Adams v Director General, Department of Transport

[2002] NSWADT 60

CITATION:	Adams -v- Director General, Department of Transport [2002] NSWADT 60
DIVISION:	General Division
PARTIES:	APPLICANT Robert William Adams RESPONDENT Director General, Department of Transport
FILE NUMBER:	013194
HEARING DATES:	01/02/2002
SUBMISSIONS CLOSED:	02/01/2002
DATE OF DECISION:	04/22/2002
BEFORE:	Wilson K - Judicial Member
APPLICATION:	Long Distance Service operator - grant of accreditation - Passenger Transport Act - long distance service operator - grant of accreditation - Passenger Transport Act - tourist service operator - grant of accreditation - Tourist Service operator - grant of accreditation
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Passenger Transport Act 1990
CASES CITED:	Berry -v- The Director, Dept Transport [2000] NSWADT 71
REPRESENTATION:	APPLICANT In person RESPONDENT A Wozniak, solicitor
ORDERS:	The decision of the Director General, Department of Transport to refuse accreditation is affirmed.

1 By letter dated 26 April 2001, the Director General of the Dept Transport notified the applicant that he had decided to refuse an application to operate a tourist and charter service made by the applicant. The decision was based on an assessment of the applicant’s background in running such services and his history of being involved as a director of companies that had failed to meet the accreditation standards and a series of convictions against the company that had followed from those incidents. There were other matters as well related to maintenance of records in accordance with the accreditation standards.

2 The Tribunal’s decision in Berry -v- The Director, Dept Transport is a previous decision of this Tribunal which dealt with similar issues and comprehensively sets out the terms of the structure of the Act. In essence the accreditation relates to the capacity to operate and manage the relevant public transport service .

3 Mr Adams applied for internal review of the decision to refuse his application and he was advised by letter dated 5th July 2001 that the internal review confirmed the original decision. An application for review of that decision was then filed with the Administrative Decisions Tribunal on 8th August 2001. Following the receipt of the application the matter was then subject to a series of directions in an attempt to prepare the matter for hearing. The matter was set down for hearing in October 2001 but was adjourned as Mr Adams was not ready to proceed and wished to engage a lawyer to represent him. The matter was then subject to further directions and finally was mentioned on 29th November 2001 at which stage further directions were given to prepare the matter for hearing and the matter then proceeded to hearing on 1st February 2002. Mr Adams was not represented at the final hearing.

Jurisdiction

4 Section 10(1) of the Passenger Transport Act 1990 gives the Director General the power to suspend or cancel an accreditation.

5 The Tribunal has jurisdiction to hear this matter under Section 52(1) of the Act which states that any person who has been refused accreditation may apply to the Tribunal for a review of that decision.

Relevant Legislation

6 The Passenger Transport Act establishes a scheme for the accreditation of people who carry on public passenger service by means of a bus or other vehicle. The clear purpose of the accreditation is to ensure among other things that the accredited person has demonstrated the capacity to meet the government’s standards of operation. Section 7 of the Act sets out among other things that the accredited person has to demonstrate the capacity to meet the government’s standards of financial viability, safety of passengers in the public and vehicle maintenance to the degree and in the manner required in respect of services of the kind specified in the accreditation. The accreditations are published in a standard.

7 In the case of Mr Adams’ application the Director General formed a view that he did not have the capacity to meet the government’s standards in relation to the safety of passengers and that he had not demonstrated sufficient capacity in view of the history of matters that he had been involved in to provide services in accordance with those standards.

Evidence

8 At the hearing Mr Adams gave evidence and subjected himself to cross examination by Counsel for the Director General. The other evidence in this matter is contained in the various files of the Dept of Transport that were before the Tribunal. Whilst there is quite a volume of material, the matters in which this matter focuses are reasonably straight forward.

9 Mr Adams has been involved in the public transport business for many years. He principally was involved in a company named Allways Trading Pty Ltd. This company subsequently went out of business. As a director of this company Mr Adams and his fellow director were summonsed in relation to offences of operating a bus whilst not fitted with driver monitoring devices and allowing unauthorised drivers to drive the bus and failing to implement driver monitoring systems. Each of these matters whilst proved was dismissed pursuant to Section 556A of the Crimes Act. The offences were for breaches of the accreditation standards.

10 There were also convictions recorded on 45 counts of operating a bus whilst not fitted with driver monitoring devices and finds were imposed on each of these counts totalling $20,430.00. These offences were breaches of the accreditation standards.

11 There was also a further conviction of an offence of allowing an unauthorised driver to drive the public passenger vehicle and there was a fine totalling $454.00 in respect of this matter which was also a breach of the accreditation standards.

12 There were also some other incidents of not maintaining vehicles in an appropriate way and a failure to comply with a Section 42 notice requiring the delivery of records relevant to public passenger services.

13 It was common between the parties that these matters in relation to Allways Travel Pty Ltd had been the subject of considerable interaction between the Department and the companies which Mr Adams was involved with. Mr Adams continued to operate the service with appropriate personnel. Problems arose in relation to the hiring of extra vehicles which were hired from another company associated with Mr Adams which were not fitted with the necessary monitoring devices.

14 Mr Adams in his evidence conceded that there had been a number of issues in the past which he had been involved in as a director of companies which had amounted to breaches of the accreditation standards. These were not isolated incidents and had occurred over a substantial period of time. Mr Adams gave evidence that he had relied on other directors and some personnel in the company in respect of these matters. Ultimately however he conceded that these were matters which he ought to have known of or did know of at a subsequent occasion. He also conceded that he had been given opportunities by the Department to correct these matters and notwithstanding that there were continuing breaches.

15 Mr Adams has been the mainstay of the business operation and it was clear to the Tribunal that he has some frustration in attending to all the various requirements. It is also clear to the Tribunal that he was aware on various occasions that vehicles without proper monitoring devices were being used and that this was a significant breach of the accreditation standards. This observation arises from the fact that on numerous occasions he had been involved in dealing with offences under the Act which had resulted in convictions and fines. He had been given many opportunities to ensure that going forward his business was operated in accordance with the requirements of the accreditation standards.

16 Mr Adams gave evidence that he saw his personal application as separate to that of the companies. He accepted however the propositions put to him by Mr Wozniak about the application of the Act in terms of directors duties where licensee companies are involved. He also accepted the propositions put to him by Mr Wozniak as to his personal knowledge of matters which he considered would be attended to by another director but he had clear knowledge that these matters were not being properly managed.

Reasons for Decision to Refuse Accreditation

17 The reason that the application was refused by the Director General was that as a director in Allways Travel Pty Ltd Mr Adams had made a declaration that he would comply with government standards of accreditation in relation to operating long distance tourism charter services. The Director General took the view that Mr Adams as a director of that company had demonstrated that he was not able to meet these standards and that therefore he should not be considered as being a responsible person to operate public passenger services.

18 It is clear that the Director General relied on the long history of matters involving Mr Adams and his company to come to this view.

Reasoning and Decision

19 As it has been demonstrated in this decision Mr Adams has had a long history of involvement in the public transport business. He has operated a number of services and he has a long history with non compliance with accreditation standards and of particular concern much of this relates to operating vehicles that do not have appropriate vehicle monitoring devices. This requirement in the standards is central to the safe operation of the public transport system.

20 The requirements of the accreditation standards are set out for operators to understand their responsibility within the public transport system. Directors of companies involved in the operation of such services do not have the benefit of separating their personal and corporate responsibilities. Directors are required to ensure that their company operates the service in accordance with the law.

21 In the case of Mr Adams there have been significant interventions over a period of time from which it is reasonable to make a conclusion that Mr Adams was clearly capable of understanding what the requirements were under the standards. There were sufficient incidents of intervention by the Department and ultimately through the court process for these matters to be central in his understanding of what’s involved in operating such a service.

22 It is clear to the Tribunal that the decision of the Director General was based on a sound understanding of Mr Adams’s operating history and it was reasonable for the Director General to refuse Mr Adams’s personal application for accreditation.

23 The Tribunal is satisfied that on the basis of the evidence before it and the material contained in the departmental files that there is more than sufficient evidence to conclude that Mr Adams does not have sufficient responsibility and aptitude to provide services in accordance with government standards. The Tribunal is satisfied that the Department of Transport has undertaken on several occasions attempts to ensure compliance with these standards and notwithstanding all of those efforts and the history of convictions against the accreditation standards that Mr Adams does not meet the standards required by the community for granting the accreditation he sought.

24 For the reasons set out above the Tribunal determines that the decision of the Director General, Department of Transport to refuse Mr Adams application for accreditation is affirmed.