Loye v Director General, Department of Transport

[2000] NSWADT 145

CITATION:	Loye -v- Director General, Department of Transport [2000] NSWADT 145
DIVISION:	General Division
PARTIES:	APPLICANT Charles Loye RESPONDENT Director General, Department of Transport
FILE NUMBER:	003210
HEARING DATES:	8 August 2000
SUBMISSIONS CLOSED:	08/08/2000
DATE OF DECISION:	10/16/2000
BEFORE:	Rice S - Judicial Member
APPLICATION:	Bus driver - grant of authority - Passenger Transport Act - bus driver - grant of authority
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Passenger Transport Act 1990
CASES CITED:	Manwaring v R [1983] 2 NSWLR 82 Saadieh v Director-General, Department of Transport [1999] NSWADT 68 Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 Goody v Oldhams Press [1967] 1 QB 333; [1966] 3 All ER R v Rowton (1865) Singh v Director General, Department of Transport [1999] NSWADT 96 Farquharson v Director General, Department of Transport [1999] NSWADT 53 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
REPRESENTATION:	In person A Wozniak, solicitor
ORDERS:	The decision under review is affirmed

1 By letter dated 22 March 2000 the State Transit Authority of NSW (‘State Transit’) acknowledged receipt of Mr Charles Loye’s application for a Bus Operator position. Mr Loye was subsequently invited to attend a selection test on 14 April, and an interview on 18 April.

2 At some stage in the process of applying to State Transit for a Bus Operator position Mr Loye necessarily applied to the Department of Transport (‘the Department’) for a public passenger vehicle authority.

3 On 27 April the Department sought from the NSW Police Service a Criminal Record Check on Mr Loye. A printout of Mr Loye’s Criminal History was generated on 1 May, and of his Traffic Record on 8 May.

4 By letter dated 10 May 2000 the Department advised Mr Loye that it had determined to refuse his application for an authority to drive a public passenger vehicle. The letter provided Mr Loye with a statement of reasons, and advised him of his right to an internal review of the decision.

5 On 17 May Mr Loye completed an application for internal review of the decision, and submitted it to the Department under cover of a letter dated 20 May 2000, along with a number of supporting documents.

6 By letter dated 6 May (sic) 2000 the Department advised Mr Loye that the review decision confirmed the initial decision to refuse his application for an authority to drive a public passenger vehicle. It is apparent from the timing of the letter and from a copy of an internal Departmental memo on the Department’s file that this letter should correctly have been dated 6 June 2000.

Reasons for refusal

7 An authority to drive a public passenger vehicle is issued by the Director General under ss 11 and 12 of the Passenger Transport Act (PT Act). The effect of those sections is that an authority ‘attests’ to the holder of the authority being considered “to be of good repute”, and to be “in all other respects a fit and proper person to be the driver of a public passenger vehicle”.

8 Further, an authority attests to the holder of the authority being considered “to have sufficient responsibility and aptitude to drive” the relevant vehicle in accordance with both the conditions relating to the relevant passenger service, and “law and custom”.

9 An authority’s purpose is to attest that the holder is so considered. In issuing an authority the Director-General must have regard to that purpose. It is therefore incumbent on the Director-General to be satisfied that an applicant for an authority is so considered.

10 The delegate of the Director-General decided in May 2000 that Mr Loye’s “proven offence record indicates that (he) cannot be considered a person of good repute and in all respects a fit and proper person to drive a public passenger vehicle”. This refers to two requirements found in s11(2)(a) – good repute, and fitness and propriety – and states that solely because of his criminal history Mr Loye fails both requirements.

11 In reviewing this decision the delegated internal review officer confirmed the refusal of Mr Loye’s application, but for different and more extensive reasons.

12 In the delegated review officer’s internal memo to the Director of the Sydney and Western Region, the officer confirms that the original decision “was justified”, and states: “I find that the facts and evidence . . . cast serious doubt on Mr Loye’s ability to abide by law and custom”. This refers to a part only of the requirement under s11(2)(b)(ii), but for present purposes it is sufficiently clear that, in officer’s view, Mr Loye could not be considered to have sufficient responsibility and aptitude to drive a relevant vehicle in accordance with law and custom.

13 The officer’s letter to Mr Loye advising of the review decision confirms that the initial decision “was the appropriate cause(sic) of action”. Stating reasons different from those in the internal memo, the letter states that Mr Loye’s criminal record “indicates that you are not a person of good repute, and in all other respects a fit and proper person to be the holder of a public passenger vehicle authority as defined under Section 11 (2) (a) and/or (b) (I) (sic) and (ii) of the Passenger Transport Act 1990”. This is a confused and inaccurate statement of the way in which s11(2) operates. The reasons given are limited to the two requirements in s11(2)(a).

14 The letter to Mr Loye further states that “your criminal record combined with your driving traffic record show that you do not have sufficient responsibility to drive a passenger vehicle in accordance with law and custom.” This refers to the second of the two requirements in s11(2)(b)(ii), and narrows the finding against Mr Loye to one of insufficiency of responsibility, not of aptitude.

Requirements to be met

15 The issue for this Tribunal is: ‘what is the correct and preferable decision on the basis of the material available to it including any relevant factual material and any applicable written or unwritten law?’ (s63(1) ADTA).

16 Section 11(2) requires Mr Loye to meet six requirements. He must show that he is considered:

· to be of good repute (s11(2)(a))
· to be in all other respects a fit and proper person to be the driver of a public passenger vehicle (s11(2)(a)),
· to have sufficient responsibility to drive a public passenger vehicle in accordance with the conditions under which a public passenger service is operated (s11(2)(b)(i)),
· to have sufficient responsibility to drive a public passenger vehicle in accordance with law and custom (s11(2)(b)(ii)),
· to have sufficient aptitude to drive a public passenger vehicle in accordance with the conditions under which a public passenger service is operated (s11(2)(b)(i)), and
· to have sufficient aptitude to drive a public passenger vehicle in accordance with law and custom (s11(2)(b)(ii)).

17 Despite the all-embracing reference in the letter to “Section 11 (2) (a) and/or (b) (I) and (ii)” in the letter to Mr Loye, it is clear from the correspondence and the Department’s file that the Department does not suggest that Mr Loye fails either requirement of s11(2)(b)(i), or the second requirement of s11(2)(b)(ii).

18 That is certainly the case on the basis of the available material, and is the correct and preferable decision as to Mr Loye’s meeting those requirements. There is no evidence that would support a contention that Mr Loye could be considered not to have either sufficient responsibility to drive a public passenger vehicle in accordance with the conditions under which a public passenger service is operated, or sufficient aptitude to drive a public passenger vehicle in the manner described.

19 The Tribunal is concerned therefore with the correct and preferable decision as to whether Mr Loye is considered:

· to be of good repute (s11(2)(a))
· to be in all other respects a fit and proper person to be the driver of a public passenger vehicle (s11(2)(a))
· to have sufficient responsibility to drive a public passenger vehicle in accordance with law and custom (s11(2)(b)(ii)).

20 If Mr Loye is of good repute then he must also show that “in all other respects”, that is in all respects other than his reputation, he is a fit and proper person to be the driver of a public passenger vehicle. Whether a person is of good repute is an issue related to but different from whether a person is fit and proper for a particular purpose.

21 Being considered to be of good repute is a threshold status in s11(2). If a person is not of good repute there is no need to consider whether they are a fit and proper person to be the driver of a public passenger vehicle.

Requirement of ‘good repute’

22 Mr Loye does not fail to be of good repute simply because he has a criminal history. “The assessment . . . of good character is for the jury; hence it is wrong to direct a jury that evidence of good character is destroyed by proof of convictions . . . ” (Cross on Evidence 6th Aust ed 2000 Sydney, at para 19135, citing Manwaring v R [1983] 2 NSWLR 82 at 86 in relation to the character of an accused person).

23 Similarly, this Tribunal in Saadieh v Director-General, Department of Transport [1999] NSWADT 68 made clear in paragraphs 14 and 15 that an assessment of repute is a matter for the Tribunal, weighing all the evidence, and not determined only by the existence of a criminal history.

24 This Tribunal has on a number of occasions invoked the authority of Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 to the following effect:

A person’s reputation, in fact and in law, is to be found in the estimate of his moral character entertained by some specific group of people, such as those who live in the neighbourhood of his residence, those who work with him or those with whom he associates in his occupation or profession (per Waddell J at page 393).

25 His Honour went on to say “Evidence of conviction for a criminal offence is, however, admissible as evidence, indeed most cogent evidence, of bad reputation”. This seems at odds with the preceding statement quoted above. A person’s repute is an evidentiary issue turning on the estimation of witnesses who know the person. Previous convictions are relevant to this extent:

They are the raw material upon which bad reputation is built up. They have taken place in open court. They are matters of public knowledge. They are acted on by people generally as the best guide to his reputation and standing ( Cross on Evidence 6th Aust ed 2000 Sydney, at para 19165 citing Goody v Oldhams Press [1967] 1 QB 333; [1966] 3 All ER 369 concerning defamation cases)

26 Because convictions are arrived at in open court, it is to be assumed that they are public knowledge and so go to a person’s reputation.

27 The Department submitted in these proceedings that a history of convictions is prima facie evidence of bad repute. That submission was rejected by the Tribunal in Saadieh, and the above authority of Goody v Oldhams Press clearly shows it to be misconceived.

28 Repute is what is thought by others. People take the history of convictions as “the best guide to . . . reputation and standing”. A history of convictions is the basis for bad repute, not evidence of bad repute in itself. A bad reputation is “built up” on the history of convictions.

29 As a matter of law, a criminal history is not evidence of bad repute, but creates a presumption that the person has, among those who know of that history, a bad reputation. It puts the onus on the person to establish their good reputation.

30 As a matter of fact in the particular case, the criminal history is relevant to the extent that it is known in the community, and that it bears on the person’s reputation in that community:

A witness may with perfect truth swear that a man who, to his knowledge, has been a receiver of stolen goods for years, has an excellent character for honesty if he has the good luck to conceal his crimes from his neighbours ( Cross on Evidence 6th Aust ed 2000 Sydney, at para 19110 citing Digest of the Laws of Evidence 12th ed p 201).

31 There is no saying what effect knowledge of the criminal history might have on the estimation of a person’s character, although a positive estimation in spite of knowledge of a criminal history would ordinarily weigh in favour of the person. Whether the person’s criminal history is known in the community will be a factor in assessing what weight to give to the evidence of repute.

32 The Department having identified a history of convictions, the applicant must show that in spite of that history he enjoys a good reputation. Evidence of a person’s repute comes from people who can say what a “specific group of people” think of the person. As well, a person may hold a position in the community from which it is reasonable that a person is well regarded. It is necessary to receive evidence relating to the estimation of those groups referred to in Re T and the Director of Youth and Community Services above. The probative value of that evidence will be the greater the more current it is.

33 At common law a witness’s opinion of a person cannot be evidence of that person’s repute. Evidence was not admissible regarding reputation when given in these terms: “I know nothing of the neighbourhood’s opinion . . . but my own opinion is . . .” (Cross on Evidence 6th Aust ed 2000 Sydney at para 19110 citing R v Rowton (1865) in relation to criminal proceedings).

34 In this Tribunal, not bound by the rules of evidence, a witness’s own opinion of a person may be accepted as evidence of that person’s repute, although the weight to be given to that evidence will depend on the circumstances in which the witness formed the opinion.

Evidence of repute

35 Mr Loye did give evidence as to his reputation, but his reputation is best established by evidence of others, and by inferences from positions he might hold in the community.

36 Relevant to his repute, Mr Loye provided to the Department written references from employers dated March 1991 and, it seems, January 1994. He provided certification of achievement from two professional training institutions, and from a martial arts association, dated variously in the period October 1992 to April 1997. At the hearing he tendered a personal reference from a previous work colleague and friend, Adam Parker.

37 Mr Parker’s reference is a positive one, bearing out Mr Loye’s own evidence that he has been employed continuously for some years, and supporting inferences to be drawn from Mr Loye’s documentary evidence that he has been an active and constructive member of society through volunteer activities and sport. Mr Loye had obtained the reference only days before the hearing. The reference does not refer to any knowledge Mr Parker may have had regarding Mr Loye’s criminal history, and Mr Parker did not attend to give evidence.

38 That is the extent of evidence for Mr Loye regarding his reputation. Other material provided by Mr Loye – his written statement, his resume, and details of his rental bond and agreement – are relevant not to his reputation but to his fitness and propriety.

39 Mr Loye gave evidence that he has been employed in a responsible supervisory position with a contract cleaning company for over 12 months. Before then he had been employed as a warehouse manager for nine or ten months, and had spent some time assisting a friend fit out a shop. He gave evidence of continuing contact with and support from his mother.

40 The Tribunal adjourned the proceedings to give Mr Loye the opportunity to attend with others’ evidence of his reputation, most particularly that of his current employer. He was unable to secure the attendance of his employer to give evidence, or to obtain a written report. His mother did not attend on either occasion.

41 The available evidence as to Mr Loye’s reputation has some weight, but it is insufficient, in the face of his history of convictions, to establish that he is of good repute. Much of Mr Loye’s evidence predates the criminal history.

42 There is only limited recent evidence of Mr Loye’s reputation, and I give less weight to that evidence because it does not show that the person expressing the view is aware of Mr Loye’s criminal history. Nor does it show that the person expressing the view was aware of the purpose for which they were expressing it. Before adjourning the proceedings to allow Mr Loye the opportunity to gather more evidence, I told him that I would require any such evidence to show that the person expressing the view was aware of his history.

Correct and preferable decision

43 On the basis of the relevant factual material and the applicable written and unwritten law, the correct and preferable decision is that Mr Loye should not at this time be issued with an authority attesting to his good repute. His criminal history is not evidence of bad repute, but gives rise to a presumption that he has a bad reputation. He has failed on this occasion to produce sufficient evidence that he is in fact of good repute.

44 I should make clear that Mr Loye’s documents and references are helpful. But in the complete absence of any indication that the reputation he does enjoy is despite knowledge of his criminal history, that evidence is insufficient.

45 The effect of this decision for Mr Loye is that if, as he is entitled to, he reapplies for a Bus Operator position, he will need to show that specific groups of people, such as those who live in his neighbourhood, those who work with him, and/or those with whom he associates in his occupation, have a good opinion of his character despite knowledge of his history of convictions, and know that they are expressing that opinion for the Tribunal to consider..

46 It might be helpful to the Department in its own decision -making, and it would facilitate quicker and more effective proceedings at the Tribunal, if applicants who have to overcome a criminal history in establishing their good repute were aware as early as possible of what they have to establish and how they can best go about it.

47 As to three of the remaining five requirements of s11(2), the Tribunal has already found above (paragraph 18) that the correct and preferable decision is that Mr Loye should be could be considered to have sufficient responsibility to drive a public passenger vehicle in accordance with the conditions under which a public passenger service is operated, and sufficient aptitude to drive a public passenger vehicle in the manner described. There are two further requirements.

‘Fit and proper’

48 If Mr Loye reapplies for a Bus Operator position, he will need to show his fitness and propriety to be the driver of a public passenger vehicle.

49 Assessing fitness and propriety involves considerations different from those relevant to ‘repute’, as this Tribunal discussed in Singh v Director General, Department of Transport [1999] NSWADT 96 at paragraphs 25 to 28, and Farquharson v Director General, Department of Transport [1999] NSWADT 53 at paragraph 27. It is possible that a person is of good repute, but that on examination they are found not to be a fit and proper person for a particular purpose.

50 Mr Loye’s criminal record gave concern to the Department in this regard. The criminal history will not an absolute bar:

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 (per Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at para 63).

51 Considerations generally in relation to fitness and propriety have been set out by the Tribunal in Singh at paras 31 and 32.

52 Because of the decision in this case in relation to the requirement of ‘good repute’ it is not necessary for the Tribunal to make a decision in relation to the requirement of ‘fit and proper’.

‘Law and custom’

53 If Mr Loye reapplies for a Bus Operator position, he will need to show he has sufficient responsibility to drive in accordance with law and custom. Mr Loye’s record of traffic offences gave concern to the Department in this regard, although that record is dated, the most recent entry being over six years ago.

54 Because of the decision in this case in relation to the requirement of ‘good repute’ it is not necessary for the Tribunal to make a decision in relation to the requirement of sufficient responsibility to drive in accordance with law and custom.

Additional observations

55 While having regard to the relevant factual material, the Tribunal noted the manner in which statement of reasons were provided by the Department in this case.

56 The issue discussed below was not raised by or with the parties, and was not the subject of evidence or submissions. The Tribunal notes it so that, consistently with the objects of the ADT Act – s3(f) and (g) - administrative compliance and review in NSW might be enhanced.

57 Section 49 of the ADT Act provides that a statement of reasons relating to an administrator’s reviewable decision can be requested by the applicant. It can be refused in certain circumstances. If provided, the statement must meet the requirements of s49(3): it must set out the findings of fact, the understanding of the law, and the reasoning processes that led to the conclusions made.

58 Under s47 of the PT Act the Director-General is obliged to provide a statement of reasons which meets the requirements of s49(3) of the ADT Act. In this case Mr Yewdall, advising Mr Loye of the reviewable decision, provided Mr Loye with an appropriate statement of reasons.

59 Whether or not reasons under or complying with s49 are given has no bearing on the jurisdiction of this Tribunal to review a reviewable decision. But the ADT Act provides for reasons to be given because:

60 An essential element of good administration is the need to ensure that reasons are given for administrative decisions.

61 The obligation to provide reasons for decisions reached in the exercise of public powers is essential to ensuring accountability.

62 However the most important result of requiring reasons to be given for decisions is that it allows an individual affected by a decision to understand the reasons for that decision and therefore arms the individual with the information necessary to seek review and remedies to ensure administrative justice.

63 (Attorney General’s second reading speech on the Administrative Decisions Tribunal Bill, Hansard 27 June 1997 at page 11280).

64 Separately from the reasons to be provided under s49, s53(7) requires an administrator to give a statement of reasons for an internal review decision. The statement must meet requirements which are identical to those in s49(3) relating to the reviewable decision.

65 In this case Ms Hickey, in her letter of 6 May (June) 2000 advising Mr Loye of the reasons for the internal review decision, does not set out her findings on material questions of fact. Nor does it explicitly set out her understanding of the applicable law. Mr Loye had provided additional material, but the letter does not address it, and appears to rely to some extent on the statement of reasons provided previously under s49.

66 The source of the error might be in Mr Yewdall’s memo of 24 May 2000 to the regional Director, requesting that an individual be directed to deal with the review. In that memo it is said that “the internal reviewer must supply a statement of reasons to the applicant on the outcomes of the review process. This may be the same reason as previously made by the decision-maker”.

67 This is not the case. The word ‘reason’ in the second sentence is incorrect. The decision may be the same, ie the reviewable decision can be affirmed on internal review. But if the applicant has provided any further relevant material, then the findings on material questions of fact will necessarily be different.

68 So, if the statement of reasons for an internal review decision is not provided as required by s53(7), what would follow? Are there practical consequences?

69 There appear to be no sanctions for the administrator, and no adverse consequences for the applicant if, as appears to be the case here, the statement of reasons for the internal review decision are not provided or do not comply with s53(7).

70 The Tribunal is engaged in an exercise of merits review. It reviews the merits of the reviewable decision . The reasons for the internal review decision are not relevant to the Tribunal’s review. The administrator will necessarily have lodged with the Tribunal a statement of reasons under s49 relating to the reviewable decision, and the applicant will have access to those reasons to assist in preparing their case before the Tribunal: s58.

71 The Tribunal’s jurisdiction is not dependent on the provision of a statement of reasons for the internal review decision. The applicant’s time for applying to the Tribunal runs from the date the applicant is notified only “of the outcome of an internal review” (s55(1)(d). Of all the requirements in ss 53(6) and (7) for sufficient notice to the applicant after the completion of a review, including the provision of a statement of reasons, the only requirement relevant to time for applying to the Tribunal is notification of “the outcome” of the internal review.

72 Rather than any practical result, it is the public policy objects of the legislation which are not fulfilled when the statement of reasons for the internal review decision are not provided or do not comply with s53(7).

73 To meet the public policy objects of the Act, and to avoid the risk of the issue being raised and thereby extending the time and expense of future proceedings, it would help if the Department was clear in giving separate statements of reasons, and in distinguishing between the statement given under s47 of the PT Act (s49(3) ADT Act) on the one hand, and the statement given under s53 of the ADT Act on the other.

Order

The decision of the Department is affirmed