Davis v Director General, Department of Transport

[2000] NSWADT 116

CITATION:	Davis -v- Director General, Department of Transport [2000] NSWADT 116
DIVISION:	General Division
PARTIES:	APPLICANT Sean Davis RESPONDENT Director General, Department of Transport
FILE NUMBER:	003258
HEARING DATES:	22/08/2000
SUBMISSIONS CLOSED:	08/22/2000
DATE OF DECISION:	08/23/2000
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	Passenger Transport Act - taxi driver - suspension of authority - Taxi driver - suspension of authority
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Passenger Transport Act 1990
CASES CITED:	Farquharson v NSW Department of Transport [1999] NSWADT 36 Farquharson -v- Director General, Department of Transport [1999] NSWADT 53 Commissioner for Motor Transport v Darcy Francis Leo, NSW Supreme Court
REPRESENTATION:	B Kimber, solicitor A Wozniak, solicitor
ORDERS:	1. The decision of the Director General to suspend the applicant's authority is stayed pending further order of the Tribunal; 2. Parties have liberty to apply to the Tribunal for further directions or orders on two days notice

Introduction

1 This is an application by Sean Davis to stay a decision of the Director General, Department of Transport, to suspend his taxi authority. The decision was made on 30 May 2000. The basis for the Director General’s decision was that Mr Davis has been charged with several criminal offences relating to allegations that he had sexual intercourse with a person between 10 and 14 years of age.

Relevant legislation

2 Under s 14 of the Passenger Transport Act 1990 (the Act) the Director General can suspend a licence. That section states that:

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

3 The purpose of an authority is set out in s 11(2) of the Act which states that:

(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.

4 The Tribunal has jurisdiction to review a decision to suspend an authority under s 52 of the Act. Normally an internal review must be conducted before the Tribunal can hear the matter. In this case I am satisfied, pursuant to s 52(2)(c) of the Administrative Decisions Tribunal Act 1997, (ADT Act) that it is necessary to deal with the application in order to protect the applicant’s interests and the application was made within a reasonable time following the decision to suspend the authority.

5 Under s 60 of the ADT Act, the Tribunal has power to stay a decision. That section states that:

(1) Subject to this section, an application to the Tribunal for a review of a reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision.
(2) On the application of any party to proceedings for an application for a review of a reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application.
(3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account:
(a) the interests of any persons who may be affected by the determination of the application, and
(b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and
(c) the public interest.
Evidence

6 The documentary evidence before the Tribunal consisted of:

• the application;
• a Statement of Mr Davis dated 18 August 2000;
• a Statement of Mr Peter Bevan dated 18 August 2000;
• Brief of Evidence in relation to the NSW charges;
• the Indictment Sheet in relation to allegations of offences committed in the Australian Capital Territory (ACT);
• a Statement of Facts provided by the Director of Public Prosecutions (DPP) in Wollongong relating to allegations of offences committed in New South Wales;
• Committal report from the DPP in the ACT; and
• a statement of facts from Australian Federal Police.

7 The charges against Mr Davis which took place in the ACT involve 7 counts of sexual intercourse with a girl who was between 10 and 16 years old and 5 counts of indecency in relation to the same girl. The alleged offences took place during 1989. He is also charged with having sexual intercourse with the same girl in NSW between 10 December 1990 and 29 January 1991. The parents of Mr Davis and the complainant were close friends and Mr Davis has known the complainant for a long time.

8 Mr Davis was between 16 and 17 years old at the time of the alleged offences. He is now 27 years old. The complainant was between 10 and 11 years old at the time. She is now 21 years old.

9 Mr Davis denies the allegations. Mr Bevan, Mr Davis’ solicitor, has made a “No Bill” application to the DPP in the ACT which is currently under consideration. At this stage no matter has been listed for trial.

10 Mr Davis has never been charged or convicted of any other criminal offences. For the last eight years he has been employed full-time as a Storeperson at Stegbar Pty Limited in Queanbeyan. Before his driver’s authority was suspended he was employed part time as a taxi driver. He has worked approximately 10 hours a fortnight as a driver over the last five years. There was no evidence of any complaints made against him as a taxi driver. He is married with four dependant children and they are expecting their fifth child in October 2000.

Submissions of the parties

11 On behalf of Mr Davis, Ms Kimber submitted that these charges relate to incidents which allegedly took place between nine and ten years ago. They are being strenuously defended and they may not be resolved for some time. Mr Davis has never been charged or convicted of any other criminal offences, nor have any complaints been made about him in the five years that he has been driving a taxi. He has stable employment and merely wishes to supplement his income by driving a taxi part time.

12 Mr Wozniak’s submissions were firstly that if the allegations were recent, there would be no question that his authority should continue to be suspended given the serious nature of the charges. The Tribunal cannot look behind the charges and make any finding about the likelihood that Mr Davis will be convicted. It must base its decision on the fact that charges have been laid.

13 In this case the laying of charges affects his reputation in the community, whether fairly or unfairly. In these circumstances the Director General can no longer attest to his good reputation.

Reasons

14 Issues similar to those arising in this case were considered by the Tribunal in Farquharson v NSW Department of Transport [1999] NSWADT 36 (17 May 1999). That matter concerned an application to stay a decision to suspend an authority. The applicant had been charged on 17 April 1999 with two counts of soliciting a person to commit murder.

15 In refusing to grant a stay of the Director General’s decision, the Tribunal said, at paragraph 32, that:

The Tribunal must balance various aspects of the public interest (as best they can be judged in the confined and urgent environment of a stay application). One is the public interest in maintaining in force an administrator's decision. The nature of the regulated activity must be considered and the way it impacts on the life of the community. Heed must be given to the objectives of the relevant primary legislation. Weight must also be given to the public interest in relieving individuals from the drastic effects, such as loss of livelihood, that can often flow from an adverse administrative decision pending its re-consideration by the external tribunal. The ability of the external tribunal to dispose of the substantive application quickly is also an important matter relevant to whether a stay should be granted. As has frequently been noted, the discretion is a wide one.

In the present instance a charge related to an offence of violence of the utmost gravity (murder) has been laid. The applicant's ability to earn income from his taxi business has been diminished by the suspension of his authority, but not extinguished. . . . Most importantly the substantive application has been listed for hearing on 28 May 1999. In these circumstances, the balance of the public interest considerations clearly favours refusal of the application for a stay.

16 In the decision on the substantive application (Farquharson -v- Director General, Department of Transport [1999] NSWADT 53 (9 July 1999)) Judge O’Connor referred to the decision of Commissioner for Motor Transport v Darcy Francis Leo, NSW Supreme Court (McInerney J), 10 September 1986, unreported. At paragraph 22 Judge O’Connor said:

In considering whether to exercise any discretion to suspend or otherwise interfere with the licence, an administrator can not reasonably be expected to enquire into the strength or weakness of the case against the licensee. That was the error into which the magistrate in Leo's case fell. Similarly a review tribunal can not be expected to go behind the information on which the administrator has relied to the extent of examining the strength and weaknesses of the prosecution case.

17 Taking into account the provisions of s 60 of the ADT Act as well as s 11(2) of the Passenger Transport Act 1990, the following factors would tend to support a decision to grant a stay of the administrator’s decision:

• the charges relate to alleged incidents which took place between 9 and 10 years ago;
• the charges have not been set down for hearing and they may not be heard for several months;
• the applicant has never been charged or convicted of any other criminal offences;
• the alleged incidents do not relate to the driving of a taxi;
• the applicant has been driving a taxi on a part time basis for five years with no adverse reports being made;
• the applicant wants to continue to drive a taxi to supplement his income in order to support his partner and four dependent children.

18 The only factor which would tend to support a decision to refuse a stay of the administrator’s decision is the fact that serious criminal charges have been laid. While there is no doubt that the laying of these charges would have some effect on the applicant’s reputation, in my view there is little or no threat to the public interest in allowing Mr Davis to continue drive. He has an unblemished record and has been driving a taxi without incident for five years. The hearing of the charges may take some considerable time and meanwhile Mr Davis would be deprived of the opportunity to supplement his income by driving taxis.

19 The decision of the Director General to suspend Mr Davis’ authority is stayed pending further order of the Tribunal.

Parties have liberty to apply to the Tribunal for further directions or orders.