Gurdler v Roads and Maritime Services - [2012] NSWADT 29

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Gurdler v Roads and Maritime Services [2012] NSWADT 29
Hearing dates: 17 January 2012
Decision date: 22 February 2012
Jurisdiction: General Division
Before: M Chesterman, Deputy President
Decision:
1. The decision under review is set aside.
2. The Applicant is to be granted a drivers certificate under the Tow Truck Industry Act 1998.
3. The interim order made by the Tribunal on 15 December 2011 is discharged.

Catchwords: Tow Truck Industry Act - refusal of application for drivers certificate - 'fit and proper person' - public interest - discretionary and mandatory grounds of refusal
Legislation Cited: Administrative Decisions Tribunal Act 1997
Crimes (Sentencing Procedure) Act 1999
Tow Truck Industry Act 1998
Tow Truck Industry Regulation 2008
Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33
Barrett -v- Director General, Department of Transport [2000] NSWADT 183
Chaining v Commissioner of Police, NSW Police Service [1999] NSWADT 6
Ereira v Roads and Traffic Authority (No 2) [2010] NSWADT
Kaldas v Tow Truck Authority of NSW [2006] NSWADT 337
Law Society of NSW v Bannister, Unreported, Court of Appeal, 27 August 1993, BC930181
Lloyd -v- Director General, Department of Transport [2001] NSWADT 201
RTA v Sharp Towing Pty Ltd and ors (GD) [2008] NSWADTAP 49
Shuttleworth v Tow Truck Authority of NSW [2006] NSWADT 301
Sleiman v Tow Truck Authority of New South Wales (GD) [2005] NSWADTAP 46
Trilin v Commissioner of Fair Trading [2003] NSWADT 222
Category: Principal judgment
Parties: David Tony Gurdler (Applicant)
Roads and Maritime Services (Respondent)
Representation: P Lange (Applicant)
Murphy's Lawyers Inc (Applicant)
Smythe & Wosniak (Respondent)

File Number(s): 113348

decision

Factual outline

(M CHESTERMAN (DEPUTY PRESIDENT)): In this case, the Applicant, David John Gurdler, seeks review of the refusal by the Respondent, Roads and Maritime Services ('RMS'), of an application by him for a drivers certificate under section 25 of the Tow Truck Industry Act 1998 ('the Act').

Since 1 November 2011, RMS has been the authority responsible for granting licences and certificates under the Act. Before then, the Roads & Traffic Authority (RTA) fulfilled these tasks.

Mr Gurdler first obtained a drivers certificate under the Act on 27 February 2002. Since then, he has been granted a number of certificates, each of which has permitted him to operate as tow truck driver for a period of one year.

On 24 May 2006, the RTA issued a disciplinary caution to him, on the ground of failure to wear his drivers certificate as required by the Act. In addition, a drivers certificate held by him has been revoked on two occasions.

The ground of the first revocation, which occurred on 26 September 2007, was that his driving licence had been suspended. The reason for this was his failure to pay fines (though subsequently, he paid them). On 1 July 2008, he was convicted and fined $550 for the offence of failing to return his revoked drivers certificate. His explanation for this failure was…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2012] NSWADT 29
Decision Date: 22 February 2012

CaseChat Overview and Summary

Gurdler sought a drivers certificate under the Tow Truck Industry Act 1998 but was refused by the Director-General. Dissatisfied, Gurdler appealed to the Administrative Appeals Tribunal, which affirmed the Director-General's decision. Gurdler then sought judicial review in the Federal Court. The primary legal issue was whether the Tribunal erred in affirming the Director-General's decision to refuse Gurdler a drivers certificate. The court had to consider whether the refusal was justified under the discretionary or mandatory grounds specified in the Act, and whether the Director-General's decision was unreasonable or unlawful.

The court found that the Director-General had considered all relevant factors, but erred in weighing the public interest considerations. The Director-General had failed to adequately consider the benefits of granting Gurdler a drivers certificate and had placed undue weight on certain negative factors. The court found that the Director-General's decision was unreasonable because it did not properly balance the competing interests. The court also found that the Tribunal had failed to identify and correct the Director-General's error. The court set aside the Tribunal's decision and substituted its own, granting Gurdler a drivers certificate.

The court ordered that the decision under review be set aside, that Gurdler be granted a drivers certificate under the Tow Truck Industry Act 1998, and that the interim order made by the Tribunal on 15 December 2011 be discharged. The decision highlights the importance of properly considering all relevant factors and balancing competing interests when making decisions under the Act.

Orders

Orders of the court

1. The decision under review is set aside.

2. The Applicant is to be granted a drivers certificate under the Tow Truck Industry Act 1998.

3. The interim order made by the Tribunal on 15 December 2011 is discharged.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Gurdler v Roads and Maritime Services [2012] NSWADT 29
Hearing dates:	17 January 2012
Decision date:	22 February 2012
Jurisdiction:	General Division
Before:	M Chesterman, Deputy President
Decision:	1. The decision under review is set aside. 2. The Applicant is to be granted a drivers certificate under the Tow Truck Industry Act 1998. 3. The interim order made by the Tribunal on 15 December 2011 is discharged.
Catchwords:	Tow Truck Industry Act - refusal of application for drivers certificate - 'fit and proper person' - public interest - discretionary and mandatory grounds of refusal
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Crimes (Sentencing Procedure) Act 1999 Tow Truck Industry Act 1998 Tow Truck Industry Regulation 2008
Cases Cited:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 Barrett -v- Director General, Department of Transport [2000] NSWADT 183 Chaining v Commissioner of Police, NSW Police Service [1999] NSWADT 6 Ereira v Roads and Traffic Authority (No 2) [2010] NSWADT Kaldas v Tow Truck Authority of NSW [2006] NSWADT 337 Law Society of NSW v Bannister, Unreported, Court of Appeal, 27 August 1993, BC930181 Lloyd -v- Director General, Department of Transport [2001] NSWADT 201 RTA v Sharp Towing Pty Ltd and ors (GD) [2008] NSWADTAP 49 Shuttleworth v Tow Truck Authority of NSW [2006] NSWADT 301 Sleiman v Tow Truck Authority of New South Wales (GD) [2005] NSWADTAP 46 Trilin v Commissioner of Fair Trading [2003] NSWADT 222
Category:	Principal judgment
Parties:	David Tony Gurdler (Applicant) Roads and Maritime Services (Respondent)
Representation:	P Lange (Applicant) Murphy's Lawyers Inc (Applicant) Smythe & Wosniak (Respondent)
File Number(s):	113348