DPT v Wilkins
[2009] VSC 506
•29 October 2009
| 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 |
---
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 | |
---
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.
---
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 Transport Act 1983).
The Tribunal in its reasons also set out the terms of the core relevant statutory provisions, including most fundamentally ss 164 and 169 of the Transport Act 1983 (‘the Act’). These sections are as follows:
Section 164 – Public care objective
(1)The public care objective is the objective that the services provided by drivers of commercial passenger vehicles and vehicles used for the operation of private bus services—
(a) be provided—
(i) with safety; and
(ii) with comfort, amenity and convenience—
to persons using the services and to other persons, particularly children and other vulnerable persons; and
(b) be carried out in a manner that is not fraudulent or dishonest.
Note
Other vulnerable persons include elderly and disabled persons.
(2)In this Division, a reference to the public care objective is a reference to the objective set out in subsection (1).
Section 169 – Matters to be considered by the Director when issuing or renewing an accreditation
(1)If subsection (2), (3) or (4) does not apply to an applicant for the issue or renewal of a driver accreditation, the Director may grant the application if the Director is satisfied—
(a)that the issuing of accreditation is appropriate having regard to the public care objective; and
(b)that the applicant—
(i)is technically competent and sufficiently fit and healthy to be able to provide the service; and
(ii) is suitable in other respects to provide the service; and
(c)that the applicant has complied with the application requirements under this Division.
(1A)For the purposes of subsection (1), the Director must have regard to whether the applicant has at any time been subject to a finding of a prescribed kind made by, or on behalf of a prescribed body, referred to in section 14(1)(a) of the Working with Children Act 2005.
(2)The Director must not issue or renew a driver accreditation if the Director is aware that the applicant—
(a)does not hold either—
(i)a driver licence under the Road Safety Act 1986; or
(ii)a probationary driver licence under the Road Safety Act 1986, where the applicant has also satisfied the Director that he or she is competent to provide the service because he or she has relevant experience or is a person to whom other special circumstances apply; or
(b)has been found guilty of a category 1 offence; or
(c)is a person who is subject to—
(i)reporting obligations referred to in section 12(1)(a) of the Working with Children Act 2005; or
(ii)an order referred to in section 12(1)(b) of the Working with Children Act 2005.
(3)The Director must not issue or renew a driver accreditation if the Director is aware that the applicant is the subject of a charge for a category 1 offence or has been found guilty of a category 2 offence unless the Director is satisfied that the applicant has demonstrated that the issue or renewal of accreditation is appropriate having regard to the public care objective.
(4)The Director may refuse to issue or renew a driver accreditation if the Director is aware that the applicant—
(a)has been found guilty of a category 3 offence; or
(b)is the subject to a charge for a category 2 offence or category 3 offence that has not been finally disposed of at the time of considering the application.
(5)In making a decision under subsection (3) or (4), the Director may have regard to any matter to which a consideration in section 169C(3)(b) would apply.
(6)The Director must not make a decision under subsection (3) or (4) to issue or renew an accreditation unless the Director is satisfied of the matters set out in subsection (1)(a) to (c).
(7)The Director must not refuse to issue or renew an accreditation to a person on a ground referred to in subsection (2) if a decision to refuse to issue an accreditation or renew an accreditation or a decision to cancel an accreditation in respect of that person on that ground has previously been overturned by VCAT.
For the sake of simplicity I will deal with the grounds of appeal in the order in which they appear in the notice of appeal, although Mr Whelan in putting the case for the Director dealt with them in a somewhat different order for reasons of emphasis.
I turn then to Ground 1. The Director contends first that the Tribunal erred in failing to take into account a relevant consideration namely Mr Wilkins’ motor vehicle driving record, and in particular Mr Wilkins’ commission of speeding infringements.
The public care objective stated in s 164(1) of the Act required the Tribunal to consider the safety both of persons using the services to be provided by the respondent, and other persons. The Tribunal did address the safety issue, but it is submitted it failed to have regard to relevant facts.
It was admitted by Mr Wilkins that he had committed a number of speeding infringements, including most relevantly two since he was deregistered in 2007, when he was caught on a speed camera in St Kilda Road near the St Kilda Junction. The Tribunal member enquired after the circumstances of the offences[1] during the course of the hearing before her and obtained details of those circumstances.
[1]See Transcript p 9.
It is submitted that because no reference was made to these infringements in the Tribunal's reasons an inference should be drawn that the Tribunal failed to consider them and take them into account when it should have. In my view the overwhelming inference is simply that the Tribunal regarded them as inconsequential having enquired as to and ascertained their circumstances.
I should add that as I understand it, the respondent has no traffic infringement with respect to bus driving. Further, it has been accepted by the Director that the infringements are not properly to be categorised as convictions in the relevant sense. The infringements are matters that might, or might not be thought to bear on the issue of safety having regard to their circumstances when viewed in the context of the evidence as a whole.
As I have said, it is plain from the transcript that the Tribunal made a careful enquiry into the relevant circumstances, and I am not prepared to draw the inference which the appellant contends for. The infringements were on any view minor.
I turn then to Ground 2. It is submitted that the Tribunal erred by taking into account irrelevant considerations, namely broad considerations of rehabilitation of Mr Wilkins in the light of his criminal convictions, and matters such as associated factors of the anxiety, ignominy and disgrace that he endured as a consequence of the trial which led to his criminal convictions.
In my view the question of Mr Wilkins’ rehabilitation was plainly relevant to the statutory frame work, and in particular the public care objective which was an issue on which the respondent bore the onus.[2] Rehabilitation bore directly on the question of whether Mr Wilkins would carry out services honestly in the future.
[2]See s 169(3) of the Act.
The primary basis of the Director's refusal had been the fact of the prior convictions for dishonesty. Those convictions were for serious offences, but the circumstances were held by His Honour Judge Walsh, a very experienced trial judge of the County Court to be such as to merit a suspended sentence. Further, at the time of the application Mr Wilkins had the support of his employer, and he continued to have that support at the time the matter came before the Tribunal.
The Director's attack on the Tribunal's decision focuses particularly on the following paragraphs of its decision:
(16)Without disparaging the seriousness of his past offences, I accept that he was easily led and has learned from the experience. His employer reposes considerable trust in him and his referees speak highly of him and all attest that his conduct was out of character. As I and other members of the Tribunal have remarked from time to time, rehabilitation is hampered if an offender cannot obtain gainful employment and Mr Wilkins impresses in his desire for another chance.
(17)Not only has he had the anxiety and ignominy of his trial with its attendant disgrace, he has been unable to act as a bus driver since 2006, due to the cancellation of his former certificate.
(18) I am persuaded that the public care objective would be met.
Mr Whelan submits that the Tribunal has had regard to the issue of rehabilitation in a manner which is not justified by the Act. He submits the Tribunal did not ask itself the question whether Mr Wilkins would carry out services in a manner which was not fraudulent and dishonest, rather it considered whether it would be a good thing in terms of his rehabilitation if he was granted accreditation.
Paragraphs 13 and 14 of the Director’s written submissions put the matter this way:
(13)The central passage in the VCAT's reasons is at paragraphs 15 to 18. That passage shows that the VCAT considered whether the grant of accreditation would promote the Defendant's rehabilitation. The VCAT gave significant weight to this matter; the Plaintiff submits that it appears to have been determinative of the question whether accreditation would be appropriate having regard to the “public care objective” in section 164 of the Transport Act.
(14)The Transport Act does not expressly refer to "rehabilitation". Having regard to the overall scheme of the Transport Act, and in particular the whole of Division 6 of Part VI of the Transport Act, the Plaintiff submits that broad considerations of rehabilitation are irrelevant to decisions made under section 169(3) (in conjunction with section 164) and section 169(6) (in conjunction with section 169(1)(b)).
I do not accept that the notion of rehabilitation was simply relevant to Mr Wilkins’ personal welfare and interests, in my view it necessarily affected the public interest. The question was whether Mr Wilkins had attained and demonstrated rehabilitation to a sufficient extent as to justify the conclusion on the balance of probabilities that he would not act dishonestly or fraudulently in the future. In my view the terms of the decision do not justify the inference that the Tribunal had regard to the question of rehabilitation other than in this relevant sense. Rather, they demonstrate it considered the question of rehabilitation as it bore on the public care objective.
In reaching this conclusion I draw attention to the fact that this was a case in which Mr Wilkins was presently employed and the relationship between rehabilitation and gainful employment was referred to immediately after reference to the fact that his employer reposes considerable trust in him. The Tribunal did not grant accreditation in terms for the purpose of facilitating employment and thus rehabilitation. The Director in effect submits that the reasons should be read this way, but read fairly this is not what they say. Rather they refer to a series of circumstances on the basis of which the Tribunal reached a global conclusion that it was persuaded that the public care objective will be met.
There is no error of law in this process. The probability of ongoing successful rehabilitation bore directly on the probability of future dishonest conduct. The assessment of that probability necessarily involved the weighing of a matrix of interrelated circumstantial fact. The Tribunal has identified the circumstances which it regarded as being of critical significance in this matrix.
I turn then to Ground 3. The third ground of appeal is that the Tribunal gave excessive weight to the consideration of rehabilitation. So expressed this is not a question of law and the Director's right of appeal is with respect to questions of law only and not with respect to questions of fact.[3]
[3]See by way of elaboration of these concepts the decision of JD Phillips J in S v Crimes Tribunal [1998] 1 VR 83.
It was open to have regard to the question of rehabilitation and the manner in which the Tribunal referred to it cannot be regarded as disclosing an error of law for the reasons I have already elaborated. Indeed Mr Whelan conceded that if Ground 2 failed then it was difficult to see how Ground 3 could succeed.
I turn then to Ground 4. The fourth matter relied on is that the Tribunal failed to make express findings of fact with respect to a submission that was made that Mr Wilkins' convictions for dishonesty and his prior speeding infringements constituted matters which rendered him pursuant to s 169(1)(b)(ii) of the Act unsuitable in respects other than matters bearing on the public care objective and his technical competence. I express the matter this way because s 169(1) expresses a series of cascading matters in respect of which the Director must be satisfied. Satisfaction as to the question whether Mr Wilkins is suitable in other respects to provide the service in issue is consequential upon satisfaction that accreditation is appropriate having regard to the public care objective and that the appellant is technically competent and sufficiently fit and healthy to be able to provide the service.
It seems to me that the convictions relied on bore directly on the public care objective, and indeed it was the Director's primary case that they did so before the Tribunal. They related first to the issue of honesty and related secondly, in the Director’s submission, to the issue of safety. In my view if these considerations did not render the grant of a licence inappropriate by reference to this objective it is difficult to see how they could sensibly have been regarded as otherwise rendering the respondent unsuitable and the grant of a licence inappropriate. It is true, as Mr Whelan submits, that the Tribunal did not respond directly to the relevant submission, but in my view it was without substance in the sense that the sub-section relied on did not in truth raise additional factual considerations beyond those upon which the appellant had already raised and in respect of which the Tribunal ruled.
Ground 5 of the notice of appeal was abandoned. I then turn lastly to Ground 6. Ground 6 is that the Tribunal was not authorised to remit the matter by way of an order directing the Director to act in a particular way. Mr Whelan indicated that Ground 6 would not be pursued if the balance of the grounds failed, and I have held that they should fail. For completeness I note that it was at one stage questioned whether the Tribunal's reasons and order made clear what term of accreditation should be granted. Mr Whelan has indicated that the Director accepts that a period of three years accreditation was intended. In my view this concession was properly made. When paragraph 20 of the Tribunal's reasons is read in the context of s 168 of the Act, then it seems to me that the Tribunal's intention was to direct the grant of accreditation for three years.
I should record lastly that this matter was fully, carefully and ably argued on behalf of the Director and I further record that I accept that the underlying issues in this case are matters of some real sensitivity to the Director in terms of the ongoing administration of the Act. Nevertheless for the reasons I have given I believe that if the Tribunal's reasons are read carefully and fairly the appeal must fail, and accordingly it will be dismissed.
0
0