Assadourian v Roads and Traffic Authority
[2013] NSWADT 6
•11 January 2013
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 2008Cases 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] NSWADTCategory: 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 to section 26(1)(b) of the Act, the Respondent refused the Applicant's application for a tow truck drivers certificate on the grounds that:
(a)the Applicant was not, in the opinion of the Respondent, a fit and proper person to hold a drivers certificate: (section 26(3)(a) of the Act); and
(b)the granting of a drivers certificate would, in the opinion of the Respondent, have been contrary to the public interest (section 26(3)(d) the Act).
The reasons for decision in relation to that application set out a history of issues that the Respondent contends support the determination. The decision maker summarises the reasons for refusal of the application for a tow truck drivers certificate as follows:
Mr Assadourian has demonstrated over a long period of time that he cannot be trusted to conduct his towing business in accordance with the Tow Truck industry Act, and Regulation. Mr Assadourian, and his company Towman Pty Ltd, have repeatedly been detected falsifying records in order to obtain financial reward, either in excess of what he was entitled to charge or for services that he did not provide. He has also been found to have failed to keep records of his holding yard on numerous occasions, to have failed to comply with a direction from a Police officer to leave the scene of an accident, failed to obtain a towing authorisation from a person at the scene of an accident when towing their vehicle and recorded false and misleading information in a towing authorisation to obtain towing work.
Mr Assadourian has a history of breaches of the Tow Truck Industry Act. In 2007, he pleaded guilty to five offences under the Act against both himself as a Director of Towman Pty Ltd and against Towman Pty Ltd. As a result Mr Assadourian has received a significant financial penalty (fines and legal costs of $13,360) however this has not deterred Mr Assadourian from allegedly continuing to breach the legislation which governs the industry in which he works. Mr Assadourian has failed to change his behaviour demonstrated by him being served with prosecution documents outlining a further nine breaches of the Tow Truck Industry Act against himself and his company Towman Pty Ltd.
Mr Assadourian and Towman Pty Ltd have now only recently been charged with further matters under the Tow Truck Industry Act. While these matters have yet to be dealt with in court, the number of offences and the nature of these offences lead me to believe that Mr Assadourian has not improved his approach to record keeping or to the provision of towing services since he was previously prosecuted by the then TTA. I therefore am unable to be satisfied that John Assadourian is a fit and proper person to hold a tow truck drivers certificate. Additionally, I believe that it would be contrary to the public interest for Mr Assadourian to hold a tow truck drivers certificate.
Matter No. 113148
In June 2011, pursuant to section 41(2)(c) of the Act, the Respondent disqualified the Applicant from holding an operators licence or a drivers certificate until 1 June 2021 on the grounds that:
(a)the Applicant had been charged with an indictable offence (section 42(1)(b) of the Act);
(b)the Applicant had contravened provisions of the Act and the regulations (section 42(1)(d) of the Act);
(c)the Applicant was not, in the opinion of the Respondent, a fit and proper person to hold an operators licence or a drivers certificate (section 42(1)(f) of the Act); and
(d)the Applicant had, in the opinion of the Respondent, been engaged in fraudulent or dishonest conduct or activity in connection with the licensee's business as a tow truck operator (section 42(1)(h) of the Act).
The Applicant has applied to the Tribunal for review of each of the Respondent's decisions. The Tribunal has made orders staying each of the decisions.
The reasons for decision in relation to that determination set out a history of issues that the Respondent contends support the determination. The decision maker provided the following explanation for how the decision was reached:
On 25 May 201 I information was received by the RTA which led to a search of John Assadourian's criminal record through the NSW Police COPS database.
This revealed that on 24 May 2011 police charged John Assadourian with the following offences:
1. Resist or hinder police officer in the execution of duty s.546c Crimes Act 1900
2. Certified driver not comply with direction of authorised officer x 2 s.66(1) of the Act
3. Threaten/intimidate/coerce to obtain towing work for other s.64(1)(b) of the Act
John Assadourian was granted conditional bail not to approach, contact, intimidate or harass directly or through a third person any witness in this matter.
These matters have been listed at Ryde Local Court on 15 June 2011.
In May 2010, following an investigation into contravention of the Act the RTA commenced a prosecution against John Assadourian and Towman Pty Ltd ("Towman"). He is alleged to have contravened s. 15 of the Act (Carry on business without licence) on 21 occasions between July and December 2009 by operating as an "owner/driver" under the guise of licensed tow truck operator Northern Division Towing Pty Ltd.
Similarly, Towman are alleged to have contravened s.15 of the Act on 21 occasions between July and December 2009 and prosecutions have been commenced by the RTA. These matters are currently before Parramatta Local Court and are next listed on 12 August 2011.
In 2010 John Assadourian was convicted at Parramatta Local Court of two offences against cl. 39 and cl, 51 of the Regulation (Fail to leave accident scene once authorisations obtained and failing to include invoice details as required).
Towman were also convicted at Parramatta Local Court of two offences against s. 58 and s. 60 of the Act (Not make record in holding yard register and not make record of towing work).
In December 2009 the RTA refused John Assadourian's application for a tow truck drivers certificate on the grounds that he was not a fit and proper person to be certified. This decision was based on John Assadourian and Towman's convictions in 2007 and 2010.
In July 2009 the RTA refused Towman's application for a tow truck operators licence on the grounds that Towman were not a fit and proper person to be licensed. This was based on John Assadourian and Towman's convictions in 2007 and 2010.
In 2007 John Assadourian was convicted at Parramatta Local Court of five offences against s. 59 and s. 88 of the Act (charging a fee in excess of the maximum fees and director knowingly allow breach). Towman were convicted at Parramatta Local Court of five offences against s.58 and s.60 (charging a fee in excess of the maximum fees and not maintaining records).
The Reasoning Process that led to the decision.
...
On 3 May 2011 John Assadourian attended a motor vehicle accident at High Street, Epping as a tow truck driver. It is alleged that whilst present at the accident he intimidated one of the motorists involved in the accident in an attempt to obtain towing work. It is also alleged that on a number of occasions he disobeyed directions given to him by police officers to walk away from the motorist and not to interfere in their duties. On 24 May 2011 John Assadourian was charged with these matters and conditionally bailed not to approach, contact, intimidate or harass directly or through a third person any witness or person in the matter. This matter has been listed for mention at the Ryde Local Court on 15 June 2011. The bail conditions prevent Mr Assadourian from performing his tow truck duties when any of the police officers involved in this matter are in attendance at an accident scene.
The motorist reported to police that she felt intimidated and irritated by John Assadourian allegedly standing in close proximity to her and pressuring her to authorise him to tow her motor vehicle. When the motorist declined Mr Assadourian's offer to tow her car and informed him that she would first call her insurance company he stood very close to her. When she asked John Assadourian to move away from her he took one step back but remained within one metre of her. The motorist made a call on her phone and stepped back before walking away from him back to her car. Mr Assadourian followed her and resumed standing near her while she was calling her insurance company. This caused the motorist to speak to her insurer in a soft voice for fear of Mr Assadourian hearing her personal details.
One of the female police officers at the scene walked to John Assadourian and told him to move away because the motorist was organising her own tow. John Assadourian replied, "Why? I'm not doing anything wrong. I'm just standing here." The police officer then directed Mr Assadourian to move away and wait by his tow truck and that if he did not comply he would be committing an offence with which he said, "Fine me, I don't care. Just do it." Mr Assadourian did not move away and he remained in close proximity to the motorist which resulted in the police officer directing to him move away for a third time. Mr Assadourian said, "Oh come on Ingrid, don't be like this. What is your problem anyway?" The police officer instructed Mr Assadourian not to address her or other police by their first name but to use their rank and surname.
Mr Assadourian remained at the car and when the female police officer attempted to photograph the front of the car Mr Assadourian remained standing in front of it. When the officer asked Mr Assadourian to move out of the way he turned his back to her and said, "Don't take photos Ingrid, don't do it." The officer repeated her request to Mr Assadourian several times before he moved away. When two other police officers arrived and spoke with the female police officer Mr Assadourian walked to his tow truck and left the scene.
John Assadourian's behaviour at this accident scene demonstrates that he cannot be entrusted to the motoring public as a tow truck driver or operator. He deliberately intimidated a lone female motorist in an attempt to pressure her to allow him tow her car. He did not move away when asked which caused police to intervene and he then did not comply with their repeated requests and directions to not only move away from the motorist but also move away from the front of the car to allow a police officer to photograph it.
The legislation is deliberately constructed to protect towing consumers from being exploited or intimidated at accident scenes, John Assadourian's actions are serious breaches and warrant immediate action by the RTA which is reinforced by the fact that police arrested and charged him.
John Assadourian has demonstrated over several years that he will breach the Act and that he cannot be entrusted to perform tow truck driver duties in accordance with the Act. He and his company Towman have repeatedly been detected falsifying records in order to obtain financial reward, either in excess of what he was entitled to charge or for services that he did not provide. He has also been found to have failed to keep required records, to have failed to comply with a direction from a Police officer to leave the scene of an accident, failed to obtain a towing authorisation from a person at the scene of an accident when towing their vehicle and recorded false and misleading information in a towing authorisation to obtain towing work.
In 2007, he pleaded guilty to five offences under the Act against both himself as a Director of Towman and against Towman. As a result he received a significant financial penalty however this has not deterred him from continuing to breach the legislation. John Assadourian has failed to change his behaviour as demonstrated in 2010 by him being served with prosecution documents outlining a further nine breaches of the Act against himself and his company Towman Pty Ltd.
In 2010 John Assadourian pleaded guilty to two offences under the Act against both himself and against Towman. The offences related to him as a tow truck driver failing to leave the scene of an accident when required and the non completion of invoices for towing work. Additionally, Towman was found guilty of two offences relating to not making record of towing work and failing to make entries in the Holding Yard Register.
The RTA is again prosecuting John Assadourian and Towman with a further 21 offences (each) against the Act which are currently before Parramatta Local Court. These matters were preferred under Section 15 of the Act, Carry on business without a licence, and relate to him operating as an "owner/driver" under the guise of licensed tow truck operator Northern Division Towing Pty Ltd.
Based on John Assadourian pressuring and intimidating a motorist to obtain towing work, refusing to comply with police directions, his previous convictions for offences against the Act and the number of offences he has committed against the Act the RTA find he is not a fit and proper person to hold a tow truck drivers certificate or operators licence, Additionally, it would be clearly contrary to the public interest for John Assadourian to hold a tow truck drivers certificate or operators licence.
The issues before the Tribunal
The parties are in agreement regarding the issues before the Tribunal.
The questions and issues before the Tribunal, insofar as they relate to the refusal power in s 26(1)(b), may broadly be outlined as follows:
(i)Is the Applicant not a fit and proper person to hold a drivers certificate?
(ii)Would the granting of a drivers certificate be contrary to the public interest?
(iii)If either (i) or (ii) is answered "yes", is a decision to refuse to grant the application the correct and preferable decision in all the circumstances (i.e. should the Tribunal, in its discretion, affirm the decision)?
The questions relating to the disqualification power are as follows:
(i)Has the Applicant contravened any provision of the Act or the regulations, whether or not he has been convicted of an offence for the contravention?
(ii)Is the Applicant not a fit and proper person to hold an operators licence or a drivers certificate?
(iii)If either (i) or (ii) is answered "yes", is a decision to disqualify the Applicant the correct and preferable decision in all the circumstances?
Applicable Law
Section 15 of the Act provides that tow truck operators must be licensed. That section states:
15 Requirement for tow truck operators to be licensed
A person must not carry on business as a tow truck operator unless the person holds a tow truck operators licence that authorises the kind of towing work carried on by the person in the course of that business.
Maximum penalty: 100 penalty units or imprisonment for 12 months, or both.
Section 20 of the Act provides that a licence may be granted subject to such conditions as may be specified in the licence. Section 20(2) provides:
(2) In addition to the conditions specified in a licence, a licence is subject to the following conditions:
...
(b) the licensee must keep the records and documents required to be made by the licensee under this Act or the regulations at the licensee's place of business,
...
(h) the licensee must not charge a fee for the towing, salvage or storage of a motor vehicle, or for any service that is related to or ancillary to the towing, salvage or storage of a motor vehicle, if the charging of the fee would be in contravention of the regulations, and must not demand, receive or accept such a fee,
(i) the licensee must not charge a fee for work that was not actually done by the licensee or by an employee or subcontractor of the licensee,
...
Section 23 of the Act provides that tow truck drivers must hold drivers certificates. That section states:
23 Requirement for tow truck drivers to hold drivers certificates
(1) A person must not:
(a) drive or stand a licensed tow truck on a road or road related area at any time, or
(b) use or operate, or assist in the use or operation of, a licensed tow truck on a road or road related area at any time, or
(c) drive or stand a tow truck (other than a licensed tow truck) on a road or road related area at any time for the purposes of towing a motor vehicle for fee or reward,
unless the person holds a drivers certificate.
Maximum penalty: 50 penalty units or imprisonment for 6 months, or both.
(2) A certified driver must not carry on any kind of towing work other than the kind of towing work that is authorised by the drivers certificate.
Maximum penalty: 50 penalty units or imprisonment for 6 months, or both.
Section 26 of the Act provides:
26 Restrictions on granting drivers certificate
(1)[The Respondent]
...
(b) may refuse to grant an application for a drivers certificate on discretionary grounds.
...
(3) The discretionary grounds for refusing to grant an application for a drivers certificate are as follows:
(a) that the Applicant is not, in the opinion of [the Respondent], a fit and proper person to hold a drivers certificate or is otherwise not competent to carry on the kind of towing work to which the proposed drivers certificate relates,
...
(d) that the granting of the drivers certificate would, in the opinion of [the Respondent], be contrary to the public interest.
...
(4) The regulations may provide additional mandatory or discretionary grounds for refusing the granting of an application for a drivers certificate.
Section 29 of the Act provides that a drivers certificate may be granted subject to conditions. It states:
(1) A drivers certificate may be granted subject to such conditions as may be specified in the drivers certificate.
(2) In addition to the conditions specified in a drivers certificate, a drivers certificate is subject to the following conditions:
...
(b) the certified driver must not charge a fee for the towing or salvage of a motor vehicle, or for any service that is related to or ancillary to the towing or salvage of a motor vehicle, if the charging of the fee would be in contravention of the regulations, and must not demand, receive or accept such a fee,
(b1) the certified driver must not charge a fee for work that was not actually done by the certified driver, and must not demand, receive or accept such a fee,
Section 41 of the Act sets out the types of disciplinary action that can be taken against a licensee or certified driver. Section 42 of the Act sets out the grounds for taking disciplinary action. The Respondent may take disciplinary action for any of the following reasons:
(a) any reason for which the licensee or certified driver would not have been granted a licence or drivers certificate initially,
(b) the licensee or certified driver has been charged with an indictable offence,
(c) the licensee or certified driver supplied information that was (to the licensee's or driver's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence or drivers certificate,
(d) the licensee or certified driver has contravened any provision of this Act or the regulations, whether or not the licensee or driver has been convicted of an offence for the contravention,
(e) the licensee or certified driver has contravened any condition to which the licence or drivers certificate is subject,
(f) RMS is of the opinion that the licensee or certified driver is no longer a fit and proper person to hold a licence or drivers certificate, respectively,
...
(l) any other reason prescribed by the regulations.
Section 42 of the Act recognises that disciplinary action may be justified on the basis of contraventions of the Act or regulations even without conviction. Disciplinary action may be taken whether or not the licensee or certified driver has been prosecuted and it might be justified even if the licensee or certified driver has been prosecuted and found not guilty. The relevant issue is whether there has been a contravention of the Act.
Section 49 of the Act provides that a certified driver must not carry out, or attempt to carry out, any accident towing work unless a towing authorisation has been obtained for the towing work.
Section 58 of the Act provides:
58 Contravention of conditions
(1) A licensee must not contravene any condition of the licence.
Maximum penalty: 50 penalty units or imprisonment for 6 months, or both.
(2) A certified driver must not contravene any condition of the drivers certificate.
Maximum penalty: 50 penalty units or imprisonment for 6 months, or both.
Section 60 of the Act sets out the records that a Licensee is required to keep
60 Licensee required to keep certain records
(1) This section applies in relation to any licensee who holds a licence that authorises the towing of motor vehicles involved in accidents.
(2) A licensee to whom this section applies must make a record of:
(a) the full name, residential address and drivers certificate number of each tow truck driver who is employed or engaged by the licensee or whose services are otherwise used by the licensee, and
(b) in relation to each occasion on which a licensed tow truck is used or operated by such a tow truck driver:
(i) the date on which the tow truck was used or operated, and
(ii) the name of any person who travelled as a passenger in the tow truck, and
(iii) the location of any accident attended by the tow truck, and
(iv) the number of any towing authorisation obtained by the driver, and
(v) the address to which any motor vehicle was towed in accordance with the towing authorisation, and
(vi) the registration number of any such motor vehicle.
Maximum penalty: 50 penalty units.
(3) Any such record must:
(a) be in the approved form, and
(b) include particulars of the name and business address of the licensee, and
(c) be completed as soon as practicable after each occasion on which the licensed tow truck is used or operated.
Maximum penalty: 50 penalty units.
(4) The licensee must keep the record at the licensee's place of business for at least 5 years after the information is recorded.
Maximum penalty: 50 penalty units.
(5) If the licence is revoked or suspended or otherwise ceases to be in force, the licensee must provide to RMS any records kept in accordance with this section.
Maximum penalty: 50 penalty units.
Section 63 of the Act prohibits touting or soliciting for towing work at the scene of an accident. The section states:
63 Touting or soliciting for towing work at scene of accident
(1) A person must not, at or within 500 metres of the scene of an accident, tout or solicit for any towing work in connection with the accident regardless of on whose behalf the touting or soliciting is done.
Maximum penalty: 50 penalty units.
(2) Subsection (1) does not prohibit a person from attempting to obtain a towing authorisation in accordance with this Act and the regulations in relation to a motor vehicle at any time before:
(a) a towing authorisation is obtained by any person in accordance with this Act and the regulations for the towing of the relevant motor vehicle, or
(b) a police officer has informed the person that the police officer has organised for the towing of the relevant motor vehicle.
(3) Subsection (1) does not prohibit a person from dealing with a towing authorisation in accordance with this Act and the regulations.
Section 66 of the Act provides for compliance with directions of an authorised officer at the scene of an accident. The section states:
66 Compliance with directions at scene of accident
(1) If a certified driver is at the scene of an accident, the driver must comply with any reasonable direction given to the driver by an authorised officer, police officer or emergency services officer who is present at the scene and who is exercising his or her official duties as such an officer.
Maximum penalty: 50 penalty units.
Note. It is an offence under section 75 (3A) of the Road Transport (Safety and Traffic Management) Act 1999 to fail to comply with any direction given by an authorised officer or police officer in the exercise of the officer's functions of removing an obstruction to traffic on a road or road related area.
(2) Without limiting subsection (1), an authorised officer or police officer may, if the officer is of the opinion that a person is acting in contravention of this Act or the regulations, direct the person:
(a) to leave the scene of the accident, and
(b) to stay at least 500 metres away from the scene (or such other distance as the officer may direct) and for such time as the officer may direct.
Section 77 of the Act provides that the Respondent may, by notice in writing, require a corporation to nominate, in writing within the time specified in the notice, a director or officer of the corporation to be the corporation's representative for the purposes of this Division. Any information or answers given by any such nominated person bind the corporation.
Section 88 of the Act provides for offences by corporations. The section states:
88 Offences by corporations
(1) If a corporation contravenes any provision of this Act or the regulations, each person who is a director of the corporation or who is concerned in the management of the corporation is to be taken to have contravened the same provision if the person knowingly authorised or permitted the contravention.
(2) A person may be proceeded against and convicted under a provision in accordance with subsection (1) whether or not the corporation has been proceeded against or convicted under that provision.
(3) Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation against this Act or the regulations.
Clause 28 of the Tow Truck Industry Regulation 2008 ("the Regulation") provides:
28 Requirement to leave accident scene once towing authorisations obtained
If, in relation to an accident involving one or more motor vehicles, a person or persons have obtained the required towing authorisations, any other person who has attended the scene of the accident for the purpose of obtaining towing work by the use of a tow truck (but who has not obtained a towing authorisation) must not remain at the scene of the accident.
Maximum penalty: 50 penalty units.
A comparable provision was found in Clause 39 of the Tow Truck Industry Regulation 1999 ("the 1999 Regulation").
Clause 30 of the Regulation (and clause 41 of the 1999 Regulation) provides:
30 Completion of, and dealing with, towing authorisations
For the purposes of section 51 (4) of the Act, a person who obtains a towing authorisation must ensure:
(a) that the authorisation:
(i) is in the approved form, and
(ii) is included in a towing authorisation book, and
(iii) is signed by the person and by the person giving the authorisation, and
(iv) specifies a place as the place to which the motor vehicle is to be towed, and
(v) is otherwise completed (to the extent that is reasonably practicable in the circumstances) in the approved manner and by the insertion of the information required by the approved form, and
(b) that the original towing authorisation and 2 copies are completed, and
(c) that the towing authorisation used is the next available towing authorisation in order of serial number.
Clause 39 of the Regulation (and clause 56 of the 1999 Regulation) provides for the keeping of a holding yard register:
39 Holding yard register
(1) It is a condition of a licence that the licensee must keep a register (the holding yard register) in the approved form and manner, and in accordance with this clause, in relation to any holding yard of the licensee.
(2) The following particulars are to be recorded in the holding yard register:
(a) the time and date on which each motor vehicle is towed into and out of the holding yard,
(b) the name of the tow truck driver who towed the motor vehicle to the holding yard,
(c) the name and contact details of the person who authorised the release of the motor vehicle from the holding yard,
(d) the make, model, type and colour of the motor vehicle,
(e) the registration number of the motor vehicle, or, if there is no registration number, the chassis number or the engine number (if any) of the vehicle,
(f) the serial number of the towing authorisation obtained in relation to the motor vehicle.
(2)The holding yard register is to contain a copy of any written authorisation for the release of a motor vehicle from the holding yard that is received by the licensee.
Clause 48 of the Regulation (and clause 64 of the 1999 Regulation) concerns the standards of conduct and duties of tow truck drivers:
48 Conduct and duties of tow truck drivers
(1) The driver of a tow truck that is authorised to be operated under the authority of a licence must:
(a) behave in an orderly manner and with civility and propriety while:
(i) operating the tow truck, or
(ii) attending the scene of a motor vehicle accident, or
(iii) complying with a requirement under paragraph (b) or (c), and
(b) comply with any reasonable requirement made of the driver by an authorised officer or police officer in relation to the administration of the Act or this Regulation, and
(c) comply with any reasonable requirement made of the driver by a member of staff of the Ambulance Service of NSW, or an emergency services officer (within the meaning of section 32A of the State Emergency and Rescue Management Act 1989), who is attending the scene of a motor vehicle accident.
Maximum penalty (subclause (1) (a)): 25 penalty units.
Maximum penalty (subclause (1) (b) and (c)): 50 penalty units.
(2) The licensee holding the licence under which the tow truck is being operated must ensure that each tow truck driver whose services are being used by the licensee complies with subclause (1).
Maximum penalty: 10 penalty units.
Background
These matters have a long history. The parties are in general agreement in relation to the background and the relevant facts.
In December 2010, pursuant to section 79A(1) of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"), the President of the Tribunal referred to the Supreme Court a question that arose in the proceedings before the Tribunal. The parties consented to the reference and requested the President to refer it. The question that was referred was:
"Does s 15 of the Tow Truck Industry Act 1998, properly construed, have the effect that the conduct of Mr Assadourian and/or Towman Pty Ltd identified in the Agreed Facts constituted the carrying on of a business as a tow truck operator within the meaning of s 15 of that Act?"
Section 15 of the Act is set out above.
In September 2011, having considered the question referred, Rothman J declined to proceed on the basis that the question involved evaluations which were questions of fact for the Tribunal, and not questions of law that might be referred to the Supreme Court for its opinion: Assadourian v Roads and Traffic Authority of New South Wales (Northern Region) [2011] NSWSC 1052 ("the referral decision").
Justice Rothman nevertheless did make some comments in regard to the question now before the Tribunal.
At paragraphs [24] - [25] of the referral decision his Honour referred to the decision of the High Court in Humberstone v Northern Timber Mills (1949) 79 CLR 389 and his Honour's own decision in L&B Linings Pty Ltd v WorkCover Authority of New South Wales [2011] NSWSC 474.
In Humberstone the High Court was construing the terms of the Workers' Compensation Act 1946 (VIC) and, in particular, the words contractor performing work "not being work incidental to a ... business regularly carried on by the contractor". At paragraph [25] of the referral decision his Honour referred to the observations he had made in L&B Linings Pty Ltd v WorkCover Authority of New South Wales Justice Rothman at paragraph [59]:
In a general sense, almost all of the indicia that are often used to determine if a person is an employee or a contractor are criteria that may be used to inform the determination of whether the contractor is carrying on business independently, i.e. in his own name or under a business or firm name and, therefore, exempted under the first exclusion.
His Honour held that the independence of the activity from the activity of the principal, and whether the contractor was holding itself out to the public under its own or a firm or business, was "[c]entral to the concept of the carrying on of a business" within the meaning of the Workers' Compensation Act 1928 (Vic).
At paragraphs [18] of the referral decision his Honour noted:
18There is little doubt that much authority can be found on the meaning of a term "carrying on a business" which authority suggests that, while the term must be construed in a particular context of the statute in which it is used ... in its ordinary meaning it signifies a course of conduct involving the performance of repeated acts, or a course of conduct (even if it is the first act in an intended course of conduct) being a form of commercial enterprise with a view to profit: ...
And at paragraphs [27] - [31] he observed:
27 [T]he determination of whether Mr Assadourian was carrying on a business as a tow truck operator depends upon an evaluation of a number of criteria, some of which are addressed in the foregoing passages, and the weighing of those criteria in the circumstances of the proceedings. This is typically a task to derive an outcome upon which reasonable persons may differ. The legislature has given that task, namely of evaluating all of the circumstances to determine whether a person is carrying on the business of a tow truck operator, to the ADT.
...
31In this case, reasonable persons may differ as to the proper categorisation of the facts as they apply to Mr Assadourian and/or Towman. The facts are capable of being regarded as either within or without the description used in s 15 of the Act and the evaluation of whether these Agreed Facts render Mr Assadourian and/or Towman's activities within s 15 or outside s 15 is an evaluative exercise that the legislature has granted to the ADT.
The agreed facts
The parties agreed to the factual basis for the determination of the question. The agreed facts set out the relevant background to the determinations that are under review. Those agreed facts, with references to supporting material removed, are in the following terms:
"The parties agree the following facts:
Background
The Applicant, John Assadourian, is and has been since 2 November 2004 the sole director, secretary and shareholder of Towman Pty Ltd (Towman).
The Respondent, the Roads and Traffic Authority of New South Wales (RTA), has the function of regulating the tow truck industry in accordance with the Tow Truck Industry Act 1998 (NSW) (the Act) and the Tow Truck Industry Regulation 2008 (NSW) (the Regulations).
From 30 April 2004 to 30 April 2008, Towman held a tow truck operators licence (04023) pursuant to Div 1 of Pt 3 of the Act and carried on business as a tow truck operator. During the same period, Mr Assadourian held a tow truck drivers certificate (41642) pursuant to Div 2 of Pt 3 of the Act.
At all material times, Northern Division Towing Pty Ltd (NDT) and Combined Towing Service (NSW) Pty Ltd (CTS) have also held tow truck operators licences (07051, 00001) and carried on business as tow truck operators. NDT was a wholly-owned subsidiary of CTS and, in practical terms, NDT and CTS operated a single towing business.
On 30 April 2008, Towman ceased to hold a tow truck operators licence. Mr Assadourian has never held a tow truck operators licence.
From 1 May 2008, Mr Assadourian drove a tow truck NDT leased from Towman (the Leased Tow Truck). NDT paid Towman for the towing work which Mr Assadourian had undertaken in the Leased Tow Truck.
A reference in this statement of agreed facts to operating a tow truck should be read as a reference to the operation of that tow truck for the purpose of towing motor vehicles.
History of proceedings
On 2 April 2008, Mr Assadourian advised the RTA that Towman would not be renewing its tow truck operators licence beyond 30 April 2008. Mr Assadourian also advised the RTA that he intended to lease one of Towman's tow trucks (9644TT) (the Leased Tow Truck) to NDT and to sell Towman's two remaining tow trucks to NDT.
On the same day, CTS advised the RTA that Towman had leased to CTS the Leased Tow Truck for a period of five years commencing that day.
On 16 April 2008, the Leased Tow Truck was authorised to operate under NDT's tow truck operators licence.
The Leased Tow Truck was registered in the name of Towman up to 16 April 2008 and in the name of NDT from 16 April 2008.
In November 2008, the RTA determined to renew Mr Assadourian's tow truck drivers certificate by granting a subsequent drivers certificate to Mr Assadourian for a period of one year until 27 November 2009.
By a letter dated 24 November 2008, the RTA expressed its opinion that Towman was breaching section 15 of the Act. The letter stated:
"The RTA understands this decision may affect you significantly as the legal entity. If you continue to operate [as] a SIC [subcontractor] for [NDT] you will be required to obtain an operators licence by the 16 February 2009."
On 24 February 2009, Towman applied to the RTA for a tow truck operators licence. The RTA determined to refuse this application on 27 July 2009.
On 21 October 2009 the RTA received an application from Mr Assadourian for a subsequent tow truck drivers certificate. The RTA determined to refuse this application on 10 December 2009.
On 15 December 2009 Mr Assadourian applied to the NSW Administrative Decisions Tribunal (ADT) for a review of the RTA's refusal to grant a subsequent drivers certificate. On the same day, Mr Assadourian applied for a stay of the RTA's decision.
On 22 December 2009, the ADT determined to stay the RTA's decision.
The Leased Tow Truck
Prior to 30 April 2008, Towman owned and operated three tow trucks as part of its towing business.
Two of the tow trucks were held free of encumbrances, and the third (being the Leased Tow Truck) was mortgaged to CBFC Limited pursuant to an equipment loan and goods mortgage agreement. The mortgage was registered pursuant to the Registration of interests in Goods Act 1986 (NSW).
Under the loan agreement, CBFC Limited agreed to loan to Towman $80,000 for the purchase of the tow truck from Suburban Towing & Equipment Pty Limited. Towman agreed to repay the loan with interest of $27,063, mortgage the tow truck to CBFC Limited and provide personal guarantees from Mr Assadourian and his wife.
Towman also agreed that the credit provided under the agreement was to be applied wholly or predominantly for business or investment purposes (or for both purposes).
In or about April 2008, Towman sold two of its tow trucks to NDT. On 2 April 2008, Towman leased to NDT for a period of five years the Leased Tow Truck that was the subject of the mortgage to CBFC Limited. Since that time, Towman has continued making loan repayments to CBFC Limited with respect to the Leased Tow Truck.
The Leased Tow Truck has, at different times, been identified by different number plates and registration numbers, including 9233TT, 9644TT, AU30WR and 9814TT. There is only one leased tow truck.
Shortly after the lease commenced, NDT arranged for the logos of NDT, Combined Alliance and the NRMA to be affixed to the Leased Tow Truck.
On or about 2 April 2008, Mr Assadourian was recorded on the operators licence of NDT as a close associate, as he was the sole director of the lessor of the Leased Tow Truck.
The relevant certificates of registration for the Leased Tow Truck, under the heading 'Conditions', showed the words 'USAGE: TOW TRUCK - BUSINESS USE'.
Towman has not entered into any other relevant leases.
Mr Assadourian's relationship with NDT
On 30 April 2008, Mr Assadourian signed a document given to him by NDT titled "Employee Acknowledgement' pursuant to which, amongst other things, Mr Assadourian acknowledged that he had been given a copy of, and had read and understood, the requirements of the Act and the Regulations as amended.
At the same time, Mr Assadourian received from NDT a document entitled "Combined Towing Services - Tow Truck Drivers Instruction Manual".
Mr Assadourian drove the Leased Tow Truck pursuant to a contract to which NDT was a party.
The contract with NDT was partly in writing and partly oral. To the extent it was written, Mr Assadourian confirmed that he had read and understood and would comply with all matters detailed in the contents of the Manual. The Manual was applicable to, and adhered to in, the relationship between NDT, Mr Assadourian and Towman to the extent that it was relevant. Policies in the Manual that did not apply to Towman and Mr Assadourian were:
(a) Sick Leave;
(b) Annual Leave;
(c) Salary Review
To the extent it was oral, it was agreed that:
(a) Towman would surrender its operators licence.
(b) NDT would lease the Leased Tow Truck from Towman.
(c) Mr Assadourian would work for NDT as a tow truck driver.
(d) NDT would be responsible, in the first instance, for:
i. Paying for the repairs and maintenance of the tow truck (although on some occasions Towman would itself pay for repairs directly);
ii. Paying the purchase price for the towing authority books;
iii. Providing the use of the portable radios and electronic touch screen computer and the electronic tracker for the tow truck; and
iv. Paying the cost of insurance and registration for the Leased Tow Truck,
and these amounts were deducted from the amounts payable by NDT to Towman as described below in sub-paragraph (h).
(e) Towman would be responsible for its own workers compensation, tax and superannuation.
(f) NDT would charge its customers the maximum fees then prescribed by Part 4A of the Regulations, and NDT would pay to Towman the fees for towing work Mr Assadourian undertook in the Leased Tow Truck for NDT.
(g) NDT would receive the balance of any income generated from the above tows.
(h) NDT would deduct the following costs from the amount to be paid to Towman from time to time:
i. Cost of repairs and maintenance of the tow truck;
ii. The cost of purchasing the towing authority books;
iii. The cost of $60.00 per week for a two-way radio and data tracker;
iv. The cost of insurance and registration for the Leased Tow Truck;
v. The cost of a digital camera (a one-off deduction);
vi. Uniform costs (as occasion arose); and
vii. The cost of sign writing for the tilt tray (a one-off deduction).
(i) NDT would charge Towman a further 9% of the amount paid to Towman each week as an administration fee.
(j) Towman would be responsible for:
i. Paying for the fuel consumed by the tow truck;
ii. Obtaining its own workers compensation; and
iii. Paying its own tax, including GST and company income tax;
iv. Paying Mr Assadourian's income and withholding PAYG amounts on account of Mr Assadourian's personal income tax; and
v. Making any superannuation contributions to or for Mr Assadourian.
(k) Towman was only paid for the work performed by Mr Assadourian - if he did not undertake any towing work, NDT did not make any payments to Towman (or Mr Assadourian).
The relationship between NDT, Towman and Mr Assadourian has been implemented in accordance with what is set out in the previous paragraph.
NDT maintained the records prescribed by the Act and the Regulations. These records included the holding yard register and the tow truck drivers register.
No wages were paid by NDT to Mr Assadourian and, in relation to Mr Assadourian, no amounts were withheld by NDT for income tax purposes.
The insurance policy maintained by NDT in respect of the Leased Tow Truck encompassed compulsory third party, comprehensive, public liability and on-hook insurance.
After Towman ceased to hold an operators licence, Towman did not hold public liability or on-hook insurance. When Mr Assadourian was advised by the RTA that he was required to hold an operators licence, Towman obtained public liability and on-hook insurance in respect of the Leased Tow Truck for the period 17 February 2009 to 13 February 2010. Mr Assadourian has never himself held any relevant insurance policies.
The taking of holidays by Towman and Mr Assadourian was dealt with according to the terms of the manual. Towman and Mr Assadourian were expected to give notice of holidays in line with the requirements of the manual. Towman and Mr Assadourian did not receive pay for any such holidays taken, nor was any pay received for the taking of sick leave.
When performing towing work, Towman and Mr Assadourian were required to adopt, and did adopt, the practices prescribed by NDT, including the general practices applicable to towing work outlined in the manual. NDT also required Mr Assadourian to wear NDT's uniform and keep the Leased Tow Truck in a clean condition.
NDT dispatched towing work to Mr Assadourian and expected Mr Assadourian to undertake the work. Set hours were fixed by NDT during which Mr Assadourian was obliged to answer a dispatch call (these were generally between 6:30 am and 10:30 am and 3:30 pm and 7:00 pm). At other times, Mr Assadourian was on call.
The towing activity
Every tow job carried out by Mr Assadourian was recorded by his completion of an NDT tow docket for the job. The tow docket showed the job number, relevant prices and any additional charges imposed by the driver. Tow dockets were required to be delivered to NDT's reception by 8 am on the morning following the tow job. NDT reserved the right to fine Towman in the event that Mr Assadourian failed to adhere to this time requirement.
NDT issued invoices to insurers for Towman's towing work in the name of NDT and Towman did not issue invoices in its own name or in the name of Mr Assadourian.
At the end of each week, the tow dockets submitted by Towman were compiled by staff of NDT into a spreadsheet referred to as a `log'. The log showed certain details for each tow job, including the distance travelled and the amount payable for that category of tow job.
A computer printout of the log was given to Mr Assadourian at the end of each week. This was to provide Mr Assadourian with the opportunity to check the log to verify that all of his tow jobs were included, that all of the tow jobs had been carried out by him, and that the details for all tow jobs were recorded correctly. If necessary, Mr Assadourian handwrote amendments on the log and returned it to NDT. Staff of NDT would discuss any proposed amendments with Mr Assadourian until both agreed upon the final form of the log.
Once the log was finalised, NDT created a job statement. The job statement was an internal document which showed the aggregate of the amounts payable from the tow jobs recorded in Mr Assadourian's log. This gross amount was described as 'Amount of jobs excluding GST'.
From the gross amount, NDT subtracted 9% as an administrative fee. NDT also added any relevant bonuses and subtracted any relevant deductions.
This net amount was described as 'Amount subject to GST'. NDT then issued to Towman a recipient-created tax invoice in the net amount with the addition of a GST component.
The recipient-created tax invoices were issued pursuant to a written agreement between NDT and Towman made on 1 May 2008.
Finally, NDT paid Towman the amount and the GST component by direct deposit into Towman's bank account.
Once the invoice was issued to Towman, earlier hard copies of the log (showing handwritten amendments) were discarded and only the final log was retained.
Towman's financial statements
In its tax return for the 08/09 FY, Towman described its main business activity as 'Towing service, motor vehicle'. Towman's gross income was $106,106 and Towman claimed a deduction of $29,998 for 'Motor vehicle expenses'.
The return also showed $16,159 for 'salary and wage expenses'. Towman's business activity statements show that $2,054 was withheld from that amount for PAYG income tax withholding.
Towman's only source of trading income for the 08/09 and 07/08 financial years was described in its financial statements as 'Fees Received - Towing' in amounts of $106,106.34 and $155,587.01 respectively.
In both financial years, Towman incurred substantial expenses for depreciation, fuel and oil, repairs and other costs related to its commercial motor vehicles.
Towman has paid to the ATO all amounts of GST paid to Towman by NDT.
Mr Assadourian's financial statements
In his tax return for the 08/09 FY, Mr Assadourian described his main salary and wage occupation as 'Truck - owner-driver'. The payer was stated to be Towman Pty Ltd and the gross amount earned was $16,159 with $2,054 withheld for PAYG.
Relationship between Towman and Mr Assadourian
The Applicant is, and has been since 4 November 2004, the sole director, secretary and shareholder of Towman.
The towing work performed by Mr Assadourian was Towman's only source of income and the fees received by Towman were Mr Assadourian's only source of income.
Fit and proper person
As noted above, each of the issues for determination require consideration of the question of whether or not the Applicant can be said to be a fit and proper person to participate in the tow truck industry.
Each of the parties has made detailed submissions in regard to the correct approach to determining this matter and has referred to various authorities dealing with the issue of fitness and propriety. Each has referred me to the views of Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; [1990] HCA 33; and to discussion of the concept by the Tribunal's Appeal Panel in the decisions in Department of Transport and Infrastructure v Murray (GD) [2011] NSWADTAP 16 at [16]-[20] and Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 at [27].
It is well established that the term "fit and proper person" standing alone carries no precise meaning and that it must take its meaning from its context and the activities a person is to be licensed to perform. In assessing whether a person is a "fit and proper person" the Tribunal has followed the following statement of Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond:
"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 a person who 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, 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 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 a fit and proper person to undertake the activities in question.
In that case Mason CJ stated that the concept "fit and proper person" should not be construed narrowly. That approach has been followed in numerous decisions of this Tribunal. The Chief Justice explained that, at 380:
'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.'
Deputy President Chesterman recently considered the concept for the purposes of the Act in Gurdler v Roads and Maritime Services [2012] NSWADT 29. At paragraph [48] the Deputy President made reference to the decision by Deputy President Hennessey in Palumberi -v- General Manager, Tow Truck Authority of New South Wales [2001] NSWADT 206 where she stated at paragraph [37]
37 A person who has been found to be of bad character, and not a fit and proper person to operate in an industry, may redeem him or herself: In re Davis [1947] HCA 53; (1947) 75 CLR 409. Character is not fixed, but is capable of change and rehabilitation: Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25. In Trilin v Commissioner of Fair Trading [2003] NSWADT 222 in the context of the Motor Dealers Act, I said:
"The issue of whether a person who has been determined not to be a fit and proper person to hold a dealer licence has been so reformed that she or he is now fit and proper, is a matter of judgement. In considering that issue the Tribunal is required to take into account the nature and seriousness of the original misconduct, any events relevant to an assessment of the Applicant's fitness which have occurred since then, the candour with which the Applicant has approached the issue of past misconduct, the Applicant's explanation of the misconduct, the impact of the effluxion of time, and the Applicant's present circumstances and reputation. The Tribunal should bear in mind the warning sounded by the Court of Appeal in Law Society of NSW v Bannister (unreported Court of Appeal, 27 August 1993, BC930181) where Sheller JA, delivering the judgment of the Court, observed:
"... absent some acceptable explanation of how greed and opportunity led the Solicitor to carefully plan a course of action which he knew was dishonest and deceitful, character evidence is not particularly helpful to a court or tribunal in determining whether it can be confident that there will not be a repetition.""
Deputy President Chesterman also made reference to the decision in Ereira v Roads and Traffic Authority (No 2) [2010] NSWADT 220 which had considered a number of other often quoted decisions. At paragraph [54] he noted:
54A further extract from the decision in Ereira (No 2) (at [46]) demonstrates the significance of this proposition that the Act is 'savage' legislation:-
46 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. Criminal convictions can be of great importance in such as assessment: the more so where the activity to be undertaken requires public confidence and reliance on the propriety and integrity of the licensed person: Raymond Robbins v Business Licensing Authority (2000) VCAT 457. 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. 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.
The proper functioning of the tow truck industry requires public confidence and reliance on the propriety and integrity of those licensed to work within it. Consideration of the question of whether a person is fit and proper to participate in the industry involves taking account of the person's compliance with regulatory requirements and the extent to which their record of compliance reflects the person's attitude to the regulatory regime.
The Respondent submits that the Applicant has repeatedly breached requirements of the statutory scheme over a number of years, and enough chances have been given to him, bearing in mind the high standards which the Parliament intended to set for this trouble-prone industry.
Further, the Respondent submits that the Applicant's arrangements with Northern Division Towing ("NDT") mean he is carrying on a business as a tow truck operator in breach of section 15 of the Act, and this arrangement contravenes and undermines the operation of the Act.
The Respondent asserts that the Applicant and/or Towman the submission of the Respondent is that the Applicant and/or Towman were carrying on business as tow truck operators and between July and December 2009 probably committed the 21 offences alleged to have been committed under section 15 of the Act. The Respondent submits that if the Applicant and/or Towman are carrying on a business contrary to section 15 of the Act, then that cannot be permitted to continue.
It is common ground that this point is relevant to the fit and proper person issue and both the disqualification and non-renewal decisions.
Each of the parties made detailed submissions on the construction of section 15 of the Act. As noted above, section 15 of the Act provides that a person must not carry on business as a tow truck operator unless the person holds an appropriate tow truck operators licence.
Section 3(1) defines the following relevant terms:
tow truck operator means a person who conducts a business involving the operation of any tow truck for the purposes of towing motor vehicles.
operate a tow truck includes tow a motor vehicle by means of the tow truck.
licence means a tow truck operators licence in force under this Act.
The question before the Tribunal is the proper construction of the words "carry on business as a tow truck operator".
The Act is a successor to earlier efforts to regulate the tow truck industry in NSW. The Tow-truck Act 1967 ("1967 Act") was followed by the Tow Truck Act 1989 ("1989 Act"). The Act was enacted by the legislature as a response to concerns raised by a report by Mr Peter Anderson ("the Anderson report"), who had been appointed by the relevant Minister to review the tow truck industry.
The parties do not agree on the issue of whether or not I am able to take account of the Anderson report or the second reading speech by Carl Scully, Minister for Transport and Minister for Roads on the introduction of the Bill to the Legislative Assembly on 14 October 1998 ("the second reading speech"). Each has made detailed submissions on that issue.
The Respondent asserted that the legislation is deliberately constructed to protect towing consumers from being exploited or intimidated at accident scenes. It seeks to refer to the second reading speech.
Mr Condon argues that I am unable to take that into account.
Mr Condon argues that the provisions of the Act that are relevant to these matters were already in the 1989 Act before Mr Anderson gave his report. The scheme was in place materially as at 1989. He further submits that the changes introduced by the Act are irrelevant to what has to be decided.
In contrast, the Respondent contends that while extrinsic materials cannot be relied on to displace the clear meaning of the text and a statement of governmental intention about how the legislation will operate, or the Minister's understanding of how it will operate does not assist in the ascertainment of the meaning of the provision. What does assist in determining the meaning of the text is consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy. It is those matters that the extrinsic material may illuminate. He submitted that the general purpose and policy of the provisions of the Act were described by the Minister during his second reading speech, and the mischief the law sought to address was identified by him as being the matters in the Anderson report.
The Respondent contends that it is appropriate to have regard to extrinsic material even where that material does not fall within the non-exhaustive terms of s 34(2) of the Interpretation Act 1987: Besser v Kermode [ 2011] NSWCA 174 at [31] (McColl JA with whom Beazley and Giles JJA agreed). It is submitted that the second reading speech and the Anderson report should be used for that purpose here.
I agree with that submission.
The Anderson report described the state of the industry in the following terms:
(a)A relatively small industry comprising 920 businesses of which 80% had only one or two trucks. There were some 1700 tow trucks in total and 90% of them were licensed for smash recovery work.
(b)Licensed drivers totalled 5300, a figure which had stabilised since 1992 in spite of declining workloads.
(c)About half of the tow trucks, drivers and businesses were based in Sydney, Newcastle and Wollongong, with the other half in country areas.
(d)Smash towing and breakdown towing each accounted for roughly 40% of the industry's aggregate workload, whilst the remainder was in transporting vehicles for dealers or repairers (trade towing) and other miscellaneous work.
(e)About one third of the industry was heavily dependent on smash work, a third on breakdown work, and the remainder on a mix of work including trade towing. Country operators were more reliant on a mix of work.
(f)Substantial vertical integration of towing existed with other elements of the motor trades. For example, 85% of towing operators who were highly dependent on smash towing were tied to smash repairers, and 55% of them ran trucks financed by smash repairers.
The complexities of the operational context were described as follows:
(a)Overly strong competition for smash towing work within the industry, with an oversupply of operators and a falling level of work.
(b)High proportion of smash repairers being linked to the towing industry, and providing drop fees to tow operators for bringing in smash repair work.
(c)Lucrative nature of smash towing leading to a convergence of tow operators at the scene of an accident in an attempt to win smash repair work.
(d)High operational costs borne by the tow industry in keeping trucks and drivers on the roads in an attempt to be first at the scene of an accident, with costs being passed onto insurance companies and hence customers through inflated vehicle repair costs.
(e)Existence of informal zones of operation from which, in particular areas, newcomers are excluded by existing operators through threats, intimidation, physical harm and property damage.
From these complexities, disturbing trends arose:
(a)Ongoing incidents of property damage and personal injury as tow trucks "race" to an accident scene for a tow.
(b)Harassment of vehicle drivers by tow truck operators trying to get business at the accident scene.
(c)Violent behaviour against some tow truck operators by other operators in order to secure a tow.
(d)Payment of "drop fees" or secret commissions by smash repairers to tow truck operators, and the loading of these fees into repair costs.
In the second reading speech, the Minister noted trends and described the prevailing circumstances in very similar terms:
The findings of the [Anderson] report were disturbing. Mr Anderson described an industry infiltrated by criminal elements and pervaded by fear of intimidation, physical harm and property damage. ... The most significant incentive that has given rise to unscrupulous and dangerous practices is the high proportion of tow truck operators paid "drop fees" by smash repairers. Drop fees are secret commissions that smash repairers pay to tow truck operators for bringing in smash repair work. These drop fees are then loaded into vehicle repair costs. That means that motorists are paying higher insurance premiums than would be the case in an industry that is better regulated.
...
Fierce competition in the tow truck industry has also led to an escalation of violent behaviour by some operators and drivers towards their competitors. There have been many instances of competing tow truck drivers coming to blows over who gets the tow at an accident. Unscrupulous operators have also been conducting campaigns against competitors, including fire bombing and sabotaging their competitors' trucks. Informal zones of operation have also emerged where tow truck operators claim an area as their own and any newcomers are kept out of the area by existing operators through threats, intimidation, physical harm and property damage
...
All the trucks compete against each other for the job and in the process they often harass and intimidate drivers of damaged vehicles to get the business. There are also regular complaints of tow trucks placing other motorists and the public at risk while racing to an accident in an attempt to be first at the scene.
I agree with the Respondent's contention that the legislative history of the Act demonstrates that in enacting section 15 the legislature was principally concerned not with the manner in which a contractor holds themselves out to the public, as might be important in the context of the apportionment of liability for injuries to workers under workers' compensation legislation, but rather with the elimination of those unscrupulous and dangerous practices aimed at maximising financial reward which were at large in the industry, including the temptation to "race to accident scenes" and engage in "fierce competition" with other drivers. That is the mischief which section 15 of the Act was intended to prevent.
The question of the proper construction of the words "carry on business as a tow truck operator" is to be considered in the context of the mischief that section 15 is seeking to remedy.
The Respondent's contention
The Respondent submits that the importance of understanding the context has been repeatedly emphasised by the High Court when dealing with statutory construction issues in recent times. For example, see Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642 at [47].
In that regard the Respondent further submits that the comments by Rothman J in regard to the decision in Humberstone must be regarded in light of different contexts. The Respondent emphasised that the Workers' Compensation Act 1928 (Vic), considered in Humberstone, has a very different legislative history to the Act 1998 and the particular statutory text is far from being identical. Further, it is submitted that too much weight should not be given to the list of factors which Rothman J enumerated at paragraph [25] of the referral decision given that they were enumerated in a workers compensation context.
As I understand it, the parties are in agreement in regard to the following:
The Act distinguishes between tow truck operators and tow truck drivers, and the driver of a tow truck need not (necessarily) be an operator.
The Act contemplates that a tow truck operator might engage employees or subcontractors to undertake towing work.
The mere use or operation of a tow truck by a driver does not mean that the driver is carrying on business as a tow truck operator, as the driver may be employed or engaged as part of the business of a tow truck operator who is not the driver.
The mere fact that a driver is a subcontractor rather than an employee does not necessarily mean that the driver is carrying on business as a tow truck operator.
The Respondent emphasises the words "carry on business", favouring a test of regularity of towing work carried out with a view to profit.
I have been referred to a number of authorities which deal, in a range of contexts, with the notion of "carrying on a business". I agree with the Respondent that, subject to statutory indication to the contrary, the effect of this case law is that a person will be carrying on a business where relevant activities are carried out:
(a)on repeated occasions, or systematically and regularly, or on a continuous and repetitive basis (and potentially encompassing even a single transaction if it is done pursuant to an intent to carry on a business); and
(b)with a view to, or for the purpose of, profit.
The organisation of activities in a business-like manner, the keeping of books, the volume of operations and the amount of capital employed may all be relevant and significant in an appropriate case.
The Respondent submits that the question here, therefore, is whether the Applicant and/or Towman carried out towing activities on repeated occasions, or systematically and regularly, or on a continuous and repetitive basis, with a view to profit.
The Respondent further submits that it is clear from the agreed facts that towing activities were carried out systematically and regularly and on a continuous and repetitive basis. The main issue then is whether those activities were carried out with a view to profit.
The Respondent argues that the contractual relationship between NDT, Towman and the Applicant is best seen as one in which Towman provided both the "lease" of its tow truck and the services of a tow truck driver to NDT, and the Applicant was an employee or agent of Towman. It says that the primary contractual relationship was thus between Towman and NDT, and the manner in which the parties carried out the agreement reflected this.
The Respondent further argues that it is evident that the towing activities carried out by Towman and the Applicant pursuant to this agreement were also carried out with a view to profit.
In support of that contention the Respondent points to the following:
(a)Towman was paid for every tow carried out by the Applicant;
(b)Towman was only paid on this basis. Neither Towman nor the Applicant received any benefits from NDT other than a payment for each tow carried out. Towman was paid on a per-tow basis, and only on this basis;
(c)neither Towman nor the Applicant was paid any wages;
(d)the Applicant did not receive any employee benefits from NDT such as sick leave, annual leave or workers' compensation;
(e)NDT paid Towman a proportion of the maximum fees chargeable, and also charged Towman a 9% administration fee;
(f)NDT also charged all expenses relating to the tow truck in question to Towman;.
(g)Otherwise, Towman received the rest of the payments made by clients;
(h)Towman carried the risk of loss - if he undertook no work, he earned no money, whilst still having to pay all expenses; whilst NDT on the other hand would suffer no particular loss.
The Respondent submits that it is also relevant that neither Towman nor the Applicant had any source of income other than the payments by NDT for each of the Applicant's tow jobs. For that reason, there can be no doubt that those tow jobs represented, for the Applicant, a significant undertaking in terms of time and commitment. The Applicant was only rewarded for the work that he did - that is how he profited. He thus had an incentive to maximise his work opportunities, potentially engaging in aggressive behaviour to do so. There is no such incentive for an employed truck driver.
Further, the Respondent submits that it is also clear that the activities of Towman and the Applicant were organised in a business-like manner and relevant books were kept:
(a)Towman was a distinct business from NDT.
(b)The business carried on by Towman was, for tax purposes, a separate enterprise to the Applicant's income-earning activities:
(i)Towman paid its own income tax;
(ii)On Towman's tax returns the listed "Description of main business activity" was "Towing Service, motor vehicle";
(iii)Towman claimed the wages it paid to the Applicant as deductible expenses incurred in producing its assessable income;
(iv)Towman also claimed a deduction for "motor vehicle expenses;
(v) NDT paid GST on services provides by Towman.
(c)The Applicant was an employee of Towman:
(i)Towman paid "salary and wage expenses" to the Applicant and withheld PAYG income tax from those payments;
(ii)the Applicant described his main salary and wage occupation as "Truck - owner-driver", stated that the payer was Towman, and, by reason of Towman's PAYG withholding, did not pay any income tax;
(iii)All of the payments made to the Applicant by Towman were claimed as "salary or wages" and none were claimed as personal services income.
(d)Towman had its own workers compensation policy.
(e)Towman bore all the expenses relating to the operation of the leased tow truck, including repairs and maintenance, the purchase of towing authority books, insurance, registration and fuel were in substance borne by Towman.
Further, the Respondent contends that the main capital involved in the relationship related to the truck. In that respect the Respondent contends that whilst the truck was nominally leased to NDT, the real possession and control of the truck remained with Towman/ the Applicant. No distinct payments were made by NDT for the lease of the tow truck; rather, it was part of the overall bargain that was struck between them. Towman continued to meet the finance payments owing in respect of the vehicle.
The Respondent argues that the tow truck remained, in substance, a vehicle of Towman, under its control, in respect of which it paid all expenses and which it used to carry out tow jobs.
In the Respondent's submission, Towman operated as a distinct business from NDT. Towman and the Applicant profited from every tow carried out by the Applicant for NDT, and the towing activities were carried out by Towman with a view to its own profit. Towman was not in the position of an ordinary employee of a tow truck operator, because it did not receive a regular wage which was payable regardless of how many tows were undertaken. It submits that the conclusion must be that Towman was carrying on business as a tow truck operator.
The Applicant's contention
In contrast to the Respondent's emphasis on the words "carry on business", the Applicant's focus is upon the word "operator". Mr Condon referred to the view expressed in the Full Court of the Federal Court of Australia decision in ASP Ship Management Pty Limited v Administrative Appeals Tribunal (2006) 149 FCR 261; [2006] FCAFC 23 at paragraph [94]:
"The words 'operator' and 'to operate' can be used at several levels of abstraction. Much depends on context."
He submits that section 15 of the Act is to be interpreted in light of the scheme of the Act, taken as a whole, but with particular regard to the distinction it draws between a tow truck operator and a tow truck driver.
He submits that what is important in this regard is practical control of the tow truck.
As noted above, section 3 of the Act defines a 'tow truck operator' to mean "a person who conducts a business involving the operation of a tow truck for the purposes of towing motor vehicles".
Mr Condon undertook a thorough examination of the relevant provisions of the Act and distinguished the separate roles played by a tow truck operator and a tow truck driver. He notes for example that section 29 of the Act assumes that a driver will use or operate a tow truck in the course of his/her activities; this does not mean, however, that he/she is carrying on "business as a tow truck operator".
Mr Condon submits that a driver employed to tow motor vehicles would not, in the ordinary course, be regarded as carrying on the business as an operator or, indeed, any other kind of business. However, the Act assumes that a subcontractor of an operator also may not be carrying on business as an operator. The Act does not proceed on the basis that subcontractors, per se, carry on business as an operator. He submits that if that was the legislature's intention, it would have been easy enough to say so.
He contends that not every independent contractor carries on a business. He draws support for that contention from the distinction drawn by Rothman J, at paragraph [25] of the referral decision, between, on the one hand, an independent contractor whose relation with the principal is special or particular because the contractor has no business, or is not a general practitioner of this trade and, on the other hand, an independent contractor who performs work successively or concurrently for his customers and others in the course of a definite trade or business.
Mr Condon disputes the Respondent's argument that the question is simply whether the Applicant's activities were carried on with a view to a profit.
Equally, he submits that the concept of a system of work or an assessment of continuity of activity is of little practical significance in this case, as a certified driver is permitted to tow and may do so for up to 3 years pursuant to a single drivers certificate.
Further, he submits that the fact that Towman retained ownership of the tow truck and leased it is of little import once it is remembered that a tow truck operator need not own the tow trucks used in its business.
Mr Condon relies on the High Court decision in Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21 as support for his submission that for so long as the Act contemplates that an independent contractor can hold a certificate as a driver one needs to go beyond simplistic terms. The Act acknowledges that one can have an independent contractor acting at the behest of a holder of a certificate. The mere fact that one is engaged in repetitious activity as a principal is consistent only with the fact that one is a subcontractor and it does not follow that because of those circumstances one is carrying on business.
Mr Condon found support for his position from paragraphs [39] - [40] of the joint judgement of Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ in Hollis v Vabu Pty Ltd:
39. In Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd [1931] HCA 53; (1931) 46 CLR 41], Dixon J explained the dichotomy between the relationships of employer and employee, and principal and independent contractor, in a passage which has frequently been referred to in this Court ... . His Honour explained that, in the case of an independent contractor [at paragraph 48]:
"[t]he work, although done at [the principal's] request and for his benefit, is considered as the independent function of the person who undertakes it, and not as something which the person obtaining the benefit does by his representative standing in his place and, therefore, identified with him for the purpose of liability arising in the course of its performance. The independent contractor carries out his work, not as a representative but as a principal."
40. This statement merits close attention. It indicates that employees and independent contractors perform work for the benefit of their employers and principals respectively. Thus, by itself, the circumstance that the business enterprise of a party said to be an employer is benefited by the activities of the person in question cannot be a sufficient indication that this person is an employee. However, Dixon J fixed upon the absence of representation and of identification with the alleged employer as indicative of a relationship of principal and independent contractor. These notions later were expressed positively by Windeyer J in Marshall v Whittaker's Building Supply Co [[1963] HCA 26; (1963) 109 CLR 210 at 217]. His Honour said that the distinction between an employee and an independent contractor is "rooted fundamentally in the difference between a person who serves his employer in his, the employer's, business, and a person who carries on a trade or business of his own". In Northern Sandblasting, McHugh J said [(1997) 188 CLR 313 at 366.]:
"The rationale for excluding liability for independent contractors is that the work which the contractor has agreed to do is not done as the representative of the employer."
As the High Court has indicated, it is the totality of the relationship between the parties which must be considered. There has been a shift in emphasis in the control test from the actual exercise of control to the right to exercise it, so far as there is scope for it, even if it be only in incidental or collateral matters.
Mr Condon submitted that the Applicant and Towman do not, in a practical sense, manage or control the tow truck. He says that this is indicated by the following matters:
a. The tow truck is leased to NDT for a term of 5 years and is authorized to be used by that entity under its licence;
b. These entities, rather than the Applicant, thus have possession and control of the tow truck;
c. Consistently with the passing of control, NDT arranged for its logos and that of combined Alliance to be fixed to the tow truck;
d. The Tow Truck Drivers Induction Manual issued by NDT to the Applicant includes statements as follows:
i."As a member of the Combined Towing work team, you will be providing towing services to our clients. This requires you to comply with Combined Towing's operational procedures..."
ii."All employees must maintain a high standard of dress in all circumstances and wear the designated uniform while working;
iii.All employees must comply with the Code of Conduct;
e. In the first instance the fees generated by towing work are paid to NDT, and not the Applicant;
f. It was NDT and not Towman which issued invoices for towing work performed by the Applicant;
g. NDT was in charge of administration- and to that end charged a weekly fee of 9%;
h. NDT maintained the records prescribed by the Act and Regulation;
i.NDT reserved the right to fine the Applicant if he was late in delivering tow dockets;
j.Further the Applicant was required to check certain records with NDT's staff for accuracy;
k.The holidays to be taken by the Applicant were regulated by the contract with NDT;
l. When performing towing work, Towman and the Applicant were required to adopt, and did adopt, the practices prescribed by NDT, including the general practices applicable to towing work outlined in a manual;
m.NDT also required the Applicant to wear NDT's uniform and to keep the truck in clean condition;
n.NDT prescribed fixed hours during which the Applicant was obliged to undertake work;
o.the Applicant was expected to undertake the work referred to him.
Mr Condon submitted that the fact that someone is carrying on business as a principal, doing things repetitively with a view to a profit, is not of itself a point of distinction which allows one to say that the Applicant is carrying on business under section 15. He submitted that the Applicant's actions are consistent with the actions of a subcontractor and no more than that.
Discussion on the section 15 issue
I agree with the argument presented by Mr Condon. In my view, merely carrying on a business is insufficient to bring the conduct of a subcontractor within the scope of section 15.
In my view it is necessary to view the totality of the relationship between the Applicant and NDT. While I accept the Respondent's argument that the relationship has many of the characteristics that it ascribes to it, in my view, it is apparent that the Applicant is not carrying on his own business. Rather, he is performing work under the tutelage of NDT.
As is clear from the manual, every significant aspect of his business is directed and controlled by NDT.
It follows that I do not agree with the Respondent's allegation that the Applicant's arrangements with NDT mean he is carrying on a business as a tow truck operator in breach of section 15 of the Act.
Accordingly, that is not a factor for consideration in regard to whether or not the Applicant is a fit and proper person to work within the tow truck industry.
The Evidence of the Applicant's conduct more generally
The Respondent relies on the evidence of the Applicant's history of offences under the Act. I do not understand the history to be in dispute. In its written submissions the Respondent has summarised the offences as follows (paragraph numbers omitted):
THE APPLICANT'S REPEATED BREACHES OF THE SCHEME
Convictions and criminal proceedings
The Applicant's convictions are recorded in a certificate signed on 21 May 2012 by Ray Duncan, Manager, Tow Truck Licensing & Compliance. Pursuant to s 101(2) of the Act, the certificate is evidence of the matters stated in the certificate.
The certificate records some 15 convictions on the part of the Applicant spanning the period between 2004 and 2012 resulting in fines of approximately $6650.
The Applicant's convictions may be summarised as follows:
(a)eleven offences by the Applicant amounting to $3300 in fines; and
(b)four offences by Towman Pty Ltd - the Applicant's company - for which the Applicant was held to be liable under s 88(1) of the Act, amounting to $3350 in fines.
The Applicant's convictions under the Act for offences in his capacity as a driver are as follows (the dates refer to the date of the offence rather than the date of conviction):
(a)2011 - failure to comply with direction of authorised officer (s 66(1));
(b)2008 - failure to leave accident scene once authorisations obtained (Cl 39);
(c)2004-2005 - contravene condition of drivers certificate relating to maximum fees (s 29(2)(b)),
The Applicant's convictions under the Act for offences in his (previous) capacity as an operator are as follows:
(a)2008 - failure to include prescribed details in invoice (cl 51);
(b)2007-2008 - failure to record towing work (s 60);
(c)2007-2008 - contravene condition of licence relating to maintenance of holding yard register (s 58(1), cl 56(1)-(2));
(d)2004-2005 - contravene condition of licence relating to maintenance of holding yard register (s 88(1), s 58(1), cl 56(1)-(2));
(e)2004-2005 - contravene condition of licence relating to record-keeping (s 60(1)(2)(b));
(f)2004-2005 - contravene condition of licence relating to record-keeping in approved form (s 60(3));
(g)2004 - contravene condition of licence relating to imposition of maximum fees (s 58(1)); and
(h)2004 - contravene condition of licence relating to keeping prescribed records and documents at place of business (s 88(1), s 58(1), s 20(2)(b)).
Furthermore, on 24 April 2012 the Applicant was found guilty of resisting or hindering a police officer in the execution of her duty in contravention of s 546C of the Crimes Act 1900 (NSW). The Applicant was discharged under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) on condition that he enter into a good behaviour bond for a period of six months.
The Applicant has also been the subject of two penalty notices for offences under the Act.
Many of those matters were at the lower end of the scale of seriousness and have been described as "administrative breakdowns" or "regulatory contraventions". Nevertheless the Respondent contends that there is no evidence that the Applicant has taken any steps to remedy or guard against the deficiencies that have arisen in his practice as a tow truck driver. It argues that his sustained absence of effort permits an adverse inference about whether he is a fit and proper person to be a tow truck driver.
While I accept that an offence related to a tow truck driver failing to leave the scene of an accident when required to do so falls at the lower end of the scale of seriousness, I do not regard it as reasonably described as an "administrative breakdown" or "regulatory contravention".
The oral evidence before the Tribunal largely concerned the incident on 3 May 2011 when the Applicant attended a motor vehicle accident at High Street, Epping. As a result of that incident the Applicant was charged with a number of offences. He subsequently pleaded guilty to the charges of failure to comply with direction of authorised officer and resisting or hindering a police officer in the execution of her duty.
The Respondent contends that the Applicant acted in a way that intimidated one of the motorists involved in the accident and that on a number of occasions he disobeyed directions given to him by a police officer. In that regard the Respondent relies on the evidence of Senior Constable Ingrid Lewis and Ms Beverley Ripley. Each provided statements and attended the hearing, gave evidence and was cross-examined.
The Applicant provided his own evidence in regard to the incident and to some extent he contradicted the Respondent's evidence. He accepts that he did not fully co-operate with the police officer, Constable Lewis, but he denies that he intimidated the motorist, Ms Ripley.
In Ms Ripley's statement she recounted how she was affected by the interaction between herself and the Applicant. She stated:
6. When I asked the male to move away, he only took one step away from me. He would have been only a metre away from me still. I felt really irritated that the male was that close to me when I had asked him to move away. I took a couple of steps away from the male as I felt that he was in my personal space and I wanted some privacy. I looked in my handbag for my NRMA card but could not find it. I then looked in my car for my NRMA card but could not find it there either. I was started to get flustered and the male was still hovering around my car. I then used my mobile phone, ... At this time I was standing at the rear of my car. The male was standing at the rear passenger door of my car on the road side, he was watching me the whole time. I had to provide personal details to the NRMA operator such as my name, address and date of birth. Whilst providing these details I was conscious of how close the male tow truck driver was and kept my voice down to ensure he could not hear those details ...
10.During my interaction with the male tow truck driver he made me feel flustered as I felt he was trying to pressure me into using his towing service. I felt he was trying to hang around close to me because I was vulnerable being a slight female by myself and he was a large male, and that he would be able to get my business this way. I felt that the male was invading my personal space and I took a couple of steps away from him to retreat as I wanted some privacy. I was shaken by the incident, not because of the damage to my car, but because of the atmosphere while I was at the scene. I was trying to contact people to help me and could not contact anyone, and the male was just hovering around me. The male was being disrespectful and rude to police. I do not recall if he used explicit words or not but he was using a tone of voice that was belligerent.
This evidence given by Ms Ripley was not challenged in any important respects.
In her statement Senior Constable recounts a conversation with the Applicant:
I said, "I'm directing you now to move away. I believe your presence is intimidating. This lady is organising her car, through her insurance. I don't believe you need to follow her around so closely. I'm officially directing you to move away from this site and back to your truck Assadourian. If you don't you're committing an offence. Maybe several. And write out tickets for those, so for the fourth time, get away from the accident scene, the cars and drivers and go back to your tow truck. "
ASSADOURIAN said, "Fine me, I don't care. Just do it."
ASSADOURIAN refused to comply with my reasonable direction to move away.
At paragraph 22 of his affidavit sworn 10 June 2011, the Applicant recounts the conversation in the following terms:
22. SC Lewis then walked back up to me and said to me in a loud voice:
She said: "Stop intimidating her. Go to your truck and wait in your truck.
When she is ready, she will come to you."
I said:"I am not intimidating anyone. I am standing here waiting."
She said: "I said go to your truck."
My truck was parked about 15 metres down the road so I said to SC Lewis: "I am not going anywhere."
She said: "What. I am telling you to go to your truck now."
I said:"No I am not."
She said: "John, for the last time I am telling you to go to your truck."
I said:"I am not going anywhere."
She said: "Give me your licence, I am going to book you."
I said:"Here (I gave her my licence) go ahead and book me."
In cross-examination the Applicant conceded that he understood that Senior Constable Lewis was suggesting to him that he was intimidating Ms Ripley. Senior Constable Lewis gave evidence that she was herself intimidated by the Applicant. That is not to say that he accepted that he was in fact intimidating Ms Ripley.
Mr Condon sought to cast doubt on the value of Senior Constable Lewis's evidence because she did not have a clear recollection of the incident at the time of the hearing. I do not agree with that view. Senior Constable Lewis had a clear recollection at the time at which she made her statement and that recollection has not been called into doubt.
The Applicant's References
The Applicant relies on a number of references. For the most part those references are of limited value with respect to the issue of the Applicant's fitness to hold a tow truck driver's certificate as they give no indication of the author's knowledge of the Applicant's convictions.
Those that do make some reference to the convictions do not indicate a full appreciation of the Applicant's history. The reference must be read in that light.
The letter from Nick Souter, the general manager of Combined Towing, is an exception. Mr Souter made reference to the charges that the Applicant was facing and indicates that they were out of character for him. He makes no reference to the Applicant's previous record.
The references are of limited probative value in regard to the whether the Applicant is a fit and proper person for the purposes of these matters. However, I accept that the authors hold the Applicant in high regard.
Discussion
It has been made clear from the second reading speech and from in earlier decisions of this Tribunal that the legislature takes criminal activity within the tow truck industry extremely seriously. The Respondent argues that the Applicant's criminal record does not reflect a person who has the moral integrity and rectitude of character necessary to fulfil the role of a tow truck driver within the tow truck industry. It is further submitted that each of the offences took place in the course of the Applicant's activities in the tow truck industry and relate directly to his fitness to participate in that industry.
Further, the Respondent argues that the Applicant's argumentative behaviour towards police is significant, as is the repeated nature of the offences.
The conduct that resulted in the recent convictions occurred whilst the Applicant knew that the issue of whether he was a fit and proper person, and whether he should retain his drivers certificate was in dispute before this Tribunal. The Respondent argues that to commit further offences in those circumstances is indicative of a contemptuous attitude to the regulatory scheme.
I agree with the Respondent that the Applicant's behaviour at the incident on 3 May 2011 casts doubt on his ability to comply with his obligations as a tow truck driver. While I accept that it was towards the lower end of the scale of seriousness, the incident occurred at a time when the Applicant had the benefit of a stay of the Respondent's determination. The incident happened during the course of these proceedings. It is also relevant that it occurred within the regulated activity. In that regard the circumstances are quite different to those in the matter of A Solicitor v Council of the NSW Law Society (2004) 216 CLR 253.
The incident also must be viewed in the light of the conduct that has lead to several offences over the previous several years. In my view, it is an issue that goes to his ability to work within the scope of the regulatory scheme.
As noted above, a person's fitness is to be gauged in light of the nature and purpose of the activities that the person will undertake and the ends to be served by those activities. That involves taking account of a person's compliance with regulatory requirements and the extent to which their record of compliance reflects the person's attitude to the regulatory regime.
I agree with the Respondent that the Applicant has demonstrated over several years that he will breach the Act and at this time I do not have confidence that the Applicant will not re-offend or be the subject of further charges or disciplinary action.
On the totality of the evidence before me in this matter it is my view that the Applicant is not a fit and proper person to hold a drivers certificate.
Accordingly it is my view that the determination to refuse to grant the application was the correct and preferable decision in all the circumstances and the decision should be affirmed.
It is not necessary that I determine whether the granting of a drivers certificate would be contrary to the public interest.
For the same reasons it is my view that the determination to disqualify the Applicant from holding an operators licence or a drivers certificate was also the correct and preferable decision. In my view, some time out of the industry would assist in focusing his mind on the responsibilities of a tow truck driver and appropriate conduct of those working within the industry. However, I do not consider that a period of disqualification for 10 years is warranted. In my view, a period of disqualification for two years is warranted. In all the circumstances the decision should be varied to reflect that lesser period.
As this will have a significant effect on the Applicant I think it appropriate that the orders not have effect immediately. In my view, it is appropriate that the decision have effect 28 days after this decision.
Orders
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.
I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.
Registrar
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Decision last updated: 11 January 2013
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