Coles v Director-General, Department of Transport

[2001] NSWADT 23

CITATION:	Coles -v- Director-General, Department of Transport [2001] NSWADT 23
DIVISION:	General Division
PARTIES:	APPLICANT Graham Sidney Coles RESPONDENT Director-General, Department of Transport
FILE NUMBER:	003351
HEARING DATES:	08/01/2001 21/01/2001
SUBMISSIONS CLOSED:	02/06/2001
DATE OF DECISION:	02/15/2001
BEFORE:	Rice S - Judicial Member
APPLICATION:	Passenger Transport Act - private hire vehicle driver - grant of authority - Private hire vehicle driver - grant of authority
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Passenger Transport Act 1990
CASES CITED:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Loye v Director-General, Department of Transport [2000] NSWADT 145 Saadieh v Director-General, Department of Transport [1999] NSWADT 68 Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392:
REPRESENTATION:	APPLICANT In person RESPONDENT A Wozniak, solicitor
ORDERS:	1. The decision of the Department is set aside; 2. In substitution a decision that Mr Coles be granted an authority under the Passenger Transport Act to drive a private hire vehicle.; 3. Pursuant to s 88(1) no award of costs

1 For the reasons I give below, in my view the correct and preferable decision is that Mr Coles be granted an authority to drive a private hire vehicle.

Application, refusal and review

2 Mr Graham Coles applied for a driver authority under section 12 of the Passenger Transport Act ( PT Act ) to drive a private hire vehicle. His application was refused because of his proven offence record.

3 Mr Coles sought an internal review of the refusal, and the refusal was confirmed. Mr Coles applied to this Tribunal for a review of the refusal.

Relevant law

4 By s11(2) of the PT Act, an authority to drive a public passenger vehicle ‘attests’ to the holder of the authority being considered to be, among other things, “of good repute”. The Director-General must therefore, before granting such an authority, be satisfied that an applicant for an authority is considered to be of good repute.

Requirements to be met

5 The Department does not suggest that Mr Coles fails the requirements of s11(2)other the one relating to good repute. In my view that is appropriate on the basis of the material available to me, and is the correct and preferable decision as to Mr Coles’s meeting those requirements.

6 In particular, in my evaluation (see Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at para 63), none of the material raises for me a serious question as to whether Mr Coles is a fit and proper person to drive a public passenger vehicle. The offences of which he was convicted do not relate to or bear upon his ability to drive, and appear to have been an aberration in an otherwise law-abiding life; he appears unlikely to re-offend; he has disclosed the offences at every stage and has shown real remorse for his conduct. His driving record is not unblemished, but it is unremarkable and was not, in my view correctly, relied on by the Department in refusing Mr Coles’s application.

7 In deciding what the correct and preferable decision is in this matter, the Tribunal is concerned therefore with whether an authority should be granted attesting that Mr Coles is considered to be of good repute.

Requirement of ‘good repute’

8 Mr Coles does not fail to be of good repute simply because he has a criminal history, as I discussed in some detail in Loye v Director-General, Department of Transport [2000] NSWADT 145; an assessment of repute is a matter for the Tribunal, weighing all the evidence, and not determined only by the existence of a criminal history ( Saadieh v Director-General, Department of Transport [1999] NSWADT 68).

9 This Tribunal consistently takes the approach to assessing reputation described in Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392:
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 (per Waddell J at page 393).

Criminal offences

10 There are two convictions which put Mr Coles’s reputation in issue: one is for obtaining money by deception, and one is for making false statements to obtain money. For each offence Mr Coles pleaded guilty and was fined $750. He has paid those fines. He has repaid the money obtained by deception under an agreement he made with the party from whom he obtained the money.

11 I agree with the submission of Mr Wozniak that the facts of the offences appear to be serious, adding weight to a suggestion that they would adversely affect Mr Coles’s reputation.

12 The facts demonstrate that Mr Coles engaged in a considered undertaking, requiring some effort and planning, on two separate occasions. He forged a letter bearing a bank’s letterhead, and inserted text in that letter which was false. On the first occasion he actually obtained $23,500 and on the second occasion he was unsuccessful in attempting to obtain $31,200.

13 These are offences of dishonesty. They were considered, and not spontaneous. Their seriousness was not mitigated by any illness, stress or other subjective factors on Mr Coles’s part. Mr Coles has no explanation for his criminal conduct. His only explanation to me was that he suffered a “brain explosion”. In a letter seeking testimonials he wrote “Please don’t ask me why I did this, as I do not have a plausible answer and it defies logic”.

14 Against this I have regard to the following when considering the impact of the offences on Mr Coles’s reputation.

15 These are Mr Coles’s first and only offences.

16 Mr Coles readily admitted the offences and pleaded guilty. Considering the amount of money involved, the offences could have been dealt with as indictable offences. In fact they were dealt with summarily.

17 In sentencing Mr Coles the learned magistrate clearly did not treat the offences as being at the high end, or even in a mid-range, of seriousness, fining him only $750 for each offence.

Evidence of reputation

18 I have had the advantage, which the administrator did not, of hearing evidence from Mr Coles and of reading testimonials prepared for these proceedings.

19 In fact the Tribunal adjourned the proceedings to give Mr Coles the opportunity to obtain evidence of his reputation expressed in terms which acknowledged both the purpose for which he required it, and his offences.

20 Mr Coles tendered testimonials from Mr Larry Jacka and Mr Rod Watson.

21 The persuasiveness of evidence as to reputation will turn to a degree on the standing of the person giving the evidence. In the case of Mr Jacka and Mr Watson I assume from their professional positions that they are themselves people of standing and good repute, and this was not disputed by the Department.

22 Mr Jacka is a District Governor of Rotary International. His testimonial states that he is aware that Mr Coles “was charged with, found guilty of, and subsequently fined for two offences of deception”. He says that this knowledge has given him no reason “to change (his) mind, or to withdraw (his) support”. He states that he considers Mr Coles to be “a person of immense honesty and integrity and commitment”. He numbers Mr Coles among his closest friends and would recommend him for employment.

23 Mr Watson is Executive Director, Asia Pacific Region, of DBM. I understand from my inquiries that DBM is, in full, Drake Beam Morin, a USA-based outplacement and career management consultancy, incorporated in the USA in 1967. Mr Watson’s testimonial states that he is aware that Mr Coles “incurred a fine during 2000 for two charges of deception”. He says that he regards “these two offences as being completely out of character for Graham”, and that they “do not have any impact on . . . (his) view of Graham’s character nor (his) ability to commend him as a person of the highest integrity.”

24 Further, Mr Coles relies on a letter from his prospective employer, Mr Stuart Reed. At the hearing on 21 January 2000 Mr Coles said that he had not told Mr Reed of his criminal history, and had not intended doing so. Mr. Wozniak for the Department submitted that a prospective employer would be a highly relevant person from whom to gain an assessment of Mr Coles’s reputation in light of his criminal history. Mr Coles volunteered to obtain a statement from Mr Reed. He did so, and filed it with the Tribunal on 6 February.

25 Mr Reed is the proprietor of Limo’s R Us, and a neighbour of Mr Coles. He states that Mr Coles “has informed me of the offences which resulted in his conviction and fines of $1500”, but that he endorses Mr Coles’s application “without reservation”. He states that “Graham remains a person of good repute and is someone that (he) can trust to drive for (him) and protect the good reputation of (his) business”.

26 Mr Wozniak for the Department submitted that the testimonials are of limited probative value, as they are based on inadequate disclosure by Mr Coles to the authors of the nature and circumstances of the offences.

27 Mr Coles’s request for the testimonials was in writing, and that request was in evidence. He began by saying to the addressee “I find this fairly difficult to write, but I need your assistance . . ". He went on to say:
In May last year I attended Hornsby local court and was fined a total of $1500 after having pleaded guilty to two charges relating to deception, because I rather stupidly signed documents (falsely) to obtain insurance bonds in lieu of cash deposits for property and as it turned out I need not have done this dumb thing, as I could have legally obtained the bonds through a different source”.

28 Mr Wozniak cross-examined Mr Coles, and made submissions to me, to the effect that Mr Coles’s letter failed to convey to the authors of the testimonials the detail of his conduct, particularly the planned nature of it, and the seriousness of the offences.

29 I agree that that is so, but in my view the disclosure was sufficient to identify criminal and dishonest conduct to give any prospective referee real cause to reconsider their opinion of Mr Coles. The referees nevertheless provided unqualified testimonials to Mr Coles’s reputation as a man of integrity and good character. I cannot see that the referees’ opinions would have been different had the full details of Mr Coles’s conduct been known to them.

Correct and preferable decision

30 Having regard to all of the relevant factual material and the applicable written and unwritten law, I am satisfied that, despite his criminal history, Mr Coles is of good repute.

31 Accordingly in my view the correct and preferable decision is that Mr Coles be granted an authority under the Passenger Transport Act to drive a private hire vehicle, which authority would attest to the matters set out in section 11 (2).

Order

1 The decision of the Department is set aside.

2 In substitution a decision is made that Mr Coles be granted an authority under the Passenger Transport Act to drive a private hire vehicle.

3 Pursuant to s88(1) there is no award of costs.