Ereira v Roads and Traffic Authority (No 2)
[2010] NSWADT 220
•8 September 2010
CITATION: Ereira v Roads and Traffic Authority (No 2) [2010] NSWADT 220 DIVISION: General Division PARTIES: APPLICANT
RESPONDENT
Daniel Ereira
Roads & Traffic AuthorityFILE NUMBER: 083347 HEARING DATES: 21 June 2010 SUBMISSIONS CLOSED: 21 September 2010
DATE OF DECISION:
8 September 2010BEFORE: Montgomery S - Judicial Member CATCHWORDS: Tow Truck Industry Act - tow truck operator or driver - disqualification - grant of licence or certificate LEGISLATION CITED: Tow Truck Industry Act 1998
Tow Truck Industry Regulation 2008CASES CITED: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Chaining v Commissioner of Police, NSW Police Service (1999) NSWADT 6
Ereira v Roads & Traffic Authority [2009] NSWADT 299
Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127
Kaldas v Tow Truck Authority of NSW [2006] NSWADT 337
Raymond Robbins v Business Licensing Authority (2000) VCAT 457
Shuttleworth v Tow Truck Authority of NSW [2006] NSWADT 301
Sobey v Commercial and Private Agents Board 20 SASR 70
Trilin v Commissioner of Fair Trading [2003] NSWADT 222REPRESENTATION: APPLICANT
RESPONDENT
A Jamieson, barrister
A Wozniak, solicitorORDERS: The decision under review is affirmed.
REASONS FOR DECISION
1 This is an Application for review of a decision made by the General Manager of the Respondent refusing the Applicant’s application for a Tow Truck Driver’s certificate and to disqualify the Applicant from holding a Tow Truck Drivers Certificate for a period of 10 years.
2 A preliminary issue was the subject of earlier proceedings and appeal: see Ereira v Roads & Traffic Authority [2009] NSWADT 299. The substantive matter is now before me for determination.
3 It is common ground that the Applicant appeared at Hornsby Local Court on 17 October 2008 and that he pleaded guilty to an offence of assault, contrary to section 61 of the Crimes Act, 1900. He was convicted and fined $800. This conviction related to an incident at Glenhaven on 15 December 2007 (“the Glenhaven incident”).
4 Agreed facts provided to the Court in relation to the Glenhaven incident stated:
- About 2:15 pm, Saturday 15th December 2007, the victim … was driving south along Old Northern Road, Glenhaven in New South Wales ... Directly behind the victim was the accused, Daniel Ereira driving a heavy vehicle tow truck with New South Wales Registration 5066TT. Both vehicles were travelling about 60 km/h.
About 100 metres before the intersection of Gilbert Road where the road becomes two lanes, the accused has overtaken the victim. The victim has merged to his right into the right hand lane indicating turn onto Gilbert Road. The accused also merged into the right hand turn lane.
The accused has come to a stop diagonally across the right hand turn lane,
situated in front of the victim’s vehicle.
The accused got out of his truck and started to walk over to the victim who also go out of his car.
The accused stood nose to nose with the victim and yelled at him.
The victim pushed the accused away by placing his hands on the chest of the accused. The accused shouted, “You touch me again and that's assault.” The accused continued to walk up close to the victim and stood over him. The victim again feared for his safety and pushed the accused backwards away from him.
The accused has then swung at the victim with his right hand. The accused has connected with the left side of the victim’s head. The victim dropped down with one arm holding onto the car door.
A witness has come over. The victim has said, “That’s enough, that’s enough”. The accused has then walked back to his truck, stopped and looked at the victim's number plate along the way. The accused has then driven off down Gilbert Road.
On 12th April 2008, the accused attended Castle Hill police station. When the accused attended he made a statement in regards to the incident in which he states that he did assault the victim.
The accused was entered into custody and introduced to the custody Manager. The accused was offered the opportunity to be interviewed to which he agreed. A notebook interview was conducted with Official Police Notebook F427866.
During the interview the accused was asked if there was anything else that he had not included in the statement to which he stated, “Not really, I was assaulted. I told the person not to assault me again and I was left to defend myself and when he proceeded to strike out at me again I feared I would be injured and retaliated to defend myself and struck him back once.”
The accused was released from custody and charged with the matters now before the court.
5 It is also common ground that the Applicant was involved in an incident on 24 September 2008 (“the Ermington incident”) when he attended a motor vehicle accident at Victoria Road Ermington as a tow truck driver. The RTA received a complaint about the Applicant's behaviour while at the accident scene. It was alleged that the Applicant was disrespectful towards and argued with the police officer in charge of the scene, and he behaved in a disorderly and offensive manner towards that police officer. The Applicant disputes the evidence provided by the RTA in regard to the extent of his involvement in the incident. A summary of facts handed up in relation to the Ermington incident stated:
- On 24 September 2008, Daniel Ereira (“Accused”) was the driver of tow truck 5066TT, licensed to operate under Tow Truck Operators Licence number 90062 held by Baxter Salvage Pty Ltd trading as Fleet Towing Services.
On 24 September 2008 the Accused was the holder of a current New South Wales Tow Truck Drivers certificate, number 43032.
About 11 am on 24 September 2008 a semi trailer carrying a 40 foot container overturned at the Silverwater Road on-ramp, Ermington cross of Victoria Road. At the time the semi trailer was operated by 1st Fleet Transport. Police from the Rosehill Local Area Command were summoned to the accident together with Fire Brigade officers from the Rydalmere Fire Station.
About 11.45 am representatives from 1st Fleet Transport attended the scene to oversee the salvage of their truck, trailer and the container. At the request of attending police officer Senior Constable Rogan, RTA Inspector Vehicle Regulation officers (“IVR”) were summoned to the scene to undertake an inspection of the truck and trailer to ensure compliance with the weight of the load being carried. Prior to the IVR officers arriving at the location two heavy vehicle tow trucks attended the accident scene. The first tow truck in attendance was 5069TT, operated by Baxter Salvage Pty Ltd t/as Fleet Towing Services, driven by Mr Glenn Burgess, Tow Truck drivers certificate number 43607.
Police requested that the attending tow truck driver not commence salvage until the truck and trailer had been inspected by the IVR's. At one point Mr Burgess was observed by Senior Constable Rogan to commence removing clips from the container and he was instructed to stop.
About that time a second tow truck was 50667T, also operated by Baxter Salvage Pty Ltd trading as Fleet Towing Services, arrived at the scene. This tow truck was driven by the Accused. The Accused was observed by police to alight from the truck and approach Mr Burgess.
Additionally, it was noted that the Accused was not wearing his tow truck drivers certificate as required under Section 69 of the Tow Truck Industry Act 1998.
The RTA IVR's then attended the scene and conducted an inspection of the truck and trailer. One of the attending IVR's, Stephen Bennett then indicted to the tow truck drivers that they could commence the salvage operation. It was at this time that the Accused was heard by IVR Bennet to refer to Senior Constable Rogan as 'Officer Dribble'. This comment was also heard by Senior Constable Rogan who then questioned the Accused. The Accused has then in an inflammatory manner questioned Senior Constable Rogan's authority and identification as a police officer. Senior Constable Rogan advised the Accused that she was an Acting Sergeant of police and wearing a police uniform and carrying a gun. The Accused was then seen by Senior Constable Rogan and Fire Officer Haig to grab his groin area and say words to the effect, “I have a gun here too.”
The salvage of the truck and trailer was then undertaken by the Accused and Mr Burgess. Prior to leaving the scene the Accused has then approached Senior Constable Rogan with a pen and sheet of paper in his hand and again requested her identification. The Accused then walked toward her and using the pen, he pushed Senior Constable Rogan's reflective vest to the side in an attempt to reveal her identification badge. Senior Constable Rogan has then told him not to touch her. Senior Constable Regan has then provided the Accused with her particulars. A short time later the Accused left the scene.
In the opinion of the police the offender failed to behave in an orderly manner and with civility and propriety towards them.
Particulars of the incident were recorded by police officers and IVR Bennett. On 24 September 2008 IVR Bennett reported the matter to Tow Truck Licensing & Compliance branch of the RTA.
6 Statements in regard to the Ermington incident have been provided by Senior Constable Julie Rogan, Senior Constable Lauren Seale, Constable Luke Bissaker, IVR Stephen Bennett, Fire Brigade Officer Matthew Haig and Angelo Bouletos, Transport Manager with 1st Fleet Transport.
7 On 31 October 2008 the determination was made that the Applicant is disqualified from holding a tow truck drivers certificate for ten years. The Statement of Reasons for that determination stated in part:
- The Reasoning process that led to the decision
The RTA has a continuing obligation under the Act to ensure the highest possible standards are maintained in the industry.
The concept of 'fit and proper' is an intrinsic nature of a person. The RTA must be satisfied that a person possesses sufficient moral virtue and character as to permit the person to be safely accredited to the public, without further inquiry, as a person who can be entrusted with the work of a tow truck operator or driver.
The tow truck industry has a culture and history of unconscionable conduct, dishonesty, violence and intimidation. The perception of the general public is that many of those working within the industry have criminal records, are coarse, uncouth, intimidating and cannot be trusted. The legislation was introduced to tighten the 'fit and proper' requirements under which persons are approved to participate in the industry.
The RTA will not tolerate tow truck operatives using violence, intimidation or bullying while performing their duties. The RTA will also not tolerate tow truck drivers using tow trucks to menace other road users.
Tow Truck drivers are required to work with police and other emergency services while at the scenes of motor vehicle accidents. Police and those services may on occasion need to rely on tow truck drivers to assist them at these scenes to not only clear roadways but also protect life and property. It is an impediment to the rescue if police action is diverted from the accident to control or reprimand a tow truck driver who is argumentative, violent or is not behaving in an orderly and civil manner.
Comment
Daniel Ereira has demonstrated he willingly disregards the provisions of the Act governing tow truck operations. Mr Ereira has shown he repeatedly becomes angry, threatening and demanding while carrying out his duties as a tow truck driver to other motorists and police officers. He has also shown aggression and a propensity to use violence while driving/operating a tow truck. His use of violence in assaulting another motorist and his menacing driving while operating a heavy tow truck on 15 December 2007 will not be tolerated. And his offensive and argumentative behaviour towards police while at the scene of a motor vehicle accident on 24 September 2008 will not be tolerated.
The RTA considers the degree of Daniel Ereira's hostility towards the Police and the public in two separate incidents along with his breaches of the Act and Regulation as entirely inconsistent with the standard required of a certified tow truck driver and for him to continue to be certified is an unacceptable risk to the tow truck industry, police and the motoring public.
Determination
I have therefore determined that Daniel Ereira is not fit and proper to be a certified driver and I am unable to form the view that it is in the public interest for him to hold a drivers certificate.
Daniel Ereira is disqualified from holding a tow truck drivers certificate for ten years until 30 October 2018.
8 On 2 September 2009 the Parramatta Local Court dealt with charges arising out of the Ermington incident. The Applicant pleaded guilty to three offences. After the tender of agreed facts and submissions the Court imposed the following penalties:
- - Incivility - convicted and fined $300 and ordered to pay a contribution towards the RTA’s professional costs of $3,500.
- Not display drivers certificate; and not return drivers certificate - dismissal pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999.
9 The Tow Truck Industry Act 1998 (“the Act”) and the Tow Truck Industry Regulation 2008 (“the Regulations”) each make provision for consequences in regard to the holding of a drivers certificate where there has been a conviction or finding of guilt for a prescribed offence.
10 Section 26 of the Act is in the following terms:
(1) The RTA:26 Restrictions on granting drivers certificate
26 Restrictions on granting drivers certificate
(a) must refuse to grant an application for a drivers certificate on mandatory grounds, and
(b) may refuse to grant an application for a drivers certificate on discretionary grounds.
(2) The mandatory grounds for refusing to grant an application for a drivers certificate are as follows:
(a) that the applicant is under the age of 18 years,
(b) that the applicant has, within the period of 10 years before the application for the drivers certificate was made:
(i) been convicted, or
(ii) been found guilty (but with no conviction being recorded),
by a court in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law and whether or not committed before the commencement of this section,
.…
(3) The discretionary grounds for refusing to grant an application for a drivers certificate are as follows:
(a) that the applicant is not, in the opinion of the RTA, a fit and proper person to hold a drivers certificate or is otherwise not competent to carry on the kind of towing work to which the proposed drivers certificate relates,
…
(d) that the granting of the drivers certificate would, in the opinion of the RTA, be contrary to the public interest.
(3A) The RTA is not, under this or any other Act or law, required to give any reasons for refusing to grant an application for a drivers certificate because of subsection (2)(f) to the extent that the giving of those reasons would disclose any criminal intelligence.
11 Section 41 of the Act is in the following terms:
(1) This Division enables the RTA, in its administrative capacity, to take disciplinary action against a licensee or certified driver.41 Disciplinary action
(2) In accordance with this Division, the RTA may do any of the following:
…
(c) disqualify a licensee or certified driver from holding a licence or drivers certificate for a specified period,
…
(3) In deciding whether to take disciplinary action under this Division, the RTA may:
(a) conduct an inquiry under section 80, or
(b) invite the licensee or certified driver concerned to show cause, by way of a written submission, as to why the RTA should not take any such action.
(4) However, the RTA is not required to conduct any such inquiry, or to invite the licensee or certified driver concerned to show cause, if the RTA is of the opinion that it is in the public interest that the RTA take immediate disciplinary action under this Division.
...
12 Section 42 of the Act is in the following terms:
42 Grounds for taking disciplinary action
(1) The RTA may take disciplinary action under this Division against a licensee or certified driver for any of the following reasons:
(a) any reason for which the licensee or certified driver would not have been granted a licence or drivers certificate initially,
(b) the licensee or certified driver has been charged with an indictable offence,
…
(d) the licensee or certified driver has contravened any provision of this Act or the regulations, whether or not the licensee or driver has been convicted of an offence for the contravention,
(e) the licensee or certified driver has contravened any condition to which the licence or drivers certificate is subject,
(f) the RTA is of the opinion that the licensee or certified driver is no longer a fit and proper person to hold a licence or drivers certificate, respectively,
...
13 Section 58 of the Act is in the following terms:
Maximum penalty: 50 penalty units or imprisonment for 6 months, or both.58 Contravention of conditions
…
(2) A certified driver must not contravene any condition of the drivers certificate.
14 Clause 16 of the Regulations is in the following terms:
(1) For the purposes of section 26 (2) (b) of the Act, the following offences are prescribed (regardless of whether they were committed in New South Wales):16 Offences that disqualify applicants for drivers certificates
(a) any offence involving an assault of any kind against a person,
…
being an offence in respect of which the penalty imposed was imprisonment, a direction under a community service order that the offender perform community service work for 100 or more hours or a monetary penalty of $1,000 or more, or a combination of any of those penalties.
...
15 Clause 48 of the Regulations is in the following terms:
(1) The driver of a tow truck that is authorised to be operated under the authority of a licence must:48 Conduct and duties of tow truck drivers
(a) behave in an orderly manner and with civility and propriety while:
(i) operating the tow truck, or
(ii) attending the scene of a motor vehicle accident, or
(iii) complying with a requirement under paragraph (b) or (c), and
(b) comply with any reasonable requirement made of the driver by an authorised officer or police officer in relation to the administration of the Act or this Regulation, and
...
16 The Respondent relies on a bundle of material filed pursuant to section 58 of the Administrative Decisions Tribunal Act 1997. Included in this bundle is a copy of the Applicants traffic record and a number of statements in regard to the Ermington incident. The Respondent’s case is essentially that set out in the reasons for decision provided following the internal review.
17 The Applicant provided a statement dated 3 March 2009. In his statement he provided an account of the Glenhaven incident and the Ermington incident. The Applicant relies on his own evidence and a number of references provided in support of his application.
18 References were provided by Janet Crakanthorp and Cameron Cooper of Fleet Towing Services and by Peter Senior, Operations Manager with Transtar Linehaul; The Applicant has been employed by Transtar Linehaul for the past eighteen months. Each apparently holds the Applicant in high regard as a reliable, trustworthy, dedicated and hard working family man of good character. Ms Crakanthorp and Mr Cooper both stated that they see it as out of character for the Applicant to have engaged in conduct of the extreme nature that is alleged.
19 It is common ground that the agreed facts set out above were provided to the Court in relation to the Glenhaven incident.
The Ermington Incident
20 It is not in dispute that two employees of Fleet Towing Services attended the scene of the Ermington incident. They were the Applicant and Glenn Burgess. It is also not in dispute that at that time the Applicant had long dark hair worn in a pony tail whereas Glenn Burgess had short shaved light coloured/orange tinted hair.
Senior Constable Julie Rogan21 Statements in regard to the Ermington incident have been provided by Senior Constable Julie Rogan, Senior Constable Lauren Seale, Constable Luke Bissaker, IVR Stephen Bennett, Fire Brigade Officer Matthew Haig and Angelo Bouletos, Transport Manager with 1st Fleet Transport. None of these witnesses were called for cross-examination.
22 In a statement dated 03 October 2008 Senior Constable Rogan stated:
- 4. About 11.26 am on Wednesday the 24th of September 2008, I attended the slip lane from Victoria Road onto Silverwater Road south bound after a semi trailer had overturned. I attended the scene in a fully marked Highway Patrol and I was dressed in full police uniform with a police hat and a yellow reflective vest with the word 'POLICE' across the middle on the front and back. Also at the scene were Senior Constable Seale and Constable Bissaker and the Ambulance who were attending to the driver. The fire brigade was requested after a leak was identified coming from the fuel tank and a short time later the truck 65 from Rydalmere, amongst the crew was fire officer Mathew Haig.
5. The scene was contained and Senior Constable Seale obtained a statement from the driver. Other employees including managers and safety officer from the trucking company First Fleet also attended the scene. An 'Oscar' crew from Traffic Management Centre attended and assisted in the maintaining traffic flow. I spoke to Alan Bold from First Fleet via phone and was informed a retrieval team would be attending.
6 I spoke to Senior Constable Seale about the driver's statement and was concerned about the weight of the load the truck was containing. I inspected the trailer and container and contacted a senior officer regarding advice. At this time one of the heavy tow trucks from Fleet Towing attended being driven a male I believe to be Glenn Burgess. He had a shaved head and was wearing a yellow reflective vest with the word 'TOWING' on the back. The fire officers assisted me with a ladder I climbed up so I could view the registration label on the front windscreen. As I climbed down I saw one of the managers from First Fleet and Burgess standing behind me and I turned and said, “Give me five minutes I want to make a phone call about getting the inspectors here, don't touch anything till I tell you too.” I walked off and made some phones and was informed the RTA Inspectors would be attending. I turned around and saw Burgess on top of the container starting to unclip it.
I said, “I told you not to touch it.”
He said, “No you didn't.”
I said, “Yes I did, I told you don't touch it till I said because the inspectors are coming.”
He said, “You didn't tell me.”
I said, “You were standing right there when I said it.”
He said, “I didn't hear you.”
I said, “Just leave it.”
He climbed off the container and mumbled something and “idiot.”
I said, “Don't call me an idiot, have some respect, I have a job to do you have a job to do we're meant to working together not against each other.”
He said, “Ok love.”
He walked away from the truck. This was witnesses by the fire officers and other employees from First Fleet
7. I saw a second tow truck from Fleet Towing crossed the concrete medium strip in the centre of Victoria Road and travel on the incorrect side before reversing up onto the slip lane. He did not have any permission from the police at the scene to cross the medium strip and reverse up the slip lane. This tow truck was being driven be male believed to be Daniel Ereira. He had long dark hair and was wearing an orange fluorescent vest with the word 'RECOVERY'. I also saw he wasn't wearing his identification around his neck.
8. A short time later two RTA Inspector Vehicle Regulations Officers attended. As one of the inspectors walked past Ereira the inspector asked him if he was going to pull the truck over. I was walking towards where he was standing moving witches hats out of the way and was only a short distance away from him.
He said, “We are but Officer Gribble told us not too.”
I said, “I beg your pardon, my name is Acting Sergeant Rogan and you can address me at that.”
He said, “How am I supposed to know, you're not wearing an ID.”
I said, “I'm in uniform, I have a gun what more do you want ID do you want?”
He said, “ I wasn't even talking to you.”
As he turned around toward the fire officers were standing behind him he grabbed his groin and said, “I have a gun here too.”
I said, “I'm trying to do a job here, I don't need you mouthing off.”
One of the RTA inspectors walked over and said to me, “Don't worry, “ he produced his Towing Authority identification and said, “We are authorised officers under the Act, I'll be making a complaint.”
9. After the truck had been up righted. I was standing at the Police vehicles with Senior Constable Seale, and the RTA inspector. Ereira walked over to us and said to Senior Constable Seale and I, “which one of you verbally assaulted me?”
Senior Constable Seale said, “verbally assaulted?”
He said, “You called me a dickhead.”
I said, “Well you acted like one.”
He walked closer to me and had a pen and piece of paper in his hand. He used the pen to push my reflective vest away and said, “Where's your ID?”
I said, “Don't touch me.”
He said, “I'm going to make a complaint about you calling me a dickhead.”
I said, “You're lucky your not being charged with offensive conduct grabbing your genitals like that.”
He said, “I didn't.”
I said, 'Yes you did I saw you.”
He said, “no you didn't not with those sun glasses on.”
I said, “They are prescription sunglasses. My name is Acting Sergeant Rogan from Rosehill Highway Patrol.”
I saw him write this down on the piece of paper.
Senior Constable Seale said, “Don't worry a complaint is being made about you.”
Me said, “Well if your complaining about me, I'm complaining about you.”
He left the scene and a short time later the road was reopened and I returned to my normal duties.
23 In a statement dated 1 October 2008 Senior Constable Seale stated that she and Constable Bissaker attended the scene of the Ermington incident. In relation to this incident she stated:
- 7. Whilst I was obtaining information I saw a number of other males at the scene and I advised Constable Bissaker to obtain their details is his notebook whilst I attended to traffic control.
8. A short time later I observed a Heavy Vehicle Recovery tow Truck attend our location. I observed the driver of the tow truck to have short hair blonde with an orange tinge in colour.
9. A short time later I liaised with Acting Sergeant Rogan in relation to contacting the RTA to have the truck inspected. This conversation took place at the rear of the truck. Whilst we were having a conversation I observed the tow truck driver with the orange hair, was on top of the container attempting to unbuckle the container from the trailer.
10. I immediately observed Acting Sergeant Rogan walk towards him.
Acting Sergeant Rogan said something similar to, “mate just stop. Don't touch anything yet we might have the RTA coming out to have a look.
I did not hear the male’s reply however did say something and stopped what he was doing and got down from the container.
11. When the male got down from the container, I was approximately 70 meters away from the rear of the truck and I saw the male and Acting Sergeant Rogan having a conversation. It appeared to me that the male was yelling at Acting Sergeant Rogan however I could (sic) don't know the content of the conversation. In my opinion the male's demeanour appeared to be aggressive so I started to walk over to them. I heard the male yell towards Acting Sergeant Rogan as she began to walk away from him. He yelled something similar to, “Alright you have already told me not to touch anything”.
12. I then approached Acting Sergeant Rogan and asked her about the content of the conversation during which Sergeant McMahon arrived.
13. A short time later another Heavy Vehicle Recovery truck attended the location. I observed the truck to travel east along Victoria Road and at the intersection of Silverwater road the truck mounted the medium strip and drove on the wrong side of the road towards oncoming traffic. At the time I observed the truck to do this, traffic was still flowing west along Victoria Road and one of two lanes was still in operation onto the on ramp of Silverwater Road. The truck at the time did not have any warning devices flashing nor did the driver wait for any authority to drive onto the other side of the road to gain access to the Silverwater onramp to the collision site. I observed the driver of the truck to be male and have long dark hair, slim build, Caucasian, scruffy looking, wearing a florescent yellow vest.
14. At 1.30 pm Stephen Bennett from the RTA arrived and the truck was inspected. At the conclusion of this, procedures were put in place to have the truck removed from the collision site. Whilst I was observing this being done I had a conversation with Acting Sergeant Rogan. She told me certain things about a conversation she just had with the tow truck driver with the long brown hair. She also implied that the male had made a gesture towards her in a rude manner.
15. After the truck was ready to be removed, Acting Sergeant Rogan, Stephen Bennett, another male from the RTA and myself were standing together. The male with the long brown hair approached us.
He Said - Which one of you two called me a dickhead?
I Said - What
He Said - Youse both look the same I want your badge numbers. One of youse called me a dickhead.
Acting Sergeant Rogan said, “that's fine mate if you want to complain, Its Acting Sergeant Rogan from Rosehill Police.
16. The male spoke to us in an aggressive manner. After writing down our details he said, “I’m going to make a complaint about youse. I observed the male to have no towing authority identification around his upper body. As he walked away I also observed that the back of his yellow vest had “Recovery” written on it which appeared to be fading.
17. A short time later all persons left the site and I attended to other shift related duties.
24 In a statement dated 1 October 2008 Constable Bissaker stated in relation to this incident:
- 13. I was standing near the fire brigade personnel and watched the male tow truck driver with the short hair dissemble the drive shaft under the prime mover. I saw him also operate the tow truck with the other tow truck driver with long hair. Elevating the rear tyres of the prime mover and dissembling a component. I have then left the area.
14. I have walked to the rear of the truck. Senior Constable Rogan was standing there, talking to a male from the RTA. I saw Senior Constable Rogan walk up to the rear of the trailer. I saw the short haired male tow truck driver was standing on top of the container. He appeared to be dissembling or tampering with a fixture on the top left of the rear of the trailer.
15. I heard Senior Constable Rogan say, “Hey mate. Stop. Stop what your doing. “
The male stood up, looking down towards Senior Constable Rogan.
He said, “What?”
Senior Constable Rogan said, “I have already told you. Don't touch or move anything until the RTA inspectors arrive. “
He said, “No you didn't”
16. I saw the male walk towards the front of the trailer/truck and step down from the container. I do not remember exactly what he said, but it was something to the effect of “You didn't say shit. I was told to move it so I did”. When this male with the short hair walked past Senior Constable Rogan towards his tow truck he said some offensive words. Which I can not recall.
17. I noticed this male was not wearing any identification or any name plate.
18. A short time after this I saw another large tow truck from the same company arrive. This truck has come from an easterly direction through on-coming traffic and parked at an angle so the rear of the truck was facing the over-turned truck. I looked at the driver of this truck. He was thin build, tanned skin, facial hair, long dark hair to his shoulders, wearing a baseball cap, fluorescent singlet top and pants. When he exited the truck I did not see any identification, lanyard or name tag/plate on this male.
19. The tow truck warning lights were not activated when I saw it come from the easterly direction on Victoria Road. I saw that the RTA Traffic management crew had blocked only the first lane, of three westbound on Victoria Road.
20. I saw Sergeant McMahon attend the scene. Constable Seale and I approached her and had a short conversation.
21. I have remained at the intersection of Victoria Rd and the Silverwater Rd on ramp area. I saw Sergeant McMahon leave.
22. During this time I saw two RTA inspectors arrive in one vehicle, I saw Senior Constable Rogan approach them.
23. Some time later I sighted the second tow truck drive from the scene and park up in the Red Rooster Car park area. I have walked up the embankment and kept the increasing number of people away from the embankment and tow truck area.
24. After a period of time the overturned truck was salvaged and towed from the scene. All persons and services have left.
25. Constable Seale and I then returned to unrelated duties.
25 Mr Bennett is an inspector with the Vehicle Regulations section of the Roads & Traffic Authority. He has been employed in that capacity for a period of 21 years. In May 2008 he was appointed an Authorised Officer of the Tow Truck Licensing & Compliance Branch of the Roads & Traffic Authority (“TTLC”). In a statement dated 20 October 2008 he stated that he attended the scene of the Ermington incident. In relation to this incident he stated:
- 7. At 1.10 pm we arrived at that location. I observed that a semi trailer carrying a container had fallen over onto its side whilst negotiating the south bound on-ramp off Silverwater Road.
8. I then approached Acting Sergeant Julie Rogan and I had a conversation with her. Acting Sergeant Rogan informed me that she had concerns that the container on the back of the semi trailer may be over laden. She told me that as such she wanted the truck inspected by the RTA and had directed that the cleanup and salvage be suspended until this had been done. She told me that a tow truck driver present at the scene had started to release some of the container pins which are used to held the container onto the trailer and that she told him to leave it alone. I then informed her that the clearing of the roadway could commence and that we would weigh the container on another truck/trailer combination to determine the containers weight.
9. I then approached one of the two tow truck drivers present at the scene. I now know this driver to be Daniel Ereira who at the time was driving for Fleet Towing Services. I then had a conversation with Mr Ereira with words to the following effect:
I said: “You can start putting the truck back on its legs.”
He said: “I can't touch the truck because officer dribble told me not to. We don't know what we’re doing because we have to wait till you guys turn up.”
The volume of Mr Ereira's voice was quite loud and said at a level that other persons could hear what he said. At that time Acting Sergeant Rogan approached us and said words to the following effect:
She said: “Mate, come on. We've all got jobs to do. “I’ll do mine the way I know and you do yours.”
He said: “According to you we don't know what we're doing.”
She said: “Come on mate, listen ...”
I said: “Don't worry, don't argue with him. I'll report him to the TTLC.”
I then produced my Tow Truck Licensing and Compliance authorisation card and showed it to Acting Sergeant Rogan and Mr Ereira. I then said to Mr Ereira words to the following effect:
I said: “Can you just go and upright the vehicle.”
He said: “We should just go and leave you with it.”
10.I then observed Mr Ereira and the second tow truck driver, a person I now know to be Glenn Burgess, to attend to the semi trailer. I observed them to disconnect the container from the trailer, and then up right the truck and trailer, The truck and trailer were then connected to a tow truck and moved to clear the container. The container was then up righted using a second tow truck. The container was then loaded onto another truck and trailer using a side loader. Both truck, trailer combinations and container were taken to the Silverwater Heavy Vehicle Inspection Station to be inspected and weighed.
11. Prior to Mr Ereira leaving from the accident scene I had a further conversation with him with words to the following effect:
I said: “Where's your brief?”
He said: “It's up in the truck.'“
Mr Ereira then climbed into the cab of the truck and produced his Tow Truck Drivers Certificate.
He said: “You will find that it's expired but you have the current one in the office at Parramatta.
I then recorded the details on the drivers certificate …
12.I found the demeanour on Mr Ereira towards Acting Sergeant Rogan to be rude, offensive and inflammatory. I am aware that tow truck drivers are required to act in an orderly and civil manner whilst at accident scene and I found his behaviour to be anything but. He only seemed to quieten down after I had produced my Tow Truck Authorisation Card.
26 Mr Haig is a Fire Fighter with the New South Wales Fire Brigade. In a statement dated 21 October 2008 Mr Haig stated that he attended the scene of the Ermington incident. At that time he was attached to Rydalmere Fire Station with 21 months experience as a Fire Fighter. In relation to this incident he stated:
- 7. A short time after this I noted that a heavy vehicle tow truck arrived at the scene. I noted that this tow truck was driven by a male person, with a shaved head. I have been informed that this tow truck is operated by Retriever Towing Pty Ltd. I noted that the driver of this tow truck approached the semi trailer and seemed to make and initial assessment of the prime mover and trailer.
8. I then liaised with Acting Sergeant Julie Rogan from Rosehill Highway Patrol who informed me that she had concerns regarding the weight capacity of the semi trailer and that it may be over laden. She told me that she wanted the truck inspected by the RTA and as such she didn't want the truck touched until this had been done.
9. At the time that I was talking to Acting Sergeant Rogan I noted that the tow truck driver had commenced to undertake prep work on the semi trailer. It seemed that he had been working on the tail shaft and container removing pins. Acting Sergeant Rogan then approached the tow truck driver and said words to the following effect:
She said: “Don't touch the truck, leave it alone. I have contacted the RTA inspectors as I have concerns regarding the weight.”
I do not recall if the driver responded to her but he did walk away from where she was standing.
10. I then continued my conversation with Acting Sergeant Rogan. Whilst I was talking to her I again noted that the tow truck driver appeared to be undertaking preparation work on the semi trailer. Acting Sergeant Rogan again approached the driver and had a conversation with him with words to the following effect:
She said: “Mate, I've asked you once. Don't touch the truck and can you step away from the truck.”
He said: “I'm just trying to do my job. Let me do my job.”
Further words were exchanged between this tow truck driver and Acting Sergeant Rogan however I do not recall the conversation. I did form the opinion that due to the tone of the tow truck driver's voice he was being deliberately argumentative with the officer. I noted that a short time later he did walk away from the area and he stood on the opposite footpath.
11. About this time a second heavy vehicle tow truck arrived at the scene of the accident. I am advised that this tow truck is operated by Fleet Towing Services. The driver of this tow truck was male, with a beard and long shoulder length hair. I noted that the driver of this tow truck got out of the cab of his truck and approached the first driver. They then appeared to have a discussion between themselves.
12. The RTA Inspectors then arrived at the scene. After inspecting the prime mover and trailer a decision was made that it was appropriate for the clean up and salvage to commence. I then observed Acting Sergeant Rogan approach the two tow truck drivers and she then advised them that they could commence to prepare the prime mover, trailer and container for towing. I did not hear the entire conversation but the long haired tow truck driver appeared to be very rude and disrespectful. At one point I heard the following conversation between Acting Sergeant Rogan and the long haired tow truck driver with words to the following effect:
He said: “How do I know that you're a police officer. Show me your identification.”
She said: “Given my uniform and the gun on my hip, that should be enough identification.”
I then observed the long haired tow truck driver to grab the crotch area of his trousers with his hand and then say words to the following effect:
He said: “Yes, well I've got a gun too.”
There was further conversation between this person and Acting Sergeant Rogan however at this time I do not recall it. I do recall that there were constant facetious and derogative remarks made by both tow truck [drivers] directed toward the police officers, particularly in reference to Acting Sergeant Rogan.
13. I remained at the scene of the accident in total for about two and a half hours. This was the time that the prime mover had been up righted and placed onto the back of the heavy vehicle tow truck and was done to ensure that there were no subsequent fluid spills.
14. I found the demeanour of both tow truck drivers to be rude, offensive and inflammatory, particularly toward police officer Rogan.
27 In a statement dated 20 October 2008 Mr Bouletos stated that he attended the scene of the Ermington incident with other officers from 1st Fleet Transport. At that time he was am employed by 1st Fleet Transport as a Site Manager and had held that position for over four years. As part of his job he occasionally attend motor vehicle accidents and other incidents involving vehicles operated by 1st Fleet Transport. In relation to the Ermington incident he stated:
- 6. Approximately 10 minutes after our arrival, Steve a representative from Royans Transport arrived at the scene. Steve informed me that Royans were unable to undertake the tow of the prime mover and trailer however he would organise for a couple of tow trucks from other operators to attend the scene.
7. About 20 to 30 minutes later the first of the two tow trucks arrived at that location. I believe that this truck was operated by Fleet Towing Services. This truck was driven by a heavy set man, average height, unshaven with a closely cropped haircut. I am led to believe that this driver is Glenn Burgess. Steve spoke to Burgess and instructed him not to commence the salvage but instead to wait until the second tow truck arrived.
8. The second tow truck did not arrive at the accident scene for about 20 to 25 minutes. During this period I observed Burgess preparing the prime mover and trailer for righting by removing some of the container pins and starting to remove the tail shaft. At that time a female police officer approached James [Moon, Manager of ICS Fleet Services] and I and questioned us as to the carrying capacity of the semi trailer. After this she left and had a conversation with other police officers.
9. The female police returned and she told us that as such she wanted the truck inspected by the RTA and she directed that the cleanup and salvage be suspended until this had been done. She also told Steve from Royans to instruct the driver not to touch the truck until told to do otherwise.
10. About this time the second tow truck arrived at the scene. This tow truck is also operated by Fleet Towing Services. The driver of this tow truck I would describe as being a thinner man, average height with long shoulder length hair and beard. I am aware that this driver is Daniel Ereria.
11. I then observed Ereira and Burgess to have a conversation and following this they started to disconnect items from the semi trailer. I then observed one of the female police officer to approach the drivers and said words to the following effect:
She said: “Look, I told you don't touch the truck until the RTA inspects it.”
Burgess said: “What the fuck for, you don't know what you're doing.”
She said: “I don't care, nothings to be touched until the RTA inspectors say that its fine.”
Burgess said: “This is fucken stupid. What the fuck are we waiting for? She doesn't know what she's doing, she's a fucken idiot.”
The volume of Burgess's voice was loud and could be heard clearly. There were a number of bystanders gathered in this area who may have heard these remarks. Both Burgess and Ereira then stepped away from the semi trailer and waited on the footpath. They were still passing comments between themselves although I could not hear the actual conversation.
12. I then had a conversation with Steve from Royans towing. I told him that I was less than impressed with the behaviour of the tow truck drivers, particularly Burgess. I told him that Burgess had abused one of the female police officers and that I didn't want it to reflect on First Fleet. I asked him to apologise to the police officers on behalf of First Fleet. Steve told me that he was not happy with this type of conduct and that he felt that it was unprofessional. He also told me that he would not usually use these particular operators however he was in a bind and could not get anybody else on short notice. I am aware that Steve then approached the police officers and apologised for the behaviour of the tow truck drivers.
13. A short time later the RTA Inspectors arrived at the scene and spoke to police. They then conducted their inspection and then informed that preparations could be made for the righting of the semi trailer. Whilst preparations were made for the righting of the truck I took the opportunity to obtain some business effects from the cab of the truck. Whilst I was doing this I was approached by one of the RTA Inspectors. He informed me that the tow truck driver had abused a police officer. I told him that I had overheard it and that I was shocked by the behaviour. He told me that it had just happened and this time it was Ereira and not Burgess.
14. The prime mover, trailer and container were subsequently loaded onto the back of a tow truck and transported to the Silverwater Inspection Station for inspection. Prior to leaving the scene I approached the female police officer and personally apologised for the behaviour of the tow truck drivers. She informed me that she knew that it had nothing to do with First Fleet.
15. I found the demeanour of the two tow truck drivers, particularly Burgess towards the police officers to be rude and unprofessional. I was really shocked at their conduct and couldn't believe the aggressive and argumentative behaviour.
28 The Applicant provided a statement dated 3 March 2009. In his statement, he disputed the Respondent’s interpretation of the evidence in regard to the Ermington incident. He asserts that the identity of individuals involved in the incident have been confused and that some of the actions attributed to him were in fact not his actions. He provided his own detailed account of the incident in which he contends that it is clear from the evidence that he was mistaken for Glenn Burgess.
29 The Applicant asserts that it was Glenn Burgess, and not himself, who was vocal towards the police. In regard to allegations made about his conduct during the Ermington incident he stated:
- 29. On the 24 September 2008 I attended the slip lane from Victoria Road onto Silverwater Road southbound after a semi trailer had overturned.
30. At this time I was an employee of Fleet Towing.
31. I observed that a colleague of mine, Glenn Burgess was already at the scene. I further observed that Glenn Burgess was driving a smaller truck which was not capable of rolling the prime mover and container back over onto its wheels. Glenn Burgess told me that he was waiting on me to arrive as I was driving a 120 tonne rated truck.
32. When I approached the accident I drove across the medium strip in the centre of Victoria Road. I observed that the RTA traffic manager road crew stopped the traffic to let me cross the road and reverse up to the overturned prime mover. I further observed that the RTA had closed one of the lanes on Victoria Road so there was no traffic. The RTA had kept the other lanes on Victoria Road still open. The RTA traffic manager road crew directed me across the road and stopped the traffic. I did not receive specific permission to do this. In my experience as a Tow Truck driver that the RTA know that the tow truck drivers are there to do a job and the RTA do whatever it takes to let you gain access to the overturned vehicles.
33. On this day I was wearing a green vest with the word “TOWING” in silver lettering on the back. All of my green shirts have the word “TOWING” on them so I was not only wearing a green shirt with the word “TOWING” on the back of it but I was also wearing a vest which was green and had the word “TOWING” on it as well.
34. I do not own a vest with the word “RECOVERY” on it.
35. I was not wearing my driver's certificate on this particular day because I had paid the renewal for my driver's certificate on the 26 May 2008, however I had failed to receive my certificate or receipt by the date by which my previous certificate was to expire. From time to time I had contacted the Tow Truck Authority and I had been told by various persons from the Tow Truck Authority that the Tow Truck Authority had accepted my payment and that they were unable to tell me why they were unable to issue me my driver's certificate but that I was fine to continue operating as a tow truck driver. From time to time I telephoned the Tow Truck Authority regarding this issue. I was told by my employer, Janet Crakanthorp and an employee, Cameron, from Fleet Towing that they had also contacted the Tow Truck Authority from time to time regarding my driver's certificate. I was told by Bronwyn English and Ray Duncan of the RTA that I was to continue operating as a tow truck driver and that I would not be fined or discriminated against for not being able to wear my driver's certificate. Janet Crackenthorp had told me and so did Cameron that they had also been informed by Bronwyn English and Ray Duncan that I was able to continue operating as a tow truck driver. After asking several times to receive a receipt of payment and after many phone calls insisting that I obtain a receipt for taxation purposes I received a receipt in late July or early August but I did not receive my driver's certificate even though I had paid for it on the 26 May 2008. ...
36. After suspending my driver's certificate the Tow Truck Authority have now issued me with a fine for not returning my driver's certificate. However I cannot return my driver's certificate because I never received it.
37. At the accident scene at Victoria Road I jumped out of my truck and walked over to the overturned prime mover. I began to inspect the container pins and I had a conversation with Glenn Burgess:
I said: “Okay, get the oxy out we will need to cut one of the container pins off to undo It.”
38. I then walked back to my truck and got the oxy cutting torch out of my truck.
39. I unreeled the hoses and dragged the hoses over to the overturned truck and I said to the nearby fire officers:
“This is going to be a bit of a spark here, get your hoses ready in case of any fires. “
41. Nobody told me not to touch the truck.
42. I believe the female Police Officer had had a conversation with my colleague Glenn Burgess before I arrived at the accident scene and she had informed him not to touch anything. Glenn Burgess had not informed me of the conversation he had had with the female police officer.
43. I observed that Glenn Burgess came around the back of the truck while the female Police Officer was having the following conversation with me:
I said:
“Look you never told me anything this is a first.”
The female Police Officer has then looked over to Glenn Burgess and said:
“You know you've been told to leave the truck alone.”
Glenn Burgess was beginning to climb up onto the container and had his back to the female Police Officer the whole time.
44. I heard Glenn Burgess have the following conversation with the female Police Officer.
Glenn Burgess said
“Yeah yeah, whatever doll why don't you toddle off and keep your panties on.”
I observed that Glenn Burgess has then walked one way and I have walked the other. I began to laugh and I observed that the female Police Officer's facial expression showed anger.
45. I have then proceeded to pack up as I had finished cutting what I needed to cut on the container. I then proceeded to move my truck up into the car park area of Red Rooster, which was beside Victoria Road. I drove up the road on the wrong side of the street, which had the merging lane barricaded off due to the accident, and I observed that the RTA stopped the traffic and directed me up to the car park.
46. At the car park I observed that there was a male Police Officer. I further observed that the male Police Officer made the general public move out of the way to allow me to reverse my truck into where I had to be. I observed that the male Police Officer stayed up in the car park the whole time. From the car park I had a view of the entire accident scene.
47. Once I had parked my truck in the car park, I came back down to the roadside where I have had a conversation with John Assard who works for a smash repairs company and Glenn Burgess.
I said to Glen Burgess:
“What's her problem?
Glenn answered:
“One of the RTA goof balls over there, one of the road management guys told the Police that the truck is overloaded and that is why the truck has tipped over and that is why she has called the RTA inspectors out.”
48. I observed the RTA officer walk over to the truck and have a brief look at the overturned prime mover. As the RTA officer walked towards where I was standing he asked me:
“How long before you guys get this truck back on its wheels?”
I replied:
“Well that all depends on Officer Dribble over there because she has told us that we are not allowed to touch anything until her say so.”
49. I observed that the female Police Officer was approximately 25 feet away. I was at one end of the container and the Female Police Officer was at the other.
51. I observed that the female Police Officer then pointed across her vest with one finger and said to me:
“See this, it says Police, that's who I am.”
I said:
“That does not make any difference to me, I still do not know who you are.”
…
54. I observed the RTA Officer flip out his pocket wallet and flash it at the female Police Officer. I heard the RTA inspector say to the female Police Officer:
“I'm an RTA inspector and tow truck authority inspector, do not worry about him I will write him up.”
55. I then turned to the RTA inspector and said:
“Write me up for what, what have I done wrong?”
The RTA inspector said:
“Poor conduct.”
56. I then proceeded to walk off.
57. As I was walking past the 4 or 5 fire officers up the other end of the front end of the truck I snickered and said to them:
“I've got a gun whoopee”.
I said this comment in front of the fire officers and not in front of the female Police Officer. At this time I had my back to the female Police Officer and I grabbed my groin and said to the fire officers:
“I have a gun here too. “
58. John Assard turned to me quietly and said:
“Do not say anything in front of them as one of them is really good friends with her.”
59. Glenn Burgess was an employee in the Tow Truck Industry at Rydalmere and from the conversation I formed the opinion that there was some connection between one of the fire officers and the female Police Officer.
60. Glenn Burgess and I carried on with the job at hand. Glenn Burgess connected his tow truck to the prime mover to move it out of the way so I could get my truck down there to hook it up because I had to roll the container over.
61. As I began to disconnect the trucks I observed that the RTA inspector approached me and asked me for my identification. I then proceeded to go to my truck to get my identification. I brought my identification to the RTA inspector and I asked him again why he was going to report me. I provided the RTA Inspector with an expired Tow Truck Driving Certificate as I had not yet received my new one from the RTA even though I had paid for the certificate on 26 May 2008.
62. I approached the two female Police Officers and the RTA inspector I asked the two female Police Officers:
“Which one of you verbally assaulted me?”
I asked this question because both female Police Officers looked very similar. One of the female Police Officers answered:
“Verbally assaulted”
I said:
“You called me a dick head”
The other female Police Officer said:
“No that was me, well you acted like one.”
I said:
“So who are you? Neither of you have any ID on and you both look the same to me.”
The female Police Officer answered:
“Logan from Rosehill Highway.”
63. I wrote the Police Officer's name down on a piece of paper.
64. I said to the female Police Officer:
“I want to put in a complaint for verbally assaulting me and threatening me with a fire arm. “
65. I then turned to the RTA officer and said:
“You were standing there, you heard her say it.”
The RTA inspector answered:
“I heard nothing but you acting poorly.”
66. The other female Police Officer then said to me:
“You were lucky we did not charge you.”
I said:
“For what?”
67. The female Police Officer did not give any further specifics as to what she would charge me with.
68. I was never charged with any offence in regards to this incident of the 24 September 2008.
30 Mr Jamieson submitted that the Respondent’s decision that is under review was based on the view that ‘road rage’ was involved in the Glenhaven incident. However, he says that the agreed facts accepted by the Local Court resulted in a conviction for a minor driving incident. This is reflected in the guilty plead to an offence of assault, for which the Applicant was convicted and fined $800.
31 In relation to the Ermington incident Mr Jamieson submitted that the evidence provided by the Respondent’s witnesses is inconsistent. He submits that the evidence establishes that the initial interactions were between Glenn Burgess and Senior Constable Rogan, not between the Applicant and Senior Constable Rogan. As a result of that interaction Senior Constable Rogan was not in a good mood when she spoke to the Applicant and the situation became heated. He submits that Senior Constable Rogan could have handled the situation differently. If she had done so the incident may not have become inflamed.
32 It is clear from Senior Constable Seale’s evidence that Senior Constable Rogan had given instructions to Glenn Burgess but confusion resulted from the fact that neither she nor Glenn Burgess had passed those instructions on to the Applicant.
33 The Applicant accepts that his conduct was out of order but asserts that the determination that he is disqualified from holding a tow truck drivers certificate for ten years is excessive.
34 Mr Jamieson submitted that the Glenhaven incident and the Ermington incident should be considered differently because the Glenhaven incident was outside the regulated activity. He relies on the decision of Deputy President Hennessy in Kaldas v Tow Truck Authority of NSW [2006] NSWADT 337 as authority for this approach. At paragraph [14] the Deputy President stated:
- 14 Relationship between the offence and tow truck operations . The first group of offences with which Mr Kaldas has been charged took place in the course of his activities as a tow truck driver. They relate directly to his fitness to participate in that industry. The second group of charges do not relate to incidents which took place in the course of Mr Kaldas driving a tow truck or operating his business, nevertheless they are of a similar nature to the first group of charges in the sense that they both allege that Mr Kaldas had an argument with someone and that there was physical contact between them.
35 Mr Jamieson also submitted that the decision of Judicial Member Molony in Shuttleworth v Tow Truck Authority of NSW [2006] NSWADT 301 can be distinguished on its facts. In Shuttleworth the applicant had been guilty of prior misconduct within the Tow Truck industry whereas the applicant has had a good approach to work ethics.
36 Mr Jamieson submitted that it is not correct to frame this situation as one involving an anger management problem. He argues that the Local Court dealt with the Glenhaven incident in a minor way and the Ermington incident involved a heated work issue.
37 Mr Jamieson submitted that the correct and preferable decision is to order the return of the Applicant’s drivers certificate.
38 Mr Wozniak submitted that it is clear from clause 16 of the Regulations that conviction for any offence involving an assault of any kind against a person provides the basis for a mandatory refusal to grant an application for a drivers certificate. The Applicant was fined $800. If the Applicant had been fine $1000 he would have been prevented from holding a drivers certificate for 10 years. He submits that the Tribunal should take account of Parliaments intention to address issues of violence within the industry by imposing severe penalties. In support of this submission he relies on the following passages of the Second Reading Speech by The Hon. R. D. DYER (Minister for Public Works and Services), on behalf of the Hon. M. R. Egan on the introduction of the Tow Truck Industry Bill into the Legislative Council on 27 October 1998:
- The Tow Truck Industry Bill provides for a comprehensive restructure of the tow truck industry, an industry that is in urgent need of reform. This bill will improve regulation of tow truck activities at an accident scene, tighten the fit and proper requirements for those who can be involved in the industry, provide for a stronger regulatory authority with an improved enforcement and policy focus and a more effective and modern disciplinary process.
…
After extensive consultation with the industry and interest groups, Mr Anderson submitted his thorough and well-written tow truck industry review interim report on 31 May. The findings of the report were disturbing. Mr Anderson described an industry infiltrated by criminal elements and pervaded by fear of intimidation, physical harm and property damage.
…
Industry standards will be upgraded so that applicants who have been convicted of certain criminal offences or if their drivers’ licences have been cancelled or suspended will not be able to enter the industry.
39 Mr Wozniak submitted that the evidence establishes that during the Glenhaven incident the Applicant cut off another vehicle, blocked the driver and then assaulted him. As a result the Applicant was convicted and given a penalty that was slightly less than that which would have seen him kept out of the industry for 10 years.
40 In regard to the Ermington incident Mr Wozniak relies on the witness statements as evidence of the Applicant’s conduct. He submitted that this evidence supports the conclusion that the Applicant showed aggressive, offensive and argumentative behaviour towards police while at the scene of a motor vehicle accident. He submits that this conduct is entirely inconsistent with the standard required of a certified tow truck driver.
41 Mr Wozniak also points to the Applicant’s driving record which shows that he has committed 48 separate offences.
42 He submits that the correct and preferable decision is to affirm the decision that is under review.
Discussion.
43 I have given serious consideration to the matters which the Respondent relied on in determining that the Applicant is not fit and proper to be a certified driver and that it is not in the public interest for him to hold a drivers certificate.
44 In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, Chief Justice Mason explained that, at 380:
- ‘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.’
45 Toohey and Gaudron JJ said at 380:
- "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."
46 A person’s fitness is to be gauged in light of the nature and purpose of the activities that the person will undertake: Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127. Knowledge, ability, moral integrity and the rectitude of character necessary to fulfil the role for which a licence is sought are proper considerations: Sobey v Commercial and Private Agents Board 20 SASR 70. Criminal convictions can be of great importance in such as assessment: the more so where the activity to be undertaken requires public confidence and reliance on the propriety and integrity of the licensed person: Raymond Robbins v Business Licensing Authority (2000) VCAT 457. Thus the nature of the industry in which the person concerned wishes to operate affects a consideration of whether a person is a "fit and proper person" to operate in that industry. In Chaining v Commissioner of Police, NSW Police Service (1999) NSWADT 6 at [41] the President of this Tribunal made the following comments on the issue, in the context of the security industry:
- `Whether a person is `fit and proper' to hold a licence in a regulated industry will be affected by general considerations relating to the character of the person, special considerations that take account of the nature of the industry in issue and the public policy objective leading the legislature to regulate the industry.
47 A person who has been found to be of bad character, and not a fit and proper person to operate in an industry, may redeem him or herself: see comments by Judicial Member Molony in Trilin v Commissioner of Fair Trading [2003] NSWADT 222 at paragraph [46] and the cases referred to there.
48 In the present matter, the Applicant has been convicted of assault in circumstances that can be correctly be described as a road rage incident. In my view that is the case notwithstanding that the agreed facts placed before the court resulted in a guilty plea for a lesser assault.
49 I note Mr Jamieson’s submission that the incident was not within the regulated activity. Notwithstanding that the Applicant was not working in tow truck activities at the time of the Glenhaven incident, he was driving one of the trucks owned by Fleet Towing and he had just finished his last job for the day. In my view it is merely a technical argument to assert that this incident should be treated differently to the Ermington incident because the Applicant had finished his last job for the day.
50 In my view, the circumstances of the Glenhaven incident alone are such that the refusal of the application is warranted. The Applicant reacted in an uncontrolled manner. This inability to control his temper is entirely inconsistent with the standard required of a certified tow truck driver.
51 I disagree with Mr Jamieson’s submission that these incidents should not be categorised as anger management issues. In my view they clearly demonstrate that the Applicant’s reacted in an uncontrolled manner. No evidence has been presented to show that the Applicant has either accepted that this is the case or taken any steps to address the situation.
52 The circumstances of the Ermington incident in fact demonstrate that the Applicant’s inability to control his temper continued. I accept that some confusion may have arisen at the scene however the evidence of the Applicant’s conduct and attitude is not seriously challenged. I have no doubt that the Applicant showed aggressive, offensive and argumentative behaviour towards police. Again, I agree that this conduct is entirely inconsistent with the standard required of a certified tow truck driver. In my view, he is not a fit and proper person to hold the certificate that he seeks.
53 I agree with the reasoning provided by the internal reviewer that I have set out above and I adopt that reasoning. In my view, the determination that was made by the Respondent is the correct and preferable one.
54 For completeness, it is also my view that at this time it is not in the public interest that the Applicant hold the certificate that he seeks.
55 I note that the references provided on behalf of the Applicant suggest that he is held in high regard by the authors. It may well be that the Applicant’s issues can be resolved but at this time there is no evidence to suggest that he has made efforts toward achieving that result. On the material before me, I am satisfied that the Respondent’s decision is the correct and preferable one. However, should the Applicant take such steps in the future and if he were able to satisfy the Respondent that its concerns are no longer warranted, the Respondent may well adopt a different approach.
Order
The decision under review is affirmed.
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