Khan v Commissioner, Department of Corrective Services

[2002] NSWADT 209

CITATION:	Archmor Investment Pty Ltd & Anor v Director General, Department of Transport [2002] NSWADT 209
DIVISION:	General Division
PARTIES:	APPLICANTS Archmor Investment Pty Ltd & Canberra Coach Pty Ltd RESPONDENT Director General, Department of Transport
FILE NUMBER:	023134
HEARING DATES:	21/08/02, 14/10/02, 15/10/02
SUBMISSIONS CLOSED:	10/15/2002
DATE OF DECISION:	10/23/2002
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	Passenger Transport Act - tourist service operator - cancellation of accreditation - Tourist Service operator - cancellation of accreditation
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Passenger Transport (Bus Services) Regulation 2000 Passenger Transport Act 1990
CASES CITED:	Australian Broadcasting Tribunal v Bond and Ors (1990) 170 CLR 321
REPRESENTATION:	APPLICANT A Shearer RESPONDENT D Jordan, barrister
ORDERS:	1. The decision of the Director General to cancel the accreditation of Archmor Investment Pty Ltd and Canberra Coach Pty Ltd is affirmed.

1 On 18 June 2002, the Director General, Department of Transport (the Director General) cancelled the Tourist Service Accreditation of Archmor Investment Pty Ltd (No. 14327) and Canberra Coach Pty Ltd (No 15791). The proceedings in relation to the review of each decision was joined and heard together.

2 Archmor Investment Pty Ltd currently owns nine buses used to operate a business known as Canberra Coach Pty Ltd. Canberra Coach Pty Ltd was previously known as CTM Australia Transport Pty Ltd. The name of Canberra Coach Pty Limited was changed on 31 August 1999 to Archmor Coach Pty Limited. Apparently the Department failed to update their records in relation to this name change and Canberra Coach Pty Ltd remained as the accredited operator.

3 Mr Shearer and his family own Archmor Investment Pty Ltd and Canberra Coach Pty Ltd is owned jointly by Mr Shearer’s family and Mr Chandler’s family.

4 The decisions to cancel both accreditations were made following an audit of the two operators by officers from the Department of Transport in February 2002. It was agreed when the audit commenced that it would cover the operations of three entities, Archmor Investment Pty Ltd, Canberra Coach Pty Ltd and Archmor Coach Pty Ltd. Numerous concerns were raised in the audit, however at the hearing the Director General focused on four matters in particular. Only the most serious matters which were listed as grounds for cancelling the accreditations are dealt with in this decision. All the matters relate to both operators.

Jurisdiction

5 Section 10 of the Passenger Transport Act 1990 (the Act) gives the Director General power, among other things, to cancel an operator’s accreditation. The Tribunal has power to review that decision pursuant to s 52 of the Act and s 38 of the Administrative Decisions Tribunal Act 1997 (ADT Act).

Statement of reasons

6 The basis for the cancellation decisions was that there had been various breaches of the legislative and other standards required of accredited operators and that Mr Archibald Shearer, Managing Director of both companies, can no longer be considered to be of good repute and in all other respects fit and proper to be responsible for the operation of a public passenger service.

7 The Tribunal granted leave under s 55 of the ADT Act to hear the matter despite the fact that the reviewable decisions had not been the subject of an internal review under s 53 of the ADT Act.

Certificate of accreditation

8 The Director General alleged that Mr Shearer, or someone under his direction, falsified a Certificate of Accreditation by changing the accreditation from two buses to ten vehicles. Mr Jordan, representing the Director General, put to Mr Shearer that the original certificate in relation to Archmor Investment Pty Ltd issued in 1993 was for two buses and that he used that certificate to fabricate a false certificate showing accreditation for 10 buses. Mr Shearer denied having done so. Currently, according to the Director General, Archmor Investment Pty Ltd is accredited to operate two buses.

9 Mr Shearer produced to the auditors a Certificate of Accreditation for Archmor Investment Pty Ltd dated 7 January 1993 bearing the signature of R Besier, for 10 vehicles. On 22 February 2002, Mr Shearer was shown another certificate for Archmor Investment Pty Ltd, for two buses. That certificate bore the same date and signature as the first certificate. Mr Shearer agreed that Mr Besier’s signature on both certificates was identical in appearance and was in exactly the same position on the page on each certificate.

10 Mr Shearer’s explanation was that although he originally applied for accreditation for two buses in 1993, he was given accreditation for 10 vehicles. Mr Shearer said that when Rod Besier received his application, he suggested that two buses was not enough because of the way things were happening. Mr Shearer said that Mr Besier said to him, “Well, look, I will change the application to 10, and I will send you a certificate for 10.”

11 Mr Besier gave evidence that he has no recollection of any telephone conversations with Mr Shearer to that effect. He denied that he prepared an Accreditation Certificate for 10 vehicles. He said that while both the certificates he was shown bore his signature, he would not have signed two accreditations on the same day to the same company for a different number of buses. Furthermore, any new application for accreditation for more than two vehicles would have had to meet all the requirements including those in relation to financial viability.

12 Mr Shearer was shown several documents from the Department’s file and it was put to him that they were inconsistent with his assertion that he had never seen a Certificate for only two buses in relation to Archmor Investment Pty Ltd until 20 February 2002. These documents, and Mr Shearer’s explanation are set out below:

· the Application for Accreditation to Operate Long Distance and Tourist Coach Services, signed by Mr Shearer and dated 16 December 1992, records that he applied for accreditation in relation to two buses. Mr Shearer agreed that he did apply for accreditation for two buses;

· the covering letter to Mr Shearer from the Department enclosing the Certificate, stated that Archmor Investment Pty Ltd is, from 7 January 1993, “an accredited service operator for the purpose of carrying out a tourist service using two (2) buses.” Mr Shearer said that he cannot recall reading that letter;

· a letter from Mr Shearer to Mr Besier dated 16 December 1993 headed Archmor Investment Pty Ltd Accreditation No 14327 states, in part, that: “Further to your request for an update on this Company’s coach operations I am able to inform you of a successful year. Success in as much as this company was able to bring our second accredited coach into service in Sydney in October.” Mr Shearer’s response was that CTM Australia Transport Pty Limited had four coaches at that time; and

· a fax from Mr Shearer to the Department dated 19 September 1996 headed Archmor Investment Pty Ltd, Accreditation No 14327 states, in part, that: “Due to business expansion this company is to purchase a further 2 coaches, bringing our fleet to 4. Please supply the appropriate forms etc to enable us to comply with the accreditation requirements.” Mr Shearer says that this fax was written by a person on work experience on his instructions and that despite the fact that it was signed by him, it was not accurate. He says he corrected the fax within an hour with another fax. However while the second fax is dated 19 September 1996 it is headed CTM Australia Transport Pty Ltd Accreditation No 15791 and advised the Department of a change of name to Canberra Coach Pty Limited.

13 Mr Shearer was not able to produce the original Certificate of Accreditation for 10 vehicles. Initially Mr Shearer said that he could not produce the original certificate because it was among files put in storage during his move to Canberra. He said that he later found papers relating to an audit by the Department of Transport in 1995 which included a file note in his handwriting saying “June 23/95 Original Acc. Cert X 2 removed during audit ‘an irregularity’ no explanation.” He said that the officer took the original of the certificate on that day.

14 Mr Frank Malone, Compliance Manager with the Department, provided a statement and gave oral evidence to the effect that he conducted an accreditation audit in relation to Archmor Investment Pty Ltd and CTM Australia Pty Limited on 23 June 1995. Mr Malone produced an audit report which he completed in relation to that matter. He said that the report shows that he checked records to ascertain the details of accreditation held by Archmor Investment Pty Ltd and CTM Australia Pty Ltd and that he recorded that Archmor Investment Pty Ltd was accredited to operate two vehicles and CTM was accredited to operate three vehicles. Mr Malone also gave evidence, based on the audit report, that Mr Shearer told him that Archmor Investment Pty Ltd was currently operating two vehicles and CTM was operating three vehicles. Mr Malone denies that he found any irregularity in relation to the accreditation of either company or that he remove any accreditation certificates from the file.

15 When questioned by the Tribunal, Mr Shearer said that he thought the certificate was removed during a second audit in 1996. He admitted that he had not written the file note on 23 June 1995 even though he had written that date on the note. He said that he wrote the file note some time later, but not in recent months.

16 Mr Shearer also said that because the Roads and Traffic Authority (RTA) had registered all his buses, he must have had accreditation for them. He assumed that the RTA would have something on their computer setting out how many vehicles his company was accredited to operate. Mr Shearer read from the certificate of Coach Management Course conducted by the University of Sydney where it says that:

In order to register buses for other than private use, the RTA will insist on citing accreditation prior to parting with the number plate.

17 Mr Shearer said "This is the only real defence I have on this." Mr Shearer later added that the Department had "lost" some of his papers and that the explanation for the certificate for 10 vehicles would be in those lost files.

18 Mr Craig Webster, one of the auditors, gave evidence that he had carefully examined all manual records held in Operator Accreditation Files 14327 for Archmor Investment Pty Ltd and 15791 for Canberra Coach Pty Ltd and all electronic records relating to both operator accreditations. He was unable to locate any application from Archmor Investment Pty Ltd or Mr Shearer to increase the number of buses operated by the company from two to 10 vehicles. He was also unable to find any of the supporting documentation that would have had to have been provided to enable such an application to be considered.

19 Mr Jordan submitted that Mr Shearer had concocted a false certificate and that his motivation was to increase the likelihood that he would be awarded work for which he tendered. Mr Shearer said that he had no motivation to fabricate a certificate because between three different operators he was accredited to operate nine buses.

Findings in relation to certificates of accreditation

20 There is overwhelming evidence that Mr Shearer, or someone under his direction, concocted a false Certificate of Accreditation in the name of Archmor Investment Pty Ltd for ten vehicles.

21 All the documentary and oral evidence, apart from that from Mr Shearer, supports this conclusion. In particular, the fax from Mr Shearer to the Department dated 19 September 1996 requesting an application to increase the fleet to four, is a contemporaneous record which directly contradicts Mr Shearer’s version of events. His explanation that this letter was written by a work experience student and that he signed it without reading it is implausible.

22 Mr Shearer’s credibility was shaken further by his admission that he had not written a file note dated 23 June 1993 on that date. I find that this file note was concocted by Mr Shearer after 23 June 1993 for the purpose of explaining the absence of the original certificate for 10 vehicles and to attribute blame to the Department.

23 Mr Shearer agreed that Mr Besier’s signature on both certificates was identical in appearance and was in the same position on the page. The two documents bear the same date. This evidence provides strong support for my finding that Mr Shearer, or someone under his direction, concocted a false certificate from the original accreditation certificate for two buses.

24 Mr Shearer’s claim that the RTA had registered all his buses is not surprising if Mr Shearer provided the RTA with a false certificate showing accreditation for 10 vehicles. There was no evidence that the RTA has any independent record from the Department of Transport in relation to the number of vehicles each operator is accredited to operate.

Irregularities in Defect Notices

25 Allegation 17 in the Director General’s statement of reasons is that various vehicle defect notices have been signed and cleared by an unknown person not authorised by the RTA for this purpose. Seven vehicle defect notices purporting to be signed by Mr Phil Somerville, an authorised RTA inspector, were produced by Mr Shearer during the course of the audit. They formed part of the sample of documents requested by the auditors.

26 Mr Shearer agreed that the notices contain irregularities including Mr Somerville’s name being misspelt and the signature not being that of Mr Somerville. Mr Shearer did not agree with the Director General’s submission that the stamps on the questionable notices were not the same as the stamp provided as a sample by Mr Somerville.

27 Mr Shearer suggested that one of Mr Somerville’s three employees, possibly Glen, falsified Mr Somerville’s signature and cleared the defects when Mr Somerville was not present. Mr Shearer did not raise this as a possibility when he gave his formal written response to the Department on 29 May 2002. Mr Shearer put to Mr Somerville that when he was away from the office, he instructed his staff to clear the defect notices for Mr Shearer as he was a good customer. Mr Somerville denied having done so and said that defect notices were not cleared unless he was there.

28 In relation to the defect notice which has an Archmor Investment Pty Ltd stamp on it, Mr Shearer said that there was an Archmor Investment stamp at Mr Somerville’s premises as a result of a previous arrangement involving four wheel drive vehicles. The first time Mr Somerville raised this point was in cross examination. He did not put to Mr Somerville that he had in his possession an Archmor Investment stamp.

29 Mr Somerville gave evidence that he was, until 30 June 2002, operating a business called Somerville Truck and Plant Service Pty Ltd (STP Services) at 16 Waine Street, Harbord. He has owned and operated that business since 1987. During that time Mr Shearer has been one of his major customers and he has undertaken vehicle maintenance and cleared defects for Mr Shearer on numerous occasions from about 1997 until 2 May 2001. The last general service he did was on 27 October 2000. Subsequently he did emergency breakdown work.

30 Mr Somerville denied that he completed defect notices dated 15 March 2001 (2 notices), 3 December 2001, 5 December 2000, 31 March 2001, 7 December 2001 or 20 February 2002. He said that the reasons he knows that he did not fill out or sign these notices are that:

· his signature is not on the notices;

· his name is misspelt on several of the notices;

· there is either no stamp on the notices, a stamp that is not his stamp, or a stamp that he believes is not his stamp because the lettering is a different shape and it is slightly more spread out; and

· handwritten records of amounts due and payments received, completed by his wife, do not detail the work which the notices record was carried out by him.

31 Mr Somerville said that he only had one stamp and that he always used his own stamp when clearing defects. He was the only person in his office authorised to clear the defects during the period of time in question. He does not believe that any other employee would have signed the defect notices or accessed the stamp as it was in a locked drawer. In addition there was no record of any invoice for work on those dates, or any payment received for performing that work.

32 Mr Shearer explained that there was no evidence that he had paid Mr Somerville for any of the work on the suspect defect notices because he sent back the invoices saying that he had been overcharged and that the work was not of a suitable standard. He said he did not keep a copy of the invoices, nor did he have any correspondence in support of this assertion.

33 Charlie Gibson was employed by Archmor Investment Pty Ltd as a diesel mechanic and driver from August 2001 to 26 June 2002. Mr Gibson gave evidence that when he first came to work with Mr Shearer Mr Chandler told him that he was a mechanic and that he had the power to write off the defect notices. According to Mr Gibson, Mr Chandler would just write off the notices because there was no time to fix the defects. Mr Gibson spoke to Mr Shearer about writing off the defects, saying that "If you keep writing them off I’m going to get into trouble and could end up in gaol." Mr Shearer said "I’ll keep your arse out of gaol and you just keep on going."

34 One defect notice brought to Mr Shearer’s attention recorded a “major defect” and gave the driver one hour from the time the defect notice was issued to drive the vehicle to an authorised repairer. It was put to Mr Shearer that he would not have been able to comply with this time limit if he drove the vehicle from Queanbeyan, where the notice was issued, to Harbord, where Mr Somerville has his premises.

35 Mr Shearer did not recall the circumstances of this notice but suggested that the RTA would extend the time to 21 days if requested to do so by phone and that it would not have been inconvenient to go to Sydney if that is where the vehicle was headed.

36 Mr Ross Maloney gave evidence by phone. He said that he had been a vehicle inspector with the RTA for ten years from 1979 to 1989. He said that a driver can ask the RTA for an extension of the period during which they can drive a vehicle after a defect notice has been issued. While this request can be made by phone, it would be highly unlikely for a lengthy extension to be given when the original time specified was one hour.

37 Mr Shearer submitted that Mr Somerville was lying about the defect notices, because he still owed Mr Somerville some money. Mr Somerville gave evidence that Mr Shearer had paid him in full on 14 January 2002. Mr Shearer did not put to Mr Somerville in cross-examination that he was lying because Mr Shearer owed him money.

38 It was put to Mr Shearer that he would not have used Somerville to repair or service vehicles after about December 2000 because the vehicles were based mainly in Canberra at that time. Mr Shearer said that vehicles were based in both Sydney and Canberra and that if a vehicle was travelling to Sydney, it was not inconvenient to have it repaired by Mr Somerville.

Findings in relation to defect notices

39 There is sufficient evidence to satisfy me that neither Mr Somerville, nor any of his employees, completed the defect notices in question. I find that Mr Shearer, Mr Chandler or someone under their direction completed the defect notices. Mr Shearer accepted that Mr Somerville did not complete them but tried to implicate one or more of his employees. It is not credible that an employee filled out these notices because Mr Somerville’s records indicate that Mr Shearer was never charged for these repairs or for the completion of the notice. Mr Shearer’s explanation that he returned each of the invoices to Mr Somerville is implausible as there is no documentary or other evidence to corroborate that claim.

40 Mr Shearer’s explanation that Mr Somerville had an Archmor Investment stamp was never put to him in cross examination and was not raised until the end of the hearing. The evidence of Mr Gibson, who has no connection with Mr Somerville, supports my finding that either Mr Shearer, Mr Chandler or someone under their direction completed the defect notices. It was Mr Gibson’s evidence that Mr Chandler told him that he was the mechanic and that he had authority to clear defect notices.

Qualifications for drivers who undertake journeys to the snow

41 Allegation 11 of the Director General’s statement of reasons was that Mr Shearer was unable to demonstrate that drivers who perform snow journeys have been adequately trained and hold the necessary qualifications as required by Point 30 of the operator’s application for accreditation dated 16 December 1992. That declaration states that:

All drivers employed by me/the company to travel to Kosciusko National Park between 1 June and 15 October each year . . . will be appropriately trained and/or experienced in accordance with the Accreditation Standards.

42 Mr Shearer agreed that he had not provided any evidence of his drivers’ qualifications for snow driving to Mr Webster even after that information was requested in writing. In a letter to the Department dated 29 May 2002, Mr Shearer said that:

Drivers in this group required to perform journeys in the snow, are trained by this group to our standard as previously explained, they are then given a Certificate of Competency from the Driver Trainer. I neglected to enclose a copy with previous correspondence. The driver trainer with this group has a snow licence issued by Mr Doug Lever, of Lever Coachlines. This license is recognised by the relevant authorities, I would have thought a license issued by this group would have the same standing as one issued by Mr Lever.

43 Mr Shearer said that the "driver trainer" referred to above is Mr Matheson. When it was put to Mr Shearer that Mr Matheson was not qualified to train other drivers, he said that he was not sure about that but that Mr Matheson was a highly accomplished driver. Mr Shearer insisted that his business was qualified to authorise drivers to drive in snow conditions.

44 Mr Shearer denied receiving a bulletin from the Department dated 9 September 1996 which said, in part, that:

The Department of Transport accepts successful completion by a driver of the Bus and Coach Association of NSW’s Snow Driver, Training Course, or completion of the Driver Education Centre of Australia’s (DECA) Hazardous Conditions Endorsement Course, at Shepparton, Victoria, and one supervised journey into Kosciusko National Park, as meeting this accreditation requirement.

45 Mr Shearer said that he does not interpret this to mean that these courses are the only way of satisfying the Department’s requirements in relation to drivers who undertook journeys to the snow. Mr Shearer said that they train their own drivers for snow journeys and that two of his drivers hold cards from Lever Coachlines which Mr Shearer referred to as a "snow licence." Mr Shearer produced these "licenses" which were laminated business cards with an endorsement on the back saying "This is to verify that Mr Richard Matheson, 1 Grevillia Place, Queanbeyan has been driving in hazardous and snow conditions since 1970" and "This is to certify that Ian Ingram has operated over snow and hazardous conditions in the Kosciusko National Park since 1975." Both these men had previously been employed by Lever Coachlines.

46 Mr Lever gave evidence that he is the proprietor of Bega Valley Coaches and was previously the proprietor of Lever Coachlines in Queanbeyan. He agreed that he issued the cards produced by Mr Shearer. He said that in the past, these cards were sufficient to qualify a driver to drive in snow conditions but that now drivers needed to complete an approved course. He said that Mr Matheson had completed the DECA course. He denied ever having trained any driver to drive in snow conditions.

47 Mr Shearer asserted at the hearing that one of his employees, Mr Matheson holds both the certificates referred to in the bulletin. This is corroborated in part by Mr Lever who said that Mr Matheson did the DECA course, however no evidence was produced, either to the auditors or to the Tribunal, of these qualifications.

Findings in relation to qualification of drivers

48 On the basis of all the evidence I am satisfied that only one of the applicants’ drivers, Mr Matheson, has the requisite qualifications to drive buses in snow conditions. Mr Shearer was under a misapprehension that this driver was qualified to train other drivers and that his company could provide the necessary accreditation.

49 I agree with Mr Shearer that it is not entirely clear, on the basis of the bulletin referred to above, that the courses specified are the only courses which are approved by the Department. Given that there is some uncertainty surrounding this question, I am satisfied that Mr Shearer did not understand what his obligations were in relation to drivers who drive in snow conditions. This does not excuse his behaviour entirely. As the managing director of two accredited operators, Mr Shearer has an obligation to find out what the requirements for drivers are and to abide by them. He failed to do so.

50 In addition, Mr Shearer repeatedly submitted that because Archmor Investment Pty Ltd does not employ drivers, it is under no obligations in relation to those drivers. This line of argument was used in an attempt to excuse and explain various inadequacies in relation to record keeping and compliance with other legislative requirements. I find that Mr Shearer understood, or should have understood, the legislative and other requirements in relation his drivers.

Non-compliance with vehicle maintenance program and qualifications of Mr Chandler

51 Allegation 21 is that the vehicle maintenance program was not complied with. Mr Shearer says that while the records he produced appear to relate to Category "B" vehicles, they actually relate to Category "C" vehicles which only require servicing every 10,000 kilometres rather than every 5,000 kilometres. According to Mr Shearer, the kinds of service performed in relation to those vehicles makes it clear that all except one are Category C vehicles and that the person completing the form did not change the heading to read "Category C."

52 Mr Shearer said that he provided all the relevant records in relation to these vehicles to Mr Webster. He said that the records in relation to the "B" services would be in the file in Canberra. He said he did not bring to Mr Webster’s attention that the records related to "C" services because he did not realise that the wrong form had been used at the time.

53 In relation to the vehicle that is a Category C vehicle, Mr Shearer admits that the vehicle did overrun its service by 2,000 kilometres. This was because it was travelling from Perth and while the vehicle was serviced in Perth, Mr Shearer did not have any record of that service.

54 Mr Charlie Gibson gave evidence that the people involved in the maintenance of the vehicles were himself, Mr Chandler and Mr Fitzpatrick, an apprentice. Mr Gibson gave some general evidence that the standard of maintenance at Canberra Coach was not good and that safety was not a priority. Vehicles often exceeded the kilometre reading when they should have been serviced or subject to safety checks and there were often problems with brakes. For example, on one occasion he advised the owners not to drive a certain vehicle because there was a defect in the brake lining but they just told him not to worry about it.

55 The name "Charlie" is written on the top right hand corner of maintenance schedules for various vehicles dated 18 November 2000, 17 January 2001, 11 April 2001, 16 June 2001, 24 September 2001 and 19 December 2001, Mr Shearer agreed that Mr Webster wrote that name when conducting the audit in February 2002 and that he did so in response to Mr Shearer telling him that Charlie Gibson had carried out the work recorded in those schedules.

56 Mr Gibson gave evidence that he did not complete the maintenance schedules dated 18 November 2000, 17 January 2001, 11 April 2001, 24 April 2001 and 16 June 2001 because he was not employed by Archmor Investment Pty Ltd at those times. Mr Gibson also gave evidence that although he was employed by Archmor Investment Pty Ltd on 24 September 2001 and 19 December 2001 he did not complete those forms. In relation to the schedule dated 14 February 2002, Mr Gibson said that he completed that schedule.

57 Mr Shearer agreed that he told Mr Webster that Mr Gibson had performed certain work without checking the date that he commenced employment. The only explanation he gave for this conduct was that he was mistaken and that the audit was a "high pressure" situation.

58 Mr Shearer attacked Mr Gibson’s credibility by suggesting that he worked on the weekends with another bus company. Mr Gibson agreed that he was working casually with another company on the occasional Friday night and some weekends. Mr Shearer suggested that Mr Gibson had "leaked" information about Archmor Investment Pty Ltd to their competitors. Mr Gibson said that when he put in his resignation, Mr Shearer told him not to come back. Mr Shearer suggested that the reason he told him not to return was that he was a "security risk".

59 A further allegation was that the repair or service work recorded in the schedules was carried out by Michael Chandler, or an apprentice, neither of whom were qualified to carry out that work. Mr Shearer agreed that Mr Webster wrote the name "Michael Chandler" on the maintenance schedules dated 8 August 2001, 13 October 2001 and 7 January 2002 in response to Mr Webster’s questions about who conducted the work recorded on those schedules.

60 Mr Gibson gave evidence that he saw Michael Chandler filling out maintenance schedules. He said that "half the time I’d never get the defect notice and I’d be told by Michael not to worry about it."

61 Mr Shearer was not able to provide a copy of Mr Chandler’s qualifications relating to vehicle maintenance. This requirement is set out in the Institute of Transport Studies document, Maintenance and Safety Requirements, at page 66. In a letter dated 1 March 2002, a Departmental officer asked Mr Shearer to provide "a copy of the trade qualification held by Michael Chandler as a licensed mechanic recognised by the motor vehicle repair industry." He wrote to the Department on 6 March 2002 saying that Mr Chandler held a qualification as a "Motor Vehicle/Heavy Equipment Repairer" from the Belmont Technical College in 1984. Mr Shearer said that Mr Chandler’s qualifications were lost in a house fire some years ago. Further inquiries at Belmont Technical College (now the Hunter Institute of Technology) by the Department revealed that Mr Chandler obtained a Certificate in Fitting and Machining (Trade) course at Belmont Campus in 1982. Mr Shearer said that the fitting and machining qualification is "as close to motor mechanics as one gets."

62 There was no record of any other course completed by Mr Chandler, in particular there was no record of any enrolment in the course of Motor Vehicle/Heavy Equipment Repairer, from the Hunter Institute of Technology. Since June 2002, the only people who have been doing maintenance work on the vehicles are Mr Chandler and the second year apprentice, Mr Fitzpatrick. Mr Shearer agreed that Mr Chandler was not qualified to supervise Mr Fitpatrick but that the TAFE in which Mr Fitzpatrick was enrolled had agreed that Mr Fitzpatrick should remain pending the filling of Mr Gibson’s position.

63 Mr Shearer also said that Mr Chandler was not required to have those qualification in any case because he is a shareholder in Archmor Investment Pty Ltd and therefore, as he owned the vehicles, he is not required to hold a repairer’s licence or a tradesman’s certificate. When questioned about this matter, Mr Shearer agreed that Mr Chandler had never held any shares in Archmor Investment Pty Ltd and did not own the vehicles. According to Mr Shearer, he and Mr Chandler have a "gentleman’s agreement" that shares in Archmor Investment Pty Ltd will be transferred to Mr Chandler at the next Annual General Meeting.

64 Mr Shearer could not explain why he offered five different justifications for Mr Chandler carrying out repair work before eventually conceding that he did not have the requisite qualifications. These justifications were: that he had the requisite qualifications but that the certificates were lost in a fire, that he had qualifications which were “as close . . . as one gets”, that he did not need the qualification because he was the owner of the vehicles and that while he does not have the qualifications required in NSW those qualifications are acceptable in the ACT, and that he was licensed to the Department’s requirements in 1984.

Findings in relation to non-compliance with vehicle maintenance program and qualifications of Mr Chandler

65 I am satisfied with Mr Shearer’s explanation in relation to the vehicle maintenance program sheets for Category B and C vehicles. It is plausible that whoever was working on the vehicles ran out of the relevant sheets. It is also plausible that Mr Shearer did not bring to Mr Webster’s attention that the wrong forms had been used because he did not realise that that was the case at the time.

66 I am not satisfied that Mr Shearer complied with the maintenance program in other respects. It is not plausible that the records in relation to the "B" services would be in the file in Canberra. If they were in those files they would have been produced to the auditor and to the Tribunal.

67 I am satisfied that Mr Chandler was carrying out work as a mechanic when he does not have the necessary qualifications to do so. I find that Mr Shearer’s attempts to establish that Mr Chandler does have the necessary qualifications were dishonest. Similarly, by telling Mr Webster that Mr Gibson had completed certain maintenance records Mr Shearer was being dishonest. He knew that Mr Gibson had not completed that work because he was not employed at those times. His defence that he was in a "high pressure" situation is not convincing.

Register of drivers

68 Allegation 4 of the Director General’s statement of reasons was that the Register of Drivers does not list the expiry date of the five drivers’ authorities listed. Mr Shearer admits that this is the case and says that it was an oversight on his part.

69 Allegation 5 was that the sample driver’s roster obtained during the field audit shows a number of journeys where the drivers listed are not recorded in the Register of Drivers. Mr Shearer’s response to this allegation is that the driver’s roster related to Canberra Coach, not Archmor Investment Pty Ltd. The roster for Archmor Investment Pty Ltd was not completed because of the amalgamation of companies which was occurring at that time. Archmor Investment Pty Ltd does not employ drivers.

70 Allegation 6 is that the Register of Drivers does not comply with s 11 of the Act. Mr Shearer’s response was that since Archmor Investment Pty Ltd does not employ drivers the register was in the name of Canberra Coach Pty Ltd not Archmor Investment Pty Ltd.

71 Allegation 7 was that certain drivers whose names appeared in log books and vehicle monitoring device records were not recorded in the Register of Drivers. Mr Shearer offered the same explanation as for Allegation 6 above.

72 Allegation 8 was that Archmor Investment Pty Ltd’s records do not conform to the requirements in Clause 10(2) of the Passenger Transport (Bus Services) Regulation 2000 which states that the operator of a bus must keep a written record of each driver’s full name and residential address and the dates and times during which the bus was driven by the person. Mr Shearer said that these records were kept by Canberra Coach, not Archmor Investment Pty Ltd. He added that dates and times of journeys are kept in the Operations Manager’s Diary which he made available during the course of the audit.

Findings in relation to Register of Drivers

73 Mr Shearer admitted that there were some deficiencies in his record keeping. The evidence demonstrates that these deficiencies are fundamental and widespread. His explanation that Archmor Investment Pty Ltd does not employ drivers is an attempt to minimise his responsibility in relation to these matters.

Deficiencies in monitoring device records and log books

74 This allegation was that in relation to five sample records, details of which were required to be provided, were not provided. In relation to Sample A, Mr Shearer accepted responsibility for the deficiencies in record keeping but added that the driver in question is an indigenous person who “does not have all the writing skills one would hope for.” In relation to Sample D, Mr Shearer said he has spoken to the driver about poor record keeping. In relation to Samples B, C and E, Mr Shearer explained that the deficiencies all occurred during the current month and he had not checked them at the time of the audit. He accepts responsibility for failing to do so.

Findings in relation to deficiencies in monitoring device records and log books

75 Mr Shearer accepted responsibly for some of the inadequacies relating to record keeping but in relation to other matters he attempted to attribute blame to his employees. It is Mr Shearer’s responsibility to ensure that records are correctly completed.

Miscellaneous

76 One matter which came to light during the course of the hearing was evidence from Mr Gibson that Mr Chandler had telephoned him on 9 October 2002 to say that after the case is over he was going to sue Mr Gibson and take away his house. When questioned by Mr Shearer, Mr Gibson agreed that this comment was made in the context of Mr Chandler reminding Mr Gibson of a confidentiality agreement in his contract of employment. Mr Gibson said that he prepared the statement for the Tribunal in accordance with a notice issued by the Department of Transport.

77 Mr Chandler did not give evidence about what was said during this phone call. Although it is not directly relevant to the matters under consideration in these proceedings, I find that Mr Chandler did threaten to sue Mr Gibson in the course of a telephone conversation on 9 October 2002. That threat was made in circumstances where Mr Chandler knew that Mr Gibson would be giving evidence in these proceedings. Threatening a witness in this way is totally unacceptable.

Legal principles

78 Under s 7 of the Passenger Transport Act 1990, it is an offence to carry on a public passenger service unless the person is an accredited service operator for that service. Section 7(2) provides that the purpose of accreditation is to attest:

(a) that the accredited person is (or, in the case of an accredited corporation, the designated directors and managers of the corporation are) considered to be of good repute and in all other respects fit and proper to be responsible for the operation of a public passenger service ; and
(b) that the accredited person has demonstrated the capacity to meet the government's standards of:
(i) financial viability; and
(ii) safety of passengers and the public; and
(iii) vehicle maintenance,
to the degree and in the manner required in respect of services of the kind specified in the accreditation. (Emphasis added.)

79 The Passenger Transport (Bus Services) Regulation 2000 sets out certain requirements which apply to operators of a bus service. In particular Clause 11 states that:

(1) A person who is or has been the operator of a bus service:
(a) must keep in the English language any record required to be kept by the person under the Act or this Regulation, and
(b) must retain the record for a period of not less than 2 years after the date of the last entry in it, and

(c) must, on demand by an authorised officer, produce the record for inspection, and
(d) must, if required by the Director-General in writing to do so, deliver the record to the Director-General when required.
Maximum penalty: 10 penalty units.
(2) Subclause (1) (a) does not prevent a person from keeping a record referred to in that paragraph in a language other than English if the record is also kept in the English language.

80 Capacity to meet the government's standards. It is abundantly clear from my findings that Mr Shearer does not have the capacity to meet the government’s standards in relation to safety of passengers and the public and vehicle maintenance. (See s 7(b) of the Act.) I am satisfied that Mr Shearer is grossly deficient in his understanding of and compliance with the legislative and non-legislative requirements with which he is either legally obliged to comply or with which he agreed to comply in his application for accreditation.

81 Examples of these deficiencies include the lack of the required qualifications of drivers who undertake journeys in the snow, non-compliance with vehicle maintenance program, deficiencies in relation to the Register of Drivers and deficiencies in monitoring device records and log books.

82 Fitness and propriety. Mr Shearer is the managing director of each of the corporations whose accreditation has been cancelled. Consequently it his fitness and propriety which is relevant. In Australian Broadcasting Tribunal v Bond and Ors (1990) 170 CLR 321 at 380, the High Court was of the view that:

The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from the context, from the activities in which the person is or will be engaged and the ends to be served by those activities.

83 The activities in which Mr Shearer was engaged was operating a coach company. One of the ends to be served by those activities is set out in s 3(e) of the Act, namely:

to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services

84 The provisions of the Act dealing with the accreditation are designed to achieve this end. By behaving dishonestly in relation to activities which are at the core of Mr Shearer’s activities as the director of two accredited operators, he has demonstrated that he not fit and proper to be responsible for the operation of a public passenger service. This dishonest behaviour includes:

· dishonestly concocting or supervising the concoction of a certificate of accreditation for 10 vehicles when the Department had only accredited the company to operate two vehicles;

· dishonestly completing defect notices or supervising the completion of defect notices without the necessary authority to do so; and

· dishonestly representing that Mr Chandler had qualifications which he did not have.

85 Findings of dishonesty do not necessarily mean that a person is not "a fit and proper person" in the context of s 7 of the Act. However, in this case the dishonesty is extremely serious and is directly connected to the activities covered by the accreditation. For these reasons, I affirm the decision of the Director General to cancel the accreditations of Archmor Investment Pty Ltd and Canberra Coach Pty Ltd.