Kaldas v Road and Maritime Services

Case •

[2013] NSWADT 14

•

23 January 2013

Administrative Decisions Tribunal


New South Wales

Medium Neutral Citation: Kaldas v Road and Maritime Services [2013] NSWADT 14
Hearing dates:5 September 2012
Decision date: 23 January 2013
Jurisdiction:General Division
Before: P H Molony, Judicial Member
Decision:

1. With respect to Mr Kaldas' application for a drivers certificate, the decision of the Agency is set aside and in lieu thereof the Tribunal determined to issue a drivers certificate in his name.

2 With respect to Mr Kaldas' application for an operators licence, the decision of the Agency is set aside and in lieu thereof the Tribunal determined to issue a operators licence in his name. In addition to the statutory condition applicable to an operators licence that licence shall be subject to the following additional conditions:

1) That the licensed operator shall fit a computer system in each of the operators' tow trucks, with a separate email address for each truck, to receive jobs and data electronically, and that such data be backed up and available for inspection by RMS for a period of at least two years.

2)Within three months of the publication of these reasons the licensed operator at his own expense is to enrol in and commence studying a recognised training course in customer care approved by RMS.

3)Within three months of the publication of these reasons the licensed operator at his own expense is to enrol in and commence studying a recognised training course in complaint handling for managers approved by RMS.

4)The licensed operator shall complete each of the courses referred to in conditions (2) and (3) above and shall provide RMS with proof of attendance and completion.

5)The licensed operator shall, subject to compliance with applicable listening devices legislation, record all incoming customer calls and retain those records for at least three months.

6)Until such time as the licensed operator has successfully completed the course referred to in paragraph 2 above, the operator shall delegate all dealings with consumers to an employee no matter what the hour.

7.Until such time as the licensed operator has successfully completed the course referred to in paragraph 3 above, the operator shall delegate all dealings with consumers concerning consumer complaints to an employee no matter what the hour. To avoid doubt, this does require the licensed operator to delegate decision making with respect to such complaints.

8)Within 28 days of the publication of these reasons that licensed operator shall create and keep a register of property taken from vehicles in his custody in which is recorded, at minimum, the matters set out paragraph 123 of these reasons. The licensed operator should produce that register to RMS for inspection on request.

Catchwords: Tow truck industry - operators licence - drivers certificate - fit and proper - public interest - issue of operators licence on conditions to protect the public interest
Legislation Cited: Administrative Decision Tribunal Act 1997
Crimes (Sentencing Procedure) Act 1999
Tow Truck Industry Act 1988
Tow Truck Industry Regulation 2008
Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589
Commissioner of Police v Toleafoa [1999] NSWADTAP 9
Cook v The Commissioner of Police [2003] NSWADT 30
Director of Public Prosecutions v Smith (1991) 1 VR 63
Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Haining v Commissioner of Police, NSW Police Service (1999) NSWADT 6
Health Care Compliant Commission v Litchfield (1997) 41 NSWLR 631
Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127
Ibrahim v Commissioner of Police [2009] NSWADT 245
Morris v The Commissioner of Police [2002] NSWADT 223Palumberi -v- General Manager, Tow Truck Authority of New South Wales [2001] NSWADT 206
Pillai v Messiter [No.2] (1989) 16 NSWLR 197
Sobey v Commercial and Private Agents Board 20 SASR 70
Category:Principal judgment
Parties: Hany Kaldas (Applicant)
Roads & Maritime Services (Respondent)
Representation: Counsel
Menzies QC with B Nolan (Applicant)
D Rayment (Respondent)
Mc Kenzie Leamey (Applicant)
Smythe Wozniack (Respondent)
File Number(s):113239 and 113240

REASONS FOR DECISION

  1. Mr Kaldas is the holder of a tow truck operators licence and a tow truck drivers certificate issued under the Tow Truck Industry Act 1988 (the TTI Act). In May of 2011, when they were approaching their expiration dates, Mr Kaldas made application for the renewal of the licence and certificate to the Roads & Traffic Authority, now Roads & Maritime Services (the Agency).

  1. The Agency did not deal with those applications before the licence and certificate expired. Clause 24 of the Tow Truck Industry Regulation 2008 (the Regulation) had the effect of extending their operation until either the applications were considered or ninety days had passed.

  1. At the end of the 90 day period, on 25 August 2011, Mr Kaldas applied to the Tribunal seeking a review of the decisions to refuse his renewal applications, brought about by the expiration of time. He also sought a stay of the deemed refusal to issue him with a licence and certificate.

  1. On 30 August 2011 the Agency made a decision refusing Mr Kaldas' renewal applications on the grounds that he is not a fit and proper person to hold an operators licence or a drivers certificate, and that it is not in the public interest that he to continue to hold them.

  1. On 31 August 2011 the Tribunal made orders allowing Mr Kaldas to continue operations. At that time Mr Kaldas had a number of prosecutions pending against him for breaches of the TTI Act and Regulation.

  1. Eventually, after those prosecutions had been determined, the matter came before me for hearing on 5 September 2012. Mr Kaldas was represented by Mr Menzies QC with Ms Nolan, and the Agency by Mr Rayment. No oral evidence was heard. The parties agreed that the Tribunal should determine the matter on the papers, having heard oral submissions from both parties. After hearing those submissions I reserved my decision.

  1. Section 63 of the Administrative Decision Tribunal Act 1997 (the ADTA) says that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the Commissioner, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

The Legislation

  1. The TTI Act provides that the Agency has responsibility for granting drivers certificates (s 27). It is an offence to drive or stand a tow truck without a drivers certificate (s.23). Applications for drivers certificates are to be made to the Agency (s.25) which may grant drivers certificates (s.27). Section 26 sets out both mandatory and discretionary grounds for refusing a drivers certificate. Once granted a certificate may be renewed by making an application for a subsequent certificate (s, 31A).

  1. In Mr Kaldas' case his renewal application with respect to his certificate has been refused on the discretionary grounds set out in s.26(3)(a) and (d). Section 26 relevantly provides:

(1) RMS:
(a) must refuse to grant an application for a drivers certificate on mandatory grounds, and
(b) may refuse to grant an application for a drivers certificate on discretionary grounds.
...
(3) The discretionary grounds for refusing to grant an application for a drivers certificate are as follows:
(a) that the applicant is not, in the opinion of RMS, a fit and proper person to hold a drivers certificate or is otherwise not competent to carry on the kind of towing work to which the proposed drivers certificate relates,
(b) ...
(d) that the granting of the drivers certificate would, in the opinion of RMS, be contrary to the public interest.

  1. Section 26(2) specifies mandatory grounds for refusal of a certificate one of which is -:

(b) that the applicant has, within the period of 10 years before the application for the drivers certificate was made:
(i) been convicted, or
(ii) been found guilty (but with no conviction being recorded),
by a court in New South Wales or elsewhere of an offence
prescribed by the regulations, whether or not the offence is an offence under New South Wales law and whether or not committed before the commencement of this section.

  1. Section18 provides that the Agency has responsibility for granting tow truck operator licences. It is an offence carry on business as a tow truck operator without an operators licence (s.15). Applications for operators licence are to be made to the Agency (s.17) which may grant operators licences (s.19). Section 19 sets out both mandatory and discretionary grounds for refusing an operators licence. Once granted a licence may be renewed by making an application for a subsequent certificate (s, 22A).

  1. In Mr Kaldas' case his renewal application of his licence has been refused on discretionary grounds set out in sub-section (3) (a) and (j). Section 18 relevantly provides:

(1) RMS:
(a) must refuse to grant an application for a licence on mandatory grounds, and
(b) may refuse to grant an application for a licence on discretionary grounds.
...
(3) The discretionary grounds for refusing to grant an application for a licence are as follows:
(a) that the applicant is not, in the opinion of RMS, a fit and proper person to hold a licence or is otherwise not competent to carry on the kind of towing work to which the proposed licence relates,
(b) ...
(j) that the granting of the licence would, in the opinion of RMS, be contrary to the public interest.

  1. The TTI Act and Regulation regulate the conduct of drivers and operators. Section 29 of the Act and clause 20 of the Regulation impose conditions that driver certificates are subject to, while s. 20 and clause 39 specify conditions with respect to operator licences. It is an offence for either to contravene those conditions, with a maximum penalty of 50 penalty units or 6 months imprisonment: s58.

  1. Among the conditions imposed on a licensee are that:

  • the licensee must take all reasonable precautions to prevent loss of or from, or damage to, any motor vehicle that is being held in the licensee's holding yard (s 20(2)(b).
  • the licensee must not, in the course of carrying on business, use a holding yard other than a holding yard specified in the licence (s 20(2)(d)).
  • the licensee must not charge a fee for work that was not actually done by the licensee or by an employee or subcontractor of the licensee (s 20(2)(i)).
  • the licensee must keep a holding yard register in relation to any holding yard in which specified particular in respect to each vehicle entering or leaving the yard is to be kept (cl 39).

  1. Section 53 contains a general provision prohibiting any person, without reasonable excuse, from altering a towing authorisation after it has been signed in accordance with the regulations.

  1. With respect to licensed operators the following other provisions of the Act and Regulation are relevant -

  • Section 60 requires a licensee to keep specified records of each driver employed or engaged and to keep specified records with respect to each occasion in which a tow truck is used or operated by a driver, including, by sub-section(2) -
(i) the date on which the tow truck was used or operated, and
(ii) the name of any person who travelled as a passenger in the tow truck, and
(iii) the location of any accident attended by the tow truck, and
(iv) the number of any towing authorisation obtained by the driver, and
(v) the address to which any motor vehicle was towed in accordance with the towing authorisation, and
(vi) the registration number of any such motor vehicle
  • Section 71 is concerned with advertising the business of a tow truck operation. It relevantly provides -
(1) A person must not cause to be published any advertisement that advertises the business of a tow truck operator unless the person to whom the advertisement relates is a person who holds a licence that authorises the person to carry on that business.
Maximum penalty: 50 penalty units.
(2) A licensee must ensure that any advertisement relating to the licensee's business as a tow truck operator contains the number of the licence.
Maximum penalty: 50 penalty units.
(3) A reference in this section to an advertisement includes a reference to any form of notice or statement in the nature of an advertisement.
  • Clause 32 of the Regulation makes provision with respect to towing authorisations. It requires a person who has obtained an authorisation to do a number of things, including completing the towing notice with the specified information, and attaching it to the vehicle to be towed before towing it (sub-cl(2)). Sub-clause 4 provides-
A licensee must ensure that each tow truck driver who is employed or engaged by the licensee complies with the requirements of this clause.
Maximum penalty: 50 penalty units
  • Clause 51 requires a licensee to include specified information in any invoice for towing work. Sub- clause 2 provides -
A licensee must not request or require payment of a fee charged in relation to towing work unless a copy of the invoice for that work is provided to the person to whom the invoice is issued.
Maximum penalty: 10 penalty units.

Material before the Tribunal

  1. In considering my decision in this case I have had regard to the following material -

Produced by Mr Kaldas

  • The Applicant's tender bundle of 14 affidavits and associated exhibits - exhibit A3.
  • The statement of Hany Kildas made 5 September 2012 - exhibit A7.
  • The certificate issued under s 101 of the TTI Act setting out Mr Kildas' history as a tow truck operator and as a driver certificate holder (the s 101 certificate) - exhibit A1.
  • A brief of evidence tendered in Local Court proceedings relating to prosecutions against Mr Kaldas for breaches of s 22(2)(a) and s 58(1) of the TTI Act - exhibit A4.
  • A personal reference for Mr Kaldas from Father Matthew Attia of St George Coptic Orthodox Church dated 5 September 2012 - exhibit A5.
  • A document identified as exhibit HK 2 to Mr Kaldas' affidavit sworn 4 October 2011 - exhibit A6.
  • The Prosecution facts alleged with respect to four offences for which Mr Kaldas was prosecuted - exhibit A8
  • A letter dated 3 September 2012 to the General Manager Compliance at the Agency from Mr Kildas' representatives proposing terms for resolution of his review applications - exhibit A2.
  • Produced by the Agency
  • The Agency's s 58 documents - two binders totalling 681 pages - exhibit R2.

Factual background

  1. Mr Kaldas' business runs nine tow trucks and employs eight drivers. He has three back up vehicles.

  1. The s 101 certificate sets out details of a number of successful prosecutions against Mr Kaldas as well as disciplinary action taken against him under the TTI Act. The Agency relies on these to demonstrate that Mr Kaldas is not a fit and proper person to hold a licence or accreditation, and that it is in the public interest to refuse his renewal applications.

  1. It is necessary to outline the circumstances of those convictions and offences.

  1. Offence A and B - Mr Kaldas was charged with:

(a) contravening a condition of his licence in breach of s 58(1) by failing to prevent loss of, or from any motor vehicle being held in his holding yard in breach s 20(2)(a) (offence A); and,

(b) failing to ensure his driver attached a towing notice to a vehicle as required by cl 32(2) in breach cl 32(4) (offence B),

both between 10 August 2010 and 3 September 2010.

  1. He was convicted of both and fined $800 for offence A and $900 for offence B, plus costs, in the Downing Centre Local Court on 16 February 2012.

  1. The section 58 material contains two statements form Ms O'Brien the owner of the vehicle that was towed to the holding yard, dated 27 September 2010 and 6 October 2007, and a record of interview between RTA investigation officers and Mr Kaldas on 26 May 2011, at which Mr Kaldas' solicitor, Mr Leamy, was present, in which Mr Kaldas was asked about the events. There is also a record of interview conducted with Mr Siahos, a driver employed by Mr Kaldas.

  1. In short Ms O'Brien said her car was damaged in a multi-car accident involving a number of vehicles on 10 August 2010. The vehicle at the rear of the chain of vehicles involved in the accident was a tow truck from Maroubra Towing Service, a business name of Mr Kaldas. After the accident the driver approached her with another man who introduced himself as Harry Kaldas, the owner of the company. He said, "...don't worry about the cars, I have insurance to cover it."

  1. The driver subsequently had her complete her name and address in a book and filled in some other details. He said he car would be towed to a yard. She said that, "I did not get a choice of where I wanted my car towed and I did not know of any charges I would incur."

  1. Other tow trucks from Maroubra Towing Service arrived to tow the other vehicles. She was provided with a lift home in one truck.

  1. Some time later - the date is not specified - she received a phone call from GIO who were making arrangements for her car to go an assessment centre in Arncliffe. She was subsequently advised that her car would be written off. Arrangements were made for her to collect her belongings from the car.

  1. When she went to the assessment centre at Arncliffe she found that her Tom Tom GPS was missing from the glove box of her car. When she made inquiries about with Mr Kaldas he said -

"Yes I have it in my office. I took it out for security reasons as we have had problems before when things have gone missing from cars on their way to the assessment centre.

  1. Ms O'Brien went to collect her GPS from Mr Kaldas on 6 October 2010. She said it was only a month old. She had used it three times before the accident. On examining it -

When I got back to my car I found that my Tom Tom GPS had several biro marks on the screen. I then turned it on and found numerous addresses had been entered into the GPS.

  1. When asked about these events in his record of interview, Mr Kaldas agreed that when Ms O'Brien phoned, asking about the GPS, he said he had it and that he had removed it for security reasons. He was asked why other items had not been removed the vehicle, such as an E-Tag, CD's and a bag belonging to Ms O'Brien. He said he took items of value that he thought people might steal. The following exchange occurred between Investigation Officer Higgins and Mr Kaldas -

Q168: ...Do you agree that you removed the GPS from the glove compartment of the car?
A168: The GPS was on the dash on the floor.
Q169: Do you believe that you removed it from the car?
A169: From the car, yes.
Q170: Did you remove it?
A170: I told --
Q171: MR LEAMY For safe keeping?
A171: For safe keeping, yeah.
Q172:INVESTIGATIONS OFFICER HIGGINS: Did you remove it personally yourself?
A172: Peter say he seen the GPS on the car and he told me it's going to go missing at GIO as in the previous past he had his own towing business before and he told me things go missing there. I said keep it in the office, call the lady to pick it up from the car and took the GPS, put it in my office, I will call the lady to pick it up.
Q173:MR LEAMEY: Did he take it out?
A173: Yes.
Q174:INVESTIGATIONS OFFICER HIGGINS. Peter Siahos took it out?
A174: Yes he did, yeah.
Q175: Who did he give it to?
A175: I put it in the office on the shelf, in the bag.
Q176: You put it in the office?
A176: He put it for me inside the office, yeah.
Q177:MR LEAMEY: Did the customer end up getting the GPS?
A177: Yeah.
Q178:INVESTIGATIONS OFFICER HIGGINS: Can you tell me who gave you permission to remove the GPS from the car?
A178: My driver remove it, not me. Driver found on the floor.
Q179: Who told Peter to take it out of the car?
A179: He probably think it could go missing in the GIO centre as I said before.
Q180: He took it out?
A180: Yeah.
Q181: And he gave it to you in your office?
A181: He said it was on the floor of the car, maybe from accident fall down on the ground. He was worried about if no one see it in the windscreen, no one can take it and he put it in the office to give it to the lady.
Q182: And you saw it in the office?
A182: Yeah.
Q183: Can you tell me what condition the GPS was in when it was removed from the car? Was it new, was it old?
A183: Secondhand GPS, normal GPS.
Q184: Did allow anyone else to have access to the GPS?
A184: For where?
Q185: From your office.
A185: No.

  1. With respect to the GPS Mr Kaldas said in his affidavit of 30 August 2011 that he had not used the GPS and did not know who had. He agreed that he should have locked it away.

  1. In his statement dated 4 October 2011, Mr Kaldas acknowledged that his driver had not properly complied with his obligations with respect to the towing authority. He produced 69 towing authorities correctly completed by the driver both before and after this event. He noted that the driver, Mr Grosn, had told the Agency that the failure to comply was a result of shock at being involved in the accident and the need to comply with Police directions to clear the accident scene.

  1. Offences C and D - Mr Kaldas was charged with contravening a condition of his licence in breach of s 58(1) by -

(a) charging a fee for work not actually done by the licensee or by an employee or subcontractor of the licensee in breach of s 20(2)(1) (offence C); and,

(b) requesting or requiring payment without providing an invoice contrary to cl 51(2) (offence D),

both on 14 September 2010.

  1. He was convicted of offence C and placed on a 9 month s 9 bond, and ordered to pay costs, in the Downing Centre Local Court on 16 February 2012. He was also convicted of offence D and fined $900 plus costs. He appealed offence C to the District Court, which dismissed the appeal and convicted him without penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999.

  1. In a statement dated 28 September 2010, Ms Zhan, who was the driver of the vehicle to which offences C and D relate, described how she was involved in an accident on 14 September 2010. Following the accident, contact was made with Eastwood Towing (one of many business names used by Mr Kaldas) and a tow requested. Before the call could be completed Ms Zhan's phone "went dead'. She was phoned back by a person named Henry. He told her the tow would cost $298.30 and requested and obtained her credit card details.

  1. Ms Zhan said that after waiting an hour for the tow truck to arrive, another tow truck turned up. Ms Zhan then rang Henry to cancel the tow, but he said he was only 15 minutes away. Having waited for that time she engaged the other tow truck. That towing authorisation was signed 1 hour and ten minutes after she said the accident occurred. Contact was then made with Henry who refused to refund her money, which had been charged to her account. She again requested and was refused a refund a few days later.

  1. She later contacted the Agency, and was rung by Henry 20 minutes later. Ms Zhan said the following conversation then occurred -

... he say
"I want to refund you the money."
He asked me my bank details and say
"Next time you need a tow truck don't ring me and waste my time."
I then told Henry I had talked to Chris at RTA. He said,
"I'm not aergue (sic) of you want money back please shut up."
He raised his voice.
I explained how I waited one hour in the rain with my baby and he say,
"So you want your money or not"

She then gave him her details.

  1. There is a separate statement dated 10 February 2011 Mr John Assadourian, the driver of the tow truck that towed Ms Zhan's vehicle. He said that after Ms Zhan has asked to him to tow her vehicle she was on the telephone talking to someone when she handed her phone to him -

... a male voice said to me, "Who are you??
I said, " John Assadourian."
He said, "I'm coming to pick up the customer."
I said, "No. I'm signing it up. There's nothing here for you, don't bother coming."
He said, "Fuck you. I'm towing it."
He then started telling me off and yelling and using bad language to me and kept on saying, "Let me talk to the woman."
I said, "No. She is now my customer not yours."
I then hung up the phone. I knew the person on the phone was Harry Kaldas from Maroubra Bay Towing. I have spoken to him only recently about selling a tow truck to him.

  1. Mr Assadourian said that he subsequently received three phone calls from Mr Kaldas about the incident, in the last of which Mr Kaldas accused Mr Assadourian of referring Ms Zhan to the Tow Truck Authority, swore at him and threatened him.

  1. Maroubra Bay Towing Services (another of Mr Kaldas' business names) issued an invoice No 2378 to Ms Zhan dated 14 September 2010 for $298.32 for -

Attending an accident scene after hours at Shaftsbury Rd X Richard Ave Eastwood for picking up black Citron (sic) registration number ... as request.

It did not acknowledge that payment had been made.

  1. In a record of interview conducted between RTA investigation officers and Mr Kaldas on 26 May 2011, at which Mr Kaldas' solicitor was present, Mr Kaldas agreed that he was the person with whom Ms Zhan had spoken. He agreed that he had required payment 'up front'. He said that after taking legal advice he had refunded $74.85 to Ms Zhan.

  1. In his affidavit of 1October 2011 Mr Kaldas denied that he had used the language attributed him, or that he had made the last of the three calls referred to by Mr Assadourian. In his affidavit, sworn 4 October 2011, Mr Brson, a driver employed by Mr Kildas, said that he was in the office at the time and did not hear Mr Kaldas use the word "bitch" when talking on the phone.

  1. Offences E and F - Mr Kaldas was charged with contravening a condition of his licence in breach of s 58(1) by -

(a) charging a fee for work not actually done by the licensee or by an employee or subcontractor of the licensee in breach of s 20(2)(1) (offence E); and,

(b) requesting or requiring payment without providing an invoice contrary to cl 51(2) (offence F),

both on 9 September 2010.

  1. He was convicted of offence E and placed on a 9 month s 9 bond, and ordered to pay costs, in the Downing Centre Local Court on 16 February 2012. He was also convicted of offence F and fined $900 plus costs. He appealed offence E to the District Court which dismissed the appeal and convicted him without penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999.

  1. The s 58 documents contain four statements concerning the events giving rise to offences E and F. They paint a somewhat similar picture to the events leading to offences C and D. They are from:

  • Ms Curtis the driver of a vehicle involved in an accident.
  • Mr Musri her boyfriend who attended the scene of the accident, when called by Ms Curtis.
  • Mr Siahos, the holder of a tow truck drivers certificate, who was employed by Maroubra Bay Towing and was assigned the job of towing Ms Curtis' vehicle by Mr Kaldas.
  • Mr Elkrinna, the holder of a tow truck drivers certificate, who drove for Canada Bay Towing and who was eventually retained by Ms Curtis to tow the vehicle.

  1. In summary Ms Curtis' evidence was that following an accident at 6:30pm she obtained the name of a towing company from directory assistance and phoned it. She spoke with a lady and man at the towing company. The lady told her the tow truck would be half an hour. The man took her credit card details and told her the truck would be on its way. Between 7 and 7-15pm a tow truck from Canada Bay Towing arrived. It was driven by Mr Elkrinna, who was known to Mr Masri who had arrived at the scene by then. She told Mr Elkrinna that she had booked a tow truck and paid by credit card. He asked we she had done that saying, "we normally give you an invoice if you are fully insured."

  1. Ms Curtis and Mr Masri then asked Mr Elkrinna to do the tow. She then called Maroubra Bay Towing and spoke to the same man enquiring where the truck. She asked why he had taken her credit card details when she was fully insured. He said, "I took your money because the insurance company takes too long to pay me."

  1. The tow truck from Maroubra Bay Towing driven by Mr Siahos then arrived. The two drivers then spoke with Mr Elkrinna telling Mr Siahos that he was doing the tow because the customers were tired of waiting. Mr Musri and Mr Siahos also talked. Ms Curtis then told Mr Siahos that she had been charged by credit card, and had been waiting since 6:30pm. He said, "My boss shouldn't do that, he does that to everyone."

  1. Mr Siahos agreed that he was told the job would be given to Canada Bay Towing. He said that when Mr Musri and Ms Curtis told him she had already paid and asked about a refund, he replied, "Harry does this all the time, I will have to call Harry and let you know."

  1. The statements reveal that there then ensued a number of telephone conversations between Ms Curtis and Mr Masri with Mr Kaldas, and between Mr Kaldas and Mr Siahos concerning the provision of a refund or an invoice to Ms Curtis. All agree that during these phone calls Ms Curtis became upset and was crying. Ms Curtis says that Mr Kaldas refused to provide her with an invoice or a refund. "He spoke very fast and loudly and said, 'No, you're a bitch several times.'"

  1. Mr Masri said that at one stage during a phone conversation Mr Curtis handed him her phone when she was crying, and he spoke with the man -

I said "can we get an invoice or not". The man said "who the fuck are you", I said "who are you". He then said "put the fucking girl back on the phone." I said "I am her boyfriend". He then said "put the fucking girl back on the phone, I don't want to talk to you."

  1. Ultimately the vehicle was towed by Canada Bay towing. Ms Curtis subsequently complained to the Agency.

  1. In his record of interview with officers from the Agency, conducted on 26 May 2011, Mr Kaldas agreed that he was the person Ms Cutis had spoken with. He disputed that she had waited for an hour saying that she had called for the tow truck at 6:55pm (the time on an EFTPOS statement for the credit card charge) and according to Mr Siahos' log he had arrived at 7:25pm. He said that an invoice from Maroubra Bay Towing for $298-32 and sent by fax the next day. He said that "out of courtesy" he had refunded $74.85 to Ms Curtis on 2 November 2010. He denied swearing on the phone, or abusing Ms Curtis.

  1. In his affidavit of 4 October 2011 Mr Kaldas described this as a novel situation, in which he had been asked to do work, and the customer had then engaged an alternate tow truck 26 minutes later. Mr Kaldas initially defended his conduct and the charge against him, on the basis that he was entitled to charge a fee for the work performed in going to the scene, essentially on a quantum meruit basis. That argument was rejected by the Court in the light of the wording of s 20. He did not maintain that argument before me. In his earlier affidavit, of 30 August 2011, he denied referring to Ms Curtis as "bitch."

  1. Offence G - Mr Kaldas was charged with advertising his business without the licence number in breach of s 71(2) on 2 February 2010. He was convicted and fined $500 plus costs in the Central Local Court on 8 December 2011.

  1. The facts concerning this are conveniently summarises in the Prosecution Facts prepared for the Local Court hearing -

On 2 February 2010 a search on the Internet of businesses associated with the Accused's Maroubra Bay Towing identified the following associated business names of which the Accused was the proprietor Sans Souci Towing Services, Beverley Park Towing Services, Dolls Point Towing Services, Monterey Towing Services, Carss Park Towing Services, Toren Point Towing Services, Banksia towing Services, and Caringbah Towing Services. On each advertisement in the above mentioned name, telephone number 95925656 and the Fax Number is 95923559 was listed in the advertisement. Telephone number 95925656 was listed on the application for Operator Licence 03040 in the name of the accused. Fax number 95923559 was listed an the application for Operator Licence 03040 in the name of the accused. The Accused failed to ensure that his operators licence details were contained in each advertisement. The Accused was informed of this offence in February 2010 and he immediately undertook to rectify the offence.

  1. Offences H and I - Mr Kaldas was charged with:

(a) contravening a condition of his licence in breach of s 58(1) by using a holding yard other than that specified in his licence to store a vehicle (offence H); and,

(b) not making records required by 60(2)(b)(i),

both between 10 and 12 September 2009.

  1. He was convicted and fined $300 for (a) and $500 for (b) plus costs, in the Central Local Court on 8 December 2011.

  1. The driver of the tow truck undertaking that tow was David Diamond. In a statement dated 3 November 2010 he said that Mr Kaldas phoned him and assigned him a tow job from an accident. Mr Kaldas told him, "It's a private job so I'm charging cash for this one." When Mr Diamond arrived at the scene he spoke with the driver, Ms Jennings. He then rang Mr Kaldas to find out the destination of the tow. Mr Kaldas said it was to go to a Holden dealership in Link Road. In response to Mr Diamond's question about whether he should do a towing authorisation Mr Kaldas replied, "No, don't do one. Just listen to me fuck you. It's a fucken cash job, just tow the fucken thing to Link Road."

  1. Mr Diamond said that when he arrived at the dealership he phoned the driver of the towed vehicle and advised her of the towing charge and waited for her to arrange payment. After half an hour Mr Kaldas rang and told him that the tow had not been paid for, and instructed him to bring the vehicle back to the yard.

  1. In her statement made on 28 September 2009 Ms Jennings confirmed that the tow was organised by her office in Melbourne. She also confirmed that after she told the driver she could not pay the towing fee, she was told the vehicle would be taken to a holding yard.

  1. In his affidavit of 4 October 2011 Mr Kaldas denied that he had told Mr Diamond that the job was a cash job, or that the vehicle had been involved in an accident. Rather he said that the job was to tow the vehicle to Holden at Roseberry. He denied the language attributed to him by Mr Diamond. He said he had terminated Mr Diamond because he made "too many mistakes" and believed Mr Diamond was "biased against me."

  1. Offence J - Mr Kaldas was charged with altering a towing authorisation after it had been signed contrary to s 53 on 18 August 2009. He was convicted and fined $1,000 plus costs in the Central Local Court on 8 December 2011. He appealed to the District Court on 8 February 2012. He appealed to the District Court, which dismissed the appeal and varied the fine to $750.

  1. This concerned a tow performed on 18 August 2009 of a vehicle owned by Mr Singh. According to a statement made by Mr Singh on 22 April 2010 the tow truck arrived to tow his vehicle "about 4pm." He provided the driver with details and he signed a form between 4pm and 4.20pm. The driver gave him a copy. On completion of the tow Mr Singh was presented with a tax invoice for $520.74, which was paid.

  1. On 14 September 2009 Mr Kaldas provided the Agency with a copy of the towing authorisation for that tow. The copy provided had the time of the tow altered from 4-15pm to 5-15pm. An inspection of the pink copy in the towing authorisation book showed the time as 4-14pm.

  1. When asked about the change Mr Kaldas said he had changed the time with the driver as it was a mistake.

  1. Tows after 5pm incur a 20% fee increase.

  1. Offences K, L, M and - Mr Kaldas was charged with contravening a condition of his licence in breach of s 58(1) by not making an entry in a holding yard register as required by cl 39(1):

(a) on 25 July 2009 (offence K):

(b) on 23 May 2009 (offence L); and,

(c) on 14 April 2009 (offence M).

  1. He was convicted and fined $750 for each offence plus costs in the Central Local Court on 8 December 2011.

  1. Each concerned a tow performed by Mr Kaldas and the storage of the vehicles at Mr Kaldas' Turrella holding yard. Holding charges were payable for that storage. In each case, the holding yard register kept by Mr Kaldas did not record any of the details required by clause 39(2) of the Regulation, save for the name and contact details of the person who authorised the release of the motor vehicle from the yard.

  1. In his affidavit of 30 August 2011 Mr Kaldas described these omissions as "yard register errors." He said that all the information was recorded in tow truck logs and tax invoices. He said he had since put in place "new inventory checking procedures."

  1. Finally, there is offence N a failure to comply with a direction at the scene of an accident on 28 November 2002 for which Mr Kaldas was convicted and fined $300.

  1. Disciplinary Matters - before these offences Mr Kaldas received disciplinary cautions for the following breaches -

  • The failure of a driver to issue a quotation sheet in breach of cl 32(4) of the Regulation on 22 July 2009.
  • Contravening the conditions of his licence in that he (a) did not have a fire extinguisher in a serviceable condition; (b) had a tow truck not equipped with a broom; and, (c) had a tow truck not equipped with a shove, all on 10 May 2006.
  • (a) Not using a register of tow truck drivers as required by s 60(2)(a); (b) not using a driver's log as required by s 60(2)(b); and, not use a holding yard register as required by clause 56 of the Tow Truck Industry Regulation 1999, all on 9 January 2004.

Other material relied on by Mr Kaldas

  1. Mr Kaldas relies on affidavits sworn by the following employees: Steve Hatzipapa, Ibrahim Uyanik, Gavin Scholes, Oday Aziz, Theo Silvera, John Brady, Sedat Karaman and Hany Brson. They each say that Mr Kaldas is a good family man and employer, who, with his wife, regularly checks that drivers have completed all necessary paperwork and records. They each say that they always provide quotations and towing authorities when towing a vehicle. They are all happy in Mr Kaldas' employ and a number make comment on Mr Kaldas' attention to detail, compared with other licensees they have worked for.

  1. In addition there is an affidavit from Mark Gergis, a smash repairer, who is a friend of Mr Kaldas who also deals with him in the course of business. He talks about how Mr Kaldas is immersed in his business and how well he maintains his tow trucks.

  1. James Leamey in an affidavit sworn on 1 October 2011 gives evidence about an analysis he had made of tow truck companies websites, and of tow truck entries in the Sydney Yellow Pages, to determine how many showed their licence number. As a result of his searches he determined that of the 58 websites he examined only 12 displayed their licence number on web pages. With respect to his analysis of the Yellow Pages he found 47 display adds of which 21 contained the operator's licence number. There were 374 ordinary listings for tow trucks, none of which included the operator's licence number.

  1. The purpose of James Leamey's affidavit appears to be to demonstrate that, at least with respect to the Yellow Pages and operator websites, s 71(2) is honoured in the breach.

  1. In his statement dated 5 September 2012 Mr Kaldas outlined the actions he had taken to address problems in his businesses operations, which he undertook to keep in place in the future. These were:

  • He had fitted 8 CCTV cameras in his holding yard which record 24 hours a day to prevent/detect property damage and/or theft. These have been in place for nearly 12 months.
  • Each tow truck has been fitted with 4 CCTV camera and 4 microphones that record 24 hours a day. These is also a facility to watch and hear conversation from the truck in the office.
  • Any customer complaints will be referred to his solicitor for handling. Mr Kaldas said he would "follow David Leamey's determination." At the time he made the statement no complaints had been through this process.
  • Holding yard stock-takes are done fortnightly.
  • He has withdrawn 5 business names.
  • An employee, Sedat Karman, is now assisting in answering the phone and directing drivers.
  • The office has moved to the holding yard and will remain there.

  1. In a letter written by his solicitor to the Agency on 3 September 2012 Mr Kaldas offered to also:

  • Have all incoming and outgoing telephone calls recorded 24/7 to be available to RMS for any complaint.
  • Fit a computer system in each truck, with a separate email address for each truck, to receive jobs and data. These would have a "big size memory so we can keep record of jobs for about 24 months."
  • For 2 years, between the hours of 9am to 5pm Monday to Friday, have all phones will be answered in the first priority by Sedat Kerman. If he is not available, then they will divert to Mary Bishay, and then, finally, they will divert to Hany Kaldas. "Sedat & Mary are to allocate towing jobs to the drivers. Outside of those hours Hany can answer the phone. Standing Orders to Sedat & Mary are to handle the operational aspects of the business, any enquiry that relates to the management of the business (not just simple towing) or serious operational matters requiring management input should be directed to Hany."
  • "No credit card payments in advance, only after the job is completed."
  • "Holding yard stock-take to be done by manger every fortnight for holding yard and logs for drivers to fix any drivers mistakes by writing file note only for any towing authority mistakes."

  1. In his statement dated 5 September 2012 Mr Kaldas said he is prepared to implement those changes.

Discussion and Evaluation

  1. The Agency submissions were directed to each of the offences that Mr Kaldas has been convicted of, and of their impact, individually and cumulatively, on his fitness and propriety to hold a two truck operators licence and drivers certificate, and with respect to the public interest requiring that he no longer continue to do so.

  1. It is therefore convenient to consider each the offences individually and then to address their cumulative impact on his fitness and propriety and on the public interest.

  1. With respect to offence A there is no dispute that Ms O'Brien GPS was removed from her vehicle and taken into Mr Kaldas' office to prevent it being stolen and that while in Mr Kaldas' office it was used and written on. There is no evidence as to who used it and Mr Kaldas denies doing so. While there is a conflict between Mr Siahos and Mr Kaldas as to who removed it from the vehicle, there is no dispute that the purpose of its removal was safekeeping. Unfortunately it was used and marked with a biro while in Mr Kaldas' custody for safe keeping. This points to the system in place for caring for customers good being inadequate, as does the fact that Ms O'Brien had to chase it up rather than being informed that it was held in safe keeping.

  1. Offence B is a strict liability offence under which Mr Kaldas is liable for his drivers failure to comply with a requirement of the Regulation. The evidence before me shows that the driver offered the Agency an explanation for his failure to do so: i.e. that he was in shock as a consequence of the accident and had been ordered by Police to clear the accident scene. In addition, the numerous duly completed towing authorisations completed by him, both before and after that event, point to the fact that he usually complies with that regulatory requirement. I accept this is the case.

  1. Offences C and D and E and F relate to the credit card charge that Mr Kaldas took from Ms Zhan and Ms Curtis and for a tows they had organised, but then cancelled and gave to other companies. The facts in both cases demonstrate that Mr Kaldas personally took the customer's credit card details and charged a towing fee for work that was not actually done without providing an invoice to the customers. This is a practice that Mr Siahos said Mr Kaldas does to everyone, although there is no other evidence before me demonstrating that that is the case.

  1. In each case there is evidence that Mr Kaldas was rude and abusive, in Ms Zhan's case to Mr Assadourian, and, in Ms Curtis' case to Ms Curtis herself and to Mr Musri. This raises concerns about Mr Kaldas' customer relations and complaint handling skills.

  1. It is to be noted that Mr Kaldas had legal advise with respect to whether or not he could make quantum meruit type claims in respect of towing work not done. As I understand that argument was advanced and rejected in the criminal prosecution. I do accept however, that there is no evidence that Mr Kaldas charged the credit cards of his customers dishonestly, in the sense of believing that had no entitlement to be paid for the work. The fact that the District Court imposed no penalties for offence C and E supports this. Nonetheless, he clearly breached demanded payment without providing an invoice.

  1. Mr Kaldas' failure to include his operators licence number on internet advertising in offence G is a clear breach of s 71(2). The fact that others are guilty of the same omission does not excuse Mr Kaldas' non-compliance. He undertook to remedy the offence, and that there is no evidence that he failed to do so.

  1. Offences H and I relate to the storage of Ms Jenning's vehicle in an authorised holding yard and the failure to make a record of the date of use of the tow truck by the driver as required by s 60(2)(b)(i). There is a dispute between Mr Kaldas and the driver, Mr Diamond, as to whether or not Mr Kaldas told Mr Diamond it was a cash job. That dispute is not relevant to the matter about which Mr Kaldas was convicted. I should add that given the conflicts in evidence I am not persuaded that Mr Kaldas did tell Mr Diamond that it was a cash job.

  1. Offence J concerns the alteration of time on a towing authorisation. Mr Kaldas agrees that the time was altered but gives the reason for doing as the correction of a mistake made by the driver. He says the alteration was made with the driver. The evidence from Mr Singh, the owner of the vehicle in question, points to the times originally endorsed on the towing authorisation being correct. That Mr Kaldas breached s 53 of the TTI Act by altering the authorisation is not disputed. His motivations for doing so are. The Agency suggests a dishonest motivation on Mr Kaldas' part, to enable him to charge towing fees at the out of hours rate. On the evidence, however, I am not persuaded that this is the case. Mr Kaldas says he made the alteration in the belief that the time written on the authorisation was incorrect. There is no evidence before me which demonstrates that he knew this to be the case. In those circumstances I am not satisfied that Mr Kaldas was acting dishonestly when he altered the towing authorisation.

  1. Offences K, L, M that concern the failure to make three separate entries in a holding yard register in April and May 2009. The respondent's position was that these were not simply bookkeeping errors as maintained by Mr Kaldas. The Agency voiced a suspicion of dishonesty associated with this and other transaction, which it suggested might explain Mr Kaldas' tendency to disregard regulatory requirements.

  1. I have grave difficulty with this submission. There is uncontradicted evidence from Mr Kaldas that his tow truck logs and invoices record the placement of the vehicles in the holding yard. Given the assiduous efforts of the Agency in gathering evidence for these matters, I have no doubt that, if that assertion were incorrect, there would be evidence of it before me, and that Mr Kaldas would have faced charges relating to failures to keep those records. As I accept Mr Kaldas' evidence that the relevant tow truck logs and tax invoices exist, I can see no basis for the suspicion of dishonesty arising from these transactions. The Agency has not pointed to evidence or material which justifies that suspicion, let alone demonstrates active dishonesty on Mr Kaldas' part.

  1. Cumulatively Mr Kaldas' records certainly show that that there have been a series of regulatory breaches detected within his towing business, that demonstrate failures by Mr Kaldas and his employees to comply with the record keeping requirements of the TTI Act and Regulation. Those record keeping requirements are not just bureaucratic strictures, but are designed and implemented for the protection of the public in the orderly regulation of the towing industry, and the protection of persons and property from exploitation, intimidation and theft.

  1. The Agency submitted that a suspicion of dishonesty surrounded offences K, L and M. I have already rejected that submission. Similar questions concerning Mr Kaldas' motivations were raised with respect to offences C and D and E and F, with the implicit suggestion that Mr Kaldas knew that he was acting dishonestly when demanding fees for towing work not done. As I have already indicated I accept that Mr Kaldas acted in the belief that he was entitled to charge for work contracted for but not actually done. That he was incorrect in that belief is clear. Given that I accept that he had that belief, I do not accept that his conduct can be characterised as dishonest. Similarly, with respect to offence J, while I understand the reasons for suspicion, the evidence does not satisfy me that Mr Kaldas dishonestly altered the time on the towing authorisation.

  1. I am not satisfied that any of the conduct alleged against Mr Kaldas demonstrates dishonesty in his dealing with the public.

  1. The failure to issue an invoice before demanding payment does demonstrate a clear breach of clause 51(2) and a failure by Mr Kaldas to comply with the Regulation. Similarly, offence G demonstrates a clear failure to comply with the advertising requirements of s 71(2). Mr Kaldas has given no acceptable explanation for this conduct.

  1. What the evidence also demonstrates is that Mr Kaldas has a habit of resorting to offensive language when confronted with dissent or questioned. While he denies this, the weight of the evidence concerning him resorting to offensive language with customers and employees persuades me that he has a short fuse, and an aggressive and abrupt manner, when his actions are questioned. This is an unacceptable reaction when dealing with the public.

  1. In addition, the record demonstrates a series of breaches of the regulatory requirements imposed on the tow truck industry committed by drivers for which Mr Kaldas is vicariously liable. With respect to those offences I think it important to note that the evidence of Mr Kaldas' employees is that he requires them to comply with all the regulatory requirements and checks that they do so. Given the size of Mr Kaldas' business, the number of trucks and drivers in his employ, it is inevitable that there will be occasional breaches of regulatory requirements committed by drivers, for which Mr Kaldas is vicariously liable.

  1. Overall in my view, the matters alleged against Mr Kaldas demonstrate that he is generally compliant with the regulatory regime and seeks to ensure that his employees abide by those requirements. He has poor customer relations skills and is inclined to fly off the handle when confronted by a situation not to his liking and to resort to abusive language. I am not persuaded that he has acted dishonestly.

  1. To his credit is the fact that no offences have been alleged against him since 2010 and the actions he has taken to improve his business operation and comply with the regulatory regime since then.

Is Mr Kaldas a fit and proper person to hold a drivers certificate and an operators licence?

  1. In determining a review of a decision to cancel an authority the Tribunal's focus is not on disciplining or punishing the authority holder, but on protecting the public interest. As Kirby P explained in Pillai v Messiter [No.2] (1989) 16 NSWLR 197 at 201, albeit he was concerned with a medical practitioner:-

"... The public needs to be protected from delinquents and wrong-doers within professions. It also needs to be protected from seriously incompetent professional people who are ignorant of basic rules or indifferent as to rudimentary professional requirements. Such people should be removed from the register or from the relevant roll of practitioners, at least until they can demonstrate that their disqualifying imperfections have been removed ..."

  1. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321,Chief Justice Mason explained that, at 380:

'The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.'

Toohey and Gaudron JJ said at 380:

"The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question."

  1. In Palumberi -v- General Manager, Tow Truck Authority of New South Wales [2001] NSWADT 206 Deputy President Hennessey adopted part of that well known passage in the context of the Tow Truck Industry Act 1998.

  1. A person's fitness is to be gauged in the light the nature and purpose of the activities that the person will undertake: Hughes and Vale Pty Ltd v New South Wales(No. 2) (1955) 93 CLR 127. Knowledge, ability, moral integrity and rectitude of character necessary to fulfil the role for which a licence is sought are proper considerations: Sobey v Commercial and Private Agents Board 20 SASR 70. Criminal convictions can be of grate importance in such as assessment: the more so where the activity to be undertaken requires public confidence and reliance of the propriety and integrity of the licensed person: Raymond Robbins v Business Licensing Authority (2000) VCAT 457. Thus the nature of the industry, in which the person concerned wishes to operate, affects a consideration of whether a person is a "fit and proper person" to operate in that industry. In Haining v Commissioner of Police, NSW Police Service (1999) NSWADT 6 at [41] the President of this Tribunal made the following comments on the issue, in the context of the security industry:

`Whether a person is `fit and proper' to hold a licence in a regulated industry will be affected by general considerations relating to the character of the person, special considerations that take account of the nature of the industry in issue and the public policy objective leading the legislature to regulate the industry.'

  1. Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability is the context of the role they are seeking to undertake. The discretion vested in a decision maker in determining whether a person is fit and proper, in any given context, was said by the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389, per Northrop, Miles and French JJ, to "give wide scope for judgement and allow broad bases for rejection."

  1. In Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 the Appeal Panel, at [37] the Appeal Panel drew attention to the role public interest considerations play in the assessment of fitness and propriety.

The courts have emphasised the connection that assessment of repute, fitness and propriety have in a regulated context with public interest considerations. Repute, fitness and propriety involve concepts that should not be 'narrowly construed or confined' and may extend to 'any aspect of fitness and propriety that is relevant to the public interest' (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (26 July 1990) at [64] per Mason CJ. ....

  1. The comments of Kirby P in Pillai v Messiter [No.2], quoted above, are an example of this.

  1. One of the grounds upon which the Agency cancelled Mr Kaldas' operators licence and drivers certificate is that Mr Kaldas is not a fit and proper person to hold either. In support of those conclusions the Agency relied on the offences against the TTI Act and Regulation of which Mr Kaldas has been convicted, and on all the evidence contained in the section 58 documents.

  1. Given the conclusions I have reached with respect to Mr Kaldas' conduct I am not persuaded that his offending behaviour so departs from proper standards for a tow truck operator and driver that he is not a fit and proper person to continue in either role. In saying that I do not intend to minimise in any way the seriousness of the matters of which Mr Kaldas has been convicted. Rather they need to be viewed in the context in which they occurred.

  1. That context is not one in which Mr Kaldas was acting as a tow truck driver, but in every case related to his conduct as an operator. While I accept that the convictions demonstrate breaches of the Act and Regulation by Mr Kaldas personally as well as vicariously, I am not persuaded in the context of the regulated industry and the TTI Act, and given Mr Kaldas' history of involvement in the industry, that, in the absence of dishonesty, they justify a finding that Mr Kaldas is not a fit and proper person to hold either an operators licence or a drivers certificate. It is I think important to note that offences against the Act and Regulation, without more, do not constitute a ground for automatic disqualification from obtaining an operators licence or drivers certificate: see clauses 7 and 16 of the Regulation.

  1. In reaching that conclusion I emphasise that whether or not the evidence demonstrates that a person is a fit and proper is a matter of judgement. In my judgement the evidence in this case does not go so far as to require that conclusion. That does not mean that I consider Mr Kaldas pristine. The evidence demonstrates he is not. The conclusion I reach is that in the context of the tow truck industry I am satisfied he is a fit and proper person. That conclusion would not necessarily apply in a different regulated environment. It is a conclusion reached on balance, and does not mean that the evidence relied on by the Agency did not raise legitimate questions as to his fitness and propriety. The evidence does raise such issues, and should sound a salutary warning to Mr Kaldas that further offences may well tip the balance.

Does the public interest require the Mr Kaldas' operators licence and drivers certificate be cancelled.

  1. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25] the Appeal Panel said in the context of a security industry licence:

"25 The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal."

  1. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual: Director of Public Prosecutions v Smith (1991) 1 VR 63.

  1. In Ibrahim v Commissioner of Police [2009] NSWADT 245 Montgomery JM discussed the meaning of the public interest, again in the context of the security industry :

46 'Public interest' embraces standards acknowledged to be 'for the good order of society and for the well being of its members': Director of Public Prosecutions v Smith(1991) 1 VR 63. The purpose of a reference in legislation to 'the public interest' is 'to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the [decision-maker's] consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 (at page 681). The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals: Director of Public Prosecutions v Smith.
47 The discretion to issue a licence must be exercised keeping in mind the activities that the person will be engaged in if the licence is granted. Accordingly, the objects and purposes of the Act are relevant i.e. the regulation of the security industry to maintain public safety and to ensure that those who are licensed to operate in the industry are appropriately qualified and persons of integrity: O'Neill v Commissioner of Police, NSW Police [2005] NSWADT 130. The security industry has a special role in ensuring that public order is maintained, in safeguarding community assets and private property and in ensuring that the public and public venues are safe: Haining v Commissioner of Police[1999] NSWADT 6.

  1. In the context of the firearms legislation the public interest requires that all licensees be aware of, and comply with, the legislative requirements: Cook v The Commissioner of Police [2003] NSWADT 30. Thus with that legislation, which provides that possession and use of a firearm is a privilege, the public needs to be confident that those who are afforded the privilege of a firearms licence actually store their firearms in accordance with the legislative requirements: Morris v The Commissioner of Police [2002] NSWADT 223.

  1. In the context of the TTI Act the public interest underlying the objects and purposes of the Act are not the subject of specific provisions in the Act. A reading of the Act makes it clear however that among its major purposes are consumer protection, and the regulation of the industry so as to ensure the honesty and integrity of its operations, and to prevent their involvement in illegal and organised activities such as rebirthing.

  1. In Mr Kaldas' case, despite the Agency's submissions to the contrary, I am not persuaded that he has acted dishonesty or operated his business dishonestly. There is evidence that points to him having an abrupt, abrasive and at times offensive manner towards customers, with inadequate internal systems within his business for the care of customers property and relating to dispute resolution.

  1. Importantly there is no evidence that those problems affect his conduct as the holder of a drivers certificate. They appear restricted to his business management under his operators licence.

  1. In my opinion those difficulties raise public interest concerns with respect to the manner in which Mr Kaldas deals with the public, as the holder of an operators licence under the TTI Act. I accept that there is a legitimate issue as to whether his treatment of the public, combined with his demonstrated breaches of the Act and the Regulation, warrants the cancellation of his operator's certificate in the public interest. I do not accept that similar public interest considerations arise with respect to his drivers certificate.

  1. The evidence demonstrates that Mr Kaldas had dealt with customers in a manner that was rude, aggressive and inappropriate. That at the same time he also breached provisions of the TTI Act with respect to invoicing highlights the seriousness of the issue. There is no evidence of Mr Kaldas treating other members of the public in such a manner since the charges were brought against him.

  1. Mr Kaldas has offered to accept a number of the changes he has already implemented in his business as well as set out in his letter of 3 September 2012 as conditions on his operators licence, in order to address these concerns. While I accept that some of those proposed conditions are appropriate, that is not the case with all of them. For example, referring complainants to his solicitor for determination is not an appropriate or fair way in which to treat dissatisfied consumers. It reeks of escalation, despite the fact that that may not be the intention.

  1. It does seem to me, however, that the changes implement or proposed by Mr Kaldas, or similar changes, have real potential to address the customer care and consumer protection concerns relating to Mr Kaldas management of his business. I consider that they should be tried before taking the drastic step of refusing his operators licence. I think that those condition should include a requirement require that Mr Kaldas undergo accredited training in (a) customer care, and (b) complaint handling for managers, before he again deals directly with the public.

  1. He should also maintain, and allow the Agency to inspect, a register of property taken from vehicles in his custody in which is recorded:

  • A description of the property.
  • Details do the vehicle from which it was removed.
  • The date it was removed.
  • Where it is stored for safekeeping.
  • When the other party to the tow contract was advised that the property was being held by the operator.
  • The date upon which the property was collected or returned.
  • To whom it was collected or returned.
  • An acknowledgement by the person of receipt.

Conclusion

  1. With respect to Mr Kaldas drivers certificate I am satisfied that he is a fit and proper person to hold such a certificate and that the public interest does not require that his application be refused. As a consequence I set aside the decision under review with respect to his drivers certificate and grant his application for a drivers certificate.

  1. Section 20(1) of the TTI Act contemplates operators licences being issued subject to conditions. Obviously such condition must be reasonably capable of enforcement, and must not be inconsistent with the attributes required of a licence holder: see Health Care Compliant Commission v Litchfield (1997) 41 NSWLR 631. Because I am satisfied that Mr Kaldas is a fit and proper person to hold an operators licence and that with appropriate conditions the public interest does not require that his application be refused, I will I set aside the decision under review with respect to his operators licence and grant his application for a operators licence subject to the following conditions.

1) That the licensed operator fit a computer system in each of the operators' tow trucks, with a separate email address for each truck, to receive jobs and data electronically, and that such data be backed up and available for inspection by RMS for a period of at least two years.

2) Within three months of the publication of these reasons the licensed operator at his own expense is to enrol in and commence studying a recognised training course in customer care approved by RMS.

3) Within three months of the publication of these reasons the licensed operator at his own expense is to enrol in and commence studying a recognised training course in complaint handling for managers approved by RMS.

4) The licensed operator shall complete each of the courses referred to in conditions (2) and (3) above and shall provide RMS with proof of attendance and completion.

5) The licensed operator shall, subject to compliance with applicable listening devices legislation, record all incoming customer calls and retain those records for at least three months.

6) Until such time as the licensed operator has successfully completed the course referred to in paragraph 2 above, the operator shall delegate all dealings with consumers to an employee no matter what the hour.

7) Until such time as the licensed operator has successfully completed the course referred to in paragraph 3 above, the operator shall delegate all dealings with consumers concerning consumer complaints to an employee no matter what the hour. To avoid doubt, this does require the licensed operator to delegate decision making with respect to such complaints.

8) Within 28 days of the publication of these reasons that licensed operator shall create and keep a register of property taken from vehicles in his custody in which is recorded, at minimum, the matters set out paragraph 123 of these reasons. The licensed operator should produce that register to RMS for inspection on request.

I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

Registrar

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Decision last updated: 23 January 2013

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