Department of Transport and Infrastructure v Murray

[2011] NSWADTAP 16

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Department of Transport and Infrastructure v Murray (GD) [2011] NSWADTAP 16

Hearing dates:

25 February 2011

Decision date:

08 April 2011

Before:

Magistrate N Hennessy, Deputy President
S Montgomery, Judicial Member
M Bolt, Non-Judicial Member

Decision:

The Tribunal's decision is affirmed.

The appeal is dismissed.

Catchwords:

APPEAL - merits review of decision to refuse hire-car authority - meaning of fit and proper person - relevance of views of the travelling public

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Passenger Transport Act 1990

Cases Cited:

Farquharson v Department of Transport [1999] NSWADT 53
Maythisathit and Registrar of Motor Vehicles [1996] ACTAAT 165
Voelker and Road Transport Authority [2006] ACTAAT 4
Turk and Territory and Municipal Services [2010] ACAT 85
Toohey v Tax Agents' Board of Victoria (No 3) [2010] FCA 356
Toohey and Tax Agents' Board [2008] AATA 262
Jackson (previously known as Subramaniam) v Legal Practitioners Admission Board [2006] NSWSC 1338
Jackson (previously known as Subramaniam) v Legal Practitioners Admission Board [2007] NSWCA 289
Clearihan v Registrar of Motor Vehicle Dealers in the ACT (1994) 122 ACTR 25

Category:

Principal judgment

Parties:

Department of Transport and Infrastructure (Appellant)
Michael Murray (Respondent)

Representation:

M Castle (Appellant)
Smythe Wozniak (Appellant)
M Murray (Respondent - in person)

File Number(s):

109067

 Decision under appeal 

Citation:

[2010] NSWADT 295

Date of Decision:

2010-12-13 00:00:00

Before:

General Division

File Number(s):

103134

reasons for decision

Introduction

1. The Department of Transport and Infrastructure has appealed against a decision of the Tribunal granting Mr Murray an authority to drive a hire car. The Department had refused to grant Mr Murray the authority because he had been convicted of assault occasioning actual bodily harm while in the company of others. The offence occurred on 3 June 2007 when Mr Murray and two other men engaged in what the Magistrate described as an 'unprovoked' attack on a pedestrian. The three offenders followed the victim and his girlfriend after they left a hotel. The Magistrate said that "by kicking and punching the victim repetitively in company, in purely objective terms one would have difficulty conceiving of a more serious form of this offence." Mr Murray wrote to the victim saying he had 'apparently' been evicted from the hotel for being too intoxicated and has no recollection of the incident. He added that he was 'deeply embarrassed and ashamed to have been involved."

1. Mr Murray was sentenced to imprisonment for 2 years with a non-parole period of 18 months. That sentence, which was served by way of periodic detention, commenced on 1 May 2009. At the time of the hearing before the Tribunal on 17 September 2010, Mr Murray was still serving his sentence. The head sentence expires in May 2011.

1. When deciding whether to grant an authority to drive a "private hire vehicle", the Department is required to have regard to the purpose of authorisation: Passenger Transport Act 1990, s 40B(1). One of those purposes is "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 private hire vehicle": s 33(3)(a).

Tribunal's decision

1. The Tribunal decided that Mr Murray was of good repute and a fit and proper person to be the driver of a hire car. In relation to its finding of good repute the Tribunal acknowledged that a single incident of wrongdoing may affect a person's reputation but was satisfied that Mr Murray is a person of good repute taking into account the evidence from responsible members of the community who know him well.

1. In deciding that Mr Murray was a fit and proper person to be the driver of a hire car the Tribunal took into account the following factors:

a) the seriousness of the offence including that it involved a high level of violence and unwarranted injury; (at [10])

b) the fact that Mr Murray was heavily intoxicated at the time of the offence (which he attributed, at least to some extent to the grief he was experiencing following the deaths of two of his close friends in December 2005 and November 2006); (at [10] and [13])

c) the fact that Mr Murray had not been convicted of any previous offences and had no history of violence;

d) the unlikelihood that Mr Murray would commit any further offences involving violence;

d) the fact that Mr Murray showed genuine contrition at an early stage; (at [10])

e) the fact that Mr Murray is currently in a responsible position as an employee of a real estate agency and is engaged in voluntary community activities; (at [9]).

1. The Tribunal also decided that the fact that Mr Murray had arguably minimised the nature of the offence by recording on the application for a hire car authority that he had been charged with 'minor assault - self defence' did not reflect adversely on his fitness or his reputation.

Grounds of Appeal

1. The Department is entitled to appeal on a question of law but must obtain the Appeal Panel's permission before appealing against the merits of the Tribunal's decision: Administrative Decisions Tribunal Act 1997 ( ADT Act ): s 113. The Department withdrew its application for leave to lodge an appeal against the merits of the Tribunal's decision.

1. The grounds of appeal on questions of law, as modified during the course of the hearing, were that:

a) the Tribunal erred in failing to determine Mr Murray's fitness and propriety through the eyes of a reasonable member of the travelling public; and

b) the Tribunal erred by finding that Mr Murray had sufficient responsibility to drive a private hire vehicle in circumstances where he downplayed the seriousness of his conviction on the application for authorisation.

Perceptions of the travelling public

1. The basis for the Department's submission that the Tribunal should have determined Mr Murray's fitness and propriety through the eyes of a reasonable member of the travelling public was a decision of this Tribunal in Farquharson v Department of Transport [1999] NSWADT 53. In that case, the Department had suspended Mr Farquharson's taxi driver authority when he was on bail pending trial for charges of soliciting to murder. The Tribunal affirmed the Department's decision expressing the view that a passenger was likely to be concerned to know that the driver of their taxi is facing trial on a charge of soliciting to murder. The Tribunal stated that:

36 In exercising its responsibilities for passenger transport regulation, the administrator must take account of likely perceptions of the travelling public . A member of the travelling public is likely to be concerned to know that the driver of their taxi is facing trial on a murder charge, albeit one involving soliciting rather than the act itself. One object of the power of suspension is to provide assurance to the travelling public that they will not unknowingly find themselves travelling with a person suspected of and charged with a serious criminal offence of violence. (our emphasis)

1. The Tribunal then noted that:

37 A broadly similar approach was adopted by the ACT Administrative Appeals Tribunal in Maythisathit and Registrar of Motor Vehicles [1996] ACTAAT 165. The applicant sought review of a refusal to grant a taxi driver's licence, the refusal being based on a criminal record revealing a number of convictions for offences involving dishonesty. The application was successful. The Tribunal was satisfied that the context that had given rise to the convictions, a gambling addiction, had been successfully addressed. It was satisfied as to the genuineness of the applicant's desire to rehabilitate himself. In the course of its decision the Tribunal (Professor LJ Curtis, President) put the test to be applied in relation to "fit and proper character" in the case of taxi driver licensing in this way, at [12]:

"One must put oneself, so far as possible, in the position of a member of the public who might travel in a taxi driven by the applicant and ask whether that member of the public, knowing of the applicant's criminal record and what he has done in the past year to rehabilitate himself, would object to the applicant as the driver of the taxi."

1. The test this Tribunal formulated in Farquharson was not identical to that formulated by the ACT Administrative Appeals Tribunal in Maythisathit. In Farquharson the Tribunal said that the Tribunal must take account of the likely perceptions of the travelling public as one of the relevant factors in making its determination. In Maythisathit Curtis P was suggesting that all the relevant circumstances be viewed through the eyes of a member of the travelling public. That test has been applied in at least three subsequent decisions of the ACT Administrative Appeals Tribunal: Forbes and Road Transport Authority [2004] ACTAAT 38; Voelker and Road Transport Authority [2006] ACTAAT 4 and Turk and Territory and Municipal Services [2010] ACAT 85. The test formulated in Farquharson has been applied routinely by this Tribunal.

1. Neither the approach in Farquharson nor that in Maythisathit has been applied by the courts. In fact, those approaches are contrary to the tests applied in similar circumstances by the Supreme Court, the Federal Court and the High Court.

1. The Supreme Court has examined another similar test for suitability to engage in various occupations or professions, that is, that the applicant be of 'good fame and character'. In Jackson (previously known as Subramaniam) v Legal Practitioners Admission Board [2006] NSWSC 1338 at [56] Johnson J made it clear that the assessment of character is an objective evaluation which might conflict with what the general public thinks:

Whilst there is a certain overlapping of the two terms 'fame' and 'character', there is a distinction. Fame involves being known, favourably, by a large section of the public, whilst character is directed to a more objective evaluation which might conflict with what the general public thinks": Clearihan v Registrar of Motor Vehicle Dealers in the ACT (1994) 122 ACTR 25 at 29 (Miles CJ)

1. The decision was affirmed on appeal: Jackson (previously known as Subramaniam) v Legal Practitioners Admission Board [2007] NSWCA 289.

1. In coming to its conclusion that a person's character requires an objective evaluation and is not necessarily what the general public thinks, Johnson J relied on a 1994 decision of the Supreme Court of the ACT: Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25 at 29. The ACT Supreme Court decision was an appeal from a decision of the ACT Administrative Appeals Tribunal. Significantly, the proposition in Clearihan which was adopted by the NSW Supreme Court in Jackson is inconsistent with the formulation in Maythisathit which was a later first instance decision of the ACT Administrative Appeals Tribunal. Maythisathit was the decision to which this Tribunal referred in Farquharson v Department of Transport [1999] NSWADT 53.

1. The meaning of the phrase "fit and proper person" was the subject of consideration by the High Court in litigation between Alan Bond and the Australian Broadcasting Tribunal: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; 94 ALR 11; 64 ALJR 462; 21 ALD 1. The ABT was required to refuse a licence if it was not satisfied that the applicant or the holder of a licence was a "fit and proper person". Toohey and Gaudron JJ stated (at 380) that:

The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. (our emphasis)

1. In the same case, Mason CJ stated at [63] that:

The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker . So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration. (our emphasis)

1. While the seriousness of the conduct is a matter for evaluation by the decision maker, the question of whether it can be assumed that the conduct will not recur is a matter which is to be viewed through the eyes of the general community.

1. The Federal Court applied the decision in Bond in relation to the meaning of 'fit and proper person' when it upheld a decision of the Administrative Appeals Tribunal relating to taxation agents: Toohey v Tax Agents' Board of Victoria (No 3) [2010] FCA 356 at [46-47]; Toohey and Tax Agents' Board [2008] AATA 262. Middleton J held at [37] that "determining whether a person is the prescribed fit and proper person involves an evaluation of character and reputation." At first instance the AAT decided that the public as a general body would not have confidence in the conduct not occurring again (at [156-160]). The Federal Court reiterated that the enquiry is directed not only to whether improper conduct has occurred, but whether it is likely to occur again, and whether the community will have confidence that it will not occur.

Conclusion

1. When deciding whether a person is a 'fit and proper person', the question of whether the community would have confidence that any improper conduct will not re-occur is relevant: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; 94 ALR 11. Otherwise, the determination of fitness and propriety is a question of fact for the decision maker to determine objectively on the basis of the all evidence. That question is not to be determined through the eyes of a reasonable member of the travelling public. Nor is it correct, as was suggested in Farquharson, to take account of the likely perceptions of the travelling public as one of the relevant factors in deciding whether an applicant is a fit and proper person. The Tribunal decided that Mr Murray is a fit and proper person to be the driver of a hire car taking into account relevant factors. It did not err by failing to determine Mr Murray's fitness and propriety through the eyes of a reasonable member of the travelling public

The seriousness of the offence

1. The second ground of appeal on a question of law was said to be that the Tribunal erred by finding that Mr Murray had sufficient responsibility to drive a private hire vehicle in circumstances where he downplayed the seriousness of his conviction on the application for authorisation. The Tribunal dealt with this issue in its reasons: Murray v Department of Transport and Infrastructure [2010] NSWADT 295 at [15]. This ground of appeal does not identify a question of law.

Orders

(1)   The Tribunal's decision is affirmed

(2)   The appeal is dismissed.

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Decision last updated: 06 June 2011