G v Tow Truck Authority of New South Wales

[2001] NSWADT 25

CITATION:	G v Tow Truck Authority of New South Wales [2001] NSWADT 25 revised - 21/03/2001
DIVISION:	General Division
PARTIES:	APPLICANT G RESPONDENT General Manager, Tow Truck Authority of New South Wales
FILE NUMBER:	003251
HEARING DATES:	24/10/00
SUBMISSIONS CLOSED:	10/24/2000
DATE OF DECISION:	10/24/2000
BEFORE:	O'Connor K - DCJ (President)
APPLICATION:	Tow Truck Industry Act - tow truck operator or driver - grant of licence or certificate - Tow Truck operator or driver - grant of licence or certificate
MATTER FOR DECISION:	Principal Matter
LEGISLATION CITED:	Tow Truck Industry Regulation 1999 Tow Truck Industry Act 1989
CASES CITED:	Bourke v Commissioner of Police [1998] NSWADT 1 (17 December 1998); Hargreaves v Commissioner of Police, NSW Police Service [1999] NSWADT 64 (13 August 1999); Beddow v Commissioner of Police, New South Wales Police Service [2000] NSWADT 119 (31 August 2000). Doyle v Commissioner of Police [1999] NSWADT 84) Commissioner of Police v Wilson, New South Wales Court of Appeal in 1994 (unreported, 29 July 1994, Clarke, Meagher and Powell JJ.A.)
REPRESENTATION:	APPLICANT In person RESPONDENT M Tzannes, barrister
ORDERS:	1. The application for review is dismissed and the decision of the administrator is affirmed.

Delivered Ex Tempore

1 The applicant for review in this case, G, has been a certificate holder in the tow truck industry for approximately ten years. It came out in evidence that he belongs to a family that is part of the industry, that his father and brother are licence holders and operated a tow truck business for many years. So I can understand in that context that the loss of a certificate may have possibly more impact than it might if someone belonged to a family that was unconnected with the industry, and I am also aware from the material that G has brought to our attention today that he has had some medical difficulties in connection with a disorder that he has had since he was a child - Attention Deficit Hyperactivity Disorder. Currently he is receiving professional attention from a consulting psychiatrist and he is managing well on a program that involves taking the medication Dexamphatamine Sulphate. So there are some general circumstances surrounding this application for review which I think should at least be noted for the record.

2 The application is for a review of a decision dated 6 July 2000 of the Tow Truck Industry Authority refusing G’s application for renewal of his tow truck drivers certificate. The application to the Authority was lodged in May 2000 and initially refused by letter in early June 2000. The ground for refusal was that within a period of three years before the application for the tow truck drivers certificate, G had been disqualified from holding a driver licence. That ground for refusal is found in regulation 17 of the Tow Truck Industry Regulation 1999 (‘the Regulation’) which was made pursuant to s 26(4) of the Tow Truck Industry Act 1998 (‘the Act). That ground for refusal is not expressed to be discretionary. The relevant provision provides:
‘ 17. Additional grounds for refusing application for drivers certificate: section 26 (4) For the purposes of section 26 (4) of the Act, the following are grounds on which an application for a drivers certificate must be refused:
(a) …
(b) the applicant has, within the period of 3 years before the application for the driver certificate was made, been disqualified from holding a driver licence.’


3 Now, in this case, it is undisputed that there was a decision (initially of the Magistrate’s Court and then a fresh decision on appeal by the District Court which varied the period of disqualification) to disqualify G from holding an ordinary driver’s licence for a period of twelve months. That period was back-dated to commence from the date of the offence. The decision of the District Court was handed down on 17 March 1999 with the disqualification period commencing on 31 October 1998.

4 In May 1999, G had, as he is required to do each year, applied for a renewal of his tow truck drivers certificate and, as he was under disqualification in respect of driving at that time, the Tow Truck Authority, as I understand the evidence that has been put forward today, declined to deal with the application at that time as he did not possess the underlying general licence to drive: see the Act, ss 31, 32.

5 Instead, according to G, he was given some form of permission to ride in the passenger seat of tow trucks but that matter really was not conclusively dealt with by any evidence. At the end of the twelve month period of disqualification on 31 October 1999, the evidence is that the application of May 1999 was then processed on the basis of the law that was applicable in May 1999. G was given a certificate expiring in May 2000 which enabled him to resume operations as a tow truck driver and conduct the business connected with his particular truck which, whilst again this matter was not entirely clear from the evidence, appears to be run to some extent as a business separate from the business of the rest of the family.

6 When G sought to renew his certificate in May 2000 it was refused. The basis for the refusal was the law to which I have already referred (new cl 17). The position is that the Regulation had come into force on 8 October 1999.

7 I mention all those matters by way of preliminary, and it may be that the case has received a greater deal of examination than a case of this kind would ordinarily attract.

8 But I accept, in general terms, what you say G, which is that you have a sense of grievance because after serving your twelve month period of disqualification you were allowed back onto the road as a tow truck driver but now you have been told that you cannot return to the road until three years has passed from 31 October 1998. You have been caught in a situation where the law had changed, and the law has changed to become more severe in relation to the consequences of disqualification on the ability to hold the tow truck drivers certificate.

9 I might indicate at this stage to you, G, that whilst this change in the law is reflective of a tougher approach being taken by the Parliament and the regulatory authorities in relation to the consequences of driving offences, it is not as harsh as some of the other regulatory regimes that we have seen in this Tribunal. For example, in the security industry, a person holding a security guard licence is not entitled to renew that licence if they have been convicted of virtually any criminal offence in the last ten years. Many of those offences that we have looked at in this Tribunal have had absolutely no bearing on the nature of the work that they undertake, whereas what we have here is a regulatory approach which is tougher that the previous approach but it tends to focus on the kind of activity that the regulatory system is responsible for regulating. In this instance a general driving offence leads to implications for holding a tow truck driver’s licence.

10 So the position as we have it here, is that the law has changed in between the time you applied for your licence in May 1999, and the time of your application in May 2000.

11 The legal position, as Ms Tzannes has outlined it is, I think, clear. That is that the Tribunal is (like the Authority) not in a position to exercise a discretion in relation to this matter and the only role, strictly, that this Tribunal can play is to do the check that Ms Tzannes referred to, which is to first of all check that there is such a conviction or disqualification and then, secondly, to check that it fits within the description contained in the regulation. (See generally, Bourke v Commissioner of Police [1998] NSWADT 1 (17 December 1998); Hargreaves v Commissioner of Police, NSW Police Service [1999] NSWADT 64 (13 August 1999); Beddow v Commissioner of Police, New South Wales Police Service [2000] NSWADT 119 (31 August 2000).

12 I am satisfied in this case that it is an instance of a disqualification within the three years prior to your application in May 2000; and the Authority was obliged not to renew your licence, that is, to refuse your application.
13 The case law in the Tribunal is as Ms Tzannes has mentioned. Those cases were decided in other categories of licensing but they apply equally to this area and there is a more fundamental case that lies behind the thinking of the Tribunal, and that is the case of Commissioner of Police v Wilson , New South Wales Court of Appeal in 1994 (unreported, 29 July 1994, Clarke, Meagher and Powell JJ.A.) and that case was decided in the context of firearms licensing where again certain mandatory refusal criteria had been applied.

14 So the position is this, G, that your application today cannot succeed.

15 But I am concerned G, not to have anything we do here today disturb the efforts you are obviously making to deal with the medical condition that you have been affected by. I acknowledge what you have said in your letter to the Tribunal connected with your application to the effect that you are trying to put the past behind you. I think you would acknowledge that certainly your driving history is not an attractive one.

16 I can understand why the Authority might even be concerned with your application when it comes to be considered on a discretionary basis, that is as to whether you are a ‘fit and proper person’. Hopefully they will take account of the efforts that you are making on this occasion when your licence does come up for consideration again, which will probably be in October 2001. It is in your interests to stick to what you are doing and not to become discontented or negative because of the position that applies today.

17 The position at the moment is that the Parliament has given authority to the Tow Truck Industry Authority to make strict rules on these matters. Strict rules have been made. We heard that there was a consultation process with the industry. You are caught by that strict rule. That it goes back in time retroactively, as we say, to pick up the past three years is not a ground for not applying the rule. The rule has consciously sought to go back in time; and I dealt with the argument that that might itself invalidate a regulation in those earlier cases (see also Doyle v Commissioner of Police [1999] NSWADT 84).

18 The only other matter that is obviously of some concern to you, G, is the concern that by having been allowed back on the road when you thought that there would be no long term problem, it has led you to possibly incur costs or have an expectation that has been dashed. I do not want to take that matter too far today but if you have got some ground for a claim in that regard I think you should make it directly to the Authority and see what they have got to say.

19 The position as I perceive it that you find yourself in is that you are in a transitional period between an old rule and a new rule, but your circumstances, like everyone else who has got a disqualification within the last three years, is caught by the new rule.

20 I will leave my comments at that, but I have made a more detailed decision on this matter than I might normally do, G, really in an effort to explain to you that the situation that you find yourself in is the consequence of a change in the law. The law is a tougher law than it was previously. It is important I think that you continue with your attempts to overcome the difficulties that arise from this Disorder and appreciate the basis for today’s decision.

21 The application for review is dismissed and the decision of the administrator is affirmed.