HAGGER and DEPARTMENT OF TRANSPORT - [2020] WASAT 49

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: ROAD TRAFFIC (ADMINISTRATION) REGULATIONS 2014 (WA)
CITATION:   HAGGER and DEPARTMENT OF TRANSPORT [2020] WASAT 49
MEMBER:   MR D AITKEN, SENIOR MEMBER
DR B MCGIVERN, MEMBER

HEARD:   10 FEBRUARY 2020
DELIVERED          :   8 MAY 2020
FILE NO/S:   CC 1429 of 2019
BETWEEN:   TIMOTHY LEE HAGGER
Applicant
AND
DEPARTMENT OF TRANSPORT
Respondent

Catchwords:

Road traffic - Review of decision to refuse application for T extension to driver's licence - Criminal convictions for pursuing another to intimidate, breach of restraining order and trespassing - Good character - Mental condition - Bipolar affective disorder - Mental fitness to drive a motor vehicle for the purposes of carrying passengers for reward

Legislation:

Road Traffic (Administration) Act 2008 (WA), s 8
Road Traffic (Administration) Regulations 2014 (WA), s 32(1)
Road Traffic (Authorisation to Drive) Act 2008 (WA), Pt 2
Road Traffic (Authorisation to Drive) Regulations 2014 (WA), reg 7, reg 12, reg 12(7), reg 24, reg 25, reg 32(1), reg 70, reg 72(1), Div 2
Road Traffic Act 1974 (WA), s 49
State Administrative Tribunal Act 2004 (WA)

Result:

Respondent's decision to refuse applicant's application for T extension affirmed

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Mr H Pretorius

Solicitors:

Applicant	:	N/A
Respondent	:	Department Of Transport - Legal And Legislative Services

Case(s) referred to in decision(s):

Bekhit v Department of Transport [2017] WASC 50
Care and Department of Transport [2019] WASAT 86
Chowdhury and Department of Transport [2012] WASAT 128
Commissioner of Police v Thayli Pty Ltd [2020] WASC 43
Minister for Immigration and Multicultural and Indigenous Affairs v Godley (2005) 141 FCR 552
Minitti v Commissioner of Police [2010] WASCA 198
Mohamed v Director General - Department of Transport [2010] WASC 375
Rayney and Legal Practice Board of Western Australia [2016] WASAT 7
Real Estate and Business Agents Supervisory Board v LJW [2011] WASCA 35
Singh and Director General of the Department of Transport [2013] WASAT 87
Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474
Tavelli v Johnson (Unreported, WASC, Library No 960693, 25 November 1996)
Topic and Department of Transport [2015] WASAT 16
Upton and Director General of Transport [2012] WASAT 63

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The Department of Transport (Department) is the licensing authority for the Western Australian driver licensing scheme established under Pt 2 of the Road Traffic (Authorisation to Drive) Act 2008 (WA).
The Chief Executive Officer of the Department (CEO) has the power to grant to a person a driver's licence under reg 7 of the Road Traffic (Authorisation to Drive) Regulations 2014 (WA) (Authorisation to Drive Regulations). In these reasons, unless otherwise specified, all regulation references are references to the Authorisation to Drive Regulations.
The CEO is able to delegate any of the CEO's powers to a person or persons (each a CEO's delegate) under s 8 of the Road Traffic (Administration) Act 2008 (WA).
A person who holds a driver's licence is not authorised to drive a motor vehicle when it is being used for the purpose of carrying passengers for reward unless their driver's licence is endorsed by the CEO under reg 12 to give that authorisation.
Mr Timothy Lee Hagger (applicant), applied to the CEO for the endorsement of an extension T to his driver's licence (T extension), under reg 12, which would authorise him to drive a motor vehicle for the purpose of carrying passengers for reward. However, his application for a T extension was refused by the CEO's delegate, on the grounds that the CEO's delegate was not satisfied that the applicant is a person of good character due to a number of criminal convictions.
The applicant seeks review by the Tribunal of that decision under reg 32(1) of the Road Traffic (Administration) Regulations 2014 (WA).

The Tribunal's review jurisdiction

The Tribunal's review jurisdiction was usefully summarised in Nguyen and Department of Transport [2020] WASAT 13 (Nguyen) at [8] to [11] as follows:
Regulation 32(1) of the Administration Regulations confers jurisdiction on the Tribunal to review the Department's decision. By reason of s 17 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the application to review the Department's decision falls within the Tribunal's review jurisdiction.
In exercising the Tribunal's review jurisdiction, the Tribunal is to review the Department's decision by way of a hearing de novo for the purposes of producing the correct and preferable decision on the basis of the information and evidence before the Tribunal at the time of the review (s 27 of the SAT Act). In conducting the review, the Tribunal is not limited to the material before the respondent, as the original decision-maker, but may consider new material (s 27 of the SAT Act).
All of the functions and discretions conferred by the enabling Act on the original decision maker are conferred on the Tribunal (s 29(1) of the SAT Act). Section 29(3) of the SAT Act confers specific power on the Tribunal to, amongst other orders, set aside the original decision, affirm that decision or vary that decision.
The Tribunal is not bound to apply the Evidence Act 1906 (WA), the rules of evidence, or any practices and procedures of courts of record (s 32(2)(a) of the SAT Act), but is bound by the rules of natural justice (s 32(1) of the SAT Act) and 'is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities' (s 32(2)(b) of the SAT Act). The more flexible procedure provided for by s 32 of the SAT Act, however, does require that Tribunal decisions are made on the basis of evidence that has probative force: see Sammut v AVM Holdings Pty Ltd [No 2] [2012] WASC 27 at [40].
For completeness, in the context of this proceeding, the Tribunal notes that the reasons for decision provided by the decision-maker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of that decision: s 27(3) of the State Administrative Tribunal Act 2004 (WA) (SATAct).

Issue to be determined

The issue to be determined by the Tribunal is whether the decision of the CEO's delegate to refuse a T extension on the applicant's driver's licence should be affirmed, or whether that decision should be varied or set aside.

Regulatory framework

A person must hold a driver's licence in order to drive a motor vehicle lawfully on a road in Western Australia: s 49 of the Road Traffic Act 1974 (WA). Upon payment of a fee, a person may apply to the Department for a Western Australian driver's licence.
The CEO may, under reg 24, grant an applicant a driver's licence if satisfied that the applicant meets various eligibility requirements relating to age, demonstrated ability to drive safely, and demonstrated knowledge of traffic laws and safe driving techniques (as further detailed in Div 2 of the Authorisation to Drive Regulations).
The CEO may, under reg 25, refuse to grant a driver's licence to a person if the CEO has reason to believe that the person:
(a)is not of good character; or
(b)suffers from a mental or physical condition (which may include a dependence on drugs or alcohol) that is likely to, or treatment for which is likely to, impair the person’s ability to control a motor vehicle; or
(c)is disqualified under a foreign law, as defined in section 15(1), from being authorised to drive; or
(d)should not hold a driver’s licence because of the number or nature of the person’s convictions for —
(i)offences under any road law; or
(ii)offences under laws referred to in paragraph (c) that are similar in substance to offences under any road law.
The matters identified in reg 24 and reg 25, therefore, set out the threshold requirements and limiting factors for the grant of any driver's licence in Western Australia.
As noted above, further specific authority is required to drive a vehicle for the purposes of carrying passengers for reward, and that authority is conferred by the endorsement of the driver's licence with a T extension or an F extension (the former including, and the latter excluding, authority to do so in an on-demand rank or hail vehicle): reg 12.
Under reg 12(7), the CEO may grant such an extension if the CEO is satisfied that the applicant:
(a)has, for a period of at least 3 years or periods adding up to at least 3 years, held a relevant driving authorisation; and
(b)has reached 20 years of age; and
(c)is of good character; and
(d)is mentally and physically fit to drive a motor vehicle for the purposes of carrying passengers for reward.

Evidence

Both parties filed various documents, which were put into a hearing book prepared by the Tribunal and taken into evidence during the final hearing of the matter on 10 February 2020 (final hearing).
The Department's documents included a statement of issues, facts and contentions (Department's SIFC) and supporting documents.
The applicant's documents included a statement in response to the Department's SIFC (applicant's statement) and a letter of support from Mr Steve Cook dated 12 September 2019. Mr Cook and the applicant both gave oral evidence and were cross-examined during the final hearing.
All of the above evidence has been considered by the Tribunal in making its findings on material questions of the facts, which are set out below, and in arriving at its decision.

Facts

The applicant is a 47yearold man who has held a Western Australian driver's licence since 2011.
The reason for the applicant applying to the CEO for a T extension on 16 January 2019 was that the owner of Broome Trike Tours offered him a job as a 'tour driver', for which he needs to have an extension to his driver's licence under reg 12 because that job would involve carrying passengers for reward.
In his application for a T extension the applicant states that he has the mental condition of bipolar affective disorder (BPAD) and he provided to the Department a Medical Assessment Certificate - Fitness to Drive dated 11 February 2019 completed by Dr Rusitha Dikkumbura, a General Practitioner at Broome Medical Clinic, and a letter to Dr Dikkumbura from a locum consultant psychiatrist with the Kimberley Mental Health and Drug Services, Dr David Cutts, dated 5 February 2019.
On 18 February 2019 the Acting Manager, Driver Suitability Services sent a letter to the applicant stating that it had come to his attention, as the CEO's delegate that a charge was pending against the applicant in the Magistrates Court and that the applicant's application for a T extension (incorrectly referred to as an F extension in that letter) could not be processed until that charge had been determined by the Court.
On 10 June 2019 the applicant was convicted of two offences of pursuing another to intimidate.
By a letter dated 25 June 2019, the Department's Team Leader, Driver Suitability Services, as the CEO's delegate, advised the applicant that his application for a T extension had been refused on the grounds that the CEO's delegate was not satisfied that the applicant is a person of good character.
The applicant wrote to the Department on 16 August 2019 requesting an internal review of that decision. The Department's Compliance Services Manager, as the CEO's delegate, wrote to the Applicant on 20 August 2019 advising that the applicant's submission had been examined and the original decision to refuse his application for a T extension was upheld.
The applicant then applied to the Tribunal for the review the decision of the CEO's delegate to refuse his application for a T extension.

Applicant's criminal convictions

The applicant has been convicted of eight criminal offences during the past five years, as follows:
•Firstly, there were six convictions in June and July of 2015, in the Perth and Carnarvon Magistrates Courts respectively (2015 Offences), in respect of each of which the applicant was fined; and
•Secondly, as stated above, there were two further convictions on 10 June 2019 in the Broome Magistrates Court (2019 Offences), in respect of each of which the applicant received a sentence of nine months' imprisonment, suspended for 18 months, to be served concurrently.
The convictions, and the applicant's conduct giving rise to them (Offending Conduct), are of particular significance in the context of this proceeding. That conduct, as it appears from the relevant statements of material facts, is outlined briefly below.
The 2015 Offences comprised two convictions for each of: breach of a violence restraining order (for Offending Conduct on 23 January 2015 and 2 February 2015, respectively), pursuing another to intimidate (for Offending Conduct on 22 December 2014 and 30 January 2015, respectively), and trespassing (for Offending Conduct on 23 August 2014 and 30 August 2014, respectively).
The 2019 Offences comprised two further convictions for pursuing another to intimidate (for Offending Conduct on 4 March 2018 and 12 February 2019, respectively).
The victims of the Offending Conduct were all women with whom the applicant had had an intimate relationship (of varying lengths, with some being a matter of weeks) that had recently ended.
All of the Offending Conduct could be broadly characterised as 'stalking', with the applicant typically sending numerous (in one case, over 300) text and other social media or electronic messages to the victim. Less typically, the Offending Conduct included instances of physical (as opposed to digital) stalking and associated trespass (for example, tapping on a victim's lounge room window, or looking under the curtains). On some occasions, the applicant transferred money to a victim's bank account with messages (including one sexually explicit message) included in the deposit notification. On one occasion (notably in relation to one of the 2019 Offences) the applicant's barrage of messages to the victim included a threatening message in the following terms: 'I am going to ruin u in broome u sick fkd up uaer'.
That the applicant engaged in the Offending Conduct was not in dispute in this proceeding.

Applicant's mental condition

The applicant gave evidence during the final hearing (and it was not contested) that he has a longstanding diagnosis of BPAD.
That evidence was supported by the (relatively limited) medical evidence, comprising the Medical Assessment Certificate - Fitness to Drive dated 11 February 2019 completed by Dr Rusitha Dikkumbura and the letter to Dr Dikkumbura from Dr David Cutts, dated 5 February 2019, which have already been referred to above.
It was also supported by the evidence of Mr Steve Cook, CEO of Kimberley Personnel, who has been the applicant's contracted Disability Employment Service Provider since around May 2018. Mr Cook provided a letter (dated 19 September 2019) in support of the applicant's application to the Tribunal, and appeared (by telephone) as a witness in the proceeding.
The letter of Dr Cutts, dated 5 February 2019, gives the most detailed account of the applicant's mental health, as outlined briefly below. Dr Cutts:
•noted that the applicant had had multiple contacts with the Kimberley Mental Health and Drug Services, and with general practitioners, when he would present with apparent disorientation, anxiety and some distress. The applicant had previously been seen by Dr Cutts in August 2018, whose findings were that the applicant probably had BPAD, and that finding was consistent with an earlier diagnosis of BPAD by a psychiatrist in England 'years ago';
•confirmed a working diagnosis of BPAD (type II with mostly depressive episodes and perhaps some mixed feature episodes), generalised anxiety disorder or high trait anxiety, and PTSD or related syndrome;
•noted that the applicant was not willing to pursue any of the recommended psychotropic treatments, preferring to pursue naturopathic or holistic approaches, with occasional supportive counselling and a healthy lifestyle;
•stated that he held no immediate concerns in relation to the applicant's capacity to hold a 'commercial driver's licence'. He noted that none of the recommended medications, should the applicant choose to take them, would be likely to impact on his capacity to drive and commented that they should in fact improve the applicant's fitness to drive, or at least 'protect against deterioration that might come with relapse of his bipolar disorder'; and
•stated that he was unable to say, with any confidence, that the applicant would 'remain fit to drive in the medium and longterm, given his apparent relapse in the last year and that he is not taking evidence based treatments for bipolar II disorder'.
In the Medical Assessment Certificate - Fitness to Drive dated 11 February 2019, Dr Dikkumbura refers to, and essentially adopts the assessment contained in, Dr Cutts' letter. Although assessing the applicant as currently fit to drive, he recommends a condition that the applicant be subject to more frequent assessment.
Mr Cook gave evidence that he is aware of the applicant's diagnosis of BPAD, and was involved in arranging and attending psychologist appointments with the applicant before the applicant left Broome. Mr Cook described his impression of the applicant as 'quite a psychologically vulnerable fellow', with 'a severe and persistent mental illness'.

Applicant's licensing history

The applicant was first issued with a Western Australian driver's licence in 2011.
On 4 May 2011, the applicant's driver's licence was varied to be endorsed with an extension F (F extension), which authorised the applicant to carry passengers for reward, except in a taxi under reg 12 of the Road Traffic (Authorisation to Drive) Regulations 2008 (WA) (2008 Regulations, superceded by the Authority to Drive Regulations in 2014).
In early 2015, the Department received information from the WA Police that the applicant had been charged, on or about 23 January 2015, with breach of a violence restraining order, prompting a review of the applicant's F extension. The CEO's delegate decided, on 4 February 2015, that allowing the applicant to retain the F extension would not compromise the general safety of the traveling public. At that time, no variation to the applicant's driver's licence was made.
On or about 7 February 2015, the Department received information that the applicant had been charged with the two trespassing offences included in the 2015 Offences. This prompted a further review of the applicant's F extension. The Department again decided not to vary the applicant's driver's licence. However, by letter dated 24 February 2015, the Department put the applicant on notice that in the event of additional or further convictions, infringements or charges, his F extension may be cancelled or suspended (and this would mean he could no longer carry passengers for reward).
On 31 July 2015 the Department, having become aware of the six convictions comprising the 2015 Offences, wrote to the applicant advising him that his ongoing suitability to hold an F extension was being assessed and inviting him to provide the Department (by 31 August 2015) with submissions, information or documentation to assist in that assessment.
The applicant gave evidence to the effect that, due to the itinerant nature of some of his work, he did not receive that notice. In the event, he did not respond.
On 3 September 2015, a CEO's delegate:
•noted the CEO's regulatory obligation to protect the traveling public from unsuitable drivers; and
•decided to cancel the applicant's F extension on the grounds that, taking into account the seriousness of the 2015 Offences, and the 'continued cycle of offending' they demonstrated, he was no longer satisfied that the applicant was of good character for the purposes of driving passengers for reward.

As noted above, by application dated 16 January 2019, the applicant applied for a T extension.
By letter dated 18 February 2019, the Department advised the applicant that it had received information regarding a charge pending against him, and that his application would not be processed pending the outcome of that charge.
On 10 June 2019, the applicant was convicted of the 2019 Offences.
On 25 June 2019, the Department decided to refuse the applicant's application for a T extension (Department's Decision).

Department's reasons and internal review

The CEO's delegate recorded that the Department's Decision was made on the grounds that he was not satisfied that the applicant was of good character (as required by reg 12(7)(c)).
In reaching that conclusion, the CEO's delegate cited the applicant's convictions for the 2015 Offences and the 2019 Offence and noted the following considerations:
(a)The applicant's continued cycle of offending, and repetitive nature of the convictions, indicated that there was an increased likelihood that he would re-offend;
(b)The type of offences caused the CEO's delegate to believe that when put in similar situations his reaction may be negative towards the traveling public;
(c)The convictions were demonstrative of a disregard for the law, a fundamental consideration when determining whether a person is of good character; and
(d)The CEO's regulatory obligation is to protect the traveling public from unsafe drivers.
The Department's Decision was a reviewable decision as defined in reg 70. Regulation 72(1) provides that a person can request the CEO to reconsider a reviewable decision.
By letter dated 16 August 2019, the applicant requested that the CEO reconsider the Department's Decision, citing the following matters in support:
•The applicant had suffered significant personal trauma three years previously, with the suicide of three people known to the applicant coinciding with the breakdown of a significant personal relationship. Those traumatic events triggered the applicant's previously wellcontrolled BPAD;
•Symptoms experienced by the applicant upon the relapse of his BPAD include 'erratic, frequent, anxiety driven email and other message writing' and worry (the applicant attached a copy of a document listing common symptoms of BPAD, which included similar behaviours);
•While this behaviour had been interpreted by some former partners as alarming, the applicant did not believe he posed a threat to anyone and was always motivated by care and concern;
•He had 'no history of ever hurting or even threatening anyone', and no history of motor vehicle accidents over a 20 year period;
•The applicant was, as a condition for receiving a suspended sentence, ordered to engage and was engaging with a clinician to develop skills to regulate his behaviour; and
•The applicant, despite having been offered three jobs, was currently unemployed because those jobs required the applicant to hold an 'F extension' to work.
By letter dated 20 August 2019, the CEO's delegate notified the applicant that an internal review of the Department's Decision had been conducted, but that the Department's Decision was upheld. Considerations cited in support of that outcome included:
•The nature and circumstances of the 2019 Offences militated against the CEO's delegate being satisfied that the applicant was of good character;
•The offences were viewed seriously by the courts, as reflected by each attracting a sentence of nine months imprisonment, suspended for 18 months, which time had not yet elapsed;
•The applicant's history of previous convictions for similar offences;
•The submission for internal review did not form a basis for believing that the applicant understood and accepted the seriousness of the offences; and
•In the circumstances, there remained concerns about the applicant being of good character and insufficient time had elapsed since the convictions (considering the sentence was still active) to form a different view.

Parties' positions

The Department's contentions in the Department's SIFC broadly reflect the reasoning outlined in [53] and [56] above.
By way of concluding its contentions, the Department submitted to the Tribunal that, due to the nature and recency of the applicant's offences, the applicant is not of the requisite good character to hold an F extension or a T extension pursuant to reg 12(7)(c).
The applicant's contentions in the applicant's statement broadly reflect the applicant's submissions to the Department as outlined in [55] above.
The thrust of the applicant's position as it emerged from the applicant's statement is that his mental health, specifically his BPAD, caused or contributed so significantly to his Offending Conduct that the Tribunal should not, on the basis of that conduct and resulting convictions, conclude that the applicant is not of good character for the purposes of reg 12(7)(c).

Consideration

The decision that the CEO's delegate was called upon to make was whether to endorse applicant's driver's licence with a T extension pursuant to reg 12. In so doing, the CEO's delegate was required to consider each of the criteria contained in reg 12(7), and could only grant a T extension if satisfied that all were met.
The issue to be decided by the Tribunal is whether the decision of the CEO's delegate to refuse to endorse applicant's driver's licence with a T extension should be affirmed, or whether that decision should be varied or set aside.
As outlined above, in exercising its review jurisdiction to determine that issue, the Tribunal must consider the matter de novo, standing in the shoes of the CEO, in order to arrive at the correct and preferable decision: Chowdhury and Department of Transport [2012] WASAT 128 (Chowdhury) at [18]. Accordingly, it must also consider and be satisfied of each of the matters contained in reg 12(7).
It is uncontentious that the applicant has held a valid driver's licence for more than three years and is over 20 years of age and therefore meets the requirements of reg 12(7)(a) and (b).
Given the parties' positions as contained in the Department's SIFC and the applicant's statement, and the evidence before the Tribunal, closer consideration of the remaining criteria in reg 12(7)(c) and (d) is warranted. Before considering those individual criteria in detail, however, it is worth setting out some observations of relevance to both.

Construction of reg 12

The meaning given to written laws is to be approached in accordance with the general principles of construction, relevantly summarised in Commissioner of Police v Thayli Pty Ltd [2020] WASC 43 at [29] and [31] as follows:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The importance of construction of legislation is to begin in the text itself by regard to its context and purpose. Statutory context within immediate provisions and the whole of an Act is to be considered from the beginning of the task.
[Further], context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed.
As to context, it is instructive that reg 12 is concerned with extensions to a driver's licence. As observed in Mohamed v Director General - Department of Transport [2010] WASC 375 (Mohamed) at [11] (in relation to a relevantly identical provision in the 2008 Regulations), it therefore assumes the applicant for an extension is otherwise fit to hold a driver's licence. In other words, the assumption is that an applicant for an extension must already fall within the boundaries set by reg 25, and that the requirements in reg 12 will add something to those threshold requirements.
Consistent with the above, the language and operation of reg 12 may be contrasted with that of reg 25.
Under reg 25, the relevant decision is whether to refuse to grant a driver's licence, which decision is open if the CEO has reason to believe that one of the disqualifying criteria in sub-regulations (a) (d) apply to the applicant. The starting position for the decisionmaker under reg 25, therefore, is that an applicant who otherwise meets the eligibility criteria in reg 24 should ordinarily be granted a licence.
By way of contrast, the starting position under reg 12 is that carrying passengers for reward is generally not authorised, and the relevant decision is whether to grant such authority. That decision is open only if the CEO is satisfied that all of the qualifying criteria in subregulations (a) (d) are met by the applicant.
Finally, as to purpose, the Tribunal has previously observed that it is important that the public have confidence in the drivers who carry passengers for reward: for example, Topic and Department of Transport [2015] WASAT 16 (Topic); Chowdhury. The Tribunal accepts that the protection of the traveling public from unsuitable drivers is the purpose that appropriately informs the construction of, and decisions made under, reg 12.

Good character – reg 12(7)(c)

Regulation 12(7)(c) requires that the CEO (and, on review, the Tribunal) be satisfied that an applicant for an extension be of 'good character'.
In Real Estate and Business Agents Supervisory Board v LJW [2011] WASCA 35, Newnes JA (with whom Pullin and Buss JJA agreed) distinguished good character from reputation, noting (at [28]) that:
… While 'good character' does not have a precise meaning, it ordinarily refers to a person's moral qualities (whether known to others or not), as opposed to the estimation in which (fairly or unfairly) the person is held by others, that is, their repute[.]
Similarly, in Bekhit v Department of Transport [2017] WASC 50 (Bekhit), at [32] Le Miere J, in commenting about the concept of good character, referred to a statement made in Minister for Immigration and Multicultural and Indigenous Affairs v Godley (2005) 141 FCR 552 by Lee J at [34], which included the following:
The words 'of good character' mean enduring moral qualities reflected in soundness and reliability in moral judgment in the performance of day to day activities and in dealing with fellow citizens. It is not simply a matter of repute, fame or standing in the community but of continued performance according to moral principle[.]
Further, there is an important distinction between the requirement of 'good character' and that of being a 'fit and proper' person. The latter phrase cannot be narrowly construed or confined, and gives the widest scope for judgment: Minitti v Commissioner of Police [2010] WASCA 198. As noted by Allanson J in Mohamed at [28] (references omitted):
While 'good character' is frequently referred to as an aspect of whether a person is 'fit and proper' it is not the same thing. An expression such as 'good character' must always be construed in the context of the particular legislation in which it occurs. But it is not a flexible criterion giving the widest possible scope for judgment. It refers, in essence, to notions of moral quality.
The Tribunal is therefore required to assess the moral character of the applicant in fact, not merely in terms of his reputation: Singh and Director General of the Department of Transport [2013] WASAT 87 (Singh) at [25]. Reflecting the underlying purpose of the regulation, it must do so by considering whether he possesses 'sufficient moral integrity and rectitude of character such that the public would accept [him] as suitably trustworthy to perform the duties which the relevant licence requires': Upton and Director General of Transport [2012] WASAT 63 (Upton) at [8]; see also Bekhit at [34].
The CEO's delegate relied on the applicant's convictions in contending that the applicant lacked the requisite good character to carry passengers for reward.
In Tavelli v Johnson (Unreported, WASC, Library No 960693, 25 November 1996) (Tavelli), Wheeler J (as she then was) cautioned that while there can be 'no inflexible rules and no policy but that the discretion falls to be exercised anew in the circumstances of each application in the light of the statutory framework', a number of considerations might influence the relevance of convictions to assessments of character, as follows:
•When assessing character, past criminal convictions will generally be regarded as more serious if:
1)they occurred in the course of or relate to the carrying out of the relevant occupation;
2)they are offences of dishonesty, broadly understood;
3)they occurred whilst the person was the holder of the licence in question; and
4)they are otherwise so serious either in and of themselves or as representing a course of disregard for the law as to reflect particularly adversely on the character of the person committing them; Tavelli, at 7-8.
•On the other hand, indications that a person may be of good character notwithstanding previous convictions might include:
1)where the person demonstrates genuine remorse and contrition, true insight and understanding of the earlier turpitudes;
2)the offences were committed a substantial time ago;
3)any change in the person's circumstances from the time of the commission of the offences which indicates that the factors giving rise to the offences have been eliminated; and (
4)the person's character generally since the commission of the offences: Tavelli at 8.
Those considerations have been accepted as relevant to, and applied in the context of, assessments of good character under the Authority to Drive Regulations (and the preceding 2008 Regulations): Upton; Singh; Nguyen; Care and Department of Transport [2019] WASAT 86.
The task for the Tribunal, then, is to determine whether, taking appropriate account of the applicant's convictions and any other relevant considerations, the applicant has 'such mental and moral qualities so that it could be found as a fact that he was a person of good character ... such that it would be in the interests of the community that he may drive [passengers for reward] in Western Australia': Bekhit at [34].
As identified above, the applicant does not contest that he engaged in the Offending Conduct; rather he contends, in effect, that the Offending Conduct was the product of his BPAD and should not adversely affect the assessment of his character.
He gave evidence in relation to how his BPAD manifests, which was to the effect that he is prone to worry and anxiety which is worsened or triggered by stress or trauma, and when he is worried about someone, he makes repeated attempts to contact them and to have them respond to him. He said that such phases of behaviour would typically last for some weeks, and then pass. The applicant also gave evidence that, around the times of the Offending Conduct, he suffered significant episodes of trauma, associated with the suicides of people he knew as well as the break-up of a significant relationship.
The following extract from the applicant's statement (at para 47), is illustrative of the thrust of the applicant's submissions:
… perhaps you can try to look at a desperate attempt to make contact with someone you are worried about is actually GOOD character … not 'BAD' … this is what it hinges on really isn't it? And that is what bipolar is and how it manifests[.]
Mr Steve Cook, the applicant's Disability Employment Service Provider from around May 2018, is not medically qualified but was able to give evidence concerning his observations of the effects of the applicant's BPAD. Those observations were informed by his association with the applicant over some 18 months (until the applicant left Broome in October 2018) during which time his role included attending psychologist appointments and legal appointments with the applicant.
In his letter of support dated 19 September 2019, Mr Cook described the applicant as 'quite a psychologically vulnerable fellow' who experienced strong feelings of insecurity, anxiety and doubt, with a strong component of neediness including a need for comfort when distressed. He offered the view that the applicant's convictions arose from a paradigm that included: the applicant developing a personal and intimate relationship; the applicant's partner noticing that he is atypically intense, needy and lacking insight; the partner trying to generate some space which the applicant lacks the capacity to cooperate with; the partner seeking to end the relationship, sending the applicant into a state of emotional distress which he is unable to regulate; culminating in the applicant engaging in disturbing behaviour such as incessant communication. This evidence is broadly consistent with the applicant's own evidence.
Both Mr Cook and the applicant noted that all of the Offending Conduct was directed towards people with whom the applicant had been in an intimate relationship, and did not occur in the context of his employment. In support of the applicant, Mr Cook pointed to the applicant's history of working with the public in positions where he exercised considerable responsibility and that he had 'no known history of actual violence, or threat of violence'. Mr Cook offered the opinion that the applicant was of sufficient good character to hold a T or F extension.
In making its determination, the Tribunal has had particular regard to the issue of whether, in light of the accepted diagnosis of the applicant's BPAD and the evidence of its manifestation, it can make any adverse assessment of the applicant's moral qualities based on the Offending Conduct.
The Tribunal accepts that if a mental health condition so significantly affects a person that they are literally unable to regulate certain behaviours, or to exercise any moral judgment in respect of them, then it would be difficult to attribute moral qualities to, or arising from, that behaviour. This conclusion lies at the heart of the distinction between the broad concept of suitability in a 'fit and proper person' test, and the narrower concept of 'good character' under the Regulations: Mohamed.
While the Tribunal accepts that the applicant's BPAD may materially impact on his ability to regulate certain of his behaviour, relevantly the kind of behaviours associated with the Offending Conduct, the Tribunal is nevertheless unable to be satisfied that the applicant has the enduring moral qualities necessary to drive passengers for reward.
The Tribunal notes that, in making its own findings of fact, weight may be given to earlier convictions or findings of a court when addressing whether conduct has occurred: Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474; Rayney and Legal Practice Board of Western Australia [2016] WASAT 7. Relevantly, the Tribunal notes that the applicant's convictions provide some evidence that, even at the time of the Offending Conduct, the mental elements necessary to establish the 2015 and 2019 Offences were able to be satisfied. This was so notwithstanding that, according to Mr Cook and the applicant, the courts were provided with evidence of the applicant's diagnosis of BPAD.
Further, the applicant has demonstrated little subsequent insight into the seriousness and effect of the Offending Conduct in either the applicant's statement or his oral evidence to the Tribunal. He repeatedly described that conduct in terms that it may be 'annoying' to the victim, but stated that his motives were good. He also gave evidence that although he is learning techniques to manage his behaviour (he has been advised by a psychologist to limit himself to messaging a person no more than once a day), if he became worried about someone in the future, he would likely keep messaging them until he got a response.

Although the Tribunal accepts that the Offending Conduct did not occur in the context of the applicant's employment, the Tribunal considers that it is of such a kind and seriousness as to be incompatible with the duties and position of trust of a person authorised to carry passengers for reward.
The Tribunal notes that the 2019 Offences involved fairly recent Offending Conduct, and is not satisfied that there has been such a change in the applicant's circumstances that it can be satisfied that the conduct no longer speaks to the applicant's character. Indeed, to the extent that there has been a change in his circumstances, that change is not positive. The applicant and Mr Cook gave evidence that, following his convictions for the 2019 Offences, the applicant attended psychological counselling for around two months in Broome. However, the applicant gave evidence that since he moved away from Broome in October 2018, he is no longer receiving psychological support.
Taking all of the above into account, the Tribunal is unable to be positively satisfied, as required by reg 12(7)(c), that the applicant is of the requisite good character to be authorised to drive a motor vehicle for the purposes of carrying passengers for reward.

Mental and physical fitness reg 12(7)(d)

If, because of the impact of the applicant's BPAD, the Tribunal is wrong in its conclusion as to the applicant's character for the purposes of reg 12(7)(c), the applicant would nevertheless face a hurdle in meeting the requirements for being granted a T extension. That is because, under reg 12(7)(d), the CEO (and, on review, the Tribunal) must be also satisfied that an applicant for such an extension is 'mentally and physically fit to drive a motor vehicle for the purposes of carrying passengers for reward'.
As outlined above, the cases dealing with reg 12(7)(c) have noted that the concept of good character concerns moral qualities and is not concerned with broader considerations of fitness. But this does not mean that fitness is irrelevant to decisions about granting a T extension. Rather, those considerations are separated from the issue of character and are contained in reg 12(7)(d).
The Tribunal notes that Dr Cutts, in directing himself to the question of the fitness, concluded that in his assessment the applicant was fit to hold 'a commercial licence'. In reaching that assessment, he had particular regard to the applicant's concentration and organisational ability. He also commented that none of the medications he had recommended for the applicant, if he elected to take them, would impact on his ability to drive. Tellingly, Dr Cutts went on to opine that the recommended medications would improve, or protect against the deterioration of, the applicant's fitness to drive. Further, he went on to comment that he could not say with any confidence that the applicant would remain fit to drive in the medium to longterm, given the recent relapse of his BPAD and that he is not taking the recommended treatment course. While relevant, it appears that Dr Cutts' assessment is principally directed to the question of the applicant's fitness to drive (emphasis added), with less focus on the particular purpose of carrying passengers for reward.
Both the context of the provision and its express language make it clear that the mental and physical fitness required by reg 12(7)(d) is directed to something more than the mental and physical fitness to drive. As noted above at [67], because reg 12 is concerned with extending the authorisation conferred by an ordinary driving licence, it assumes that an applicant is otherwise fit to hold a licence. As observed in Mohamed (at [11]), the test in reg 25 is more restricted, being directed to the existence of a mental or physical condition likely to impair the ability to control a motor vehicle, whereas the mental and physical fitness test in reg 12(7)(d) is directed to the purpose of carrying passengers for reward (emphasis added).
In directing itself to that purpose, the Tribunal notes that the traveling public should be able to have confidence that drivers who are authorised to carry them for reward will provide a safe environment in the vehicle, without the possibility of the driver being involved in any inappropriate activity in the course of or arising out of the position of trust in which they are placed: Chowdhury at [28]-[29]; Topic at [70]. That confidence should extend to the access by drivers authorised to carry passengers for reward to passenger information that may include names, addresses and contact numbers.
While the Tribunal notes that the applicant's Offending Conduct did not occur in the context of his employment, there is evidence before the Tribunal, including from the applicant himself, that the applicant does not always limit his repetitive messaging to partners, but recipients can include friends and those he is worried about.
Further, if as contended by the applicant, his behaviour in this regard is driven by his BPAD then the Tribunal is not satisfied that the applicant's circumstances relevant to ameliorating the manifestation of that condition have changed since the time of the Offending Conduct. Of note, the applicant has given evidence that he is not currently receiving psychological or psychiatric support and that he does not intend to take the medications recommended to treat his BPAD.
Accordingly, if and to the extent that the applicant is, because of his BPAD, unable to regulate behaviours of the kind involved in the Offending Conduct or to exercise any moral judgment in respect of those behaviours, then the Tribunal is not satisfied that he is mentally fit to drive a motor vehicle for the purposes of carrying passengers for reward.

Conclusion

The fundamental question for the Tribunal is whether the applicant ought to be granted a T extension. That outcome is open to the Tribunal only if it is satisfied that the applicant meets all of the requisite criteria contained in reg 12(7), taking appropriate account of the purpose which those provisions serve, which is to protect the public interest in ensuring that the authority to carry passengers for reward is entrusted to suitable drivers.
For the reasons outlined above, the Tribunal is not satisfied that the applicant meets all of the criteria in reg 12(7).
To summarise, the Tribunal considers that the nature, seriousness, repetition and recency of the applicant's Offending Conduct, and the risk of the applicant engaging in similar behaviour in the future, is such as to give rise to concerns in relation to reg 12(7)(c) and reg 12(7)(d). Insofar as the applicant is and was able to exercise choice and judgment about engaging in behaviours associated the Offending Conduct, the Tribunal is not satisfied that he is of the requisite good character to carry passengers for reward. Insofar as the applicant, by reason of his BPAD, is and was unable to exercise choice and judgment about engaging in behaviours associated the Offending Conduct, the Tribunal is not satisfied that he is mentally fit to carry passengers for reward.
Accordingly, the Tribunal has decided that the correct and preferable decision for it to make is to affirm the CEO's decision to refuse to endorse the applicant's driver's licence with a T extension.

Order

The Tribunal will therefore make the following order:
1.The decision of the delegate of the Chief Executive Officer of the respondent to refuse the applicant's application for his driver's licence to be endorsed with an extension T is affirmed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR D AITKEN, SENIOR MEMBER
8 MAY 2020