be the subject of further complaints. 41 In this matter the evidence against Mr Fisher stems from the student and another student who were passengers on the bus driven by Mr Fisher. A copy of the complaint from the student is before the Tribunal, however neither of those student's gave evidence. Statements provided by the mothers of each student and the Principal are also in evidence. However, neither the mothers nor the Principal were witnesses to any of the incidents referred to in the complaints. Mr Fisher has disputed their versions of events but he has not sought to have them available for cross-examination. 42 Sergeant Ludkin attended the hearing, gave evidence and was cross-examined. In my view he was a reliable witness. However, he was not a witness to any of the incidents referred to in the complaints. This lack of direct evidence has caused me some difficulty in determining whether there is substance to the complaints. 43 Mr Fisher was not an impressive witness. He had difficulty in responding to some of Mr Wozniak's questions. However, I do not believe that this was as a result of any dishonesty on his part. In my view he simply did not have a clear understanding of what he was being asked. This remained the situation despite Mr Wozniak's efforts to simplify his questions and to provide Mr Fisher with the opportunity to clarify his answers. 44 In my view, the COPs entry recorded by Sergeant Ludkin has probably provided an accurate account of the information provided to him. However, it is also probably that the information that Mr Fisher provided reflected his lack of understanding of what he was being asked. There is no recorded interview that would clarify this situation. 45 In my view, it is probable that as the driver of a school bus Mr Fisher found himself in a situation that he was unable to manage. He lacks the skills needed to manage a large group of challenging students. Having found himself in that situation he took steps to deal with it as best he could. That included rewarding what he considered good behaviour with lollies and it probably included allowing some more assertive students to behave in ways that should not have been permitted, for example travelling at the front of the bus and giving directions to younger or less assertive students. Clearly, Mr Fisher was 'out of his depth' and managed the situation poorly. 46 As I have noted above, the concept of 'fit and proper' 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 driver of a a public passenger vehicle must be 'fit and proper' for that role and must have sufficient responsibility and aptitude to perform it. 47 On the evidence before me, I am not able to attest that Mr Fisher has sufficient responsibility and aptitude to drive a public passenger vehicle. In my view, it is almost inevitable that he would be the subject of further complaints i f he were permitted to continue in that role. 48 It may well be that Mr Fisher can take steps to develop the necessary skills that would allow him to undertake the type of employment that he has been carrying out, but at this time the evidence suggests that he does not have sufficient responsibility and aptitude to perform it. On the material before me, I am satisfied that the Respondent's decision is the correct and preferable one. However, were Mr Fisher able to satisfy the Respondent that he has taken steps to develop the necessary responsibility and aptitude and that its concerns are no longer warranted, the Respondent may well adopt a different approach.
Order
49 The decision under review is affirmed.
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