Hayek v RTA

[2005] NSWLC 9

Local Court of New South Wales

CITATION:	Hayek v RTA [2005] NSWLC 9
JURISDICTION:	Civil
PARTIES:	Mamdouh Hayek Roads and Traffic Authority of New South Wales
FILE NUMBER:	33849/05/3
PLACE OF HEARING:	Parramatta
DATE OF DECISION:	06/09/2005
MAGISTRATE:
CATCHWORDS:	RTA - Application - Authority Cl 63 Road Transport (Vehicle Registration) Regulation 1998. - Inspection Program Services - Suitable character - Fit and proper person - Licenses taken from appellant - motor vehicle examiner's licences - Blue slips - pink slips
LEGISLATION CITED:	Road Transport (Vehicle Registration) Regulation 1998 Cl 63 Road Transport (Vehicle Registration) Regulation 1998m Regulation 67 Regulation 67 (1) (b) s 413 New South Wales Crimes Act
CASES CITED:	Roads & Traffic Authority of New South Wales v Mamdouh Hayek & Anor Studdert J CVaska v Director General of NSW Dept of Transport [2001] NSWSC 205 Simpson J R v Stalder [1981] 2 NSWLR 9 R v Young (1999) 46 NSWLR 681 Kingston v Keprose (1987) 11 NSWLR 404 Attwood v The Queen Melbourne v The Queen (1999) 198 CLR 1
REPRESENTATION:	Mr R Bartley Solicitor for and with the appellant Mr Hayek Mr Taylor of Messrs Hunt & Hunt Solicitors for the Roads and Traffic Authority
ORDERS:	The Appeal by Mamdouh Hayek against the decision of the Roads and Traffic Authority notified by letter dated 28 January 2005 is dismissed.

16

REASONS FOR DECISION

Nature of the Proceedings

By an Application to the Local Court dated 7 February 2005 Mr. Mamdouh Hayek (the appellant) appeals to this Court against a decision of the Roads and Traffic Authority (RTA) (the respondent) refusing to issue the appellant with an Authority pursuant to Clause 63 of the Road Transport (Vehicle Registration) Regulation 1998. The appellant was notified of this decision by way of letter from the Manager, Inspection Program Services of the Roads and Traffic Authority dated 28 January 2005.

The matter proceeded on 6 May 2005 on which date evidence was called. Supplementary submissions were heard on 27 May 2005. Regulation 63 uses the expression “of suitable character”. The RTA in its letter of 28 January 2005 said

“The Authority is of the opinion that you are not a fit and proper person to hold and authority under Clause 63 and after careful review of all the circumstances, the application has been refused”.

The words “of suitable character” as they appear in that Regulation are highly significant in the matter presently under consideration. The respondent argues that in all the circumstances, and in particular the poor record of compliance by the appellant, the appellant is not “of suitable character”. The Regulation uses the words “of suitable character” and not the words “fit and proper person”. One issue that will need to be resolved is whether the difference in the words used is of significance, and if so, to what extent. The expression “fit and proper person” is used elsewhere in the Regulations. See for example Regulation 67 of the Road Transport (Vehicle Registration) Regulation 1998.

Hearing on 6 May 2005

The respondent presented its case first. Mr. Taylor tendered a very helpful summary, which was marked as Exhibit 1. Also tendered, as exhibits were three bundles of documents, one of which (exhibit 3) was a copy of the relevant Rules for Authorised Inspection Stations. The evidence for the respondent was supplemented by oral evidence of Mr. Pino Corvini, who conducted two audits of the appellant’s inspections of motor vehicles. The bundles of documents (exhibits 2 and 4) were the documents relating to those audits. This material was tendered without objection. Indeed, the appellant admitted the defects detected and detailed by Mr. Corvini. It will, however, be necessary to review that material.

It was agreed that on 12 October 2001 the appellant was accredited to undertake safety inspections as an examiner and proprietor for all light vehicles. The expression “proprietor” relates to being the proprietor of a mechanic’s business. The safety inspection is an inspection of vehicles for registration and involves the completion of what is generally known as a “pink slip”. It was also agreed that on 16 April 2003 the appellant was authorised as an examiner for unregistered vehicles (AUVIS). Under this scheme the examiner/proprietor is authorised to inspect unregistered vehicles and record the details thereof on what is commonly known as a “blue slip”. On 14 May 2005 the appellant was authorised as an AUVIS proprietor. His business was known as the CD1 Service Centre. It carried on its business at 2 Rawson Road, South Granville.

Clearly enough the “pink slip” and “blue slip” procedures serve very important but quite different functions. The “pink slip” procedures ensure that vehicles using the public roadways are in a safe and roadworthy condition. The “blue slip” procedures ensure, at least to a significant extent, that persons purchasing used motor vehicles have good title to that vehicle. It follows that it is very important that examiners/proprietors strictly comply with their obligations in carrying out the inspections, and the recording of their findings following those inspections.

As I understand the matter, it is also agreed between the parties that before being authorised to undertake the various inspections the appellant was required to attend, and did in fact attend a 2 day course operated by the Roads and Traffic Authority. The appellant was also issued with a copy of the Rules for Authorised Inspection Stations.

Attached to Exhibit 1 is a summary of the Road and Traffic Authority Audit Report of October 2003 and the Roads and Traffic Audit Report of March 2004. Each of those summaries set out the Rule Breaches alleged by the Roads and Traffic Authority. Mr. Bartley, appearing for the appellant does not dispute any of the alleged Rule Breaches. Accordingly, it is unnecessary for me to decide any matter of fact so far as those alleged Rule Breaches are concerned, nor is it necessary for me to go into any significant detail of those breaches. I proceed on the basis that each of those alleged Rule Breaches are admitted. I annexe to these reasons the summary of the RTA Audits of October 2003 and March 2004.

The Audit of October 2003 was principally concerned with the examinations of unregistered motor vehicles (“blue slips”). The Audit of March 2004 was principally concerned with vehicle safety inspections (“pink slips”). Some of the breaches could be seen to be relatively minor clerical errors or slips. For example (the vehicle numbers referred to are the vehicle numbers as stated in the summary of the RTA Audit reports):

· In respect of Vehicle 3 in the October 2003 Audit (the Ferrari) a zero (0) is added to a nine number sequence.

· In respect of vehicle 6 (Honda Civic) the omission of zero (0) in a twelve digit number where there were 3 consecutive zeros.

· In respect of Vehicle 7 (BMW) the substitution of the numeral 5 for the letter S;

· In respect of vehicle 9 (Honda Civic) the substitution of the numeral 8 for the numeral 3 within a 12 character sequence;

· In respect of vehicle 10 (Hyundai Excel) the substitution of the letter U for the letter V within an 11 character sequence;

· In respect of vehicle 13 (Holden Vectra) the substitution of a 0 for an 8 within a 14 character sequence; and

· In respect of vehicle 14 (Honda Integra) the omission of a number within a 12 character sequence.

However, although some of these matters might be explained away as mere clerical errors or omissions, the incorrect recording of the necessary vehicle identifier could have had substantial consequences for any future purchaser of the vehicle concerned. Moreover, as I understand the submissions made on behalf of the respondent, the respondent submits that although some of these matters might be seen as clerical errors or omissions, they nevertheless are demonstrative of a course of negligent or careless conduct in the proper carrying out of an inspection as required by the Rules.

While some of the errors might be able to be explained as clerical errors or omissions, that is not the case for all of the misdescriptions. For example in respect of vehicles 1 and 5 (Mazda Tribute and Holden Jackeroo respectively) the vehicle identifier numbers as recorded by the appellant were completely different to those of the actual vehicle. In respect of vehicle 11 (Toyota Camry) the number as recorded by the appellant misses two numerals entirely. In respect of vehicle 12 (Toyota Hilux) the appellant recorded a suffix as a prefix. Again, the respondent submits that these breaches are individually serious. Further, collectively they show a course of negligent or careless conduct. The misdescriptions, whether they are minor or more significant, could have far reaching effects so as the proper recording of the vehicle identifier was concerned.

Each of the documents created by the appellant (the “blue slips”) were each clearly stamped with the words “Issued subject to RTA identify check”. This is an aspect upon which the appellant relies heavily.

I now turn briefly (the breaches are admitted) to the Audit of safety inspections (“pink slips”) carried out in March 2004. Again the summary of the Audit starkly shows the extent of the extremely poor attention to proper compliance with the Rules by the appellant. It could not, in my opinion, be reasonably argued that any of the defects were of a minor or insignificant nature. Examples include free play within the steering, excessive wear of essential suspension components, insecure mounting of gear box, oil leaks, ignition keys removable from the lock from any position, extensive rust, broken engine mountings, bolts missing from the steering assembly, bald or near bald tyres, free play of the wheels, and seats not being securely fastened.

Each of the matters detected at the audit, but not detected by the appellant would have severely impacted on the roadworthiness of the vehicle concerned. The brakes, suspension and steering are essential components of a motor vehicle. The vehicle registration scheme exists primarily as a safety measure. Not only does this include the safety of the occupant(s) of the subject vehicle but also the safety of members of the public who might be on or in the vicinity of the roadway at the time that the vehicle is being operated.

In all the circumstances, I am satisfied that RTA Audit of Vehicle Examinations (blue slips) conducted in October 2003 and the Audit of the safety inspections (pink slips) conducted in respect of the 13 vehicles in March 2004 demonstrates a gross dereliction of duty by the appellant in the proper compliance with the Rules and what he was expected to do as an authorised vehicle examiner. Those audits demonstrated very serious if not grave deficiencies in the standard of conduct of a motor vehicle examiner that the public and the road users of New South Wales had a right to expect.

Apart from the audits carried out by Mr. Corvini on behalf of the Roads and Traffic Authority, he visited the premises of the appellant on a number of occasions. The Summary clearly shows that apart from the audits, the appellant was spoken to and counselled about not properly complying with the Rules on a number of occasions. Mr. Cornvini conducted records of interview. Those interviews are contained within Exhibit 4 (large folder of documents). Clearly enough, the appellant did not heed the warnings and assistance that were being given by the Roads and Traffic Authority.

It is apparently not disputed by the appellant that he admitted to agents of the RTA that he allowed other persons within his premises to conduct vehicle inspections, and that he allowed other persons to assist him in the examination of vehicles. This is of particular concern.

On 9 January 2004 the RTA issued the appellant a Notice to Show Cause why his authority to operate an authorised inspection station should not be suspended or cancelled. On 23 January 2003 the appellant answered that Notice in writing. See Tab I in Exhibit 2 for both documents. In summary the appellant pleaded pressure of work, and the fact that the errors were unintentional and generally of a minor nature. He went on to assure the RTA that the discrepancies would not occur in the future. Inter alia, he indicated that he had hired two mechanics, and that he had instituted a series of “checks and balances” within his business.

Despite the response by the appellant the RTA decided that the relevant authority held by the appellant should be suspended for a period of 3 months from 19 March 2004. There was further correspondence.

However, on 3 May 2004 the RTA served notice on the appellant suspending his Examiner’s Authority and the “Proprietor’s Authority” with immediate effect. On 4 May 2004 the appellant filed an Application in the Local Court appealing against both suspensions. On 28 May 2004 the application was adjourned to the Downing Centre Local Court for hearing on 16 August 2004. On 28 May 2004 the Local Court purported to stay the suspension pending the hearing. The RTA commenced proceedings in the Supreme Court of New South Wales (11589/04). Smart AJ on 2 June 2004 gave the RTA Leave to Appeal to the Supreme Court, but refused the application by the RTA to stay the orders of the Magistrate. On 2 July 2004 Studdert J. set aside those orders of the Local Court purporting to stay the execution of the suspension.

I have carefully read and considered the judgments of Smart AJ and Studdert J. Given the nature of the proceedings before the Supreme Court, there is nothing within those decisions that give any significant guidance as to the ultimate disposition of the matter presently under consideration. In the course of the hearing before me on 6 May 2005 I commented on the decisions being “disparate” (meaning different). I note however, that in his judgment in Roads and Traffic Authority of New South Wales –v- Mamdouh Hayek & Anor Studdert J. said at paragraph [37]:

“Even if it be assumed, contrary to the conclusion I have reached, that the Local Court did enjoy the incidental power for which Mr. Bartley here contends, the proper exercise of that power would have called for the consideration of evidence bearing on the exercise of the court’s discretion. Due consideration of public safety considerations made this essential”.

Clearly enough, it follows that public safety considerations are very important indeed in deciding such as that which is presently under consideration.

By reason of the “stay” that the Magistrate purported to give on 28 May 2004 the appellant was able to carry on his work as an authorised examiner between 28 May 2004 and the decision of Studdert J. on 2 July 2004. For the sake of convenience I will refer to this as the “stay period”. It should have been plainly obvious to the appellant that he was in a particularly precarious position. Moreover, it should have been abundantly clear and obvious to the appellant that the RTA would be keeping a close and careful watch on the manner in which he carried out his work as a motor vehicle examiner within that period.

Mr. Corvini in evidence on 6 May 2005 before me gave details of further breaches of the Rules by the appellant in the stay period. Exhibit 2 contains details of defects found by the RTA concerning the incorrect recording by the appellant of vehicle identifiers – see at tabs 1 and 2 of Exhibit 2. The exhibit also contains (tabs 3 and 4) details of incorrect recordings made on 27 April 2004. Although these did not occur within the “stay period” they did occur well after the appellant became aware in January 2004 of the possible consequences – i.e. cancellation of his authorities.

Further, Mr. Corvini gave evidence, which was not disputed, of observations made by him of the appellant (before the stay period) conducting a brake test on a vehicle within the workshop and without taking the vehicle on to the roadway. Evidence was given that in order to properly conduct the brake test a device must be fitting to the brake pedal of the vehicle, then the vehicle taken out on to the road, and the brakes applied at a speed of 35 km/h. The print out of the result is then annexed to the “pink slip” that is issued in respect of that vehicle.

Mr. Bartley, appearing for the appellant cross-examined Mr. Corvini. In respect of the “blue slips” much was made of the fact that all such documents completed by the appellant were marked with the stamp “issued subject to RTA identity check”. Mr. Corvini conceded that if errors were made by the vehicle examiner, they could be detected by RTA officials further on in the process. However, this did not relieve the appellant of his obligation to conduct a thorough and proper examination and make an accurate recording of that examination. Mr. Corvini also conceded that the appellant had been honest and straightforward with him in their dealings. He further conceded that the appellant had expressed sorrow about what had occurred. Significantly, Mr. Corvini did not detect any criminal activity.

There is no suggestion that any of the errors made or misdescriptions given of vehicles were deliberate acts as some part of a criminal activity. I deal with the matter on the basis that there is not the slightest suggestion of any criminal activity or involvement on the part of the appellant.

The appellant also gave evidence. He is a married man with five children aged from 8 years to 3 months. His wife does not work. He is paying off his home, and is surviving at the moment because of generosity of family members. His business is not doing particularly well, especially now that he is not able to carry out vehicle inspections and issue the pink slips. He has since retrenched the two mechanics that he had previously hired. The appellant went on to say that he had problems with his eyesight, and in particular, some of the engine numbers were difficult to see in dark crevices of the engine bay. Many of the difficulties he had experienced were because of a high volume of work he was performing for a used car dealership known as “Johns Motor Market”. He no longer does work for that dealership, and as I understood his evidence, would not work for that dealership if he were to re obtain his authority as a vehicle examiner. He did not realise how serious the conducting of the improper brake test really was. He gave an undertaking that if his authority was re issued he would get his eyes tested, and that he would, in future, strictly comply with the Rules.

Mr. Taylor then cross-examined the appellant. He agreed with a chronology that was put to him. That chronology is contained within the summary – exhibit 1. He conceded that despite having difficulties with his eyesight he had not been to a medical practitioner. He maintained that he did not allow other people who had worked for him to do the inspections “all the time”. He conceded that he had done the course as required. Further, he conceded that it was impressed on the attendees at that course that it was important to correctly record all data in respect of the identity of motor vehicles. It was further conceded that if examiners were in doubt they could contact the RTA for assistance. He said that some of the misdescriptions of the vehicles could have been because he was distracted. He insisted that all mistakes were accidental. He was of the view that the stamp “issued subject to RTA identity check” meant that everything would in effect, be double checked by the RTA personnel.

Necessarily, the above two paragraphs are by way of summary only. I do not have the benefit of a transcript.

Test to be applied

I turn initially to the standard to be applied in this type of matter. In Caska –v- Director General of NSW Dept of Transport [2001] NSWSC 205 Simpson J. at paragraph 51 said:

“In argument directed to this ground (the ground under consideration was Failure to apply the Briginshaw standard of proof) of the application Mr Caska acknowledged that the magistrate expressly stated his intention to apply the Briginshaw standard of proof, but contended that he could not have done so or he would not have reached the conclusion that he did.”

Her Honour concluded at paragraph [53] that:

“There was no failure to apply the appropriate standard of proof”.

That matter was an appeal to the Supreme Court from the decision of a Magistrate in the Local Court dealing with the issue of a taxi driver’s licence.

In the matter presently under consideration I understand the parties to agree that the relevant test is the Briginshaw test. In all the circumstances, I direct myself that the appropriate standard of proof is the one stated in Briginshaw –v- Briginshaw (1938) 60 CLR 336.

“…of Suitable Character”

Regulation 63 of the Road Transport (Vehicle Registration) Regulation 1998 provides:

“63 Examiner’s Authorities

(1) The Authority may authorise in writing any person who, in its opinion is suitably qualified and of suitable character

(a) to conduct inspections and tests of registrable vehicles at authorised inspection stations for the purposes of determining whether or not the vehicles are suitable for safe use and comply with the requirements of the Act and this Regulation, and
(b) to issue inspection reports relation to those inspections”.

The emphasis added is mine. As the matter presently under consideration involves Regulations as opposed to a Statute there will be no Second Reading Speech to which the court can refer for guidance as to the intention of the Parliament. However, I note that the expression “fit and proper person” does appear in Regulation 67 (1) (b) of the same Regulations. Regulation 67(1)(b) provides that:

“Subject to this clause and clause 68, the Authority may suspend or cancel and examiner’s authority or a proprietor’s authority if:

(a) the holder has failed to comply with a condition to which the authority is subject, or

(b) the Authority is, for any reason, of the opinion that the holder is not a fit and proper person to continue to hold the authority”.

In the absence of any guidance it can only be assumed that the Legislative Body responsible for the Regulations intended to use the different expressions “of suitable character” and “fit and proper person”, and further that they are intended to have different, if perhaps similar, meanings.

On the issue of statutory interpretation James J. (with whom Spigelman CJ and Abadee & Barr JJ agreed) in his judgment in R –v- Young (1999) 46 NSWLR 681 at 734 cited from the decision of HcHugh JA (as he then was) in Kingston –v- Keprose (1987) 11 NSWLR 404 at 421-2 in that:

“Once the object or purpose of the legislation is delineated, the duty of the Court is to give effect to it in so far as, by addition or omission or clarification, the relevant provision is capable of achieving that purpose or object. Where the Court can see the purpose of a provision from an examination of its terms, little difficulty should be met in giving effect to that purpose”.

What is the intention of Regulation 63? Clearly enough it is there to ensure that only suitable persons are authorised to inspect motor vehicles. By adding “and of suitable character” it is plain enough that in order to be authorised to carry out inspections persons must not only be qualified, but their general character must also be such as to make them suitable to carry out motor vehicle inspections for the relevant purposes.

In the matter presently under consideration it is common ground that the appellant has no criminal convictions. Further, there does not seem to be any dispute that he is a good family man who follows his faith. However, the fact that there are no criminal convictions recorded against the appellant is not necessarily the end of the matter.

Character, at least in the context of the criminal law, has for many years gone beyond the fact of whether or not there are criminal convictions recorded, but has included matters going to general reputation.

Street CJ in R –v- Stalder [1981] 2 NSWLR 9 said at p. 19 (paragraphs E-F):

“Section 413 of the Crimes Act expressly provides that evidence may be given ‘not only as to the general repute of such person, but also as to the witness’s own knowledge of his habits, disposition and conduct’. There is no necessary genus in the phrase ‘habits disposition and conduct’ requiring conduct to be limited to a pattern of behaviour – indeed it is not easy to formulate in words a genus to which habits and disposition can relevantly be ascribed so as to import a particular meaning into conduct.”

I acknowledge that in Stalder the Court was concerned with a question of admissibility, and further that the s. 413 of the Crimes Act referred to by the Chief Justice has since been repealed. However, for present purposes, it is significant that the Chief Justice said, “There is no necessary genus in the phrase ‘habits disposition and conduct’ requiring conduct to be limited to a pattern of behaviour – indeed it is not easy to formulate in words a genus to which habits and disposition can relevantly be ascribed so as to import a particular meaning into conduct”

Mr. Bartley in his supplementary submissions refers me to the decision of the High Court in Melbourne –v- The Queen (1999) 198 CLR 1. However, he refers to the judgment of Kirby J., who in that decision was in dissent as to the ultimate issue. McHugh and Gummow JJ were both in the majority.

McHugh J. in Melbourne –v- The Queen said at p. 15 (paragraph [33]):

“In its strict sense, character refers to the inherent moral qualities of a person or what the New Zealand Law Commission has called disposition – which is something more intrinsic to the individual in question”. It is to be contrasted with reputation, which refers to the public estimation or repute of a person, irrespective of inherent moral qualities of that person. As the last of the above passages from R –v- Falealili demonstrates, however, the common law courts have not always drawn a distinction between character and reputation in a criminal context. The confusion can be traced to R –v- Rowton (1865) where a majority of the Full Court of the Crown Cases Reserved held that in a criminal trial the evidence for or against a person’s good character must be confined to his or her general reputation. This is established rule although, as this Court pointed out in Attwood –v The Queen the limitations inherent in the rule are not observed in practice. In New South Wales, the legislature long ago reversed the common law rule”.

The footnote to that last sentence of the above quote refers to the now repealed s. 413 of the New South Wales Crimes Act.

Gummow J. in Melbourne at p. 64 (paragraph [64]) said:

“In the law, the notion of ‘character’ takes varying significance and shades of meaning from particular fields of discourse and the particular fact in issue. It may be said that ‘character’, that which marks out an individual, may not correspond with the reputation attributed to that person. However, as will appear, the law does not always clearly distinguish between the two, nor indicate the probative force to be attributed to whichever of them is to be established as a fact in issue, nor specify the evidentiary means, including permissible inference, by which that fact in issue may be proved”.

His Honour went on to say at p. 65 (paragraph [66]):

“The issue in a proceeding may be whether an individual has the good character required for admission to pursue a particular profession or calling. Here the concern is not with disposition to perform particular acts with a requisite intention. Nor s the question one of the opinion others may have of the individual in question. In Ex parte Tziniolis; Re Medical Practitioners Act Holmes JA said:

‘The Act provides for the circumstances in which the name of a registered medical practitioner may be removed from the register and the expression ‘infamous conduct in a professional respect’ has been used to define such conduct. ‘Good character’ is not a summation of acts alone, but relates rather to the quality of the person. The quality is to be judged by acts and motives, that is to say, behaviour and the mental and emotional situations accompanying that behaviour. However, character cannot always be estimated by one or one class of act. As much about a person as is known will form the evidence from which the inference of good character or not of good character is drawn.’

His Honour emphasised that the court was not there dealing with ‘good character’ in some particular sense developed by the criminal law or by the law of defamation”.

Mr. Taylor, for the RTA, in his supplementary submissions referred me to the decision of Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448. At p. 450 Walsh JA (with whom Wallace P agreed) said at p. 451:

“Notwithstanding submissions to the contrary, I am of the opinion, in deciding this question, the court is required to consider matters affecting the moral standards, attitudes and qualities of the applicant and not merely to consider what is his general reputation”.

Walsh JA in that same decision said at p. 461:

“Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proves that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes, it must require clear proof to show that some years later he has established himself as a different man. The position is somewhat similar to that which exists when application is made by a barrister or a solicitor who has been found guilty of serious misconduct exhibiting a lack of proper standards, seeking reinstatement on the ground that, after a lapse of time, he has become a fit and proper person to be a member of a profession which requires qualities and standards in which he is known to have been deficient. In such cases, it has been frequently said that a heavy onus lies on the applicant”.

Miles CJ in Clearihan –v- Registrar of Motor Vehicle Dealers in the ACT SCA 55 of 1994 unrep. said at p. 5 (of the copy helpfully provided by Mr. Taylor) said:

“The mere fact that convictions have been recorded against a person does not, mean that the person cannot be said to be of good fame and character. That must depend upon the nature of the convictions, the circumstances giving rise to the convictions, the general reputation of that person apart from the convictions and whether there is any likelihood of a repetition of the offences which gave rise to the convictions. Where the question of good fame and character is to be judged in relation to a person’s fitness to carry on a particular trade or profession, it is necessary to consider the relevance to what is required by way of personal characteristics to carry on that trade or profession of the conduct which gave rise to the convictions. A series of convictions for traffic offences may have little relevance to the business of an estate agent or solicitor, but would be very relevant to the fitness for occupation of a driving instructor. Conversely, an offence involving dishonesty will bear heavily against a lawyer, but is not so relevant to a driving instructor. In the present case I consider the convictions proved to be relevant”.

His Honour went on to say at p. 7:

“When character is under consideration for a purpose connected with a trade or profession, different considerations apply according to the nature of the trade or profession…The obligations of a licensed motor vehicle dealer are such as to make it very likely that the dealer will be brought into contact more than occasionally with public officers. Furthermore there is a heavy duty to; keep proper records and accounts the completeness and accuracy of which might be called into question by such public officers”.

I have not been directed to any authority that is contrary to that of Miles CJ in Clearihan –v- Registrar of Motor Vehicle Dealers in the ACT, nor have my independent researches found any contrary authority. Relevantly to the matter presently under consideration there is a very heavy duty on authorised motor vehicle examiners to keep proper records, but moreover be thorough and accurate in their examinations and the recording of those examinations.

The Macquarie Dictionary defines “character” as:

1. The aggregate qualities that distinguishes one person or thing from others; 2. Moral constitution, as of a person or people; 3. Good moral constitution or status; 4. Reputation; 5. Good repute; 6.status or capacity.

In the matter presently under consideration, given the wording of the relevant Regulation (Regulation 63), I am of the opinion that the appellant’s character must be judged in relation to and in the context of his fitness to carry on the duties of an authorised motor vehicle examiner.

Fit and Proper Person

In Tsintris –v- Roads and Traffic Authority of New South Wales & Anor unrep. NSWSC 20 August 1993 Levine J. said at p. 11:

“Fitness and propriety to hold a licence or the lack thereof are not necessarily synonymous with good character (see R –v- Australian Stevedoring Industry Board (1953) 88 CLR 100 at 120-1; Hughes and Vale Pty Ltd –v- The State of New South Wales (1955) 93 CLR 127 at 156-7; New Broadcasting Limited –v- Australian Broadcasting Tribunal (1987) 73 ALR 420 at 428)”.

Dixon CJ, Williams, Webb and Fullagar JJ in The Queen –v- Australian Stevedoring Industry Board; Exparte Melbourne Stevedoring Company (1953) 88 CLR 100 at 120 said:

“ ‘Unfit’ is no doubt a somewhat indefinite expression but it is necessarily relative to the purpose for which fitness or unfitness is postulated…Fitness connotes suitability, appropriateness, qualification to fill that character”

On the same issue of “fit and proper”, in Hughes and Vale –v- NSW (1955) 93 CLR 127, Dixon CJ, McTiernan and Webb JJ said at p. 156:

“ ‘Fit’ (or indoneus) with respect to an office is said to involve three things, honesty knowledge and ability: knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intent and execute his office, when need is, diligently, and not for impotency or poverty neglect it’ – Coke . When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances”.

Findings

This matter proceeded before me on 6 May 2005. Evidence as summarised above was given. The Roads and Traffic Authority presented its case, (as I understand the position by consent) principally through the tender of documents. This was supplemented by oral evidence from Mr. Pino Corvini, who was cross-examined by Mr. Bartley. Neither Mr. Taylor for the RTA or Mr. Bartley for the appellant sought to raise this issue of there being a difference between the expression “fit and proper person” and “…of suitable character” at the hearing before me. Likewise, Mr. Bartley in the hearing before me took no issue with the contents of the letter from the RTA dated 28 January 2005. It was only when I began my own research on the matter that I realised that there may well be a difference the expression “not a fit and proper person” as it appears in the letter of 28 January 2005 advising the appellant the RTA’s decision, and “not of suitable character” to use the expression in Regulation 63, which has been set out above. I then indicated that the matter required further argument. The matter came before me on 27 May 2005 when both parties made supplementary submissions.

The issue now arises whether the fact that the RTA in its letter of 28 January 2005 used the expression that the appellant was “not a fit and proper person” to hold the relevant licence is fatal to the RTA given that the test as set out in Regulation 63 is that the applicant must be of “…of suitable character”. Not surprisingly, the RTA argues that it is not. Mr. Bartley, for the appellant argues that it is. The RTA further maintain that the expressions “fit and proper person” and “of suitable character” have the same or interchangeable meanings. Mr. Bartley on behalf of the appellant argues differently.

The appellant in lodging his appeal against the decision of the RTA maintained that he was of suitable character to hold the Authorities. The appellant conducted his case when the matter initially came before me on the basis that he was of suitable character. No issue was initially taken before me on the issue of the content of the letter of 28 January 2005. It was only when I raised the issue that the appellant embraced the difference between the letter and the Regulation as a point of contention.

In his supplementary submissions, Mr. Bartley argues that the Regulations provide for two difference tests for two different circumstances. These are that new applicants must be of “suitable character” and that current licence holders must be “fit and proper persons” to continue to hold the licence. Mr. Bartley further argues that the RTA in maintaining in their letter of 28 January 2005 that the appellant was not a “fit and proper person” to hold an authority has applied the wrong test.

A complicating feature of the matter presently under consideration is that the appellant had previously held a licence that had been cancelled by the RTA. Accordingly, although Regulation 63 applied it could not be said, in my opinion, that the appellant was a “new” applicant. The appellant was already well known to the RTA. He was well known to them because of breaches of the Rules. The word “new” in that context, in my opinion, would mean someone who has never held a licence. Even if I were wrong about the meaning of the word “new” my ultimate decision in the present matter would not be different.

Mr. Taylor for the RTA in this regard referred me to the decision of the South Australian Supreme Court in Coombe –v- Wells (1975) 12 SASR 342. In particular, I was directed to the (dissenting) judgment of Bray CJ at pp. 351 to 353 inclusive, and to the judgment of King J. (as he then was) at p.356-7.

However, Mr. Taylor also referred me to Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448. At pp. 451 – 2 Walsh JA said:

“I think, further, that we are entitled to inquire into what may be described as personal misconduct, as distinct from professional misconduct, in determining in this case whether or not the applicant is a man of good character, whilst recognising that there may be some kinds of conduct deserving or disapproval which have little or not bearing on the question whether or not it is shown that an applicant for registration as a medical practitioner is a person of good character. Ina this respect, I think that some assistance can properly be obtained as to the mode of approach to be made from observations made in cases where the question was whether or not the person was a fit and proper person to be a barrister, such as those made in Ziems –v- Prothonotary of the Supreme Court of NSW 97 CLR 279 by Dixon CJ at p. 285, by Fullagar J. at pp. 288 and 290 and Kitto J. at pp. 298 and 299 and by Taylor J. at p. 301.

I note that Gummow J. in the decision of Melbourne –v- The Queen cited the decision of Ex parte Tziniolis; re The Medical Practitioners Act with apparent approval – see the judgment of Gummow J. at paragraph [66] at p. 25. My independent researches have not located any decision or authority contrary to Ex Parte Tziniolis –v- The Medical Practitioners Act. It seems that in determining whether someone is of suitable character for the purposes of a particular occupation, regard can be had as to whether that person is a fit and proper person to be a member of that profession, trade or calling.

Appellant not a “fit and proper person”

I have already stated that the various audits conducted on behalf of the Roads and Traffic Authority demonstrate in the plainest of terms a gross dereliction of duty in his work and undertakings as a motor vehicle examiner. The admitted breaches detailed in the audits of October 2003 and March 2004 are serious matters indeed. The individual breaches are within themselves serious. However, their seriousness is aggravated by the course of conduct shown. That same course of conduct of gross dereliction of duty occurred in respect of both the inspections for the pink slips and the blue slips. This conduct of the appellant falls very far short of what the public in general and those who may be on in the vicinity of a roadway have the right to expect.

The appellant was on notice as early as January 2004 that administrative action could be taken by the RTA in respect of the detected breaches. Indeed, the appellant has his authorities cancelled. A magistrate of this court purported to grant a stay of the suspension on 28 May 2004. At the risk of further repetition, the appellant should have been very well aware that the RTA would be keeping careful watch on the manner in which he conducted himself as a motor vehicle examiner. The fact that further serious breaches occurred within the “stay period” beggars belief.

Given the history of the breaches, and the extent of the breaches, and in particular the fact that serious breaches occurred within the stay period the Court cannot in my opinion be the least bit confident of the assurances now given by the appellant that he will be more careful in the future, that he will get special lighting, and that no further breaches will occur. It is remarkable indeed that the appellant maintains that part of the trouble in recording misdescriptions of the vehicles was a problem he was experiencing with his eyesight; but yet he comes to court to prosecute this appeal without having consulted or even having made an appointment to visit a relevant medical practitioner.

Applying the legal principles outlined above, I am of the opinion that the appellant IS NOT a fit and proper person to be authorised to examine motor vehicles for the purposes of the Road Transport (Vehicle Registration) Regulation 1988.

Appellant not of suitable character

I now turn to the consideration whether or not the appellant is “…of suitable character” for the purposes of Regulation 63. Applying the various matters to which I have referred above, in particular the decision of the High Court in Melbourne –v- The Queen, the decision of the New South Wales Court of Appeal in Ex Parte Tziniolis; Re the Medical Practitioners Act and the decision of Miles CJ in Clearihan –v- The Registrar of Motor Vehicle Dealers in the ACT, the expression character must go beyond the lack of criminal convictions.

For the reasons expressed above, I am of the opinion that character must include matters of general repute. I am further of the opinion that those matters of general repute must be reviewed and considered in the context of the work being undertaken. In all the circumstances, I AM NOT of the opinion that the appellant is “of suitable character” within the meaning of that expression with Regulation 63 of the Road Transport (Vehicle Registration) Regulations. Again, there are very important issues relevant to the safety of the public that need to be considered.

Difference between “Fit and Proper Person” and “…of suitable character”

It is regrettable that the letter from the RTA to the appellant dated 28 January 2005 used the expression “not a fit and proper person” rather than the wording of Regulation 63. Given that the legislation body responsible for creating the Regulations has chosen to use the expression “…of suitable character” in Regulation 63 and has also chosen to use the expression “fit and proper person” in other Regulations (notably Regulation 67) it cannot be that the two expressions have precisely the same meaning.

However, I cannot accept the submission of Mr. Bartley for the appellant that the two expressions have completely different meanings. They both refer to the qualifications of a person to carry out the functions of a motor vehicle examiner. Both expressions must be examined and defined in the context of the type of work or profession being undertaken. Of particular significance is the extract of the judgment of Walsh JA in Ex parte Tziniolis; Re The Medical Practitioners Act at pp. 451-2 as set out above.

Clearly, although the expressions cannot have precisely the same meaning, the meaning of the two expressions must nevertheless be very similar. It is also important to consider the intention of the legislative body responsible for creating the Regulations. This intention, clearly enough, is to ensure that only suitable persons are authorised to undertake the relevant vehicle inspections.

In circumstances where character in the context of the relevant Regulation must, on the authorities to which I have referred include a consideration of and relationship to the work being undertaken, and given the findings of fact I have made, the vast majority being breaches of the relevant Rules admitted by the appellant, it seems to me that it would have been inevitable that had the RTA applied the test of “suitable character”, the result would have been the same, and the authority that was sought would have been declined.

The appellant had previously held the relevant authorities. Those licences had been taken from the appellant because of admitted breaches. The substantial part of the proceedings (i.e. those conducted on 6 May 2005) was conducted by the appellant on the basis that the test was that he was of “suitable character”. I have come to the conclusion that the appellant is neither a fit and proper person, nor is he of suitable character for the purposes of holding the relevant motor vehicle examiner’s licences.

In all the circumstances, I am of the opinion that the wording of the letter from the RTA dated 28 January 2005 using the expression that the appellant was not a “fit and proper person” rather than the expression “not of suitable character” as provided for by Regulation 63 does not mean that the appeal must therefore, and for that reason alone, succeed.

THE APPEAL BY MAMDOUH HAYEK AGAINST THE DECISION OF THE ROADS AND TRAFFIC AUTHORITY NOTIFIED BY LETTER DATED 28 JANUARY 2005 IS DISMISSED.

Gordon Lerve

Magistrate

Parramatta Local Court

09 June 2005