Assadourian v Roads and Traffic Authority - [2013] NSWADT 6

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Assadourian v Roads and Traffic Authority [2013] NSWADT 6
Hearing dates: 12, 13 June 2012, 4 July 2012
Decision date: 11 January 2013
Jurisdiction: General Division
Before: S Montgomery, Judicial Member
Decision:
1. In Matter No. 093327 the decision under review is affirmed
2. In Matter No. 113148 the decision under review is varied to provide that the Applicant is disqualified from holding an operators licence or a drivers certificate for a period of two years from 28 days after the date of this decision.

Catchwords: Tow Truck Industry Act - refusal of application for drivers certificate - 'fit and proper person' - disqualification - carry on business as a tow truck operator
Legislation Cited: Administrative Decisions Tribunal Act 1997
Tow Truck Industry Act 1998
Tow Truck Industry Regulation 2008
Cases Cited: A Solicitor v Council of the NSW Law Society (2004) 216 CLR 253.
ASP Ship Management Pty Limited v Administrative Appeals Tribunal (2006) 149 FCR 261; [2006] FCAFC 23 at paragraph [94]:
Assadourian v Roads and Traffic Authority of New South Wales (Northern Region) [2011] NSWSC 1052
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; [1990] HCA 33
Besser v Kermode [ 2011] NSWCA 174
Chaining v Commissioner of Police, NSW Police Service (1999) NSWADT 6
Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25
Department of Transport and Infrastructure v Murray (GD) [2011] NSWADTAP
Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65
Ereira v Roads and Traffic Authority (No 2) [2010] NSWADT
Gurdler v Roads and Maritime Services [2012] NSWADT 29
Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21
Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127
Humberstone v Northern Timber Mills (1949) 79 CLR 389
In re Davis [1947] HCA 53; (1947) 75 CLR 409
L&B Linings Pty Ltd v WorkCover Authority of New South Wales [2011] NSWSC 474.
Law Society of NSW v Bannister (unreported Court of Appeal, 27 August 1993, BC930181
Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642
Palumberi -v- General Manager, Tow Truck Authority of New South Wales [2001] NSWADT 206
Raymond Robbins v Business Licensing Authority (2000) VCAT 457
Sobey v Commercial and Private Agents Board 20 SASR 70
Trilin v Commissioner of Fair Trading [2003] NSWADT
Category: Principal judgment
Parties: John Assadourian (Applicant)
Roads and Traffic Authority of New South Wales (Respondent)
Representation: Counsel
M Condon (Applicant)
J Kirk SC and J King (Respondent)
Sage Solicitors (Applicant)
Smythe Wozniak Legal (Respondent)

File Number(s): 093327, 113148

REasons for decision

GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): These matters concern determinations under the Tow Truck Industry Act 1998 ("the Act") by the Respondent, the Roads and Traffic Authority of New South Wales ("the RTA") in relation to Mr John Assadourian.

Matter No. 093327

In December 2009, pursuant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NSWADT 6
Decision Date: 11 January 2013

CaseChat Overview and Summary

Assadourian sought a drivers certificate under the Tow Truck Industry Act, which was refused by the Roads and Traffic Authority. The applicant appealed this refusal, and the Authority cross-appealed the decision to dismiss its application to disqualify the applicant from holding a drivers certificate. The court had to determine whether the applicant was a fit and proper person to hold a drivers certificate, and whether the Authority's refusal was justified. The court also had to consider the appropriate penalty, if any, for the applicant's conduct.

The court found that the applicant was not a fit and proper person to hold a drivers certificate, as he had been convicted of an offence involving dishonesty or misconduct, and had failed to disclose this conviction to the Authority. The court also found that the Authority's refusal was justified, as the applicant's conduct demonstrated a lack of integrity and unsuitability to hold a drivers certificate. The court further found that the appropriate penalty for the applicant's conduct was a two-year disqualification from holding an operators licence or a drivers certificate.

The court affirmed the decision to refuse the applicant's application for a drivers certificate, and varied the decision to impose a two-year disqualification on the applicant. The court held that the applicant's conduct demonstrated a lack of integrity and unsuitability to hold a drivers certificate, and that the penalty imposed was just and appropriate in the circumstances.

Orders

Orders of the court

1. In Matter No. 093327 the decision under review is affirmed

2. In Matter No. 113148 the decision under review is varied to provide that the Applicant is disqualified from holding an operators licence or a drivers certificate for a period of two years from 28 days after the date of this decision.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Assadourian v Roads and Traffic Authority [2013] NSWADT 6
Hearing dates:	12, 13 June 2012, 4 July 2012
Decision date:	11 January 2013
Jurisdiction:	General Division
Before:	S Montgomery, Judicial Member
Decision:	1. In Matter No. 093327 the decision under review is affirmed 2. In Matter No. 113148 the decision under review is varied to provide that the Applicant is disqualified from holding an operators licence or a drivers certificate for a period of two years from 28 days after the date of this decision.
Catchwords:	Tow Truck Industry Act - refusal of application for drivers certificate - 'fit and proper person' - disqualification - carry on business as a tow truck operator
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Tow Truck Industry Act 1998 Tow Truck Industry Regulation 2008
Cases Cited:	A Solicitor v Council of the NSW Law Society (2004) 216 CLR 253. ASP Ship Management Pty Limited v Administrative Appeals Tribunal (2006) 149 FCR 261; [2006] FCAFC 23 at paragraph [94]: Assadourian v Roads and Traffic Authority of New South Wales (Northern Region) [2011] NSWSC 1052 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; [1990] HCA 33 Besser v Kermode [ 2011] NSWCA 174 Chaining v Commissioner of Police, NSW Police Service (1999) NSWADT 6 Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25 Department of Transport and Infrastructure v Murray (GD) [2011] NSWADTAP Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 Ereira v Roads and Traffic Authority (No 2) [2010] NSWADT Gurdler v Roads and Maritime Services [2012] NSWADT 29 Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21 Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 Humberstone v Northern Timber Mills (1949) 79 CLR 389 In re Davis [1947] HCA 53; (1947) 75 CLR 409 L&B Linings Pty Ltd v WorkCover Authority of New South Wales [2011] NSWSC 474. Law Society of NSW v Bannister (unreported Court of Appeal, 27 August 1993, BC930181 Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642 Palumberi -v- General Manager, Tow Truck Authority of New South Wales [2001] NSWADT 206 Raymond Robbins v Business Licensing Authority (2000) VCAT 457 Sobey v Commercial and Private Agents Board 20 SASR 70 Trilin v Commissioner of Fair Trading [2003] NSWADT
Category:	Principal judgment
Parties:	John Assadourian (Applicant) Roads and Traffic Authority of New South Wales (Respondent)
Representation:	Counsel M Condon (Applicant) J Kirk SC and J King (Respondent) Sage Solicitors (Applicant) Smythe Wozniak Legal (Respondent)
File Number(s):	093327, 113148