Lloyd v Director General, Department of Transport

[1999] NSWADT 101

CITATION:	Lloyd -v- Director General, Department of Transport [1999] NSWADT 101
DIVISION:	General
APPLICANT:	Nicholas Lloyd
RESPONDENT:	Director General, Department of Transport
FILE NUMBER:	993161
HEARING DATES:	08/16/1999
SUBMISSIONS CLOSED:	08/16/1999
DATE OF DECISION:	1 November 1999
BEFORE:	N Hennessy - Deputy President
PRIMARY LEGISLATION:	Passenger Transport Act 1989
APPLICATION:	Review of decision to cancel public passenger vehicle authority -
MATTER FOR DECISION:	Principal matter
REPRESENTATION:	Applicant: In person Respondent: A Wozniak, solicitor, Smythe & Mallam
ORDERS:	1. The Director General's decision to cancel the applicant's public passenger authority is affirmed.

Background

1 On 16 July 1999 Mr Lloyd lodged an application with the Tribunal for a review of a Decision of the Director General, Department of Transport to cancel his Tourist and Long Distance passenger Authority. The cancellation came about as a result of Mr Lloyd being charged with six counts of obtaining benefit by deception.

2 The applicant applied for an internal review of this decision pointing out that he had admitted to the offences, pleaded guilty and was due to be sentenced in August 1999. He added other background information for consideration in the course of the internal review.

3 The internal review was conducted on 13 July 1999 and the decision was affirmed.

Evidence

4 Mr Lloyd’s oral evidence, corroborated by documents on the Department’s file, reveals that he has been convicted of several dishonesty offences since 1989. While working as a trainee accountant in 1989 he redirected a number of his employer’s customer’s cheques to his own account. The total amount involved was $65,000. He was sentenced on 2 April 1993 in the District Court and placed on a five year good behaviour bond with a condition that he pay $15,200 compensation. He was also ordered to perform 500 hours of community service.

5 Mr Lloyd successfully applied for a taxi licence in the early 1990s and drove for about a year.

6 On 16 May 1994 he was sentenced by the District Court to two counts of breaching of a Community Services Order and was given a further 500 hours of community service on each count.

7 In about 1994 the applicant decided to enter the hire car industry and applied for a Private Hire Vehicle Driver’s Authority from the Department of Transport. He was successful in this application and leased a car which his father drove most of the time.

8 On 24 November 1997 the applicant applied for a renewal of his Private Hire Vehicle Driver’s Authority. The Department sent him a Notice to Show Cause requesting that he submit reasons as to why his application should not be refused in view of his criminal record. The applicant made representations which were accepted. However in their undated letter to the applicant the Department of Transport cautioned Mr Lloyd in the following terms:

I am obliged to warn you that if you come under further adverse notice for criminal offences consideration will be given to your fitness to hold a public passenger vehicle driver’s authority . . .

9 Mr Lloyd agreed that he was “on notice” at that time, however he says he does not want a Hire Car Vehicle Authority, but a Tourist and Long Distance Passenger Authority so that he can continue to drive buses.

10 In May 1998 the applicant stated that the hire car business was no longer viable and rather than employing a driver, he drove the car himself. A friend and colleague in the hire car industry, James Stenmark approached him to get into the business. Mr Lloyd found a hire care plate and negotiated a good deal for Mr Stenmark but he defaulted on his payments to the owner of the plate. To protect his reputation the applicant paid the lease payments. He also allowed Mr Stenmark to use a SIM card attached to his mobile phone account and told him not to overspend.

11 After two or three months the mobile phone bill had not been paid and the phone was barred. This prevented the applicant from using his own phone as well. The applicant used Mr Stenmark’s brother’s credit card, without his permission, to pay for some of the arrears. The applicant said he paid the bill by the phone payment system. Later he used credit card numbers belonging to his own hire car customers to pay the bills. Some time later he was informed that a complaint had been made to North Sydney Police regarding the improper use of credit cards.

12 On 13 May 1999 the applicant was arrested and charged with six counts of obtaining benefit by deception. He was convicted on 11 August 1999. He was released on a bond for three years and ordered to perform 350 hours of community service and to attend the Probation and Parole Service for counselling.

13 When he was arrested, the applicant stopped driving hire cars and, at the end of 1998, applied for a Tourist and Long Distance Vehicle Authority. After receiving this authority he worked as a coach driver for Westbus Pty Ltd but since this authority has been cancelled he has been washing buses at night. John Barlow of Westbus Pty Ltd provided a reference saying that the applicant had been honest and reliable and that he was happy to employ him again. He would not be handling cash or credit cards as a coach driver.

14 Two other matters were raised by the respondent. The first was that there had been a complaint from a passenger that a cab charge voucher for a trip from the Airport to the City had been changed from a total of $42.00 to a total or $242.00. Mr Lloyd said he had been interviewed by the police about this matter but had not been charged. Given Mr Lloyd’s denial there is insufficient evidence to find that he changed the voucher.

15 The second matter related to the fact that the hire car Mr Lloyd drove was only licensed for journeys emanating from and returning to Mittagong, Moss Vale and Bowral. Reports had been made to the Motor Traders’ Association of NSW that the vehicle was regularly operating in the Sydney metropolitan area in contravention of the licence conditions. Mr Lloyd admitted that he had “cheated the system” by driving in Sydney.

16 The applicant is married and their first child is due in December. He has now declared himself bankrupt and says he has “accepted my responsibility and suffered great financial difficulties as a direct result of these charges.” He said that he has extracted himself from the hire car industry and won’t put himself in the same position again. He said that he is addressing his problems with the help of counselling and feels that he will not commit any offences in the future.

17 The applicant tendered a reference from his father, Alan Lloyd, who stated that his son is regarded as hard working, reliable and competent by people in the transport industry. He said his family will support him in his rehabilitation and that his past actions have not involved violence.

Legislation

18 Section 12 of the Passenger Transport Act gives the Director General a discretion to grant authorities, having regard to the purpose of that authority. Sub-section 11(2) sets out the purpose of an authority in the following terms:

The purpose of an authority under this Division is to attest:

(a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle; and

(b) that the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates:

(i) in accordance with the conditions under which a public passenger service is operated; and

(ii) in accordance with law and custom.

19 I have discussed the concepts of “fit and proper” and “good repute” in previous cases (See Saadieh v Director General Department of Transport [1999] NSWADT 68; and Singh v Director General Department of Transport [1999] ADT 96) and will not repeat that analysis here. These decisions can be found on the Tribunal’s internet site: In Saadieh v Director General, Department of Transport I set out a number of factors, based on the terms of the legislation and the case law interpreting similar provisions, that need to be taken into account in determining a person's suitability and fitness to obtain an authority. These factors were:

• the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted;
• the nature, seriousness and frequency of any complaints made against the applicant;
• the applicant's driving record;
• the applicant's reputation in the community; and
• the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences.

21 In this case, the applicant has been convicted on two occasions of serious dishonesty offences. The amount involved on the first occasion was $65,000 while on the second it appears to have been much less - $3,000 or $4,000. The most recent offences involved using credit card details obtained from passengers.

22 The applicant admitted driving in the Sydney area when his authority was confined to the Southern Highlands region. The fact that he breached his licence condition is also evidence of dishonesty.

23 The likelihood that the applicant will re-offend is always difficult to predict. The applicant says that the first group of offences occurred over 10 years ago and he did not re-offend for 9 years after that. He says he was motivated by desperation in committing the most recent offences and recognises that he has a weakness when it comes to helping other people in trouble. Mr Lloyd made the point that he is applying for an authority to drive a bus, not a hire car, and there would be no opportunity in that situation to handle money or credit card details.

24 A report from Dr David Collison of the Salvation Army states that Mr Lloyd saw him for counselling. He noted that Mr Lloyd recognises the need for counselling and is willing to receive help. He concluded that, “In my opinion, compared to other people who I have seen in similar circumstances, Mr Lloyd is genuinely seeking professional help and will continue in therapy with myself.”

25 The applicant is still on a bond and has only just commenced counselling. Although he was contrite in relation to the offences he committed in 1989, he committed further offences in 1998.

26 Dishonesty offences involving a breach of the trust that exists between a driver and passenger reflect adversely on the applicant’s character. Even though he may not have the opportunity to perpetrate such offences on bus passengers, the fact that he is still on a bond and undergoing counselling means that it is too soon for the travelling public to be confident that he is a “fit and proper” person to be a bus driver. In my view some reasonable period of time needs to elapse before the community can be confident that Mr Lloyd has undergone genuine rehabilitation, especially in view of the fact that he has a history of convictions for dishonesty offences.

27 For these reasons I affirm the respondent’s decision to cancel the applicant’s Tourist and Long Distance Passenger Authority.