Coyne v Department of Infrastructure and Transport - [2023] SADC 171

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
COYNE v DEPARTMENT OF INFRASTRUCTURE AND TRANSPORT
[2023] SADC 171
Judgment of his Honour Judge Slattery
15 December 2023
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - ACT CIVIL AND ADMINISTRATIVE TRIBUNAL - APPEAL TO COURTS
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS
The applicant brings an appeal against a decision of the delegate to the Minister for Infrastructure and Transport refusing his application for accreditation to drive buses on metropolitan roads under the Passenger Transport Act 1994.
Whether and if so on what basis the decision maker made an error such as acting upon a wrong premise, allowing extraneous or irrelevant matters to guide or affect a decision, made a mistake of fact, failing to take into account a material consideration or if on the facts, whether the decision is unreasonable or plainly unjust.
Held:
1. Application dismissed
2.The delegate did not make any error in the consideration of and the decision to reject the applicant's application sufficient to enliven the jurisdiction of the court.

Observations about when and if past conduct can continue to speak a person’s current fitness and proprietary.
Passenger Transport Act 1994 (SA); District Court Act 1991 (SA); The Commercial and Private Agents Act 1972, referred to.
House v The King (1936) 55 CLR 499; Sobey v Commercial and Private Agents Board (1979) 22 SASR ; Commissioner for Consumer Affairs v McMurray (2017) 128 SASR 1; Health Care Complaints Commission v Litchfield. (1997) 41 NSWLR 630 ; Tziniolis re: Medical Practitioners Act (1966) 67 SR NSW 448, considered.

COYNE v DEPARTMENT OF INFRASTRUCTURE AND TRANSPORT
[2023] SADC 171

Appeal by John Anthony Coyne against an administrative decision made by the South Australian Department for Infrastructure and Transport.
The decision the subject of this appeal is the rejection of the application by Mr Coyne for accreditation to drive passenger buses under The Passenger Transport Act 1994 (the Act). Mr Coyne seeks an order of this court that his accreditation be allowed so that he can be employed as a bus driver (by Torrens Transit). In support of his application, Mr Coyne filed an affidavit affirmed 7 December 2022, which was read into evidence without objection or without any application for cross examination. The text of the affidavit provides:-
‘I have been made redundant in my chosen industry some 6 months ago and with my age being a huge road block finding it near impossible to get back into the industry.
I was/is employed by Torrens Transit to learn bus driving. I have passed all the tests including driving safe and smoothly.
The application for passenger bus accreditation was rejected due to my driving record. I understand the concerns but this is my way back into the workforce. I want to drive buses and Torrens Transit want me there.
This is my last step before I become permanently unemployed and my life will alter for the worse if I am not doing the role as bus driver.
I am willing to change my behaviour and be more responsible.’
The Minister for Infrastructure and Transport responded by document dated 10 January 2023 (FDN 4) in the following terms:-
Part 1
Attitude to the application
1. The decision on appeal is made pursuant to s 30 of the Passenger Transport Act (SA) (the Act). The appeal lies against the Minister for Infrastructure and Transport (the Minister) not the Department for Infrastructure and Transport.
2.   The Minister opposes the application.
3.   No cogent reason exists that warrants departure from the decision to refuse the applicant’s application for driver accreditation under the Act.
Part 2
Response to facts alleged in support of the application
1.   No facts are alleged on the application.
Part 3
Other facts relevant to the application
1. On 28 November 2022 the applicant made an application for driver accreditation under s 30 of the Act.
2.   On 1 December 2022 a delegate of the Minister refused the applicants application for driver accreditation.
3.   In making the decision of 1 December 2022, the delegate took into consideration the following matters:
a.The applicant has an extensive and long standing history of traffic offending, including:
i.   Committing 7 driving related offences which resulted in convictions being imposed, including driving without due care and failing to comply with breath analysis directions in 2014.
ii.    an excessive history of driving in excess of the speed limit
b.The applicant has been disqualified from driving 9 times, including 3 times in the last 10 years and twice for breaching conditions to be of good behaviour that were attached to his driver’s licence.
c.In addition to the driving offences outlined above, the applicant has a history of common assault and damaging property.
Part 4
Orders sought
1.   The respondent party is amended to the Minister for Infrastructure and Transport.
2.   The time for the respondent to file this response in the affidavit of the Vasilios (Bill) Dimitrios Georgopoulos is extended to 10 January 2023.
3.   The application is dismissed.
The response of the Minister was supported by an affidavit of the Vasilios Dimitrios Georgopoulos affirmed on 10 January 2023 in the following terms:-
The affidavit of Mr Georgopoulos was read into evidence without objection. There was no application for cross examination of Mr Georgopoulos.
I refer in particular to exhibits VDG3, VDG5, VDG6 and VDG7 to the affidavit of Mr Georgopoulos. I summarise the contents of some of those exhibits [VDG3] to [VDG5] below. I consider that it is necessary to set out the content of exhibits [VDG 6] and [VDG 7] in these reasons. They are self explanatory and have been appropriately redacted.
EXHIBIT VDG6
Exhibit VDG-7
The process of accreditation
The process of accreditation of a bus driver is regulated under Part 4 of the Act. The relevant portions of section 28 of that Act provides:-
Division 2—Drivers
28—Accreditation of drivers
(1)     A person must not drive a public passenger vehicle for the purposes of a passenger transport service unless the person holds an appropriate accreditation under this Division.
Penalty: Division 5 fine
Expiation fee: $315.
(2)     The purpose of accreditation under this Division is—
(a)     to attest—
(i)that the accredited 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 to which the accreditation relates; and
(ii)that the accredited person is considered to have sufficient responsibility, skills and aptitude to drive the vehicle or vehicles to which the accreditation relates—
(A)in accordance with the conditions under which a passenger transport service is operated; and
(B)     in accordance with law; and
(b)to provide a scheme to facilitate the observance of appropriate standards by the drivers of public passenger vehicles; and
(c)to provide for any other matter prescribed by the regulations for the purposes of this section.
(3)     The accreditation must specify the kind or kinds of vehicles and services for which it is appropriate.
Division 4 of Part 4 of that Act sets out the general provisions that regulate accreditation. Sections 30 and 31 of the Act provide:-
30—Procedure
(1)     An application for accreditation must be made to the Minister in a manner and form determined by the Minister.
(2)     The Minister may require an applicant for accreditation—
(a)     to furnish further information specified by the Minister; or
(b)to verify, by statutory declaration, information furnished for the purposes of the application.
(3)     An applicant for accreditation must meet any requirement, standard, criteria, qualification or condition set out in the regulations and must satisfy the Minister as to any matter the Minister considers relevant.
(4)     If the Minister refuses an application for accreditation, the Minister must notify the applicant in writing of—
(a)     the refusal; and
(b)     the reasons for the refusal; and
(c)     any appeal rights that the applicant may have under this Act.
(5)     The prescribed fee is payable to the Minister in respect of an application for accreditation.
31—Conditions
(1)     An accreditation will be subject to—
(a)the condition that the accredited person will observe the relevant code of practice under this Act; and
(b)     other conditions (if any)—
(i)    imposed by the Minister in relation to the accreditation; or
(ii)prescribed by the regulations or otherwise imposed under this Act.
(2)     The Minister may, for example, in relation to an accreditation under Division 1, give the accreditation subject to a condition that makes provision for or with respect to—
(a)     the area of operation of the passenger transport service; or
(b)     the periods within which vehicles may, or may not, be operated; or
(c)     the timetables to which vehicles are to be operated; or
(d)the fares to be charged or other arrangements for remuneration to be made (including the use of vouchers and fare subsidy schemes); or
(e)the manner in which the passenger transport service may, or may not, be operated; or
(f)the class of persons who may be transported on public transport vehicles operated for the purposes of that service.
(3)     The Minister may, if the Minister considers it appropriate to do so, by notice in writing to an accredited person, vary a condition to which the accreditation is subject.
(4)     An accredited person may, on application made to the Minister in writing, request the variation of a condition to which the accreditation is subject, and the Minister may, as the Minister thinks fit—
(a)     grant the variation; or
(b)     refuse to grant the variation.
(5)     The conditions of an accreditation may be varied by the addition, substitution or deletion of one or more conditions.
(6)     A determination by the Minister under this section as to an area for the operation of a passenger transport service by an accredited person does not confer on the person an exclusive right to operate a passenger transport service within that area.
(7)     A person must not contravene or fail to comply with a condition of an accreditation.
Penalty:
(a)     in the case of an accreditation under Division 1—Division 3 fine;
(b) in the case of an accreditation under Division 2—Division 5 fine;
(c)     in the case of an accreditation under Division 3—Division 3 fine.
Expiation fee: in the case of an accreditation under Division 2—$315.
An aggrieved person whose application for accreditation is refused, may appeal against that decision to this court under s 38 of the Act. That section provides:-
Division 6—Appeals
38—Appeals
(1)     A person—
(a)     whose application for accreditation under this Part has been refused; or
(b)who is an accredited person and is aggrieved by a decision under this Part with respect to—
(i)    the conditions imposed with respect to the accreditation, or a variation or proposed variation of them; or
(ii)     the variation of the accreditation; or
(c)who is (or has been) an accredited person and is aggrieved by a decision of the Standards Committee under Division 5,
may appeal to the District Court.
(2)     A right of appeal does not lie against a decision to suspend or revoke a temporary accreditation.
(4)     An appeal must be instituted within one month of the making of the decision appealed against.
(5)     The Minister or the Standards Committee must, if so required by a person affected by a decision made by the Minister or the Standards Committee (as the case may be), state in writing the reasons for the decision.
(6)     If reasons are not given in writing at the time of making a decision and the person affected by the decision requires (within one month of the making of the decision) the Minister or the Standards Committee (as the case requires) to state the reasons in writing, the time for instituting an appeal runs from the time at which the person receives the written statement of those reasons.
An appeal to this court is governed by subdivisions 1 and 2 of Division 2 of the District Court Act 1991, The Administrative and Disciplinary Division.
s 42 B of the District Court Act provides:-
42B—Application of Subdivision and interpretation
(1) This Subdivision applies in relation to the appellate jurisdiction conferred on the Court by another Act (the special Act) subject to the provisions of the special Act.
(2) In this Subdivision—
decision includes an act (such as the giving or making of a notice, direction, determination, requirement or order) and a failure or refusal to make a decision or act;
original decision-maker, in relation to an appeal, means the person or body whose decision is appealed against, and includes, if that person or body made the decision on an appeal against, or review of, a decision made by some other person or body, that other person or body.
s 42E of the District Court Act provides:-
42E—Conduct of appeal
(1)     The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2)     The Court, on an appeal—
(a)is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b)must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3)     The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
s 42F of the District Court Act provides:-
42F—Decision on appeal
The Court may, on an appeal—
(a)     affirm the decision appealed against;
(b)     rescind the decision and substitute a decision that the Court considers appropriate;
(c)     remit matters to the original decision-maker for consideration or further consideration in accordance with any directions or recommendations of the Court.
These sections have been thoroughly considered in a number of Full Court decisions in South Australia. In Commissioner for Consumer Affairs v McMurray.[1] Hinton J held at [82] to [84] as follows:-
[82]The language of s 42F of the DCA permits affirmation, rescission and substitution, or remittal for consideration or further consideration. None of the alternatives permit the District Court to examine the decision of the original decision-maker on the evidence or material before the original decision-maker and simply substitute the decision it thinks appropriate. For these reasons, I agree with Blue J that in an appeal under Pt 6 Div 2 of the DCA, unless a special Act otherwise provides, it is incumbent upon an appellant to demonstrate error before the appellate court may interfere with the decision of the original decision-maker. As Blue J indicates, this conclusion has the consequence that if the decision appealed against is in the nature of a discretion, an error of the type identified in House v The King must be established, if the appeal is against a factual conclusion, it must be demonstrated that it was not open to the original decision-maker to make the impugned finding, and if the appeal is on a question of law, it must be demonstrated that the original decision-maker wrongly decided that question. In each instance the error must be one determinative of the decision appealed against.
[83]However, that is not the end of the matter. Regard must be had to the command contained in s 42E(3) of the DCA. Relevantly, in Registrar of Firearms v Marksman Training Systems Pty Ltd (No 2) Stanley J, with whom Gray J agreed, said:
“Section 42E(3) is a mandatory provision requiring the Court on appeal to give due weight to the decision being appealed against and the reasons for it, and not to depart from the decision except for cogent reasons. There are two critical features to the operation of s 42E(3). First, the nature of the appeal being conducted by the Court is limited. The Court is not to allow the appeal from the decision appealed against except for cogent reasons. I consider that the purpose of s 42E(3) is to indicate that the appeal, while it is to be conducted in accordance with the terms of s 42E(2), is not an ordinary merits review of the decision the subject of the appeal. The Court on appeal is not to merely substitute its view for that of the original decision-maker. It is only to depart from that decision where cogent reasons exist. ‘Cogent’ means compelling, convincing, powerful. Second, in the context of this appeal, the decision being appealed against is the decision of the Registrar, affirmed by the Committee, to cancel the respondent’s licences, and the Court is required in conducting the appeal from that decision, to give due weight not only to the decision but to the reasons for it. Those reasons include not only the reasons of the Registrar but, for the reasons explained above, the reasons of the Committee.”
(footnotes omitted)
[84]… I also agree with Blue J that the error asserted must demonstrate convincingly that had the original decision-maker proceeded correctly it would have arrived at a different conclusion.
[1] (2017) 128 SASR 1.
Blue J delivered separate reasons. In his Honour’s decision, Blue J considered the question of the need for cogent reasons to interfere with an administrative decision. At [41] to [42], his Honour held as follows:-
The need for cogent reasons
[41]The Commissioner contends that the judge erred in departing from the Commissioner’s decision without giving due weight to it and in the absence of cogent reasons to do so.
[42]Section 42E(3) of the District Court Act 1991 (SA) provides: “The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.”
Then, at [44] – [47], his Honour held as follows:-
[44]The deference to be accorded to the underlying decision on an appeal governed by s 42E depends on the nature of the asserted error in the decision and reasons for the decision.
[45]Where the asserted error relates to the exercise of a discretion or the making of an evaluative judgment or policy decision, it will be necessary for the appellant to establish a process or outcome error of the type identified by the High Court in House v The King, and the mere establishment of a process error will not avail the appellant unless the appellant also demonstrates that there should have been a different outcome.
[46]Where the asserted error relates to a finding on an ultimate factual issue determinative of the result, it will not be sufficient for an appellant merely to demonstrate that the judge on appeal would not have made that factual finding. It will ordinarily be necessary for the appellant to demonstrate that the finding made was not open on the material properly before the decision-maker. Particular appellate restraint will need to be exercised when the finding turns on credit. When the asserted error relates to a finding on a primary or intermediate factual issue but not an ultimate issue, but in addition the appellant will also need to demonstrate that the correct factual finding would have led to a different outcome.
[47]Where the asserted error relates to a finding on an ultimate legal issue determinative of the result, the position is different. The appeal judge is required to determine the legal issue and if the judge concludes that the decision-maker wrongly decided the legal issue and it was determinative of the result, the appeal should be allowed. No question of deference to the decision of the decision-maker arises. Where the asserted error is of a primary or intermediate legal issue but not an ultimate issue, the appeal judge is required to determine the legal issue and then the appellant will also need to demonstrate that the correct legal position would have led to a different outcome.
(footnotes omitted)

The reference by the members of the Full Court in McMurray to the decision in House v The King[2] is a reference to the decision of the joint judgment of Dixon J, Evatt J and McTiernan J at pages 504-505 the full text of which is as follows:-
‘The manner in which an appeal against an exercise of discretion should be determined is governed by established principle. It is not enough that the Judges composing the appellate Court consider that if they had been in the position of the primary Judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if, it has the materials for doing so. It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.’
[2] (1936) 55 CLR 499.
The application of Mr Coyne challenges the exercise of the discretion of the decision maker, Mr Georgopoulos. Any challenge to the exercise of that discretion must be determined by me according to established principles. It is not sufficient, that if I had been in the position of Mr Georgopoulos I might have taken a different course. It is necessary for there to be an identification of some error made in the exercise of that discretion, such as acting upon a wrong principle, allowing extraneous or irrelevant matters to guide or affect the decision maker, a mistake of fact, a failure to take into account a material consideration or whether, upon the facts, the decision is unreasonable or plainly unjust.
I have earlier referred to the exhibits to the affidavit of Mr Georgopoulos. The third exhibit is a copy of the National Police Certificate. In 2014, Mr Coyne was convicted for a failure to comply with breath analysis directions and received a lengthy disqualification of his licence. Between 1986 and 1997 there were a number of minor driving offences such as disobeying traffic lights and major driving offences such as driving with excess blood alcohol, driving unlicenced, driving under disqualification or suspension. There were other criminal offences for which he was convicted. These included damaging property and common assault. There were then later further traffic offences such as driving without due care for which he received a conviction. There were two breaches of good behaviour bonds and a disqualification for a good behaviour conditions breach.
The fifth exhibit of the affidavit of Mr Georgopoulos discloses what is described as a ‘trumps offence enforcement summary’. This document sets out the traffic offences that have been committed by Mr Coyne since 1994. This discloses the recorded speeding offences committed by Mr Coyne between 15 September 1994 and 24 August 2022. The information provided discloses the level of (excessive) speed at which Mr Coyne was driving at the time that he was apprehended. The material within that summary discloses that on 2 August 2017, he was apprehended driving at a speed of between 10 and 20 kms an hour above the speed limit. On 29 April 2018, he was apprehended driving at a speed of less than 10 kms above the speed limit. On 17 November 2019, he was apprehended driving at a speed of between 10 and 20 kms per hour above the speed limit. On 12 April 2020, he was apprehended driving at a speed of between 10 and 20 kms per hour above the speed limit. On 16 March 2022, he was apprehended driving at a speed of between 10 and 20 kms per hour above the speed limit. Finally, on 24 August 2022, he was apprehended driving in a built up area at a speed in excess of the speed limit by an amount of between 10 and 20 kms per hour. These are objectively proven material facts. They are matters that have been taken into account by the delegate of the Minister in making his decision. The other offending history of Mr Coyne does not flatter him. It includes a broad range of offences which vary between some minor offences through to quite serious offences and offending. The last recorded offending is a speeding offence of 24 August 2022 some three months before Mr Coyne made his application to Torrens Transit.
In a number of decided authorities, some guidance is given to the proper approach to an assessment of conduct and the applicant and its connection to the question of fitness. The relevant principles and approach are summarised in the decision of Walters J in Sobey v Commercial and Private Agents Board.[3] I accept that his Honour was there dealing with a different statutory scheme although there are some common features. The decision of Walters J is instructive at number of levels. The application before Walters J in Sobey was an appeal against a decision by the Board constituted under the Commercial and Private Agents Act 1972-78 refusing an application by the appellant for licences under the act as a process server and a commercial sub agent. The case is not factually or legally apposite the case at bar however, the importance of the decision is the approach taken by Walters J on the issues. At [71] his Honour held as follows:-
‘…in dealing with the appellants application for the licences… the board was primarily exercising administrative functions. In the exercise of those functions, the board was under a duty…to act in good faith and to listen fairly and to give proper consideration to any submissions or contentions put forward by the appellant in support of his application and, having taken into account all relevant considerations, to exercise its discretion to grant or refuse the application on the merits. That, I think, is the duty which is imposed upon any administrative tribunal which is called upon to decide anything. And where a tribunal exercising administrative functions gives a decision in ostensible performance of its function, then if the decision is to be attacked it must be shown that in a particular case, the tribunal failed in truth, to exercise the duty imposed upon it by law, or that it acted upon grounds outside the purposes for which it was entrusted with a discretionary power or duty…’.
[3] (1979) 22 SASR page 70-77.
In the case at bar, no complaint is made that in reaching his decision, Mr Georgopoulos acted as in bad faith, arbitrarily or capriciously. Mr Coyne does not suggest that the merits of his application were not fully and properly considered. (cf Sobey at page 72).
On the materials before the Court I am satisfied that in making his decision Mr Georgopoulos canvassed the publicly available material concerning the conduct of the appellant as a driver upon the roads of South Australia. No challenge is made by Mr Coyne that Mr Georgopoulos did not inform himself of all matters relevant to the exercise of his discretion in the discharge of his discretionary power and duty. In the context of an application under the Act, I consider that the driving history of Mr Coyne must carry weight in the deliberations made by Mr Georgopoulos. Of course, Mr Coyne must be given every opportunity to comment upon or to contradict any information supplied to Mr Georgopoulos which is reflected within those reports. As I have indicated, Mr Coyne did not seek to correct or to contradict any of the matters prejudicial to him within the material obtained from the Commissioner of Police. (cf Sobey at page 72).
Having taken all of that material into account, Mr Georgopoulos has concluded that Mr Coyne is not a fit and proper person as required under the Act (viz s 28(1)(2)(a)(i) and (ii) Passenger Transport Act 1994).
When considering this aspect of the matter, in Sobey at page 74, Walters J looked at the content and structure of the relevant act. There are similarities between the approach used by Parliament under the accreditation process for the Commercial and Private Agents Act 1972 and the process for accreditation of drivers under Division 2 of Part 4 of the Act. I am satisfied that the decision-making process undertaken by the delegate, is not meant to pay lip service to the history of the applicant and to accept without more, that an applicant may have ‘changed’. It is necessary for all matters to be taken into account by the delegate in exercising his discretion.
In Sobey at page 74, Walters J emphasised that persons holding licences under the act then under consideration were intended to be persons who, by reason ‘…of knowledge, skill, capacity, good fame and character, can safely be accredited to the particular type of licence held’. A number of those considerations are pertinent specifically to the requirements of the Commercial and Private Agents Act as well as the exercise of the discretion under the Act. Some are of general application. These include knowledge, skill, capacity and character. Then at page 74 Walters J held :-
‘Any member of the public gauging the services of …a person holding a licence …is entitled to expect that person to be of good standing in the community and to possess sufficient skills, experience and proficiency to enable him to discharge the functions which he is licenced to perform. Hence it seems to me that the object of the legislation is twofold: first, to control regulate and supervise the conduct of those who engage in the sort of work falling within the ambit of the act and, secondly, to ensure that those to whom licences are granted are persons of probity who have the capacity to carry out the duties and responsibilities with which licences invest them’.
Even though some of these considerations may be confined to an application for a licence under The Commercial and Private Agents Act 1972, the general considerations have universal application. Concepts of skill, experience and proficiency to enable an applicant to discharge the functions of a licence are considerations which would be taken into account in the exercise of a discretion under s 28 of the Act.
Walters J then considered the role of the decision maker. At 74 his Honour held:-
‘Parliament has entrusted to the board the responsibility of seeing that the object and purpose of the legislation is achieved. The prime function, although by no means the only function, of the board is to grant licences to the right type of persons desiring to engage in the work…’
His Honour then considered s 16 of the Commercial and Private Agents Act which, as I have earlier observed is in similar terms to s 28 of the Act. Then at page 75 his Honour considered the criminal history of the applicant which similarly did not flatter the applicant Mr Sobey. His Honour held at page 75 that Mr Sobey had manifested a disposition towards criminal behaviour and that, he has shown no great respect for the law. In my view, similar sentiments may be expressed about the attitude of Mr Coyne. Then at pages 75-76, Walters J held as follows:-
‘I cannot imagine anything which is more germane to the question whether a person is a fit and proper person than the matter of his record of previous offences. Any previous breaches of the law, and any propensity towards offending against the law must, in my view, be regarded as of crucial importance. I would not go so far as to say that one criminal offence must necessarily deprive a person of that fitness and proprietary which is a prerequisite for a licence under the Act. But, in the present case, I think the appellants past conduct expenses an intrinsic defect of character which is incompatible with his being entrusted with a licence… ‘
The moral that he must learn is that he will have to demonstrate a greater respect for the law before he can expect to obtain a licence under the act.
The issue whether an appellant has shown himself to be ‘a fit and proper person’ within the meaning of …the act. Is not capable of being stated with any degree of precision. But for present purposes…an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence… but that also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entitles…The burden clearly lay upon the appellant to satisfy the board of his fitness and proprietary. He has failed to discharge that onus…’
The issue for my determination on the evidence is whether Mr Coyne has satisfied me that under the relevant legislation and applying the relevant authorities he is entitled to an order under s 42F(b) DCA. Under s 42E DCA, I am required to examine the decision of the original decision maker on the evidence or material before that original decision maker. I am not bound by the rules of evidence and I may inform myself as I think fit. I must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. I must give due weight to the decision being appealed against. I would not depart from that decision except for cogent reasons. I refer again to the decision of Blue J in Commissioner for Consumer Affairs v McMurray[4] at [42] – [48], which I have set out in full earlier in these reasons. I have adopted the approach described by his Honour in my deliberations.
[4] (2017) 128 SASR 1.
Similar views were expressed by Hinton J at [82] – [84] to which I also have previously made reference.
My understanding of the complaint made by Mr Coyne is that he alleges Mr Georgopoulos as a delegate of the Minister, erred in the exercise of his discretion or in the making of an evaluative judgment decision. In those circumstances, it is necessary for Mr Coyne to establish a process or outcome area as defined in the decision of the High Court in House v The King[5] as I have earlier discussed.
[5] (1936) 55 CLR 499 at 504 – 505.
On my review of the material, I am satisfied in forming his decision about the application for driver accreditation by Mr Coyne, the delegate has taken into account that members of the public who are travelling on the busses proposed to be driven by Mr Coyne have entrusted their safety to Mr Coyne. In considering that matter, it is relevant to take into account Mr Coyne’s previous driving record, his convictions, suspensions, disqualifications and accrued demerit points. I am satisfied that, adopting the approach of Walters J in Sobey, those matters would assume quite significant importance. I am satisfied that Mr Coyne has shown a failure to be able to comply with the rules and laws of the road and which regulate driving. I am satisfied that he has not displayed sufficient responsibility and skills, is not of sufficient repute and is not a fit and proper person to be accredited as a driver. Anyone who gets onto a bus driven by Mr Coyne reposes their trust in him to drive safely, carefully, skilfully and in compliance with all road rules. The fare paying public using buses would not have a reasonable degree of confidence that Mr Coyne would carry out his duties of driving a public passenger vehicle in a manner that is safe and with all due care, reflective of the responsibility of the position he holds.
I have earlier summarised the evidence given by Mr Coyne. Without any prompting on my part, he said in his submissions that he had ‘changed’ and that, presumably, the conduct which he previously suffered as reflective by his driving history no longer applies.
In the submissions of the Minister, a reference was made to whether past conduct can continue to speak to a person’s current fitness and proprietary. A number of authorities were referred to, in particular, Health Care Complaints Commission v Litchfield.[6] This was a decision of the Court of Appeal of New South Wales on an appeal by the Healthcare Complaints Commission against orders made by a medical tribunal in disciplinary proceedings against the respondent medical practitioner. The tribunal had ordered the doctor be suspended for a nine-month period, that he attend for assessment by a psychiatrist for twelve months and he should only practise in a position approved by the board. The complaints before the tribunal related to inappropriate conduct of a sexual nature by the doctor in the course of professional consultations with three female patients aged between 20 and 30. There was another incident about which evidence was given which had not been made the subject of a formal complaint. This evidence concerned conduct of a similar nature.
[6] (1997) 41 NSWLR 630 at 637.
There was a four and half year period between the last of the incidents and the date upon which the tribunal heard the matter. The tribunal described the complaints as being of ‘considerable antiquity’. The oldest complaint dated back over nine years, the others four years or more. There was a delay because of criminal proceedings brought against the doctor. In the tribunal, findings were made that the doctor had engaged in inappropriate sexual conduct with the three female patients in different practices at different times over a period of 5 ½ years. This was despite the denials of the doctor that he had committed any of the conduct and the strong defence of those proceedings. It is of note that the Court of Appeal found at page 637 at A-B as follows:-
‘no explanation was offered which made it unlikely that the conduct would occur again…’
The court then held:-
‘moreover there was nothing to suggest that the doctor had become a changed person during the four and half years since the last of the incidents. The nature of his defence precluded any admission of guilt or expression of contrition. In these circumstances, the long period between the first and last complaints was a factor which operated in favour of an order for removal. There was no claim that these incidents reflected ‘some isolated or passing departure from proper professional standards amounting to something less to proved unfitness’.
The Court of Appeal then referred with approval to the decision of Walsh JA in ex parte in Tziniolis[7] as follows:-
‘…reformations of character and of behaviour can doubtless occur but occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man’
[7] re: Medical Practitioners Act (1966) 67 SR NSW 448 at 461.
The decision of the Court of Appeal of New South Wales. The Council of the New South Wales Bar Association v Franklin (No.2)[8] dealt with the application for disbarment of a barrister who had been found guilty of four serious criminal offences including assault occasioning actual bodily harm and aggravated sexual assault which led to him being sentenced to an overall term of imprisonment for 7 ½ years with a non-parole period of 4 ½ years. The barrister gave evidence on oath in 2009 that he did not commit any of the offences for which he had been found guilty and that evidence was false to his own knowledge. It was held that he was not a fit and proper person to remain on the roll of the lawyers of the Supreme Court of New South Wales. When addressing the question of present fitness, the court referred with approval to the decision of Walsh JA in ex parte Tziniolis to which I have earlier made reference. The court held at [41] as follows:-
‘In the absence of any evidence from the respondent to show that he has addressed the defects of character revealed by his criminal conduct, that conduct continues to speak as to his present unfitness to practice’
[8] (2014) NSWCA 428.

The conduct referred to in Litchfield and in Tzinolis cannot be equated with the conduct which was taken into account by the delegate here in making his decision. There will be circumstances where past conduct can continue to speak to the persons current fitness and propriety. In the hearing before me the question of whether any ‘…explanation was offered which made it unlikely that the conduct would occur again…’ was not addressed in any detail. In my view great care must be taken to ensure that the factual circumstances of a case are properly addressed. It may be thought that Litchfield and in Tzinolis fall into a particular category of case and they will not necessarily be relevant in all cases. In the end, these are all questions of fact and the weight to be placed upon those facts.
I find that there is no cogent reason to depart from the original decision. I accept that Mr Coyne has exceeded the speed limit at least 24 times including five times since 2018. I accept as proved that he has committed seven driving related offences which resulted in convictions being imposed, including driving without due care and failing to comply with breath analysis directions in 2014. I find proved that he has been disqualified from driving on nine occasions including three occasions during the last ten years and twice for breaching conditions to be of good behaviour that were attached to his drivers licence. I am satisfied that Mr Coyne has a lengthy history of driving offences, of disobeying road rules and of disobeying the laws relating to driving. I accept the submission of the respondent that this discloses a consistent pattern spanning some thirty years of offending.
I am satisfied and I accept that the delegate could take all of this history into account when determining the application by Mr Coyne for accreditation. I have formed this view irrespective of the evidence given by Mr Coyne that he has passed all the tests including driving safely and smoothly. That is not to the point. It is necessary to take into account the whole of the history in order to form a view.
I am also unable to place any weight upon the contention of Mr Coyne that he will change. The exhibits before the court show that in August 2022 nearly three months before applying for accreditation, he was detected driving at an excessive speed in a built up area, that speed being not less than 10 and not more than 20 kmph above the speed limit. It was open to the decision maker to form a view that Mr Coyne has a laissez-faire attitude to the rules of the road. I am also satisfied that the personal circumstances of Mr Coyne have no relevance when a determination is made as to whether or not he should be granted accreditation.
I am unable to detect any error (in the House v King sense) made by the decision maker in exercising his discretion to reject Mr Coyne’s accreditation. I make the following orders:-
1.The respondent party is amended to ‘Minister for Infrastructure and Transport’;
2.The appeal is dismissed;
3.There be no order as to costs