Australia in Style (Aust) Pty Ltd v Ministry of Transport

[2006] NSWADT 161

CITATION:	Australia In Style (Aust) Pty Ltd v Ministry of Transport [2006] NSWADT 161
DIVISION:	General Division
PARTIES:	APPLICANT Australia In Style (Aust) Pty Ltd RESPONDENT Ministry of Transport
FILE NUMBER:	053299
HEARING DATES:	14/12/05
SUBMISSIONS CLOSED:	01/20/2006
DATE OF DECISION:	05/31/2006
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Bus operator - cancellation of accreditation - Passenger Transport Act - bus operator - cancellation of accreditation - Passenger Transport Act - private hire vehicle operator - cancellation of accreditation - Private hire vehicle operator - cancellation of accreditation
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Passenger Transport (Bus Services) Regulation 2000 Passenger Transport (Private Hire Vehicle Services) Regulation 2001 Passenger Transport Act 1990
CASES CITED:	Abdou v Director General, Department of Transport [1999] NSWADT 98 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Loye v Director General, Department of Transport [2000] NSWADT 145 McDonald v Director General of Social Security (1984) 1 FCR 354 Ratay v Director General, Department of Transport [2003] NSWADT 40 Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 Saadieh v Director-General, Department of Transport [1999] NSWADT 68 Williamson v Director General, Department of Transport [2001] NSWADT 3
REPRESENTATION:	APPLICANT V Reed, agent RESPONDENT A Wozniak, Solicitor
ORDERS:	1. The Ministry’s decision to cancel the Applicant’s private hire vehicle accreditation is affirmed; 2. The Ministry’s decision to cancel the Applicant’s tourist and charter bus operator accreditation is set aside.

1 This is an application for review of a decision by the Ministry of Transport (“the Ministry”) to cancel two accreditations held by Australia In Style (Aust) Pty Ltd under the Passenger Transport Act 1990 (“the Act”). Accreditation 17865 is a private hire vehicle accreditation. Accreditation 23620 is a tourist and charter bus operator accreditation. Ms Vivien Reed is a director of the Applicant and she has brought the application on its behalf.

2 The decision was taken following the Ministry’s successful prosecution of Ms Reed and the Applicant in relation to a number of offences under the Act. Both Ms Reed and the Applicant pleaded guilty in the Parramatta Local Court to charges relating to offences on 28 February 2004 and 16 May 2004.

3 The Applicant was convicted of 16 offences relating to operating unlicensed hire cars on 28 February 2004 and 14 offences relating to operating unlicensed hire cars on 16 May 2004. The Applicant was fined $100 on each matter and ordered to pay professional costs of $500. Ms Reed was convicted of 16 offences relating to permitting the Applicant to operate unlicensed hire cars on 28 February 2004 and 14 offences relating to permitting the Applicant to operate unlicensed hire cars on 16 May 2004. Ms Reed was fined $100 on each matter and ordered to pay professional costs of $500. The total amount to be paid in the matters was $7,000 comprising fines of $6,000 and professional costs of $1,000.

4 Both Ms Reed and the Applicant had been prosecuted for similar offences on an earlier occasion. On 15 October 2004 the Court found the matters proved but no convictions were recorded, under Section 10 of the Crimes (Sentencing Procedures) Act 1999 however Ms Reed was ordered to pay legal cost of $800.

5 In July 2005 a delegate of the Director General of the Ministry issued a Notice to Show Cause to the Applicant and invited it to respond to matters raised for consideration of whether its accreditations should be cancelled. The Notice to Show Cause Statement of Reasons referred to the following reasoning processes that lead to the issue of the Notice:

“The fact you have been advised on a number of occasions that the service you were providing is in breach of the [Act] and you "continued" to provide such a service, casts serious doubts as to whether you can be considered to be a fit and proper person, and have the ability to act with sufficient responsibility according to law and custom.

The fact you carried out a private Hire Vehicle Service with an unlicensed private hire vehicle may have jeopardised the insurance coverage of any passenger within the unlicensed vehicle, or any member of the public that may have been involved in an accident with the unlicensed vehicle. This also casts doubts as to whether you can be considered to be a fit and proper person.

Based on the above facts and law it can no longer be attested that you meet the required standards for a Hire Car Accreditation.”

6 The Ministry’s reasons for the determination to cancel the accreditations were similar. While reasons are provided in relation to the cancellation of the private hire vehicle accreditation, no reasons were provided in relation to the cancellation of the tourist and charter bus operator accreditation.

7 The Applicant has sought an external review of the Ministry’s determination.

The Legislation

8 Private hire vehicle services in New South Wales are regulated under the Act and the Passenger Transport (Private Hire Vehicle Services) Regulation 2001 (“the Regulations”). Operators of private hire vehicle services must be accredited. Accreditation allows an assessment as to whether a person is of suitable character and fitness and has the competency to operate public passenger transport services in accordance with the criteria and conditions prescribed by the Act and the Regulations. Accreditation conditions are on-going requirements that an accredited private hire vehicle operator must meet to remain accredited. These conditions are prescribed by the Regulations pursuant to section 38D of the Act. An accredited private hire vehicle operator who contravenes a condition of the operator's accreditation is guilty of an offence.

9 Part 4A of the Act applies in relation to private hire vehicles. Within Part 4A, Section 37(1)(b) provides that a person who carries on a private hire vehicle service by means of a private hire vehicle is guilty of an offence if the private hire vehicle is not licensed under Division 4.

10 Section 38 provides that the Director-General may accredit persons for the purpose of carrying on private hire vehicle services. The purpose of accreditation is to attest that the accredited person is (or, in the case of an accredited person that is a corporation, the designated directors and managers of the corporation are) considered to be of good repute and in all other respects fit and proper to be responsible for the operation of a private hire vehicle service, and that the accredited person has demonstrated the capacity to meet and continue to meet the appropriate requirements with respect to financial viability, safety of drivers, passengers and the public, and vehicle maintenance, to the degree and in the manner required in respect of services of the kind specified in the accreditation.

11 Section 38E(1) of the Act provides that, having regard to the purpose of accreditation, an accreditation may be varied, suspended or cancelled at any time.

12 Clause 5 of the Regulations sets out the criteria to be met by applicants for accreditation to carry on private hire vehicle services. These include the requirement that an applicant must be of good repute, be a fit and proper person to carry on private hire vehicle service, and have the necessary knowledge and competence to carry on a private hire vehicle service and be financially capable of doing so.

13 Similar provisions apply in relation to the tourist and charter bus operator accreditation. Division 1 of Part 2 of the Act deals with accreditation of operators. Within that Division, section 7 provides that all operators of public passenger bus services must be accredited. It also sets out the purpose of accreditation under this Division in similar terms to that in section 38 i.e. that the accredited person is considered to be of good repute and in all other respects fit and proper to be responsible for the operation of a public passenger service, and that they have demonstrated the capacity to meet the stated standards. The Passenger Transport (Bus Services) Regulation 2000 prescribes the applicable standards. Section 10 of the Act gives the power to vary, suspend or cancel a person’s accreditation, having regard to the purpose of the accreditation.

The Ministry’s case

14 Mr Wozniak conceded that no reasons were provided in relation to the cancellation of the tourist and charter bus operator accreditation. However, he submits that the test for fitness and propriety is the same in relation to each of the accreditations.

15 In essence, the Ministry’s case is that the Applicant has breached the Act despite Ms Reed having been informed of the Ministry’s view that its conduct was not authorised by the accreditation. Material contained in the Ministry’s documents shows that an officer of the Ministry wrote to Ms Reed on 13 September 2001, advising her of her obligations in relation to the restricted hiring's that could be conducted under the Applicant’s accreditation. Further, on 12 November 2001 Ms Reed attended a meeting at the Ministry’s Office where she was advised of her obligations in relation to the restricted hiring that could be conducted.

16 The Ministry’s evidence is that it received information on 27 June 2003 that several wedding car operators carried out an alleged Hire Car Service on 14 June 2003, to convey passengers for a convention without the appropriate licenses. Statements contained in the Ministry’s file provide evidence of the event and identify Ms Reed as involved in the organisation of vehicles for the event. These also assert that Ms Reed had advised the persons giving the statements that all relevant approvals had been obtained. On 8 October 2003 Ms Reed attended an interview in relation to the matter. The Ministry asserts that Ms Reed was advised that the service she was undertaking was in breach of the Act. A transcript of the interview is contained in the Ministry’s file.

17 Both Ms Reed and the Applicant were prosecuted for these offences and on 15 October 2004 the Court found the matters proved but did not proceed to a conviction.

18 The Ministry further asserts that despite this advice Ms Reed again carried out a private Hire Vehicle Service with an unlicensed private hire vehicle on the 28 February 2004 and again on 16 May 2004. As a result, on 10 June 2005 she and the Applicant were convicted for the offences, fined and ordered to pay costs.

19 Mr Wozniak, the Ministry’s solicitor, did not dispute that the Applicant had obtained police approval of the events to which these offences related, but he disputed the significance of the police approval. He says that such approvals relate to the use of the roads and that the police would not be concerned with whether or not the vehicles involved in the events were appropriately licensed to participate. He contends that the legislation is clear and there was no room for misunderstanding - a "private hire vehicle" is a motor vehicle that is used to provide a public passenger service and a "public passenger service" means the carriage of passengers for a fare or other consideration. He pointed to the material filed by the Ministry which contains invoices in relation to the Applicant’s involvement in the events and show that sizeable amounts were charged in regard to the provision of vehicles. He says it is clear that the Applicant was providing a public passenger service for consideration in circumstances where the Ministry had already advises Ms Reed that it was not authorised by the Applicant’s accreditation.

20 Mr Wozniak submits that the convictions are cogent evidence of bad reputation. He urged caution in attributing weight to the testimonials provided on behalf of Ms Reed. He submitted that the testimonials did not specifically address Ms Reed's offences or the issues with which the Tribunal is concerned, and are therefore of little use. In support of that submission he referred to the views expressed by Judicial Member Rice in Loye v Director General, Department of Transport [2000] NSWADT 145.

21 He says that the closest inference that can be made from the references in relation to the matters before the Tribunal is contained in the reference from Augustine Au, the Applicant’s and Ms Reed's accountant, where it is said "we are not aware of any litigation in progress against Ms Reed or the Company...". Mr. Wozniak argued that in the circumstances, the Tribunal could not conclude that Ms Reed is of good fame from those references.

22 Mr Wozniak referred to views of the Tribunal’s Deputy President in Williamson v Director General, Department of Transport [2001] NSWADT 3 where she stated at paragraph 20:

“20 The allegations against Ms Williamson are significantly more serious than those in Hasegawa, but much less serious than the allegations in Farquharson of soliciting a person to commit murder. The offences for which Ms Williamson has been charged are the most serious offences under the PT Act in terms of the maximum penalty that can be imposed. That penalty is 1,000 penalty units or $110,000.00. However the maximum penalty that the Local Court can impose is 100 penalty units, or $11,000.00. (See s 60 of the PT Act.) The high penalties are no doubt based on the fact that using private vehicles to provide public passenger services undermines the ability of the Director General to ensure compliance with the standards and expectations set out in the legislation.”

23 Mr Wozniak submits that the offences in this matter are fundamental breaches of the legislation and the penalty imposed suggests their seriousness. He argues that the real issue is whether the seriousness of the offences to which the Applicant and Ms Reed have pleaded guilty, and which they admitted committing, are such that they are not fit and proper persons to hold operators accreditations. The offences are directly related to their roles in the passenger transport industry: see Ratay v Director General, Department of Transport [2003] NSWADT 40 at paragraph 22. They are irreconcilable with the role of an accredited operator.

24 Mr Wozniak also submits that it is significant that Ms Reed has shown no contrition but rather considers herself and the Applicant to be victims. He referred to comments by Wilson JM in Abdou v Director General, Department of Transport [1999] NSWADT 98 in which the Judicial Member stated at paragraph 14:

“There may be some cases where people express contrition and demonstrate evidence of their remorse and the steps they have taken to address changes in their lives from circumstances that have affected them in the past and in such cases on their particular facts, the Tribunal may come to a decision that despite an activity of the type mentioned, it may be appropriate to consider that the person involved at some later time meets the character requirements. This is not the case in this matter. The applicant still seems to be in some sort of denial about his responsibility for these actions and seems intent on not being prepared to accept full responsibility and then address what is required to change the balance in his favour. The character references that he brought were not helpful.”

25 Mr Wozniak submits that the same comments are applicable to Ms Reed and the Applicant in this matter and that the Ministry’s decision should be affirmed.

The Applicant’s case

26 Ms Reed appeared and made submission on behalf of the Applicant. She has also filed a number of references in an effort to substantiate that she and the Applicant are of good repute. These references indicate the author’s belief that Ms Reed and the Applicant are of good repute in the industry.

27 Ms Reed observed that the grounds provided by the Ministry and the statement of reasons for the determination relate only to the Applicant’s private hire vehicle operator accreditation. No bases are provided for cancellation of the Applicant’s tourist and charter bus operator accreditation.

28 Ms Reed does not dispute the outcome of the Local Court matters however she says that the cancellation is based on legislative reforms introduced in September 2001. The reforms have been the subject of continued discussion and review by the NSW Ombudsman, senior government ministers and major industry players. Ms Reed she says that prior to the reforms, the type of activities that were the subject of the charges against her and the Applicant were authorised. It was anticipated that this would be reflected in the 2001 legislative reforms however this did not eventuate. Since then the Ministry has indicated that the legislation would be reviewed but this has not taken place.

29 Ms Reed referred to the various items of communication from the Ministry and asserts that these communications provided inconsistent and misleading advice. She also says that relevant communication has been excluded from the material filed by the Ministry. She submits that it provides evidence of the Ministry agreeing to undertake initiatives and that this would lead a reasonable person to believe that the reforms of September 2001 may be amended. She also refers to meetings held to discuss changes to the 2001 reforms. She says that a promise of a review of the reforms has been perpetuated by the Ministry from September 2001 and continued to October 2005. Advice she received from the Ombudsman in October 2005 confirmed that the Ministry had advised a rescheduled timing for the 2001 review to be completed by March 2006. Ms Reed says that an ordinary person can reasonably deduce that a change to the reforms is being considered.

30 Ms Reed asserts that she believed that her activities were within the law. She says that she obtained police approval and acted openly, holding up a ‘Courtesy Car’ sign. She further asserts that a reasonable person can expect that if the police sanction an activity then it is legal and that if Sydney City Council approves your actions, it is not illegal. Such an open display is consistent with the actions of a fit and proper person. She says that all incidents were prior to the first Court appearance and that she has not conducted these kinds of activities since then.

31 Ms Reed referred to comments of Magistrate Flood in the Parramatta Local Court hearing on 15 October 2004. His Honour stated:

'There is certainly some room for misunderstanding …'There is no issue here regarding any issue of safety’.

32 No conviction was recorded on 15 October 2004. Ms Reed asserts that all the breaches of the Act preceded that court appearance and that while the other charges were the subject of a separate court hearing, they could have been dealt with on the one occasion.

33 As a result of the outcome of the hearing on 15 October 2004, the Applicant took a number of steps to respond to the Ministry’s concerns. All bookings for non-wedding and non-school formal work were either cancelled or directed to general hire vehicles. Ms Reed applied for, and received a hire car driver licence. The Applicant applied for, and was granted a hire car licence, and since 15 October 2004 has only used that hire car for non-wedding or non-school formal service.

34 Ms Reed urged the Tribunal to note that in the time between the two hearings, the Ministry provided written advice to the Ombudsman and the industry in regard to the rescheduled legislative review. She says that despite repeated written requests the Ministry has not yet provided parameters for the review. However, she says that an ordinary person could reasonably deduce from the Ministry’s correspondence that legislative reforms are still being considered.

35 She also contends that an ordinary person can reasonably deduce that if a senior manager in a government Ministry invites your views, and informs the NSW Ombudsman that your views are of value and importance, they value you as a contributor to the industry.

36 Ms Reed also referred to the Regulatory Impact Statement accompanying the Reforms, which she says, reveals aspects of the reforms that further contradict statements by the Ministry. For example, she says that the demand for classic vehicles to gala events is readily substantiated and that the interests of the passengers are not being protected by the Ministry’s actions, but rather curtailed.

37 Ms Reed referred to the Ministry’s statement of reasons, where it made reference to the possible jeopardizing of insurance coverage for passengers and asserted that this impinges on the Applicant’s status as a fit and proper person. Ms Reed says that no substantiation of this claim was provided. She further states that the Applicant’s insurers were consulted and confirmed that its passengers are covered by its insurance policy.

38 In support of her contention that she is a fit and proper person she points to the fact that she has been invited to submit to all reviews of the Department and the Ministry of Transport from 1984 to 1999 and again in 2005 and that she was invited to submit to an Independent Pricing and Regulatory Tribunal enquiry. She says she is a volunteer mentor in the NSW Department of State and Regional Development's 'Women in Business Mentor Program', is a volunteer board member of the International Special Event Society, and for 2002-2003 was a volunteer member of the board of the Business Events Council of Australia. She is a Justice of the Peace and has won international and local awards and grants for high service standards. She provided a number of references in support of this contention.

39 Ms Reed contends that the involvement of the NSW Ombudsman and two government ministers in the debate differentiates this matter from the cases to which Mr Wozniak has referred. She submits that the Applicant’s accreditations should continue in light of the fact that the bases for cancellation relate to only one of the accreditations and the other factors to which she has referred.

Findings and Decision

40 In this case, the role of the Tribunal is to make the correct and preferable decision having regard to the material before it, including any relevant factual material and any applicable written or unwritten law. It then affirms the original decision, varies it, or sets it aside. If the decision is set aside, the accreditations are reinstated. The Tribunal makes its own decision in place of that of the Ministry and there is no presumption that the decision of the Ministry is correct. (McDonald v Director General of Social Security (1984) 1 FCR 354.)

41 The evidence in this case consisted of the Ministry's file and court papers relating to offences for which the Applicant and Ms Reed have been convicted or found guilty, with no conviction recorded. Most of the evidence was not in dispute. The Applicant and Ms Reed have provided a number of testimonials in relation to their reputation. Ms Reed has referred to proposed review of the legislation governing the accreditations and the Ministry's failure to carry out promised reforms. She has also referred to her activities in regard to the proposed review and a wider role she has played within the industry generally. No evidence has been presented in relation to the Applicant’s tourist and charter bus operations.

42 The Ministry has the power to cancel an accreditation, having regard to its purpose. The purposes of the accreditations are referred to above. The issue in this case, then, is whether the decision to cancel the Applicant’s accreditations was the correct and preferable one, having regard to whether Ms Reed is a fit and proper person; whether she is of good repute and whether she has the capacity to meet the applicable standards in respect of those accreditations.

43 The meaning of being of "good repute" was discussed by Wadell J in Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 393. Wadell J defined reputation in the following terms:

“A person's reputation, in fact and in law, is to be found in the estimate of his moral character entertained by some specific group of people, such as those who live in the neighbourhood of his residence, those who work with him or those with whom he associates in his occupation or profession . . . Evidence of conviction for a criminal offence is, however, admissible as evidence, indeed, most cogent evidence of bad reputation.

44 It is common ground that Ms Reed and the Applicant have been convicted of various offences relating to the hire car operations. It is significant that these offences occurred while the Applicant was carrying on the activity that is regulated by the Act, and for which the accreditation was issued. Ms Reed and the Applicant must show that in spite of that history they enjoy good reputations. Ms Reed gave some evidence as to her reputation however her reputation is best established by evidence of others, and by inferences from positions she might hold in the community. To that end, she has produced a number of testimonials that attest to her reputation and character.

45 Being of good repute is a threshold issue. If Ms Reed is not of good repute then there is no need to go any further to consider whether she is a fit and proper person to hold the accreditations. She does not fail to be of good repute simply because of the Courts’ findings that she has committed offences. Repute is what other people think.

46 A positive estimation in spite of knowledge of an individual’s history would ordinarily weigh in favour of a person. A witness’s opinion of Ms Reed may be accepted as evidence of her reputation, although the weight to be given to that evidence will depend on the circumstances in which the witness formed the opinion. Whether a person’s history is known in the community will be a factor in assessing what weight is to be given to the evidence of their reputation. Ms Reed relies on a number of references that are relevant to this issue, however there is no way of knowing whether or not the author is aware of Ms Reed’s or the Applicant’s convictions.

47 Nevertheless, on the basis of the totality of those documents I am satisfied that Ms Reed is probably considered to be of good reputation. However, whether a person is of good repute is an issue that is related to, but different from whether a person is fit and proper for a particular purpose. I must also consider whether in all other respects, i.e. in all respects other than her reputation, Ms Reed is a fit and proper person to hold the accreditations. It is necessary that I consider whether, in the light of her offences, and the responsibilities and expectations on an accredited person, Ms Reed can nevertheless be considered to be fit and proper.

48 It is clear from the correspondence and the Ministry’s file that the Ministry considers that Ms Reed fails that requirements. There is evidence that could support that contention. It is necessary to determine what weight should be given to that evidence. Chief Justice Mason in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63] said that:

"The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration."

49 In the matter of Saadieh v Director-General, Department of Transport [1999] NSWADT 68 the Deputy President of this Tribunal considered a number of factors that are relevant and should be taken into account in determining whether a person is suitably fit to obtain a taxi-driver authority. I think that several of those factors are relevant Ms Reed's accreditations. Those factors are the nature, seriousness, and frequency of the offences for which Ms Reed has been found guilty or convicted; the nature, seriousness, and frequency of any complaints made against her; and the likelihood that Ms Reed will re-offend or be the subject of further complaints.

50 In assessing the last factor, several considerations are relevant. These include: the length of time since the offences were committed; the circumstances in which those offences occurred; whether Ms Reed admits responsibility for the offences and shows genuine remorse; the efforts she has made towards rehabilitation; and any relevant change in her circumstances. (See discussion in Saadieh from paragraphs 17).

51 The nature and seriousness of Ms Reed's offences are beyond question and are reflected in the penalty imposed by the Local Court. Ms Reed has not acknowledged the seriousness of the matters nor shown any remorse for her conduct. In contrast, she has criticised the Ministry’s inactivity in legislative reform and appears to be attempting to justify her conduct by reference to this inactivity.

52 I accept that the evidence suggests change to the legislation is being considered and has been under consideration for a long time with little progress. I also accept that all the offences for which Ms Reed has been convicted took place prior to the date of her initial court appearance. However, this does not alter the fact that she was either aware or should have been aware that she was acting in breach of the legislation. In my view Ms Reed’s activities in attempting to secure legislative reform makes it even more probable that she was aware of the limitations imposed by the legislation. If Ms Reed believed that the conduct that lead to her and the Applicant’s convictions was within the law, then that belief could not have been reasonably held. Her behaviour raises serious doubt about her honesty and integrity and the likelihood that Ms Reed will re-offend at least in relation to the use of private hire vehicles.

53 Operators are required to monitor and ensure that drivers comply with the standards that govern their work in the industry. In my view Ms Reed’s conduct has demonstrated little regard for the law or operator accreditation standards and a lack of responsibility. The fact that she did not comply with the required standards and law herself leads me to the view that she lacks the ability to ensure that others will comply with those standards. On the evidence before me I am not satisfied that Ms Reed can be consider to be a fit and proper person to hold the private hire vehicle accreditation. It follows, in my view, that the Ministry’s decision to cancel the Applicant’s private hire vehicle accreditation was the correct and preferable decision and should be affirmed.

54 In my view, the aspect of the matter that relates to the tourist and charter bus operator accreditation is to be regarded quite differently. This is because the activities authorised by the accreditation have not been affected by the legislative reforms in the same way that the Applicant’s private hire vehicle accreditation has been affected. There is no evidence at all in regard to any operations carried out by the Applicant under that accreditation. I have no evidence on which I could form the view that the Applicant would not carry out such operations in accordance with the legislative requirements. That being the case, it is my view that the Ministry’s decision to cancel the Applicant’s tourist and charter bus operator accreditation should be set aside and the accreditation should be reinstated.

Orders

1. The Ministry’s decision to cancel the Applicant’s private hire vehicle accreditation is affirmed.

2. The Ministry’s decision to cancel the Applicant’s tourist and charter bus operator accreditation is set aside.