B v Director General, Department of Transport

[2001] NSWADT 203

CITATION:	B v Director General, Department of Transport [2001] NSWADT 203
DIVISION:	General Division
PARTIES:	APPLICANT B RESPONDENT Director General, Department of Transport
FILE NUMBER:	013052
HEARING DATES:	06/03/2001
SUBMISSIONS CLOSED:	03/06/2001
DATE OF DECISION:	08/01/2001
BEFORE:	Foster GF - Judicial Member
APPLICATION:	Bus driver - suspension of authority - Long Distance Service driver - suspension of authority - Passenger Transport Act - bus driver - suspension of authority - Passenger Transport Act - long distance service driver - suspension of authority - Passenger Transport Act - tourist service driver - suspension of authority - Tourist Service driver - suspension of authority
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990
CASES CITED:	Re T v Director of Youth and Community Services 1981 NSWLR 392 Farquarson v Director General Department of Transport [1999] NSWADT 53 Taylor v Director General Department of Transport [2001] NSWADT 17
REPRESENTATION:	APPLICANT K Graham, solicitor RESPONDENT A Wozniak, solicitor
ORDERS:	1 The decision of the Director General, Department of Transport, suspending the applicant's authority is affirmed; 2 Order under s 75(2)(B) of the Administrative Decisions Tribunal Act 1997 that there be an order prohibiting the disclosure of the name, address, picture or any other material that identifies or may lead to the identification of the Applicant

Ex tempore

1 On 6 March 2001 the Director General of the Respondent Department, the Administrator, by way of a decision made by a delegate suspended the public passenger vehicle driver authority FD9986 held by the applicant.

The suspension was notified to the applicant by a letter dated 6 March 2001 and in part said as follows:

"It has been determined that your authorisation to drive regular passenger services and long distance tourist and charters should be suspended following an allegation made to the Department of Community Services as set out in the attached statement of reasons. The suspension is effective immediately and means that it is against the law for you to drive public passenger services. The suspension will remain in place until such time as the police investigation has been concluded."
Attached to the notice of suspension was a statement of reasons that provided evidence of complaint made by two persons to the Department of Community Services alleging that the applicant had indecently assaulted a student.

2 On 14 March 2001 the applicant applied to the Tribunal for review of the decision.

The hearing of the application was held today, 11 April 2001.

3 Drivers' authorities are issued under Div 2 of Pt II of the Passenger Transport Act 1990. S 11 of that act provides:

"A person who drives a public passenger vehicle is guilty of an offence unless the person is the holder of an appropriate authority under this division, maximum penalty one hundred units."
S 11(2) provides:
"The purpose of an authority under this Division attests:
a) That the authorised person is considered to be of good repute and in all other respects a fit and proper person to be a driver of a public passenger vehicle and
b) That the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates:
i) In accordance with the conditions under which a public passenger service is operated, and
ii) In accordance with law and custom."
4 The decision to suspend the licence of the applicant is reviewable by the Tribunal under the provisions of s 55 of the Administrative Decisions Tribunal Act 1997 , the Act.

S 55(1) provides:

"A person may apply to the Tribunal for a review of a reviewable decision only if:
a) The application made by an interested person and
b) An internal review is taken to have been finalised under s 53(9)."
S 55(2)(a) provides:
"However subs s (1b) or (d) do not prevent a person from making an application in respect of a reviewable decision that has not been the subject of an internal review under s 53 if the Tribunal is satisfied among other things,
a) The person was not at any time entitled to apply for an internal review of the decision."
S 52(1) of the Passenger Transport Act1990 provides:
"Any person whose application under Pt II has been refused or whose accreditation or authority has been waived, suspended or cancelled my apply to the Administrative Decisions Tribunal for a review of the refusal, variation, suspension or cancellation."
There is no provision for internal review of such Pt II decisions under the provisions of the Passenger Transport Act , and accordingly I find that I have jurisdiction to entertain this application not withstanding there has been no internal review.

5 The Act specifies the responsibilities of the Tribunal in dealing with the present application.

S 63 provides:

1) In determining an application for a review of a reviewable decision the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it including -
a) Any relevant factual material
b) Any applicable written or unwritten law.
2) For this purpose the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the Administrator who made the decision.
Thus my position in hearing the application today is that I am standing in lieu of the Administrator in determining an interim question of a suspension of the authority of the applicant.

6 The applicant was issued his current public vehicle authority licence on 25 November 1996. The decision of the Administrator is a decision to suspend pending further investigation. The applicant was notified of the suspension pursuant to s 47(1) of the Passenger Transport Act which provides:

"If the Director General makes a decision that is able to be reviewed under this part it is a duty of the Director General to cause any person entitled to request the review or to lodge the application with the Administrative Decisions Tribunal for a review. In case of a person entitled to lodge an application with the Tribunal to be given notice that is in accordance with s 48 (Notice of decision and review rights to be given by Administrators) of the Administrative Decisions Tribunal Act 1997 and a statement of reasons setting out the matters specified by s 49(3) of that Act."
The Administrator in this matter appropriately complied with the provisions of s 47 in the notice of suspension of authorisation dated 6 March 2001.

7 The statement of reasons provided under s 49(3) of the Act sets out the following:

"FACTS, EVIDENCE AND MATERIAL

The department relies upon the following facts, evidence and material to make the decision to cancel your driver's authority number FD9986.

1) A complaint has been lodged by two persons to the Department of Community Services which alleges you have indecently assaulted a student.
2) The New South Wales Police Service's Child Protection Enforcement Agency has confirmed that they are investigating a complaint of this nature.
3) The New South Wales Department of School Education has confirmed that the alleged incident has been reported to the Department of Community Services.
Evidence of the above facts is in the form of:
1) Verbal advice from the New South Wales Department of School Education
2) Verbal advice from the New South Wales Department of School Education
3) Written advice from the New South Wales Department of School Education."
The statement of reasons then correctly set out the provisions of s 14 and there followed the following:
"THE REASONING PROCESSES THAT LED TO THE DECISION

The serious nature of the allegations causes the Director General of the department to doubt whether he can attest that you are of good repute. When determining the risk to the safety of the public it is considered this may be in jeopardy by continuing to allow you to drive public passenger vehicles.

The Administrator's decision is clearly a temporary one which ultimately will be confirmed by cancellation or a revocation of the current suspension. Public confidence in the public transport system depends significantly on the driving ability, trustworthiness and character of drivers.

8 S 11(2)(a) of the Passenger Transport Act refers to good repute and fit and proper person as relevant criteria. The objects of the Passenger Transport Act inter-alia provide in s 4E, “to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services."

9 Safety has a variety of connotations. Such connotations are relevant in the context of public transport. It relates to the quality of vehicles as well as infrastructure such as rail and roadways. It could also relate to passenger safety especially in relation to misconduct by other passengers. The driver of a public passenger transport vehicle may also present a risk to the safety of the passenger. The passenger and the driver are strangers to each other brought together in an intimate setting with the driver being in control of the route to the destination.

10 The requirement of good repute and the assessment of good repute is a matter for the Tribunal weighing all the evidence. The Tribunal takes the approach in assessing reputation described in the decision of Re T v Director of Youth and Community Services 1981 NSWLR 392 per Waddell J where his Honour said:

"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."
In this application it could not be said that the repute of the applicant is not at some risk as a consequence of the complaints made, their investigation and resolution in due course.

11 The circumstances of suspension by the Administrator when a driver is facing criminal charges were considered in Farquarson v Director General Department of Transport 1999 NSW ADTR 53 where the President, as he then was, sitting at first instance said at para 20:

"Regulatory schemes which provide for the issuance of licences on the basis of satisfaction as to a licensee's fitness and character usually include as part of their continuing oversight powers a power to suspend the licence for public interest reasons. Whilst it is the case that a person charged with a criminal offence must be presumed innocent until proven guilty it does not follow the consequences that lie outside the criminal law may be avoided. Civil consequences typically attached to the laying of criminal charges in various categories of public sector employment. Commonly, a public sector employee maybe stood down with or without pay depending on the statutory provisions. An Administrator of a licensing scheme would be expected to respond to advice that a regulated person had been charged with a serious criminal offence especially one arising out of circumstances that bear directly on the activity in relation to which the licence has been issued."
And I note in this case that the applicant has not been charged with a criminal offence, however there has been a complaint of some consequence.

At para 22 the President continued:

"In considering whether to exercise any discretion to suspend or otherwise interfere with the licence an Administrator cannot reasonably be expected to enquire into the strength or weakness of the case against the licensee. Similarly a review tribunal cannot be expected to go behind the information on which the Administrator has relied to the extent of examining the strengths and weaknesses of the prosecution case."
The President continued further at para 29 as follows:
"The Administrator in this case was entitled, I consider, to have regard to the serious charges layed against the applicant. It may be properly regarded as affecting his good repute even though judgment may need to be reserved as to whether any negative conclusions should be fought about fitness and character pending evidence at committal, trial and verdict. The Administrator is entitled to take account of the general circumstances giving rise to the charges without being called on to examine the strengths and weaknesses of the prosecution case or the nature of any defences."
and I stress here that the applicant in this matter has been most strong in his denials of the allegations to which he has been subjected.

The President continued at para 30:

"Powers of suspension are, by their nature, designed to provide a temporary form of intervention pending further developments or further considerations or action by the Administrator. A power of suspension as compared to outright cancellation does carry the marginal benefit for the licensee in not placing at risk the licence itself."
12 The applicant in this matter is the subject of a complaint, a serious complaint that could lead to criminal charges the ultimate result of which may carry a term of imprisonment. On the other hand, the complaint may prove to be completely unfounded and the applicant's licence promptly restored by the Administrator.

13 The circumstances of the conduct alleged in the complaint are such that the conduct complained of occurred during the performance of the applicant's licensed occupation. The nature of these proceedings that the Tribunal undertakes are referred to in the decision of Taylor v Director General Department of Transport 2001 NSWADT 17 in the following terms.

14 The Tribunal undertakes a merits review, a review of the merits of the original decision - and I stress those words, this is a review of the merits of the original decision, that is, the decision to suspend on a temporary basis the authority of the applicant. The Tribunal has the obligation to reconsider all the material first considered together with any further relevant material and in that regard I note that I have considered the file of the Department, I have considered the material produced on summons and I have considered the affidavit evidence and oral evidence of the applicant in coming to my decision.

15 These are not adversarial proceedings in which the applicant carries an onus of proof. The applicant by making the application triggers a process of merits review by the Tribunal. The applicant does not take on the responsibility of having to prove a case, nor does an applicant cause an Administrator to have to prove a case. The applicant and the Administrator are merely parties before the Tribunal pursuant to the provisions of s 67(2) of the Act. The Tribunal's role is to have regard to the material and the law and to decide the correct and preferable decision that ought to be made. It makes its own decision in place of the Administrator's and I can say there is no presumption that the decision of the Administrator is correct.

16 In this application, having considered all of the evidence including the oral evidence today, the Tribunal has had regard to:

1) The preliminary nature of the complaint in that it is still the subject of official investigation.
2) The seriousness of the conduct complained of.
3) That such conduct is alleged to have occurred in the performance of the licensed occupation of the applicant.
4) The responsibilities of the Administrator under s 11(2) of the Passenger Transport Act and that Act's objects.
5) The interim nature of the decision to suspend.
6) The previous good character of the applicant - and I note in that regard the most helpful concessions on behalf of the Administrator.
7) The denials by the applicant of the allegations.
8) The limited role the Tribunal has in reviewing the decision to suspend and only that decision.
Accordingly, and having considered all of the matters set out above I make the following order:
The decision of the Director General of the Department suspending the applicant's authority is affirmed.
17 However in making that order the Tribunal notes its expectation that the Administrator and the Department will act promptly to bring the present interim arrangements to an end either by the revocation of the suspension or an appropriate cancellation on relevant grounds.

18 I have before me an application by the applicant in these proceedings for an order under s 75 of the AdministrativeDecisions Tribunal Act. S 75(2) permits the Tribunal, if satisfied, that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason it may of its own motion or on the application of a party make any one or more of the following orders:

A) An order that the hearing be conducted wholly or partly in private.
B) An order prohibiting or restricting
i) The disclosure of the name, address, picture or any material that identifies or may lead to the identification of any person whether or not a party to proceedings before the Tribunal or a witness summoned by or appearing before the Tribunal, or
ii) The doing of any other thing that identifies or may lead to the identification of any such person.
I have regard to the following matters that:
1) This is a temporary suspension order.
2) That the allegations made in relation to the applicant are simply that - they are at this stage untested and untried allegations and complaints.
3) That the allegations are of a serious nature and consequence such that if they, prior to their determination, become known within the community there may be significant adverse consequences in terms of character and repute to the applicant in circumstances whereby the allegations may ultimately be found to be completely baseless.
Under those circumstances I order under s 75(2)(B) of the Act that there be an order prohibiting the disclosure of the name, address, picture or any other material that identifies or may lead to the identification of the Applicant.

Decision revised 29 November 2001

19 Although I said in the decision ‘There is no provision for internal review …under the provisions of the Passenger Transport Act’, I have since realised that internal review of reviewable decisions is provided for in section 53 of the Administrative Decisions Tribunal Act 1997 and that an internal review decision should have been made prior to the application being lodged.

20 However, I am satisfied under section 55(2)(C) of the Administrative Decisions Tribunal Act1997 that despite no internal review having been conducted ‘it is necessary for the Tribunal to deal with the application in order to protect the person’s interests and the application to the Tribunal was made within a reasonable time following the decision of the administrator concerned.