Honeysett v Director General, Department of Transport

[2002] NSWADT 227

CITATION:	Honeysett -v- Director General, Department of Transport [2002] NSWADT 227
DIVISION:	General Division
PARTIES:	APPLCIANT Barry Gordon Honeysett RESPONDENT Director General, Department of Transport
FILE NUMBER:	023070
HEARING DATES:	16/07/2002
SUBMISSIONS CLOSED:	07/16/2002
DATE OF DECISION:	11/07/2002
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Bus driver - grant of authority - Passenger Transport Act - bus driver - grant of authority
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990
CASES CITED:	Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 McDonald v Director General of Social Security (1984) 1 FCR 354 Maythisathit v Registrar of Motor Vehicles (1996) ACT 165 Taylor -v- Director General, Department of Transport (GD) [2001] NSWADTAP 29 Saddick v- Director General, Department of Transport [2002] NSWADT 88 Saadieh v Director-General, Department of Transport [1999] NSWADT 68 Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392
REPRESENTATION:	APPLICANT A Tudehope, barrister RESPONDENT A Wozniak, solicitor
ORDERS:	1. The decision of the Director General, Department of Transport to refuse an application by Barry Gordon Honeysett for a public passenger vehicle driver's authority is affirmed.

Background

1 These proceedings relate to a determination made by the Director General, Department of Transport ("the Director General") to refuse an application by Barry Gordon Honeysett ("Mr. Honeysett") for a public passenger vehicle driver's authority. Mr. Honeysett was advised of the decision by letter dated 15 November 2001, signed by Wilma Hickey Manager Business Services with the Department of Transport ("the Department").

2 Mr. Honeysett is 61 years of age. Until recent times he has operated a transport business and drove school buses. He has had a long career as bus driver. His bus driver authority was cancelled on the 7 April 2000. The accreditation to operate the bus had previously been cancelled. The cancellation of Mr. Honeysett’s driver authority followed a series of complaints regarding his behaviour towards passengers whilst driving the bus, his driving record and allegations of negligent driving and his admission that he knowingly drove an unregistered vehicle to convey school students on 52 separate occasions. Mr. Honeysett did not seek to have that decision set aside. He transferred the business to his daughter and it was subsequently transferred to Mr. Honeysett’s grandson. As he had disposed of the business he considered that he had no need for the licence.

3 On 10 October 2001 Mr. Honeysett again applied for a public passenger vehicle driver's authority. As noted above, the Director General refused that application. On 1 December 2001 Mr. Honeysett sought an internal review of the Director General’s decision. On review the Director General confirmed that the initial decision to refuse Mr. Honeysett’s application was the appropriate course of action. Mr. Honeysett brought this application in relation to the internal review decision.

Reviewable decision

4 The reviewable decision is that of the Director General confirming the decision to refuse Mr. Honeysett’s application. That decision was advised to Mr. Honeysett by letter dated 20 December 2001.

5 On 25 March 2002 Mr. Honeysett lodged an application with the Tribunal for a review of the Director General's 20 December 2001 decision. The matter came before the Deputy President of this Tribunal for a Directions hearing on 24 April 2002. The matter was listed for hearing on 16 July 2002 and proceeded on that day.

Nature of proceedings

6 The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all the material first considered, together with any further relevant material, so as to either confirm the original decision, vary it, or set it aside and substitute another. "The duty of the tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view was objectively the right one to be made" (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77).

7 These are not adversarial proceedings in which the applicant carries an onus of proof. The applicant, by making the application, triggers a process of merits review by the Tribunal. The applicant does not take on the responsibility of having to prove a case, nor does an applicant cause an administrator to have to prove a case. The applicant and the administrator are before the Tribunal as parties by virtue of section 67(2) of the Administrative Decisions Tribunal Act 1997 ("the ADT Act").

8 Section 63(1) of the ADT Act provides:

“63 Determination of review by Tribunal
(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.
(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:
(a) to affirm the reviewable decision, or
(b) to vary the reviewable decision, or
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or
(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.”
9 The Tribunal makes its own decision in place of the administrator’s, and "there is no presumption that the decision of the administrator is correct" ( McDonald v Director General of Social Security (1984) 1 FCR 354 at 357).

10 When there is a fact in issue as to the existence of which the Tribunal must be satisfied, it must be satisfied to the civil standard of proof, that is, on the balance of probabilities (McDonald at 357).

Requirements to be met

11 The issue for this Tribunal is: what is the correct and preferable decision? The Passenger Transport Act 1990 ("the Act") sets out the applicable law. Division 2 in Part 2 of the Act makes provision for Authorities to drive a public passenger vehicle. Section 11(2) of the Act provides:

"(2) The purpose of an authority under this Division is to attest:
(a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle; and
(b) that the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates:
(i) in accordance with the conditions under which a public passenger service is operated; and
(ii) in accordance with law and custom."
12 Section 12 of the Act states:
"Criteria and procedure
12.(1) Having regard to the purpose of an authority, the Director-General may grant authorities to persons applying for them.
(2) Applicants must meet any criteria set forth in the regulations and must satisfy the Director-General as to any matter the Director-General considers relevant.
(3) Procedures for the purposes of this section may be settled by the Director-General, subject to any provision in that behalf made by the regulations."
13 The decision to be made is whether Mr. Honeysett can be considered to be of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle; and to have sufficient responsibility and aptitude to drive the vehicle to which the authority relates; in accordance with the conditions under which a public passenger service is operated and in accordance with law and custom such that an authority can attest to that status.

14 It is clear from the correspondence and the Department’s file that the Director General decided that an authority would not attest that Mr. Honeysett is a fit and proper person or that he has sufficient responsibility or aptitude to be the driver of a public passenger vehicle.

Evidence

15 The Department’s file was put in evidence and the Director General relied on the documents contained within that file. The Director General also relied on Mr. Honeysett’s criminal history, documents contained in files summonsed from the Local Court Gulgong and the District Court Dubbo Registry relating to Mr. Honeysett’s and subsequent appeals, letters of complaint received by the Department and records of interviews conducted in relation to those complaints. The Director General did not call any witnesses in support of his case.

16 Mr. Honeysett presented no evidence in support of his case but relied on legal argument that much of the evidence relied on by the Director General is inadmissible and therefore the basis of the Director General’s decision is unsound. Several testimonials referring to Mr. Honeysett’s good character were lodged with his application for internal review and are contained in the Department’s file. None of the authors of those testimonials were called to give evidence at the hearing.

The Director General’s case

17 The Director General relied on the chronology of events outlined in the Notice of Refusal dated 15 November 2001. Mr. Wozniak submitted that the Tribunal is entitled to take each of those events into account. The chronology of events referred to provides:

"17 November 1998 a letter of complaint forwarded to the Minister of Transport concerning an incident that occurred on 29 October 1998 on the Guntawang to Gulgong School afternoon Bus Service.

12 November 1998 complaint regarding the warning lights on bus, negligent driving behaviour.

12 November 1998 complaint regarding negligent driving, the state of the vehicle, incident that occurred 29 October 1998.

12 November 1998 statement from student regarding the negligent driving behaviour, negligence to student’s care and safety, operating the bus with the door open, children sitting on the step whilst the bus is in motion,

13 November 1998 statement containing incidents that occurred from 1984 to 1991 relating to negligence as a bus driver, negligent driving.

11 November 1998 complaint regarding the incident 29 October 1998.

4 November 1998 withdrawal of students due to the drivers neglect.

3 December 1997 Operating bus without "wig wag" lights operating. Convicted Mudgee Court on 2 accounts.

3 December 1997 Failed to wear clean and respectable clothes. Offence proven and Dismissed under Section 556A

3 December 1997 not stop bus close and parallel. Convicted Mudgee Court

3 December 1997 Failure to activate warning system lights when children boarding bus. Convicted Mudgee Court

4 August 1997 letter of observation from Council witnessing unsafe drop offs of students on the Gulgong to Goolam Road.

4 August 1997 complaint concerning the operation of the warning lights operated whilst dropping off and picking up students

11 May 1997 complaint regarding the harassment of students on the bus

12 May 1997 complaint against the driver for harassment

13 May 1997 complaint for harassment from driver to parent and students

17 April 1997 letter for the principal of Gulgong High supporting the unacceptable behaviour of the driver (Mr. Honeysett)

16 April 1997 petition from students on the bus regarding the behaviour of the driver (Mr. Honeysett)"

18 The Notice of Refusal dated 15 November 2001 indicates that the evidence relied on in reference to the events included:
"Information from the NSW Police Service Criminal Histories Branch
Letter of complaint received by the Department on 7 March 2000 regarding unregistered vehicle being operated on the Turill to Gulgong School Bus Service on 10 December 1999.
Record of interview of the Directors of B & I Honeysett Pty Ltd, Mr. Barry Gordon Honeysett and Mrs. Irene Joyce Honeysett conducted by Authorised Officers of the Department of Transport at 11 Medley Street, Gulgong on 31 March 2000."
19 Mr. Wozniak argued that the Tribunal can take account of any of the material contained on the Department's file regardless of whether it has previously been brought to Mr. Honeysett's attention. The Director General relies on the evidence of a number of complaints over a long period.

20 Mr. Wozniak submitted that the relevant test is that found in section 11 of the Act. The issues on which the Director General relies are the same issues upon which he relied when Mr. Honeysett's driver’s authority was cancelled in 2000. If Mr. Honeysett wanted to dispute any of those issues he could have done so when his driver’s authority was cancelled. He did not do so.

21 In May 1997 officers of the Department conducted an inquiry in response to a number of complaints regarding Mr. Honeysett's behaviour while driving a school bus. Those complaints included a petition by students who travelled on Mr. Honeysett's bus, a letter of support from a High School Principal, and letters of complaint from parents and students. Following the inquiry the Department determined to take no further action however Mr. Honeysett was advised by letter dated 24 June 1997 that the complaints would be placed on his driver authority file for future reference if required. Mr. Honeysett therefore had sufficient notice that those complaints may well be reconsidered.

22 Mr. Wozniak also submitted that between 27 January 1999 and 2 March 1999, and on 10 December 1999, Mr. Honeysett drove an unregistered bus on 52 separate occasions. He referred to a memo dated 7 April 2000 from Ms Judy Morris, a Departmental Operations Officer in the Department's Bus, Ferry & Light Rail Services unit to Mr. Ross Elson, Manager of Contracts & Compliance in that unit. In her memo Ms Morris noted that on 31 March 2000 she and two other Departmental officers had interviewed Mr. Honeysett and his wife concerning the allegations of the use of the unregistered bus. During the interview Mr. Honeysett admitted that he had driven the unregistered bus on 52 separate occasions.

23 With respect to the offences which occurred on 3 December 1997, Mr. Wozniak stated that there had originally been six offences but one charge had been withdrawn. The maximum penalty for the offences was $500. Mr. Honeysett was given a penalty of $400. Mr. Wozniak submitted that the other incidents referred to in the notice of refusal are relevant to the issue of whether Mr. Honeysett is of good repute.

24 Mr. Wozniak urged caution in attributing weight to the testimonials provided on behalf of Mr. Honeysett. He submitted that the testimonials did not specifically address Mr. Honeysett’s offences or the issues with which the Tribunal is concerned, and are therefore of little use. Mr. Wozniak further submitted that as Mr. Honeysett was not subjected to cross examination, the Tribunal would have difficulty in assessing whether Mr. Honeysett can be considered to be of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle for the purposes of section 11 of the Act.

25 In assessing whether Mr. Honeysett can be considered to be of good repute the Tribunal should give substantial weight to the number of allegations made against Mr. Honeysett. The complainants included high school students, ex-students and parents. The nature of the particular complaints must be considered, as must the fact that the complaints continued over a long period of time.

26 Mr. Wozniak referred to various Tribunal decisions which have applied the test in respect of a person being of fit and proper character to hold a driver's authority defined and applied by the President of the ACT Administrative Appeals Tribunal in a matter of Maythisathit v Registrar of Motor Vehicles (1996) ACT 165. In that particular case, the test as was stated to be:

"One must put oneself, so far as possible, in the position of a member of the public who might travel in a taxi driven by the applicant and ask whether that member of the public, knowing of the applicant's criminal record and what he has done in the past year to rehabilitate himself, would object to the applicant as the driver of the taxi".
27 Mr. Wozniak argued that in the present circumstances that test can appropriately applied with the relevant member of the public travelling in the passenger vehicle driven by Mr. Honeysett extended to include both parents and students. The relevant question is therefore whether parents or students, knowing of Mr. Honeysett's record, would object to Mr. Honeysett as the driver of the bus?

Mr. Honeysett’s case and Submissions on his behalf

28 As noted above, Mr. Honeysett did not give any oral evidence nor were any witnesses called in support of his case. Mr. Tudehope presented legal argument challenging the Director-General's case. That challenge was brought in relation to the events referred to in the statement of reasons set out above.

29 Mr. Tudehope argued that the complaints received by the Department in April 1997 should not form part of the reasons for refusal. Both events were investigated and the Department determined that no further action would take place. By letter dated 24 June 1997 Mr. Honeysett was advised:

"In regard to the allegations raised an extensive examination was conducted in the Gulgong area. These allegations were addressed at our meeting and due to the conflicting statements obtained it has been decided that no further action will be taken other than to note the matters raised and place all papers on your driver authority file for future reference if required."
30 As indicated in the chronology included in the Notice of Refusal, in May 1997 the Department received complaints from various student passengers who travelled on Mr. Honeysett's bus and parents of various student passengers. Mr. Tudehope stated that those complaints were never brought to Mr. Honeysett's attention. There is doubt about whether they were ever investigated and Mr. Honeysett was not given an opportunity to respond to the complaints.

31 The chronology included in the Notice of Refusal refers to two complaints dated 4 August 1997. Mr. Tudehope argued that the first of those complaints is not recorded on the Department file. The second of those complaints was never brought to Mr. Honeysett's attention and he therefore had no opportunity to respond to it.

32 Four complaints were brought against Mr. Honeysett with respect to incidents recorded on 3 December 1997. These incidents were observed by a Departmental officer who had followed Mr. Honeysett's bus on that date. Charges were brought in relation to each of these incidents. While it is not in dispute that the charges were found proven and some convictions were recorded, Mr. Tudehope stated that those charges were defended and he sought to provide explanations for the conduct which led to those charges. He urged the Tribunal to consider the circumstances surrounding the incidents.

33 An incident that occurred on Mr. Honeysett's bus on 29 October 1998 led to several additional complaints from various student passengers who travelled on the bus and parents of various student passengers. Mr. Tudehope stated that Mr. Honeysett notified the police and the school of the incident. The matter was investigated by both the police and the Department of Transport. Each decided that no further action should be taken in relation to the incident.

34 The chronology included in the Notice of Refusal refers to complaints regarding the incident 29 October 1998 received by the Department. Those complaints are dated 11 November 1998 and 12 November 1998. Mr. Tudehope stated that those complaints were never brought to Mr. Honeysett's attention and he was not given an opportunity to respond to the complaints. Those complaints should not form part of the reasons for refusal.

35 The Notice of Refusal refers to a statement dated 13 November 1998 which makes numerous complaints in regard to incidents that occurred between 1984 and 1991. Mr. Tudehope stated that those complaints were never brought to Mr. Honeysett's attention and he was not given an opportunity to respond to the complaints. In any event it would be unfair to expect Mr. Honeysett to respond to allegations relating to the incidents dating back to 1984. Those complaints should not form part of the reasons for refusal.

36 A further letter dated 12 November 1998 is also referred to in the Notice of Refusal. That letter makes numerous complaints against Mr. Honeysett. Another letter also dated 12 November 1998 complained about Mr. Honeysett's negligent driving, the state of the vehicle, and the incident that occurred 29 October 1998. Mr. Tudehope stated that these letters were never brought to Mr. Honeysett's attention and he was not given an opportunity to respond to the complaints.

37 Mr. Tudehope argued that if the Director-General intended to rely on the various complaints referred to in the Notice of Refusal, Mr. Honeysett should have been told of that intention and given an opportunity to respond.

38 The Notice of Refusal makes the following statement:

"You knowingly drove an unregistered vehicle MO 8326 in a public place in NSW to convey school students on the Turill to Gulgong School Bus Service on 52 separate occasions on the AM/PM runs on:-
27 January 1999 up to and including 5 February 1999
8 February 1999 up to and including 12 February 1999
15 February 1999 up to and including 19 February 1999
22 February 1999 up to and including 26 February 1999
1 March 1999 and 2 March 1999 And then again on 10 December 1999

Mr. Barry Gordon Honeysett did admit to knowing the vehicle was unregistered at the interview of 31 March 2000."

39 It is not in dispute at the vehicle was unregistered at the stated times. However, Mr. Tudehope stated that Mr. Honeysett denies telling the Departmental officers that he knew that the vehicle was unregistered at the time it was driven. Mr. Honeysett requested a copy of the record of interview but it was not available. Mr. Tudehope outlined the circumstances which led to the use of the unregistered vehicle. He said that at the time Mr. Honeysett was driving the unregistered vehicle, he believed it to be registered. He concedes that in fact it was not registered. The fact that the vehicle was unregistered was brought to the Department's attention by one of Mr. Honeysett’s competitors. Mr. Tudehope stated that Mr. Honeysett did not knowingly drive an unregistered vehicle with the exception of 10 December 1999.

40 On 10 December 1999 Mr. Honeysett was confronted with a situation in which the doors on a new bus were jammed half open. It was therefore not possible to operate the bus. Mr. Honeysett had the School run to complete and he knew that it would be impossible to get another bus for the run. He panicked and used his old bus for the morning school run. After he completed the run he repaired the new bus and used it for the afternoon school run.

41 Mr. Tudehope argued that Mr. Honeysett was not charged in relation to knowingly driving an unregistered vehicle. If the Department knew that he knowingly drove an unregistered vehicle charges would have been brought. The Tribunal should conclude that the Department accepts that Mr. Honeysett did not knowingly drive an unregistered vehicle on the days stated, with the exception of 10 December 1999. Mr. Tudehope argued that the circumstances of that day were exceptional and the incident should be disregarded.

42 In May 1986 Mr. Honeysett was charged in relation to expired vehicle registration and ultimately found guilty of having number plates calculated to deceive. Mr. Tudehope argued that the age of that incident makes it of no relevance to this matter. On 9 March 2001 a charge of having custody of an offensive implement in a public place was found proven against Mr. Honeysett. Mr. Honeysett was placed on a 12 months bond and no conviction was recorded. Mr. Tudehope argued that no greater leniency was possible with respect to this charge. The period of the bond has passed without further incident.

43 Mr. Tudehope argued therefore that the Tribunal should find on the admissible evidence that Mr. Honeysett is entitled to another chance.

Findings

Admissibility of Evidence of complaints

44 Mr. Tudehope has argued that the Tribunal should not consider much of the material on which the Director-General relies because, either the complaints were investigated and the decision made that no further action would be taken, or the complaints were not brought to Mr. Honeysett's attention and he was not given an opportunity to respond to them. Mr. Wozniak argued that the Tribunal can take account of any of the complaints contained on the Department's file regardless of whether they had been brought to Mr. Honeysett's attention. Mr. Honeysett had notice of the complaints when his driver’s authority was cancelled in 2000. He had the opportunity to dispute any of the issues raised at that time and did not do so. He also argued that Mr. Honeysett has had notice since June 1997 that complaints investigated prior to that date may well be reconsidered.

45 It is therefore necessary to determine as a preliminary issue whether the evidence relating to those complaints is admissible and if so the probative value of the complaints.

46 In Taylor -v- Director General, Department of Transport (GD) [2001] NSWADTAP 29 decided on 12 September 2001, the Appeal Panel said:

"87 In passenger transport cases involving complaints from passengers or other members of the public the Tribunal should start from the position that a party should be given the opportunity of testing prejudicial evidentiary material tendered against him or her. That position may be modified depending on a number of factors including:

· whether and if so to what extent the applicant denies the allegations in the complaints;
· the importance of the complaints in relation to the whole of the respondent's case;
· whether complaints were made confidentially and the availability of complainants to give evidence;
· the nature and extent of the investigation process that has already been undertaken by the Department and the applicant's involvement in that process.

88 Depending on all these factors, the Tribunal may decide to admit the complaints, admit the complaints subject to submissions about their weight or not to admit the complaints into evidence."

47 The issue of assessing the probative value of complaints which had been brought to the attention of the Department and retained on the Department’s file was considered in some detail by Judicial Member Rice in the matter of Saddick v- Director General, Department of Transport [2002] NSWADT 88. After considering various authorities on the issue, the Judicial Member observed:
"39 The following guidance is apparent from these authorities.
40 The Department may if it chooses rely on hearsay material as evidence of the conduct it alleges against an applicant, without calling the people who made the allegations or created the documents ( Abouhassoun ).
41 That material must be relevant and not unfairly prejudicial. Care must be taken when assessing unfair prejudice ( Marsden v Amalgamated Television Services Pty Limited ).
42 Material is not necessarily unfairly prejudicial only because the maker of a hearsay statement is not available for cross-examination ( Idoport v National Australia Bank; Vitali v Stachnik ); absence of cross-examination is relevant to the weight to be given to the evidence ( Ordukaya v Hicks; Vitali v Stachnik ).
43 The unfair prejudice attaching to hearsay material may be outweighed by its high probative value ( Ordukaya v Hicks ).
44 The risk of untested hearsay material having prejudicial effect on a fact finder's deliberations is considerably reduced when the fact finder is a judicial officer and not a jury ( Ordukaya v Hicks; Marsden v Amalgamated Television Services Pty Limited; Idoport v National Australia Bank )."
48 As was the case in Saddick I heard no direct evidence of any of the complaints against Mr. Honeysett on which the Director General relies. The Director General relies exclusively on hearsay material, and none of the makers of the statements were subjected to cross-examination. Nevertheless, that of itself is no bar to my taking account of the complaints. The issue in each instance is whether the material is sufficiently reliable.

49 With respect to the complaints brought prior to the Departmental investigation in May 1997, I am satisfied that Mr. Honeysett was informed that the complaints would be placed on his driver authority file for future reference if required. Mr. Honeysett therefore had sufficient notice that those complaints may well be reconsidered. I am satisfied that the fact that the matters were investigated at the time and no further action taken does not present an impediment to my taking account of the complaints.

50 With respect to the issue of whether I may take account of complaints which were said to have never been brought to Mr. Honeysett’s attention at the time they were made, I am satisfied that Mr. Honeysett was informed of those complaints at least in April 2000 at the time his bus driver authority was cancelled. Mr. Honeysett did not challenge any of those complaints at that time or at any time since. While Mr. Honeysett attended the hearing, he did not give evidence to contradict any of the complaints. Having considered the factors set out in Taylor and Saddick referred to above, it is my view that the evidence is admissible if it is sufficiently reliable. I must therefore consider whether the material is sufficiently reliable.

51 The complaints under consideration were brought either by students who travelled on Mr. Honeysett’s bus or parents of those students. The students had first hand knowledge of incidents about which they complained. Each complaint is first hand hearsay: a document in which the person who perceived the facts records the facts. With the exception of the petition of 16 April 1997 and the complaint dated 13 November 1998 regarding incidents that occurred from 1984 to 1991, the students who made written complaints acted spontaneously and genuinely in giving an account of Mr. Honeysett’s conduct. The complaints record first hand observations of Mr. Honeysett’s conduct. The records of the complaints are reliable, and I will take account of them.

52 With respect to the petition of 16 April 1997 there is some doubt about the understanding of the issues in so far as the younger students who signed the petition are concerned. I cannot be satisfied that the complaints from the younger students are reliable, and I will not take account of them. The petition also contains complaints signed by senior high school students and I have no reason to doubt their reliability. I will take account of the petition in so far as it is a complaint from a senior high school student. With respect to the complaint dated 13 November 1998 regarding incidents that occurred from 1984 to 1991 I agree with Mr. Tudehope’s argument that it would be unfair to expect Mr. Honeysett to respond to allegations relating to the incidents dating back to 1984. I cannot be satisfied that the complaints are reliable, and I will not take account of them. I also agree that Mr. Honeysett’s conviction in relation to having number plates calculated to deceive has no bearing on this matter because of the time which has passed since the conviction.

53 The complaints brought by parents are of two types. Those relating to incidents of which the parents had first hand knowledge and those relating to incidents where the parents relied on information given to them by their children. Where the complaints record first hand observations of Mr. Honeysett’s conduct, I am satisfied that the records of the complaints are reliable, and I will take account of them.

54 The complaints relating to incidents where the parents relied on information given to them by their children are second hand hearsay. Similarly, the letter of support from the High School Principal is second hand hearsay. Each complaint is a document in which a person has recorded facts as related to them by the person who perceived the facts. There is, therefore, from the very nature of the document, a real risk that the document is untrustworthy evidence of the facts stated. As will be apparent from the decision below, I do not need to consider these second-hand hearsay complaints.

55 I note Mr. Tudehope’s submission that Mr. Honeysett denies the alleged admissions with respect to knowingly driving an unregistered vehicle. In the absence of the transcript of the interview I place no weight on that allegation. I also note Mr. Tudehope’s reference to the exceptional circumstances in which Mr. Honeysett knowingly drove an unregistered vehicle on 10 December 1999. Mr. Honeysett gave no evidence with respect to the issue. Little weight can be given to evidence presented from the bar table. In the absence of evidence in support of Mr. Tudehope’s statements I give no weight to that submission. I make the same comment in relation to Mr. Tudehope’s reference to circumstances surrounding the events of 3 December 1997 which lead to Mr. Honeysett’s convictions.

56 As indicated above the Director-General formed the view that Mr. Honeysett is not of good repute and in all other respects a fit and proper person to drive a public passenger vehicle. The issue for determination by the Tribunal is whether that is the correct and preferable decision.

57 In this application, I have considered all of the evidence and the oral argument presented before the Tribunal. In particular I have had regard to the following issues:


· Mr. Honeysett’s record of convictions;
· the number and the nature of the complaints against Mr. Honeysett which formed the basis of the Director General's decision;
· the fact that the complainants were not called to give evidence before the Tribunal;
· Mr. Honeysett’s written submissions in relation to the complaints made against him;
· Mr. Tudehope’s oral submissions in relation to the complaints made against Mr. Honeysett;
· Mr. Honeysett’s admissions in relation to some of the offences;
· the testimonials provided on Mr. Honeysett’s behalf; and
· the potential consequences of the decision to refuse Mr. Honeysett’s driver's authority.

58 Section 11(2) requires Mr. Honeysett to meet six requirements. He must show that he is to be considered:
· to be of good repute (s11(2)(a))
· to be in all other respects a fit and proper person to be the driver of a public passenger vehicle (s11(2)(a)),
· to have sufficient responsibility to drive a public passenger vehicle in accordance with the conditions under which a public passenger service is operated (s11(2)(b)(i)),
· to have sufficient responsibility to drive a public passenger vehicle in accordance with law and custom (s11(2)(b)(ii)),
· to have sufficient aptitude to drive a public passenger vehicle in accordance with the conditions under which a public passenger service is operated (s11(2)(b)(i)), and
· to have sufficient aptitude to drive a public passenger vehicle in accordance with law and custom (s11(2)(b)(ii)).

59 It is clear from the correspondence and the Department's file that the Department considers that Mr. Honeysett fails the requirement of s11(2)(a) and the requirement of s11(2)(b). There is evidence that could support a contention that Mr. Honeysett could be considered not to have either sufficient responsibility to drive a public passenger vehicle in accordance with the conditions under which a public passenger service is operated, or sufficient aptitude to drive a public passenger vehicle in the manner described. There is also evidence that could support a contention that Mr. Honeysett could be considered not to be a fit and proper person to be the driver of a public passenger vehicle. Having considered the issue of whether that evidence is rightly before the Tribunal it is necessary to determine what weight should be given to it. The Department’s Notice of Refusal does not refer to the issue of whether it considers that Mr. Honeysett is of good repute however the internal review decision states:
"I am unable to attest that you are of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle."
60 If Mr. Honeysett is of good repute then he must also show that "in all other respects", that is, in all respects other than his reputation, he is a fit and proper person to be the driver of a public passenger vehicle. Whether a person is of good repute is an issue related to but different from whether a person is fit and proper for a particular purpose. Being considered to be of good repute is a threshold status in s11(2). If a person is not of good repute there is no need to consider whether they are a fit and proper person to be the driver of a public passenger vehicle.

61 Mr. Honeysett does not fail to be of good repute simply because of convictions. In Saadieh v Director-General, Department of Transport [1999] NSWADT 68 the Deputy President of this Tribunal made clear at paragraphs 14 and 15 that an assessment of repute is a matter for the Tribunal, weighing all the evidence. All the circumstances of the case must be taken into account in assessing a person's suitability to obtain or retain an authority.

62 Repute is what is thought by others. A person's reputation, in fact and in law, is to be found in the estimate of his moral character entertained by some specific group of people, such as those who live in the neighbourhood of his residence, those who work with him or those with whom he associates in his occupation or profession: Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 per Waddell J at page 393.

63 Whether a person's history is known in the community will be a factor in assessing what weight to give to the evidence of repute. A positive estimation in spite of knowledge of a blemished history would ordinarily weigh in favour of the person.

64 The Department has identified a number of convictions and a number of complaints about Mr. Honeysett’s behaviour. Mr. Honeysett must show that in spite of that history he enjoys a good reputation. Mr. Honeysett did not give evidence as to his reputation. In any event his reputation is best established by evidence of others, and by inferences from positions he might hold in the community. To that end, he has produced a number of testimonials that attest to his reputation and character.

65 A witness's opinion of Mr. Honeysett may be accepted as evidence of his repute, although the weight to be given to that evidence will depend on the circumstances in which the witness formed the opinion. None of the testimonials make reference to the witness’s knowledge of any of the circumstances which have lead to the decision to cancel Mr. Honeysett’s authority or to the refusal of his application. Nor do they make any direct reference to these proceedings. They cannot therefore be seen as positive estimations in spite of knowledge of Mr. Honeysett’s blemished history. It follows that little weight can be given to those testimonials in assessing Mr. Honeysett’s reputation. While the available evidence has some weight, in the face of his history of complaints, the fact that the complaints continued over a long period of time and his convictions, it is insufficient to establish that he is of good repute.

66 As I have noted above, no oral evidence was presented at the hearing. Mr. Honeysett has given no evidence to suggest that the conduct referred to in the complaints is unlikely to reoccur. Nor has he given any evidence to suggest that the conduct which related to his convictions is unlikely to reoccur. I agree with Mr. Wozniak that in the present circumstances the applicable test is whether parents or students, knowing of Mr. Honeysett's record, would object to Mr. Honeysett as the driver of a bus? In my opinion, they would most likely object.

67 Having said that, given the amount of time that has passed since the complaints and convictions it may be the case that Mr. Honeysett could readily obtain the necessary evidence to show that he satisfies all the necessary criteria to obtain a public passenger vehicle driver's authority. If that is the case and if Mr. Honeysett were to reapply for a public passenger vehicle driver's authority, the Director General may well reach a different conclusion.

68 On the evidence before me, I cannot be satisfied that Mr. Honeysett is either a fit and proper person to be the driver of a public passenger vehicle, nor a person with sufficient responsibility and aptitude to drive a public passenger vehicle in accordance with the conditions under which a public passenger service is operated and in accordance with law and custom. It follows in my view that the correct and preferable decision is to refuse his application for a driver's authority. Accordingly I affirm the Director General's decision to refuse Mr. Honeysett’s application.

Orders

69 The decision of the Director General, Department of Transport to refuse an application by Barry Gordon Honeysett for a public passenger vehicle driver's authority is affirmed.