Cox v Director General, Department of Transport

[2002] NSWADT 230

CITATION:	Cox v. Director General, Department of Transport [2002] NSWADT 230
DIVISION:	General Division
PARTIES:	APPLICANT Barry Cox RESPONDENT Director General, Department of Transport
FILE NUMBER:	013308
HEARING DATES:	01/03/2002, 11/04/2002
SUBMISSIONS CLOSED:	05/15/2002
DATE OF DECISION:	11/12/2002
BEFORE:	Lees M - Judicial Member
APPLICATION:	Bus driver - suspension of authority - Passenger Transport Act - bus driver - suspension of authority
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Crimes (Sentencing Procedure) Act 1999 Passenger Transport Act 1990 Road Transport (Safety and Traffic Management) Act 1999
CASES CITED:	Sipple -v- Director General, Department of Transport [2001] NSWADT 132 Taylor -v- Director General, Department of Transport (GD) [2001] NSWADTAP 29 Basham -v- Director General, Department of Transport [2000] NSWADT 170 Ghachame v Director-General, Department of Transport [2000] NSWADT 113 Mulligan -v- Director General, Department of Transport [1999] NSWADT 126 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Saadieh v Director General, Department of Transport [1999] NSWADT 68
REPRESENTATION:	APPLICANT 1 March 2002 - R Nyolls, agent 11 April 2002 - M Galey, agent RESPONDENT A Wozniak, solicitor
ORDERS:	1. That part of the Director-General's decision to suspend Mr Cox's driver's authority concerning the period of suspension is varied so that the twelve month suspension be taken to start from 23 November 2001 and finish on 23 November 2002.

1 The applicant (Mr Cox) filed with the Administrative Decisions Tribunal (the Tribunal) an application for review of a decision dated 6 December 2001 to suspend his public passenger vehicle driver authority. The decision had been made by a delegate of the respondent administrator, the Director-General of the New South Wales Department of Transport (the Director-General).

2 The Tribunal’s jurisdiction to conduct the review is derived from section 52 of the Passenger Transport Act 1990 (the Act) and section 38 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act).

3 Mr Cox also applied for an urgent stay of the Director-General’s decision. On 19 December 2001 this stay application was heard by the Tribunal’s Deputy President and it was refused.

Relevant Legislation

4 Section 4 sets out the objects of the Act. It relevantly provides:

....
(e) to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services, and .....

5 Section 11 of the Act includes:

(2) The purpose of an authority under this Division is to attest:
(a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the 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.

6 Section 14 provides:

Having regard to the purpose of an authority, the Director-General may at any time vary, suspend or cancel any person's authority.

7 After an intervening directions conference, the Tribunal hearing began on 1 March 2002 and then was adjourned part-heard. The reason for the Tribunal’s adjournment lay in the fact that Mr Cox appeared in Macksville Local Court on 10 January 2002 on a charge of driving with a low range prescribed concentration of alcohol (PCA) at which time the Magistrate adjourned the matter until 7 March 2002. In this regard Mr Wozniak, for the Director-General, advised the Tribunal that he understood Mr Cox had pleaded guilty to the charge and his instructions were that if Mr Cox were found guilty by the Court on 7 March 2002 the Director-General would proceed to cancel Mr Cox’s authority.

8 The Tribunal resumed hearing Mr Cox’s application on 11 April 2002. At that time Mr Wozniak advised the Tribunal that at the Macksville Local Court on 7 March 2002 Mr Cox had been dealt with pursuant s. 10 of the Crimes (Sentencing Procedure) Act 1900 (NSW). He advised that he had received further instructions from his client immediately before the resumed hearing on 11 April 2002 which were to the effect that the suspension of Mr Cox’s authority was ‘to stand’. Mr Wozniak stated further that the original suspension had been pending the outcome of the Court proceedings, and that rather than having a suspension for an ‘indefinite period’, the suspension was to stand for a further 12 months from that day (ie. from 11.04.2002 until 11.04.2003).

9 Mr Wozniak advised the Tribunal that a copy of the Magistrate’s reasons on sentencing in the relevant local court proceedings had been ordered but had not been received in time for production to the Tribunal at the hearing. The Tribunal made directions which included the setting of a timetable to allow for the provision of: the Magistrate’s reasons; any details regarding refresher courses for drivers with bus authorities; and any related written submissions.

10 Subsequent to the hearing Mr Wozniak advised the Tribunal of difficulties and delays in obtaining the tape. Mr Cox however subsequently obtained and provided the Tribunal with a copy of the tape of the Magistrate’s reasons. This copy was then provided to Mr Wozniak.

11 Both parties provided a number of documents to the Tribunal.

12 As well as his formal application to the Tribunal for review Mr Cox provided it with copies of:

• an undated written submission filed with the Tribunal on 28 February 2002
• a print-out of a Road Traffic Authority overhead transparency titled ‘Staying Under the Legal Limit’
• personal references from RJ Eyre of Macquarie Engineering Pty Ltd, former wife Ms PJ Cox and Malcolm Orman, and
• professional references from WH Hansell, Paul G Kohler, Lou Barnes and Paul Lowe.

13 The Director-General provided the Tribunal with copies of the following documents:

• Application for Authority to Drive a Public Passenger Bus from Mr Cox dated 7 August 1996 including Declaration of (inter alia) understanding the ‘Bus Driver Authorisation Standards’ (4 pages)
• Medical Fitness of Driver of Public Passenger Vehicle form re Mr Cox certified on 6 August 1996
• Application for a Driver Authority to Drive a Private Hire Vehicle dated 17 March 1997 (3 pages)
• The front side of Mr Cox’s Public Passenger Vehicle Driver authority re Private Hire Vehicles (DB 0894)
• A letter from Mr Cox received by the Department in October 1997 concerning a Driver authority with an incorrect expiry date
• Department letter to Mr Cox advising that Department had noted on his record that he had breached speed limits whilst driving bus services, dated 25 May 1998
• Certificate under s. 33 of Road Transport (Safety and Traffic Management) Act 1999 re the operation of breath analysis instruments together with Test print out signed by police officer O’Reilly dated 23 November 2001
• Custody Management record re Mr Cox at Macksville Police Station 23 November 2001 (4 pages)
• Defendant Copy of Charge Sheet re Mr Cox’s low range prescribed concentration of alcohol (PCA) present in his blood on 23 November 2001
• Bail Undertaking of Mr Cox relating to the PCA charge
• NSW Department of Transport (Department) memo to Police Sergeant, Macksville Police Station dated 23 November 2001 requesting copy of relevant records
• Internal Department memorandum dated 23 November 2001 recommending the suspension of Mr Cox’s authority and the issue of a Notice to Show Cause as to why his authority should not be cancelled
• Department notice to Mr Cox of suspension and to show cause including a statement of reasons dated 23 November 2001 (2 pages)
• An email dated 27 November 2001 from Department officer to Ms J Aldred Department Internal Review document (1 page)
• New South Wales Police Service Facts Sheet (2 pages)
• Traffic Record of Mr Cox dated 19 October 1998 (3 of 4 pages)
• Traffic Record of Mr Cox dated 1 March 2002 (5 pages)
• Completed application form and accompanying letter from Mr Cox asking for internal review of decision of 23 November 2001 (3 pages)
• Department letter dated 6 December 2001 to Mr Cox confirming decision to suspend Mr Cox’s authority ‘until such time that the matter is heard in a Court of law’
• Letter from Mr Cox to Transport Workers Union (1 page-undated)
• Letter to Mr Wozniak from the Department dated 11 April 2002, and
• A number of facsimile cover sheets and related correspondence.

14 Subsequent to the hearing, correspondence was received from both parties concerning or containing additional material (which had been the subject of directions at the hearing on 11 April 2002) and limited further submissions [letters received 24 April 2002, 29 April 2001, 1 May 2002, 7 May 2002, 15 May 2001]. In this regard the further evidentiary material the Tribunal was provided with was:

• a copy of 2 page extracted document entitled ‘Programme’ which pertains to a ‘Driver Authority Course’, and
• a copy of a tape of the Magistrate’s reasons on sentencing in the Macksville Local Court of 7 March 2002.

15 Mr Cox obtained the relevant authority to drive a public passenger bus on 07.08.1996. The documents suggest Mr Cox also obtained an authority to drive a private hire vehicle in 1997. Mr Cox also holds a heavy vehicle licence and retains his regular driving licence.

16 At the relevant time in this application, Mr Cox was working as a Coach Captain with McCafferty’s Coaches. This work principally consists of driving express coach services in New South Wales.

17 The evidence concerning the incident giving rise to Mr Cox’s suspension and this application was essentially not in dispute between the parties. Mr Cox’s evidence as to the circumstances leading up to the incident was not challenged at the hearing.

18 Mr Cox’s evidence was that on 22 November 2001, he had arrived at Nambucca Heads at about 6am and had joined another driver who had just arrived (from Brisbane) and consumed several (‘two’/‘a few’) stubbies of beer. Mr Cox suggested that this was quite a common practice to help unwind and assist with sleep. Mr Cox then went to bed. He awoke at about 9.15am and visited a supermarket next to his motel. At about 10am he and three friends went to the Nambucca Hotel, where he stayed until about 1.45-2pm. He returned to his motel by taxi and joined another driver for another stubby of beer. Somewhere between 2.30-4.30pm Mr Cox then went to bed again. He estimated he had consumed about ten or eleven schooners of beer. The Police Service Facts Sheet records that Mr Cox told the police at the relevant time that he had consumed ‘8-10 schooners between 10am and 1.30pm’. Mr Cox again arose at about 11.50pm that night and prepared himself to start a new shift on the 23 November 2001.

19 Mr Cox commenced work at Nambucca Heads at around 12.40am, taking over a coach (with passengers) from another driver. After driving for somewhere between 200 and 400 metres Mr Cox was pulled over by Police in order to take a breathalyser test. Mr Cox’s test was positive. He was taken to the Macksville Police Station and was again tested. His reading was .055. Mr Cox was charged with driving with ‘Low Range Prescribed Concentration of Alcohol’ under section 9(2)(a) of the Road Transport (Safety and Traffic Management) Act 1999 and subsequently appeared before Macksville Local Court on 10 January 2002 and again on 7 March 2002. Mr Cox pleaded guilty before the Court and was sentenced on 7 March 2002. The Magistrate found the offence proven and exercised the discretion available to him under s. 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999, ordering, without proceeding to conviction, that the relevant charge be dismissed. The Magistrate came to his decision to dismiss the matter ‘not withstanding the serious nature’ of the type of offence it was.

20 Mr Cox’s evidence was that he submitted to the breath test without the ‘slightest concern’ it would read positive. He stated he had been breath tested in the past on his way to work of a morning and at the commencement of his shift at various locations around the state, including Nambucca Heads, without producing a positive, or ‘over the limit’ reading, despite having, before some of these tests, consumed similar amounts of alcohol. Mr Cox was ‘completely stunned’ by the advice he exceeded the limit.

21 At the time of the roadside breath test Mr Cox was taking appetite-suppressant tablets in an attempt to lose weight. On the day and night in question Mr Cox’s evidence was that he did not eat anything as he had not been hungry. He suspects that this may be the explanation for the positive reading on this occasion as distinct from his previous experiences where the reading had not been positive. His ‘normal procedure’ when meeting and drinking with friends at Nambucca Hotel would be to eat two or more pies at lunchtime and a microwave meal before retiring to bed.

22 Mr Cox’s evidence was that he was not aware prior to the night in question of the difference that not eating could make to a body’s absorption of alcohol. He is now aware that the consumption of food helps in the ‘dissipation of alcohol in the body’. He stated that he would have done things differently ‘that night’ had he had that knowledge at the time.

23 Mr Cox completed a 7 week (2 hours a week) ‘Traffic Offenders’ course (or ‘Traffic Education Programme’) between January and March 2002 - between the hearing of the charge before the Macksville Local Court and his sentencing. Mr Cox described the course as consisting of lectures from the Road Traffic Authority and from the Police, covering issues such as drinking, drug-taking and exposure to accident ‘results’ such as quadriplegia and paraplegia. At sentencing the Magistrate noted that Mr Cox had ‘obviously put a lot of time and effort into his work on the programme’.

24 In his evidence Mr Cox stated that he had ‘taken on board’ the Road Traffic Authority (RTA) calculations concerning the amount of alcohol consumed per hour and its dissipation rate in a ‘normal’ body. The RTA document setting out its calculations states that ‘As a general rule it takes the liver about one hour to convert the alcohol in one standard drink (e.g. 1 middy of beer) to waste products .... If you wanted to be sure you stay under 0.02, its better not to drink at all. If you wish to stay under 0.05 BAC, limit your drinking to the following number of standard of drinks: For Men 2 drinks in 1 hour - 3 drinks in 2 hours - 4 drinks in 3 hours....Remember your crash risk doubles at BAC 0.05’. The document states that one middy of beer equals 285 ml of fluid and that one schooner of beer equals approximately 425 ml of fluid. [‘BAC’ was not defined in the document extract provided to the Tribunal.]

25 Mr Cox recognised the generality of the document as a guideline only, given that individual metabolism can vary from person to person, but he believes that he has ‘always erred on the side of caution’, citing his record of not being over the limit on previous testings as evidence of this.

26 Mr Cox stated that he did not ‘drink and drive’ on the relevant occasion; he submitted that he never has and never will. He submitted that he is acutely aware of his responsibilities as a ‘Coach Captain’ and that he does not take lightly passengers’ trust in him for their welfare and safety. Mr Cox submitted that he has had long experience and a record for travelling millions of kilometres accident free and that his positive alcohol reading in the early hours of 23 November 2001 was the product of a his ‘mistake’ not to eat during the daytime of 22 November 2001.

27 Mr Cox submitted he was ashamed and embarrassed as a result of the positive reading. His evidence was that he had been a vocal opponent of drinking and driving amongst his family, friends and colleagues. Mr Cox submitted that he had already and would continue to suffer financially as a result of the suspension as he had a considerable mortgage to finance. He had also undertaken a traffic offender driver-training programme. In light of these submissions, and in terms of his application and the Act, Mr Cox sought that the Director-General’s decision to suspend his authority be set aside.

28 The first decision to suspend by a delegate of the Director-General’s was dated 23 November 2001. In the notice to Mr Cox advising him of the decision, it was stated that ‘This suspension will remain in force until the finalisation of the criminal charge before the court. After the criminal charge before the court has been finalised, the Department of Transport will further consider whether it is appropriate for the suspension of your driver’s authority to be lifted, or to otherwise revert to a permanent cancellation’. A statement of reasons was attached to the notice and it concluded with ‘it can not be attested that you are considered to meet the required standards for authorisation as the driver of a public passenger vehicle’.

29 The internal review decision of 6 December 2002 addressed the original decision of suspension and affirmed it. The delegate at this time reasoned that ‘the offence occurred while Mr Cox was responsible for other peoples’ safety. Mr Cox’s actions do not display that he has sufficient responsibility and aptitude to drive a public passenger vehicle in accordance with law and custom’.

30 As noted above, at the hearing on 11 April 2002 Mr Wozniak advised the Tribunal that a subsequent decision had been made to continue the suspension of Mr Cox’s authority for a further period of 12 months beginning that day. Mr Wozniak had nothing in writing from the Department explaining this reconsideration and extension of the suspension advising only that the period of extension was decided upon in order that the suspension not be for an ‘indefinite period’. Mr Wozniak also made brief reference to Sipple -v- Director General, Department of Transport [2001] NSWADT 132 in this regard (see below).

31 There was no evidence provided or submission made on behalf of the Director-General challenging Mr Cox’s character and reputation. Mr Wozniak stated he could ‘see Mr Cox is of good character’. Mr Wozniak did however question Mr Cox’s understanding of his obligations as a passenger bus driver.

32 A number of previous Tribunal decisions were mentioned by Mr Wozniak in his submissions. These were Sipple, Taylor -v- Director General, Department of Transport (GD) [2001] NSWADTAP 29, Basham -v- Director General, Department of Transport [2000] NSWADT 170, Ghachame v Director-General, Department of Transport [2000] NSWADT 113 and Mulligan -v- Director General, Department of Transport [1999] NSWADT 126.

33 Ghachame’s case, Mr Wozniak submitted, confirmed that the Act is about protecting the public and that the relevant test is what reasonable members of the public would expect of coach drivers. His submission was that the public expectation would require a high degree of responsibility in drivers including not presenting at work with a blood alcohol reading.

34 Both parties addressed in detail the circumstances in Sipple’s case endeavouring to illustrate its similarities and differences with the circumstances of Mr Cox’s suspension. In the Tribunal’s Sipple decision Mr Sipple’s authority was to be suspended for the period of one year from the date of his PCA offence. Mr Wozniak submitted that Mr Sipple’s circumstances were virtually identical with Mr Cox’s circumstances except that the potential for disaster was greater in Mr Cox’s circumstances as he had passengers in his vehicle and that Mr Cox knew he would be working in the early morning following his drinking. It was implicit in Mr Wozniak’s submission that the length of the suspension applied in Mr Sipple’s case would be similarly appropriate in Mr Cox’s case.

35 In terms of the Act, the focus of Mr Wozniak’s submission regarding Mr Cox’s suspension, original and continuing, was that it was warranted because Mr Cox’s actions on 22/23 November 2002 did not display sufficient responsibility and aptitude to drive a pubic passenger vehicle in accordance with law and custom. Mr Wozniak submitted Mr Cox did not understand his obligations. In addition Mr Wozniak suggested it could be that Mr Cox, given his offence, would not meet the expectations of reasonable members of the public.

36 The orders sought were an affirmation of the Director-General’s decision together with an order that Mr Cox attend a bus driver re-training programme, the details of which were to be provided. Subsequent to the hearing the Tribunal was provided with the copy of a ‘Programme’ which consisted of a two-page extract from a ‘Driver Authority Course Training Management Plan dated ‘Mar ’91’ detailing a one-day course.

Findings and Reasoning

37 The decision being reviewed can be considered in two parts:

(i) the actual suspension of Mr Cox’s authority in its original and continuing form, and
(ii) the length or period/s of that suspension.

38 The decision as first expressed and later confirmed on internal view was that the period of suspension was from 23/11/2002 ‘until the finalisation of the criminal charge before the court’. That date of court finalisation was 7 March 2002, at which time the charge against Mr Cox was dismissed without any conviction being recorded.

39 The original decision stated that after finalisation the Department would ‘further consider whether it is appropriate for the suspension...to be lifted, or to otherwise revert to a permanent cancellation’. The Tribunal was advised that after finalisation by the Macksville Local Court the Director-General had considered it appropriate that the suspension remain (be extended) rather than be lifted. The Director-General did not proceed to cancellation, which appears understandable given the circumstances and the Magistrate’s decision.

40 That part of the suspension decision concerning the period of suspension was therefore varied during the Tribunal’s review process. The second nominated period for the suspension was a further twelve months from the second and final hearing date (11 April 2002). Even if the decision of the Director-General as conveyed on 11 April 2002 was to be characterised as a completely separate decision, it nevertheless can be considered in two parts – the continuance of the suspension and the new period of twelve months. No submissions were made by either party in this regard. There is no doubt that the relevance of the outcome of the concurrent Local Court proceedings on the decision being reviewed was recognised by both parties and the Tribunal alike and the outcome of the Court proceedings had been contemplated in the Director-General’s original decision.

41 In this matter there was no dispute as to the accuracy of the evidence relating to the circumstances of Mr Cox being charged with the PCA offence. Mr Cox’s own evidence as to the facts and circumstances of the period leading up to his starting work and the charge was not challenged by Mr Wozniak on behalf of the Director-General, nor was Mr Cox’s evidence as to his longstanding principles and practice as far as drinking and driving were concerned.

42 The decision in Ghaucame states that the legislative power to suspend an authority, ‘while having a punitive effect on a driver, is predominantly designed to protect the public...’. The public interest in ensuring that those who have the care and control of passengers using public transport can be trusted not to behave in an inappropriate way, is clear. Ghaucame suggests that a driver must meet requisite standards of character, reputation, responsibility and aptitude.

43 Within the statutory context of the Act, the Director-General (and on review, the Tribunal) in exercising the power to suspend a driver’s authority such as Mr Cox’s, is expressly empowered to have regard to the purpose of such an authority. The purpose of such an authority is to attest that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle and is considered to have sufficient responsibility to drive the public passenger vehicle in accordance with law and custom.

44 Mr Cox’s character was not in issue before the Tribunal. Mr Wozniak did however questioned Mr Cox’s understanding of his obligations as a passenger vehicle driver.

45 In relation to the general interpretation and application of the term ‘fit and proper’ this Tribunal is commonly guided by the approach taken by the High Court. Its view is that the question whether a person is fit and proper is one of value judgment, by which process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker (per Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at para 63).

46 From the same authority, per Toohey and Gaudron JJ at para 56, it is clear that the question to be asked is whether a person is fit and proper "to undertake the activities in question". For present purposes that activity is driving long distance passenger coaches. As far as the Tribunal is concerned general considerations in relation to fitness and propriety have been set out by the Tribunal in, among other decisions, Saadieh v Director General, Department of Transport [1999] NSWADT 68 at paragraph 17-19.

47 There are two principal concerns regarding Mr Cox’s fitness and propriety as a driver of a public passenger vehicle. The first is the fact of his PCA offence. The second is whether there is a possibility of his re-offending in the nature of the PCA offence.

48 In considering the terms of s. 11 of the Act, there is a related third concern, and that is whether Mr Cox understands his obligations and can meet his responsibilities as a passenger vehicle driver. All these concerns arise out of the need to meet the Act’s objective of meeting community expectations for safe passenger transport services (s. 4).

49 In Saadieh at paragraph 18 the Tribunal identified several relevant considerations for assessing the likelihood that a person will re-offend. These include: the length of time since the offence/s were committed; the circumstances in which those offences occurred; whether the applicant admits responsibility for the offences and shows genuine remorse; the efforts the applicant has made to rehabilitate himself or herself during that time; and any change in the applicant's circumstances such as increased support from friends, family or professional service providers.

50 Mr Cox was charged with the PCA driving offence on 23 November 2001. His authority has been suspended since that date. Mr Cox pleaded guilty to the charge. Mr Cox completed a Traffic Offender Training programme between local court appearances. Mr Cox’s explanation appears to have been accepted by the Local Court resulting in dismissal and non-conviction ‘notwithstanding the serious nature’ of the matter. The Tribunal accepts as accurate the circumstances giving rise to Mr Cox being charged as detailed in the evidence provided above.

51 In relation to the RTA calculations and guidelines concerning alcohol consumption, Mr Cox stated he had taken this information ‘on board’. His evidence was unclear as to whether he took such on board prior to his offence of 23 November 2001 or that he has taken such on board since that time. If it was prior to the offence the evidence suggests that Mr Cox’s alcohol consumption on 22 November 2001 was judged very very finely and would appear to have fallen just within the RTA ‘general rule’. Leaving such a narrow margin was clearly too narrow for Mr Cox. Cutting such a fine line is a very questionable approach to the guidelines. If it is the case that Mr Cox has learnt of the RTA guidelines since the time of his offence, he has also learnt the extremely important fact that ‘amount consumed per hour’ is a generalised guide and not the only relevant factor in the conversion or absorption of alcohol by the body. He now knows that the ingestion or not of food or medication certainly affects his personal absorption rate. He also knows he needs to ask more questions about the dietary tablets and other medication he takes. It is accepted by the Tribunal that Mr Cox’s improved knowledge will form part of his future decision making process as to his consumption of alcohol.

52 The Tribunal also accepts Mr Cox’s evidence as to his shame and his embarrassment over being charged and guilty of the PCA offence. The Tribunal accepts that Mr Cox had no intention whatsoever of working while under the influence of alcohol. His evidence that after seven to nine hours sleep and feeling refreshed he believed he was fine to work and free of the effects of the alcohol previously consumed, is accepted. It is also accepted that he undertook the breath test with confidence and was stunned at the result.

53 At no time did Mr Cox suggest he had been unlucky. He took complete blame for his own actions and did not seek to deflect any responsibility. He understood the seriousness of the charge/offence he had committed. He did not seek to be excused at all.

54 Mr Cox’s references were all prepared in the knowledge of Mr Cox’s PCA charge. They were all supportive of his professionalism and those that addressed his view on drink-driving affirmed his staunch conviction against it. Particularly persuasive in this regard was the reference from Mr Cox’s non-drinker ex-wife which refers to 25 years of exposure to Mr Cox’s attitude and behaviour as far as drink- driving was concerned – Mr Cox was opposed to it and always conducted himself accordingly, personally and professionally.

55 The circumstances that gave rise to Mr Cox being charged with a PCA offence are considered by the Tribunal as extremely unlikely to be repeated.

56 On the material before it the Tribunal is satisfied that Mr Cox is fit and proper to drive a public passenger vehicle.

57 In relation to the third concern, as to whether Mr Cox has sufficient responsibility, the Tribunal is of the view that Mr Cox does understand his obligations and is capable of meeting his professional responsibilities and therefore has sufficient responsibility for the purposes of s.11(2). However, the Tribunal is also of the view that on one occasion the facts confirm that Mr Cox acted with insufficient responsibility, in that he assumed the driver’s role with a proscribed amount of alcohol in his blood, albeit unknowingly. Such action is acknowledged to have been the result of a miscalculation on Mr Cox’s part, albeit unintended, but nevertheless is of such a serious nature that it should not occur, or even come close to occurring, and could not go unaddressed. Taken together with the facts which followed - the actual low range alcohol reading and subsequent PCA charge, and that the charge had not yet been dealt with by the Court, the Tribunal is of the view that the Director-General’s original decision to suspend Mr Cox’s authority was the correct decision. It was in the nature of an ‘interim’ decision, as it was to be revisited after being informed by the Local Court’s consideration of the matter. As it turned out, the charge against Mr Cox was found proven. Accordingly on the occasion of 22/23 November 2001 he had not acted with sufficient responsibility in accordance with law or custom.

58 The Tribunal was not provided with any detail of the Director-General’s reconsideration of Mr Cox’s circumstances and suspension and its continuation. The evidence suggests the matter was not reconsidered or decided upon immediately after the Local Court decision on 7 March 2002. Whenever the decision to maintain the suspension was made it was not conveyed to Mr Wozniak or the Tribunal until 11 April 2002. It was conveyed orally only. There were no written reasons provided.

59 As noted above the reconsidered (or second) suspension extended the already existing suspension for a further twelve months from the day it was conveyed to the Tribunal. The effect the reconsidered decision means that Mr Cox’s total period of suspension would be nearly 17 months, ending 11 April 2003. No evidence as to the reasoning explaining how this period was decided upon was provided to the Tribunal.

60 Sipple’s case reveals that Mr Sipple’s circumstances included a number of similarities and a number of differences with those of Mr Cox. In the essential circumstances, of being found after certain periods of sleep to have alcohol in their blood while driving public passenger vehicles, the two men were ‘in similar boats’. In the Tribunal’s Sipple decision Mr Sipple’s authority was to be suspended for the period of one year from the date of his PCA offence. As understood by the Tribunal Mr Wozniak referred to Sipple as if the twelve month suspension would also be appropriate in Mr Cox’s circumstances. Other brief submissions by Mr Wozniak seeking to explain or warrant the difference in the application of the suspension periods were not sufficiently clear to be persuasive.

61 In the Tribunal’s view, the original suspension was warranted on the basis of the PCA charge and the relevant question it raised as to Mr Cox’s level of responsibility and aptitude. A continuation of that interim suspension (or second suspension) was warranted on the bases of the seriousness of the offence involved (despite the unlikelihood of recurrence) and the need for a period to be set aside to allow sufficient time for Mr Cox’s relevant retraining and rehabilitation, and the re-establishment of trust in him on the part of his employer and licencing authority.

62 In the period since his offence, particularly during the interim suspension period, Mr Cox has gone a reasonable way down the first of these two paths and in doing so has also contributed to the third. In the Tribunals’ view it is appropriate in determining the length of Mr Cox’s suspension to take into account the interim suspension period and what has been achieved during that time. In this regard, despite the differences between the circumstances of Mr Cox and Mr Sipple, it is agreed that on balance their cases are very similar. The twelve month suspension applied by the Tribunal in Mr Sipple’s case is considered to also be appropriate for Mr Cox. Such suspension was applied to Mr Sipple from the date of his PCA offence. The Tribunal considers that there was no persuasive reason provided by or on behalf of the Director-General to start the continued suspension for twelve months from 11 April 2002. The original period of suspension which began on the same day Mr Cox had been charged with the PCA offence, 23 November 2001, and ended in March/April 2002, was a relevant and appropriate period of suspension and is to be taken into account. Accordingly, Mr Cox’s twelve month period of suspension should expire on 23 November 2002.

63 As noted above, Mr Wozniak also sought as part of the Tribunal’s decision an order that Mr Cox attend a bus driver training programme for the purposes of retraining (akin to the taxi driver refresher module proposed in Sipple’s case). The Tribunal has considered the evidence concerning the programme provided by Mr Wozniak, the programme already undertaken by Mr Cox and Mr Cox’s many years’ experience as a heavy vehicle and coach driver, and is of the view that no further order need be made in this regard at this time.

Decision

64 The actual decision/s of the Director-General to suspend Mr Cox’s driver’s authority is/are agreed with by the Tribunal. The Tribunal does not agree, however, with that part of the decision which purports to apply the twelve month suspension period without reference to the period of suspension already served.

65 In accordance with s. 63(3)(b) of the Tribunal Act, that part of the Director-General’s decision to suspend Mr Cox’s driver’s authority concerning the period of suspension is varied so that the twelve month suspension be taken to start from 23 November 2001 and finish on 23 November 2002.