Marshall v Department of Transport

[2001] NSWADT 84

CITATION:	Marshall -v- Department of Transport [2001] NSWADT 84
DIVISION:	General Division
PARTIES:	APPLICANT Brett Douglas Marshall RESPONDENT Director General, Department of Transport
FILE NUMBER:	013054
HEARING DATES:	08/05/2001
SUBMISSIONS CLOSED:	05/08/2001
DATE OF DECISION:	05/25/2001
BEFORE:	Foster GF - Judicial Member at 1
APPLICATION:	Bus driver - grant of authority - Passenger Transport Act - bus driver - grant of authority
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990
CASES CITED:	Re T v Director of Youth & Community Services (1981) NSWLR 392
REPRESENTATION:	APPLICANT In person RESPONDENT A Wozniak, solicitor
ORDERS:	1 Decision of the Respondent to refuse the Applicant's authority is affirmed

1 On 8 March 2001 the Director General of the Respondent Department, the Administrator, by way of a decision made by a Delegate refused the application by the Applicant for an authority to drive a public passenger vehicle.

2 The refusal was notified to the Applicant by letter dated 8 March 2001, such letter enclosed the statement of reasons for the Administrator's decision. In part the statement of reasons provided as follows:

"The Department of Transport relies upon the following facts, evidence and material to make the decision to refuse your application for a driver's authority:

Criminal Record
14th of January 1999 make false statement to obtain money.

16th of February 2001 steal motor vehicle.

Your criminal record indicates that you may not be of good repute and in all other respects a fit and proper person to drive a public passenger vehicle. Based on the facts and law, it cannot be attested that you are considered to meet the required standards for authorisation as the driver of a public passenger vehicle at least until you have served your two year good behaviour bond."

3 On 19 March 2001 the Applicant applied to the Tribunal for review of the decision. The hearing of the application for review was held on 8 May 2001.

4 Driver's authorities are issued under Division 2 of Part 2 of the Passenger Transport Act 1990. Section 11 of that Act provides:

"A person who drives a public passenger vehicle is guilty of an offence unless the person is the holder of an appropriate authority under this Division, maximum penalty 100 units"

5 Section 11(2) provides:

"The purpose of an authority under this Division attests:

(a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be a driver of a public passenger vehicle; and
(b) that the authorised person is considered to have sufficient responsibility and aptitude to drive a 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"
6 The decision to refuse the issue of a public passenger vehicle authority to the Applicant is reviewable by the Tribunal under the provisions of Section 55 of the Administrative Decisions Tribunal Act 1997 ("the Act").

7 Section 55(1) provides:

“And a person may apply to the Tribunal for a review of a reviewable decision only if

(a) the application is made by an interested person; and
(b) an internal review is taken to have been finalised under Section 53(9)"
8 Section 55(2)(a) provides:

"However, subsections 1(b) or (d) do not prevent a person from making an application in respect of a reviewable decision that has not been the subject of an internal review under Section 53 if the Tribunal is satisfied among other things

(a) the person was not at any time entitled to apply for an internal review of the decision”
9 Section 52(1) of the Passenger Transport Act 1990 provides:

"Any person whose application under Part 2 has been refused or whose accreditation or authority has been waived, suspended or cancelled may apply to the Administrative Decisions Tribunal for a review of the refusal, variation, suspension or cancellation.

10 There is no provision for internal review of such Part 2 decisions under the provisions of the Passenger Transport Act and accordingly I find that I have jurisdiction to entertain this application notwithstanding there has been no internal review.

11 The Act specifies the responsibilities of the Tribunal in dealing with the present application. Section 63 provides:

"1. In determining an application for a review of a reviewable decision the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it including -
(a) any relevant factual material
(b) any applicable written or unwritten law.
2. For this purpose the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the Administrator who made the decision."
12 Thus the position of the Tribunal in hearing the application is that the Tribunal is standing in lieu of the Administrator in determining the question of the refusal of the issue of the subject authority to the Applicant.

13 Section 11(2)(a) of the Passenger Transport Act refers to good repute and fit and proper person as relevant criteria. The objects of the Passenger Transport Act, inter alia, provide in Section 4(e):

"To encourage public passenger services that meet the reasonable expectations of the community for safe reliance and efficient passenger transport services."

14 Safety has a variety of connotations. Such connotations are relevant in the context of public transport. It relates to the quality of vehicles as well as infrastructure such as rail and roadways. It also relates to passenger safety especially in relation to misconduct by other passengers. The driver of a public passenger transport vehicle may also present a risk to the safety of the passenger. The passenger and the driver are strangers to each other brought together in an intimate setting with the driver being in control of the route to the destination.

15 The requirement of good repute and the assessment of good repute is a matter for the Tribunal weighing all the evidence. The Tribunal takes the approach in assessing reputation described in the decision of Re T v. Director of Youth & Community Services (1981) NSWLR 392 per Wardell J. where His Honour said:

"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."

16 The following documents were before the Tribunal:

(i) the Departmental file;

(ii) short report from Benelong's Haven Family Rehabilitation Centre dated 9 April 2001;
(iii) documents produced on subpoena by Benelong's Haven Family Rehabilitation Centre.
(iv) Probation and Parole Pre-Sentence Report in relation to the Applicant dated 6th December 2000. That report also disclosed offences of Embezzlement in 1985 and Break Enter and Steal in 1988.
17 The Applicant gave sworn oral evidence.

18 It is clear that the criminal offences recorded against the Applicant occurred during a period of what can only be described as sever alcoholism. The Applicant was guilty of an act of dishonesty for which he was convicted on 14 January 1999. The Tribunal notes that the penalty imposed by the Court comprised an order for 25 hours community service together with Court costs in the sum of $52.00. Accordingly, it is the view of the Tribunal that the offence was in the low end of the range. The offence of steal motor vehicle for which the Applicant was convicted on 16 February 2001 resulted in the imposition of a suspended 2 year prison term conditional upon the Applicant being of good behaviour during that period and to accept continued supervision from the Adult Probation and Parole Service. Clearly that offence was considered by the Court to be sufficient to warrant a term of imprisonment, although, having regard to various subjective factors, that determination was suspended on a conditional basis.

19 The Applicant is presently 41 years of age. He was apprenticed and ultimately obtained his qualification in the electrical trade where he worked in a salaried capacity for approximately 10 years. Following a back injury he then worked in sales before opening up his own business in the computer industry. That business failed progressively over 1998 and 1999 and as a consequence of that failure and what appear to be circumstances within his own marriage the Applicant developed an alcohol dependence commencing in 1997. That dependence saw the Applicant convicted of the two offences referred to and ultimately, having been charged with the offence of steal motor vehicle in May 2000, he was admitted to the Benelong's Haven Family Rehabilitation Centre as an in-patient on 13 September 2000 and was finally released from the programme on Monday, 5 February 2001. The Applicant gave evidence that towards the end of his in-patient stay he was allowed time to return to his family and his home at Kurri Kurri. It would appear that as a consequence of his in-patient treatment the Applicant's relationship with his wife, which led to divorce, was resurrected and the Applicant and his wife remarried only a week or two before the hearing before the Tribunal. The Applicant asserts that his life is now back on track but concedes that there are some obstacles to his full rehabilitation which include his continuing control of his alcohol dependence, his need to return to employment for the purposes of financial security and ongoing difficulties arising from his back injury which to some extent limit him in relation to any heavy work.

20 The Applicant conceded in cross-examination that his alcoholism was indeed a serious problem that had led to him obtaining a less than satisfactory reputation within his local community. It is apparent from his evidence that his alcoholism was well known within the Kurri Kurri community.

21 In exercising its responsibilities for passenger transport regulation the Administration must take account the likely perceptions of the travelling public. A member of the travelling public is likely to be concerned to know that the driver of their bus has been convicted of criminal offences of dishonesty and, as at the date of making application, was subject to a suspended two year period of imprisonment. A further most significant consideration is that a member of the travelling public is likely to be more concerned to know that the driver of the bus has only recently been released from a full time residential programme dealing with his alcoholism and has only been restored to the community a matter of 3 months prior to his application for the issue of a public transport authority.

22 A similar consideration was dealt with by the ACT Administrative Appeals Tribunal in Maythisathit v. Registrar of Motor Vehicles (1996) ACT 165. In that matter the Tribunal (Professor L.J. Curtis, President) said at (12):

"One must put oneself so far as possible in the position of a member of the public who might travel in a taxi driven by the applicant and ask whether that member of the public knowing of the applicant's criminal record and what he has done in the past year to rehabilitate himself would object to the applicant as the driver of the taxi."

23 Having regard to all of the matters before the Tribunal, the factor that the Applicant is on a deferred sentence recognisance and the further significant fact that the Applicant has only been returned to the community a short time ago following a lengthy period of alcohol rehabilitation 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 the view of the Tribunal some reasonable period of time needs to elapse before the community can be confident that the Applicant has undergone genuine rehabilitation.

24 I note that in the reasons for decision provided by the Administrator it is apparent that the Administrator took the view that it was inappropriate that the application be considered during such period as the Applicant remains on his deferred sentence recognisance. It is the Tribunal's view that at the expiration of that period it would be open to the Administrator to reconsider any further application by the Applicant, having regard to not only the question of rehabilitation following criminal conviction but also, and more importantly, rehabilitation and the Applicant's prospects in so far as his alcohol dependency is concerned.

25 For the above reasons the Tribunal affirms the decision of the Administrator to refuse the application of the Applicant for the issue of a public passenger authority.