Afchal v General Manager, Tow Truck Authority of NSW

[2001] NSWADT 223

CITATION:	Afchal -v- General Manager, Tow Truck Authority of NSW [2001] NSWADT 223
DIVISION:	General Division
PARTIES:	APPLICANT Jihad Afchal RESPONDENT General Manager, Tow Truck Authority of NSW
FILE NUMBER:	013289
HEARING DATES:	14/12/2001
SUBMISSIONS CLOSED:	12/14/2001
DATE OF DECISION:	12/31/2001
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	Tow Truck Industry Act - tow truck operator or driver - grant of licence or certificate - Tow Truck operator or driver - grant of licence or certificate
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Tow Truck Industry Act 1989 Tow Truck Industry Regulation 1999
CASES CITED:
REPRESENTATION:	APPLICANT In person RESPONDENT P Ranken, solicitor
ORDERS:	The decision of the respondent to refuse to issue the applicant with a tow truck driver’s certificate is affirmed.

Introduction

1 At the directions hearing in this matter on 14 December 2001, the parties agreed that the matter should be decided “on the papers” pursuant to s 76 of the Administrative Decisions Tribunal Act 1997 (ADT Act). The issue for determination is whether the respondent has made the “correct and preferable” decision in refusing Mr Afchal’s application for a driver’s certificate under the Tow Truck Industry Act 1998 (TTI Act).

2 Under s 26(1) of the TTI Act, the Tow Truck Authority must refuse to grant an application for a driver’s certificate on mandatory grounds. Some of those grounds are listed in s 26(1). Other grounds are listed in the Tow Truck Industry Regulation 1999 (the Regulation). Clause 17(b) of the Regulation provides the an additional mandatory ground that:

(b) the applicant has, within the period of 3 years before the application for the driver certificate was made, been disqualified from holding a driver licence.
3 The Tribunal has jurisdiction to hear this application under s 45(1) of the TTI Act.

Facts
4 Mr Afchal agreed that he was disqualified from holding a driver licence for the period from 24 September 1997 to 14 September 2000. Mr Afchal said that when he originally applied for a tow truck certificate, it was granted. He then bought an $80,000 tilt tray. When it was time to renew his certificate the Tow Truck Authority refused his application. He would like a driver certificate so that he can continue to do the work that he was previously doing.

Decision
5 The date on which Mr Afchal applied for a certificate is not apparent from the papers. However, regardless of the date of the application, Mr Afchal will not be eligible to apply for a driver certificate until 24 September 2003. On that date he will not have been disqualified within the period of 3 years before the application. It appears that Mr Afchal’s confusion may have arisen from the fact that the legislation has changed and while he may have previously been eligible for a driver certificate the legislation now prevents a certificate from being issued. Neither the Tow Truck Authority, nor the Tribunal has any option but to refuse the certificate given the mandatory grounds in the legislation.