DPT v Wilkins - [2009] VSC 506

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5254 of 2009

DIRECTOR OF PUBLIC TRANSPORT	Applicant
v
LAURENCE WILKINS	Respondent

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JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 October 2009
DATE OF JUDGMENT:	29 October 2009
CASE MAY BE CITED AS:	DPT v Wilkins
MEDIUM NEUTRAL CITATION:	[2009] VSC 506

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CIVIL – Appeal from decision of VCAT – Section 148 of the Victorian Civil and Administrative Tribunal Act 1988 – Appeal against decision to set aside decision of Director of Public Transport to refuse accreditation to drive buses – Respondent had prior convictions for dishonesty – Sections 164 and 169 of Transport Act 1983 – Public care objective – Considerations of rehabilitation of the Respondent – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Whelen	DOT Legal
For the Defendant	In person, assisted by his brother Mr D. Wilkins	N/A

HIS HONOUR:

The appellant (‘the Director’) appeals on questions of law pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1988 from a decision of VCAT (‘the Tribunal’) made on 12 March 2009. By that decision the Tribunal set aside a previous decision of the Director, and directed him to grant accreditation to the respondent (‘Mr Wilkins’) to drive buses.

The Tribunal set out significant background facts in paragraphs 1 to 4 of its decision as follows:

(1) (Mr Wilkins) in this matter seeks to review a decision of the Director of Public Transport made on 12 September 2008. His application for accreditation to drive buses was refused because he had been found guilty of certain criminal offences. The Director also determined that he should be disqualified from reapplying for accreditation for a period of two years.

(2) He held a driver accreditation prior to 22 May 2006 at which time he was disqualified from applying further for accreditation for a period of 23 months. (As with the instant case, the charges were the cause of disqualification.) The period of disqualification having elapsed, he made a further application and it is in relation to that fresh application and the Director's refusal that gives rise to the review proceedings presently before me.

(3) (Mr Wilkins) is 46 years of age and for the greater part of his life had an unblemished record. However on 26 April 2005 he was found guilty of a number of charges relating to conduct that occurred in the years 2001-2003. Those charges involved receiving secret commissions, aiding and abetting the commission of other offences, and obtaining property by deception. The sentence of 13 months imprisonment was wholly suspended and various compensation orders were made.

(4) It is clear from the remarks of the sentencing judge that the suspension of sentence was due to a number of factors including (Mr Wilkins’) regrettable childhood, some psychological difficulties and, more importantly, his palpable remorse, and cooperation with police. The offences included a significant number of Category 2 offences (see s 86 of the

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPT v Wilkins

Details

AGLC: DPT v Wilkins [2009] VSC 506
Case: [2009] VSC 506
Decision Date: 29 October 2009

CaseChat Overview and Summary

DPT v Wilkins was an appeal brought before the court against a decision of the Victorian Civil and Administrative Tribunal (VCAT). The appellant, the Director of Public Transport (DPT), sought to overturn a VCAT ruling that set aside a decision to refuse accreditation to the respondent, Wilkins, to drive buses. The crux of the dispute was the refusal of accreditation due to the respondent's prior convictions for dishonesty, which the DPT argued disqualified him under sections 164 and 169 of the Transport Act 1983. VCAT, however, had granted the appeal on the grounds that the respondent's rehabilitation and the public care objective should be considered.

The court was tasked with determining the appropriate weight to be given to the respondent's past convictions against his potential for rehabilitation and the public care objective. It had to consider whether VCAT had correctly interpreted and applied the statutory provisions and whether its decision was legally sound. Additionally, the court had to assess if VCAT had adequately considered the public care objective when making its decision.

In dismissing the appeal, the court found that VCAT had appropriately balanced the respondent's past convictions with his prospects of rehabilitation and the public care objective. The court held that VCAT's decision was not erroneous and that it had given due consideration to the statutory objectives and the respondent's potential for rehabilitation. Consequently, the appeal was dismissed, and the original decision of VCAT to set aside the DPT's decision was upheld.

The final orders of the court confirmed the dismissal of the appeal. The decision of VCAT to set aside the DPT's decision to refuse accreditation to Wilkins was maintained, affirming that the considerations of the respondent's rehabilitation and the public care objective warranted the granting of the appeal by VCAT.

Orders