Melki v Commissioner for Fair Trading

[2024] NSWCATAD 176

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Melki v Commissioner for Fair Trading [2024] NSWCATAD 176

Hearing dates:

13 May 2024

Date of orders:

28 June 2024

Decision date:

28 June 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Sullivan, Senior Member

Decision:

(1)   The decision of the respondent is set aside.

(2) In substitution, the decision is that the application for a Tow Truck Driver Certificate is granted, subject to a condition under s 29(1) of the Tow Truck Industry Act 1998 (NSW) that the applicant not commit any traffic offence that carries demerit points or licence suspensions for a period of 12 months from the date of issue.

Catchwords:

TRAFFIC LAW AND TRANSPORT — Licensing of drivers — Application for Tow Truck Driver Certificate — Discretions to refuse — Driving offence history — Condition

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Fines Act 1996 (NSW)

Road Safety Transport Act 2013 (NSW)

Road Transport (Driver Licensing) Regulation 2017 (NSW)

Tow Truck Industry Act 1998 (NSW)

Tow Truck Industry Regulation 2020 (NSW)

Cases Cited:

Austin v Commissioner of Fair Trading and Commissioner of Police [2016] NSWCATAP 179

Austin v Commissioner of Fair Trading and Commissioner of Police [2015] NSWCATAD 244

Comalco Aluminium (Bell Bay) Ltd v O’Connor and Ors (1995) 131 ALR 657

Commissioner of Police v Danis [2017] NSWCATAP 7

Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16

Darwiche v Tow Truck Authority of New South Wales [2007] NSWADT 203

Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63

Director-General, Transport New South Wales v AIC (GD) NSWADTAP 65

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALR 60

Grenfell v Director General of the Department of Finance and Services [2013] NSWADT57

Health Care Complaints Commissioner v Litchfield [1997] 41 NSWLR 630

Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127

Lal v Director-General, Department of Transport [2001] NSWADT 74

Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10

Saleh v Commissioner of Fair Trading [2015] NSWCATOD 68

Shuttleworth v Tow Truck Authority of NSW [2006] NSWADT 301

Slieman v Tow Truck Authority of New South Wales [2004] NSWADT270

Sobey v Commercial and Private Agents Board [1979] 22 SASR 70

Trombetta v Commissioner for Fair Trading [2018] NSWCATOD 167

YG and GG v Minister for Community Services [2002] NSWCA 247

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Nicholas Shahine Melki (Applicant)
Commissioner for Fair Trading (Respondent)

Representation:

De Novo Legal (Applicant)
Department of Customer Service (Respondent)

File Number(s):

2024/00064255

Publication restriction:

Nil

REASONS FOR DECISION

Background

1. On 22 November 2023, Nicholas Melki (Mr Melki) applied to the respondent for a tow truck drivers certificate (Certificate) under s 25 of the Tow Truck Industry Act 1998 (NSW) (TTI Act).

2. On 22 December 2023, the respondent refused the application (the Initial Decision). It was refused on discretionary grounds, said to be pursuant to sections 26(1)(b), 26(3)(a), 26(3)(d) and 26(4) of the TTI Act, and clauses 14(1)(i)(ii) and 14(2) of the Tow Truck Industry Regulation 2020 (NSW) (TTI Regulations).

3. On or about 14 January 2024, Mr Melki applied for an internal review.

4. On 31 January 2024, the decision to refuse the Certificate was varied by the respondent on internal review (Internal Review Decision). The application was refused on discretionary grounds pursuant to sections 26(1)(b) and 26(3)(a) of the TTI Act and clause 14(1)(b) of the TTI Regulations.

5. Mr Melki applied to the Tribunal for administrative review on 19 February 2024.

Materials before the Tribunal

6. Mr Melki relied on the following documents:

1. Application for Administrative Review filed on 19 February 2024 (A1);

2. Bundle of documents filed with the Tribunal on 26 April 2024 (A2), which included:

1. an Affidavit of Mr Melki’s father, Andre Melki (Mr Andre Melki) sworn on 18 April 2024; and

2. an Affidavit of Mr Melki sworn on 20 April 2024.

7. The respondent relied on the following documents:

1. documents filed on 18 March 2024 pursuant to s 58 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) (R1); and

2. written submissions filed on 24 April 2024 (R2).

Jurisdiction and role of the Tribunal

8. The Tribunal has jurisdiction to conduct this review under s 9 of the ADR Act, s 45 of the TTI Act and s 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act).

9. The Tribunal’s role is to determine, having regard to the underlying facts in the matter and the applicable law, what the correct and preferable decision is: ADR Act, s 63.

1. In undertaking this role, the Tribunal reviews the merits of the original decision and considers the evidence available at the time of the hearing, so as to affirm, vary or set aside the original decision: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALR 60 at 77, see also Commissioner of Police v Danis [2017] NSWCATAP 7 at [31].

2. The time at which the determination is to be made as to the correct and preferable decision is when the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].

10. The civil standard of proof (balance of probabilities) applies in these proceedings. There is, however, no burden or onus of poof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28] – [34].

Applicable law

11. The TTI Act (together with the TTI Regulations) governs the granting of a Certificate. Under the TTI Act:

1. a person must hold a Certificate to drive, use, or operate a licensed tow truck: s 23;

2. an application for a Certificate must be completed in the approved form, and accompanied by the prescribed fee: s 25;

3. a person must not, in making an application for a Certificate, make any statement which the person knows to be false or misleading in a material particular: s 36;

4. a Certificate may be granted subject to such conditions as may be specified in Certificate: s 29(1); and

5. all drivers holding a Certificate must also abide by the conditions listed in s 29(2).

Discretionary grounds to refuse the application

12. Section 26 of the TTI Act (as relevant) provides as follows:

26   Restrictions on granting drivers certificate

(1)  The Secretary—

(a)  must refuse to grant an application for a drivers certificate on mandatory grounds, and

(b)  may refuse to grant an application for a drivers certificate on discretionary grounds.

…

(3)  The discretionary grounds for refusing to grant an application for a drivers certificate are as follows—

(a)  that the applicant is not, in the opinion of the Secretary, a fit and proper person to hold a drivers certificate or is otherwise not competent to carry on the kind of towing work to which the proposed drivers certificate relates,

(b)  that the applicant does not hold the qualifications and experience prescribed by the regulations in respect of the class of drivers certificate sought by the applicant,

(c)  that the applicant has not satisfactorily completed such training courses as may be approved for the purposes of this section,

(d)  that the granting of the drivers certificate would, in the opinion of the Secretary, be contrary to the public interest.

(3A)  The Secretary is not, under this or any other Act or law, required to give any reasons for refusing to grant an application for a drivers certificate because of subsection (2)(f) to the extent that the giving of those reasons would disclose any criminal intelligence.

(4)  The regulations may provide additional mandatory or discretionary grounds for refusing the granting of an application for, or renewal or restoration of, a drivers certificate.

(5)  A reference in subsection (2)(c) to a full driver licence is a reference to a driver licence other than a provisional licence, restricted licence or learner licence as referred to in the Road Transport Act 2013.

13. Clause 14 of the TTI Regulations (as relevant) provides:

14   Discretionary grounds for refusing drivers certificate application

(1)  For the purposes of section 26(4) of the Act, the grounds on which the Secretary may refuse an application for, or renewal or restoration of, a drivers certificate include any case in which the following have occurred on more than one occasion during the period of 3 years immediately before the application was made—

(a)  the applicant has been disqualified from holding a driver licence,

(b)  the applicant’s driver licence has been suspended or cancelled (other than for fine default under the Fines Act 1996 or in relation to illness, incapacity or a medical condition under clause 65(1)(b) or (7) of the Road Transport (Driver Licensing) Regulation 2017).

(2)  For the purposes of subclause (1), it does not matter that any of the periods of disqualification, suspension or cancellation occurred during only part of the 3-year period.

….

Facts

14. Mr Melki is 24 years old. He lives at home with his family. He left school in year 11 to start a plumbing apprenticeship. He then took a second job in a disabled school helping disabled children.

15. The circumstances relating to Mr Melki’s driving record are not in dispute. The following table (supported by the official records) sets out Mr Melki’s driving offences and their consequences under the provisions of the Road Safety Transport Act 2013 (NSW). It has been compiled with the assistance of the parties’ representatives.

Date of Offence	Offence	Demerit Points	Date Demerit Points applied
9 Apr 2021	Exceed speed under 10km/h	1	9 Apr 2021
9 Feb 2022	Exceed speed over 10km/h but under 20km/h	3	9 Feb 2022
20 Feb 2022	Exceed speed under 10km/h	1	20 Feb 2022
31 May 2022	Exceed speed under 10km/h	1	15 Dec 2022 (date fine paid)
2 Oct 2022	Not stop at red arrow	3	2 Oct 2022
2 Dec 2022	Not stop at red arrow	3	2 Dec 2022
3 Aug 2022	Exceed speed over 30km/h and below 45km/h	5 (+ Automatic Suspension for excess speed)	26 Dec 2022 (date fine paid)
4 Jan 2023	Notified that licence will be suspended from 8 Feb 2023 until 7 May 2023 for the excess speed offence on 3 Aug 2022
27 Jan 2023 (Double demerits)	Exceed speed over 10km/h and below 20km/h	6	27 Jan 2023
8 Feb 2023 to 7 May 2023	Licence Suspended	First Suspension – due to 3 Aug 2022 offence
13 Jun 2023 to 12 Nov 2023	Licence Suspended	Second suspension – due to exceeding 13 demerit points (includes 5 points from 3 Aug 2022 offence which triggered First Suspension)
12 Nov 2023	All demerit points reset to “nil”

16. When Mr Melki applied for the Certificate, he ticked “no” on the form when responding to Question 2 under section 6 (Disclosure). The question was:

Has the applicant within the period of 3 years before the application was made had their driver licence suspended or cancelled (other than for fine default under the Fines Act 1996 or in relation to illness, incapacity or a medical condition under clause 65(1)(b) or (7) of the Road Transport (Driver Licensing) Regulation 2017)?

17. The Initial Decision which issued on 22 December 2023 refusing his application was accompanied by a Statement of Reasons.

18. The only facts noted in the Statement of Reasons were that Mr Melki’s driver licence was suspended on more than one occasion within the last 3 years, being:

On 09-05-2023 – Demerit Point Suspension of Unrestricted (Class C) to commence on 13-06-2023 until 12-11-2023 inclusive.

On 04-01-2023 – Excess Speed Suspension of Unrestricted (Class C) to commence on 08-02-2023 until 07-05-2023 inclusive.

19. The Internal Review Decision, which determined under s 53(5)(b) of the ADR Act to vary the original decision and refuse the application for a Certificate, was based on the following two discretionary grounds:

1. Driver licence suspensions (cl 14(1) of the TTI Regulations) – citing the two suspensions set out at paragraph 18 above; and

2. Fitness and propriety (s 26(3)(a) of the TTI Act), citing the driving history which was assessed to be “unacceptable and demonstrates disregard for the road rules and the privileges associated with holding a drivers licence”, and concluding that “the volume and nature of driving offences recorded in a relatively brief period of time indicates Mr Melki is not sufficiently responsible to hold a tow truck drivers certificate at this time”.

20. Although the Initial Decision cited s 26(3)(d) of the TTI Act in refusing the application also on the discretionary ground that it was “contrary to the public interest”, the Internal Review Decision noted that no comment or reasoning had been provided to support such a conclusion and said:

In the absence of any information that clearly articulates the reasons for the determination that it is contrary to the public interest … I conclude that it is unreasonable and unfair to apply the discretionary ground provided by section 26(3)(b) [sic] of the [TTI] Act.

21. Neither the Initial Decision, nor the Internal Review Decision, referred to the error on Question 2 of the application form.

22. Mr Melki’s application to the Tribunal stated (under “Grounds for Application”):

1. My application for the issue of a NSW Tow Truck drivers permit was refused on discretionary grounds.

2. The reasons for the refusal is based on my NSW traffic record.

3. The areas considered in the refusal were duplicitous.

4. After applying for my tow truck drivers licence, I have been issued with a heavy vehicle licence by the NSW RMS.

5. I have secured employment based on receiving my Tow Truck Authority.

23. The Affidavits of Mr Melki and his father, Mr Andre Melki, were accepted into evidence. Mr Melki appeared before the Tribunal and was cross-examined. Mr Andre Melki attended the hearing but was not required for cross-examination.

24. Mr Melki was well presented and courteous when he appeared before the Tribunal. He said that he was committed to rectifying his past mistakes and took full ownership of his actions and his past driving history.

25. Mr Melki told the Tribunal that he had experienced some depression which reached its most serious point around June of 2022. No medical evidence was produced on this point, but it was not disputed by the respondent. He also said he had been going through a bad relationship and job dissatisfaction at the time the driving offences were committed. He did not say that this was an excuse for his behaviour. He didn’t try to justify what he had done.

26. Mr Melki travelled overseas after his last driving offence, which included periods while his licence was suspended. He reiterated that he was not making excuses for his poor driving record, but felt that he fully appreciated his mistakes and was now in a much better place. In his Affidavit, he said:

Over the last couple years, I have travelled throughout Europe and the United States as a solo traveller. I have come back as a new person; I am also in a new stable relationship. I believe although we are dealing in a short period, I have matured and became a changed person.

I am keen to embark on this new adventure into the future, where I wish for a stable employment working for my dad and one day taking over his business.

I am remorseful for my conduct; it was something silly and dangerous by exceeding the speed limit by over 30 kilometres and (sic) hour. I have no intention of ever breaching the road rules in the future especially whilst driving a tow truck.

I have been committed to rectifying these past mistakes and take ownership of my actions to correct my behaviour and ensure that these mistakes are not repeated in the future for the safety of myself and others in the community. I did reflect on my actions whilst I was suspended as I can appreciate the consequences of my failure to comply with the standards set on the road.

27. None of his driving offences had gone to court. He did not dispute them. He paid the fines. He did not drive while suspended. He has never been a cancelled or disqualified driver.

28. Based on the materials before me, Mr Melki also has no criminal record, no history of driving while under the influence of alcohol or drugs, and no history of violence, intimidation, or motor vehicle accidents. He has no affiliation with any criminal gangs organisations. In his Affidavit he said:

I have never committed any criminal offences in my life… I have not committed any fraud or dishonesty offences ever. I am not a member of any bikie organisation where I could be a threat to others…

29. Mr Melki has not committed any driving offences since January 2023. He currently remains on zero demerit points.

30. Mr Melki applied for a Heavy Vehicle (Class HR – Heavy Rigid) licence which was issued to him on 22 November 2023. This licence allows him to drive trucks with up to 3 axles, buses and articulated buses. No restrictions were placed on that licence.

31. The applicant’s father, Mr Andre Melki, owns a tow truck and operates a tow truck business. The business has three contracts which deliver broken down vehicles to dealerships where road service cannot solve the issue that led to the break-down. The three contracts provide him with ample work and he has only had one holiday with his wife since 2017 as it is difficult to find a tow truck driver to meet his contractual obligations whilst he is away.

32. There was nothing of apparent concern relating to this business on the materials before me. Mr Andre Melki is planning to expand his business by purchasing a second tow truck. This is intended to cater for meeting contractual obligations during busy periods. His son is interested in working for the business, and he is “more than happy” to have him drive the truck. He views his son as a “mature and responsible person whom I will trust with my new tow truck”.

33. He says that Mr Melki is aware of the costs involved in maintaining a truck especially a tow truck.

CONSIDERATION

34. In considering the relevant “discretionary grounds” under the TTI Act and the TTI Regulations, the first step is to determine if the preconditions are satisfied. This requires an examination of the relevant facts. If the preconditions are satisfied, I must then decide whether to exercise the discretion to refuse to grant the application for a Certificate.

The suspensions

35. The evidence set out above establishes that Mr Melki’s licence was suspended on two occasions within the period of 3 years.

36. In the “Grounds” section of his application to the Tribunal, Mr Melki said that the reasons for the suspension were “duplicitous”. By that, I understand him to mean that there was an element of double-counting in respect of the 3 August 2022 offence. My reasoning in response to this is as follows.

1. The First Suspension arose solely from the 3 August 2022 offence. A second consequence of that offence was the imposition of 5 demerit points. A third consequence of that offence was a fine, which was paid.

2. At the conclusion of the First Suspension, those 5 demerit points were not removed. They stayed on his driving record and counted toward the total of the accumulated demerit points that ultimately led to the Second Suspension. When the Second Suspension period was completed, however, all the demerit points were removed.

3. Nonetheless, by the time the Second Suspension was implemented, Mr Melki had accrued a total of 23 demerit points. Even if the 5 demerit points arising from the 3 August 2022 offence were ignored, the total points were sufficient to justify a second suspension period.

4. Accordingly, I do not find this argument compelling.

37. As Mr Melki’s driver licence has been suspended on more than one occasion during the period of 3 years immediately before the application was made, cl 14(1)(b) of the TTI Regulations is engaged.

Is Mr Melki a Fit and Proper person?

38. The respondent relies on the following facts in support of its submissions that the Tribunal should be of the opinion that Mr Melki is not a “fit and proper person” for the purpose of s 26(3)(a) of the TTI Act and should, therefore, exercise the discretion to refuse the application for a Certificate:

1. Mr Melki’s incorrect response to Question 2; and

2. Mr Melki’s wider driving record.

39. The assessment as to whether I am satisfied that Mr Melki is a “fit and proper person” is made at the current point in time; I therefore have to take into account all relevant past events and other matters before me at the hearing.

40. There is no statutory definition of the phrase “fit and proper person” in the legislation. However, in the licensing context that phrase has been the subject of a well-known line of cases dating back at least to Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127. The principles laid down in those cases were summarized by the Tribunal’s Appeal Panel in Austin v Commissioner of Fair Trading and Commissioner of Police [2016] NSWCATAP 179, [58], [73], [77], following Montgomery SM’s reasons at first instance (Austin v Commissioner of Fair Trading and Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 244), as follows:

(1)   The very purpose of the words “fit and proper” is to give the widest scope for judgment and for rejection on that ground.

(2)   ”Fit” with respect to an office is said to involve honesty, knowledge and ability.

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

(4)   Depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed it will not occur, or whether the general community will have confidence that it will not occur.

(5)   In certain contexts, character (because it provides indication of likely future conduct) may be sufficient to ground a finding that person is not fit and proper to undertake the activities in question.

(6)   The expression meant that an applicant needed to show not only that he or she has the requisite knowledge of the duties and responsibilities of the holder of the particular licence but also that he or she is possessed of sufficient moral integrity and rectitude to be accredited to the public as a person to be entrusted with the work the subject of the licence.

41. As was pointed out in Saleh v Commissioner of Fair Trading [2015] NSWCATOD 68 at [17], the nature of the industry in which the person concerned wishes to operate affects a consideration of whether a person is a fit and proper person to hold a licence in that industry. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) NSWADTAP 65.

42. In Trombetta v Commissioner for Fair Trading [2018] NSWCATOD 167 the Tribunal was considering the application by Mr Trombetta for a tradesperson’s certificate as a motor mechanic in circumstances where Mr Trombetta had been found guilty in April 2017 of several serious offences. The Tribunal stated that the convictions were relatively recent but noted that there is no necessary period before a person convicted of serious offences can be considered to be a fit and proper person. The Tribunal went on to say:

The licensing requirements of the Act are not imposed by way of punishment for those convicted of crimes. They are imposed for the protection of the public.

The incorrect response to Question 2 on the application form

43. The respondent’s submissions filed in these proceedings on 24 April 2024 raised, for the first time, the incorrect response provided to Question 2. It became apparent during the proceedings that Mr Melki’s solicitor had not reviewed these submissions:

1. He said that they had not been received.

2. The respondent checked and advised the Tribunal that they had been sent by email to the solicitor’s correct address (with no bounce-back) and by express post to the solicitor’s correct street address with a receipt confirmation.

3. The Tribunal adjourned the hearing to allow time for Mr Melki’s solicitor to review the respondent’s submissions.

44. Due to the matters described above, Mr Melki did not explain the incorrect response to Question 2 in his Affidavit. In providing his evidence to the Tribunal, Mr Melki was therefore asked by his solicitor to explain why he had answered “no” to this question.

45. Mr Melki said that when he was completing the form, he originally thought that the answer to Question 2 was “yes”. But he then asked his father, who said it was “no”. He therefore ticked “no”, and the form was submitted with that response.

46. When pressed on this point, Mr Melki confirmed that he was aware of his driving record, but said that he trusted his father and responded as he had suggested. He found the question confusing because of the additional words at the end of the question. Because he didn’t understand it, that was why he asked his father for his advice, because his father had a tow truck licence. The respondent asked why he did not call the Department of Fair Trading for assistance. Mr Melki said that he did not do so because his father had looked at it for him, and he trusted that his father was right. Mr Melki said that he was not trying to be dishonest, and had no reason to lie or give false information; it was not in his interests to say something incorrect as he understood that his driving licence record would be checked. His solicitor subsequently pointed the Tribunal to the first page of the application form, where Mr Melki physically ticked the box that stated:

Your driving record will also be checked.

47. Mr Melki said he had a “100% intention to be honest” at all times. He confirmed it was his application and said he took full responsibility for it, and for his mistake in completing Question 2. But he didn’t realise it was a mistake when he put in the application.

48. It was put to Mr Melki by the respondent in cross-examination that he “chose to be silent regarding Question 2 because you realised it would do no good to answer the question in the affirmative”. Mr Melki denied this. He said he had not rung the Department to correct it because he didn’t know it was wrong when he did it. He said he couldn’t remember when he found out that it was a mistake.

49. It is now clear to Mr Melki, and to the Tribunal, that his response to Question 2 was incorrect and therefore “false”.

50. The respondent submitted that there is “a clear honesty deficit on the part of the Applicant when completing and submitting his application for renewal of his Drivers Certificate that impacts on his fitness to hold such an authority”.

51. I agree that it is important to provide full and frank disclosure to the respondent, and that the respondent needs to be able to rely on the accuracy of information provided by applicants for a Certificate, especially given the history of concerns relating to the tow truck industry.

52. However, I disagree that there was a “clear honesty deficit” on the part of Mr Melki. I find on the balance of probabilities that Mr Melki did not answer that question incorrectly with any intention to lie, mislead or deceive the respondent. He had provided correct details of his driving licence, and the application form clearly stated that the respondent would check his driving record. I therefore also find that Mr Melki did not make a statement which he knew to be false for the purpose of s 36 of the TTI Act.

The driving record

53. Mr Melki’s driving record is not in dispute. All of the offences related to speeding or running a red light. Some were minor, others were clearly not. There is no doubt that it is evidence of improper conduct in respect of driving. And safe driving is a key consideration in the context of an application for a tow truck driver certificate.

54. The applicant pointed to various cases regarding fitness and propriety in the tow truck industry context, where licences were either suspended or revoked, or not approved. These cases were Shuttleworth v Tow Truck Authority of NSW [2006] NSWADT 301 (Shuttleworth), Darwiche v Tow Truck Authority of New South Wales [2007] NSWADT 203 (Darwiche) and Slieman v Tow Truck Authority of New South Wales [2004] NSWADT270 (Slieman). The applicant submitted that Mr Melki’s offences were of far less moment.

55. My observations on these cases are as follows:

1. In Shuttleworth, it was held that the record of driving offences combined with past convictions (for breaches of the TTI Act) while working in the very industry which he sought to be readmitted, “paint[ed] a picture of a man who was both careless and contemptuous of the regulations relating to the tow truck industry. A picture which is consistent with his earlier disciplinary record.” He failed to provide explanations for his past behaviour, he continued to deny the facts relating to various charges, and his behaviour was assessed to be “brutish, rude and intimidating”. Relevantly, the Tribunal said:

I do not accept that Mr Shuttleworth has displayed the understanding of, or insight into, his past conduct necessary for me to be satisfied it will not be repeated…. He did not proffer any evidence, apart from the effluxion of time, that it will not be repeated. His record and past conduct lead me to conclude that if granted a drivers certificate I cannot be satisfied that he will not again engage in brutish, rude and intimidating behaviour. All those factors point to the fact that Mr Shuttleworth is not fit and proper to hold a drivers certificate.

2. In Slieman, the applicant had been charged with conspiracy to cheat and defraud a bank of $316,000 after using a false identity to apply for a loan for a property purchased from a related party and sold for an inflated price.

3. In Darwiche, the Tribunal found “clear evidence” that the applicant was an associate of known criminals who had been found guilty of offences of violence involving firearms and murder. In confirming the decision to refuse the licence, SM Montgomery said:

In my view, a member of the public who dealt with the Applicant as a tow truck driver, knowing of the allegations raised against the Applicant, would object to the Applicant performing that role.

56. I agree with the respondent’s submissions that the cases put forward by the applicant were at the more severe end of the scale, and to suggest that Mr Melki’s facts were “not even close” to those egregious cases was not the correct starting point for the enquiry.

Other factors relevant to the assessment of “fit and proper person”

57. Notwithstanding the above driving record, my task is to form a conclusion on Mr Melki’s fitness and propriety at the current time.

58. I am satisfied – having regard to his evidence, and observing Mr Melki in person - that Mr Melki has taken responsibility for and is remorseful of his conduct which led to the driving offences, and is committed to not repeating his past behaviours.

59. I have also had regard to the case of Grenfell v Director General of the Department of Finance and Services [2013] NSWADT57 (Grenfell). The respondent accepted that some allowances need to be made for young people, but that even on that basis, it would be “too soon” to the events in question for Mr Melki to be issued with a Certificate. Although Grenfell involved past criminal conduct of an applicant for a tradesperson’s certificate as a motor vehicle mechanic, it is nonetheless instructive for my consideration of the discretion under cl 14(1)(b) of the TTI Regulations. In that case, the applicant was 25 years old, and had a series of criminal convictions recorded many years prior (from 2007 to 2008). Relevantly, the Administrative Decisions Tribunal said (at [39] to [42]):

In discussion I asked Mr Coss whether an allowance should be made for Mr Grenfell’s youth and immaturity at the time he committed the offences, when considering whether he has reformed. Mr Coss answered me in two ways. First by asserting that Mr Grenfell was an adult when he committed the offences, and secondly, by arguing for a uniform approach no matter what the age of the offender.

I do not agree with that proposition. The reality is that young people show a degree of immaturity, poor judgment and risk taking which can lead to difficulty with the law. They are more susceptible to peer pressure, and do not have a depth of experience to inform their decision making. Their characters are not as formed or entrenches as those of adults. In contrast mature adults are more set in their ways, informed by experience, and usually better able to make independent decisions.

…

I accept that Mr Grenfell is now extremely embarrassed and ashamed of his convictions, and has worked hard to put them behind him. He has demonstrated that he is no longer the individual who committed those offences.

60. Notwithstanding the respondent’s submissions, I find that Mr Melki (to use the language in Grenfell) is no longer the individual who committed those offences, and is a “fit and proper person” at this time because:

1. He has shown genuine remorse for his actions relating to his past driving record, both in relation to the two suspensions and to his wider history of traffic offences.

2. He has not sought to justify or excuse his past actions, has taken full accountability for them, and is committed to change.

3. He now appreciates and acknowledges the need for safe driving for the protection of the public.

4. He has navigated through past personal issues, and taken time out to contemplate. He is now in a stable relationship.

5. There is no suggestion that Mr Melki has been charged with any offences or that he has engaged in any unlawful conduct.

6. He has no history of violence, aggression, drugs, drink driving, unsavoury affiliations or other matters that bring into question his fitness and propriety.

Conclusion

61. I therefore find that the precondition for section 26(3)(a) of the TTI Act has not been satisfied.

The public interest

62. The precondition to the exercise of a discretion in s 26(3)(d) is a finding that the grant of the Certificate would be “contrary to the public interest”.

63. The public interest requires that all tow truck drivers be aware of, and comply with, traffic laws. They must not only understand and comprehend the laws that govern them; they also must act in accordance with them.

64. The test allows all relevant issues including issues going beyond the character of the Applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.

65. “Public interest” embraces standards acknowledged to be ‘for the good order of society and for the wellbeing of its members’: Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The purpose of a reference in legislation to “public interest” is “to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the decision-maker’s consideration”: Comalco Aluminium (Bell Bay) Ltd v O’Connor and Ors (1995) 131 ALR 657 at page 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals.

66. The respondent submitted that “having regard to the Applicant’s driving record, the Tribunal would be satisfied that it is contrary to the public interest to renew (sic) the Applicant’s Driver Certificate” and made (inter alia) the following points regarding Mr Melki’s driving record:

1. First, it demonstrates a tendency to speed, showing 6 speeding offences including the 3 August 2022 offence where he exceeded the speed limit by more than 30 km/h.

2. Secondly, it demonstrates a disregard for laws aimed at ensuring public safety. Given the history of traffic infringements, and the lack of evidence to suggest otherwise, the Tribunal cannot be satisfied that similar conduct will not be repeated.

3. Thirdly, it is open to the Tribunal to take into account the conduct over time, and the course of conduct does not demonstrate an intention to improve compliance with laws relating to public safety but, rather, demonstrates an ongoing disregard for compliance with road and traffic laws.

4. Lastly, although Mr Melki wishes to pursue a future career in the tow truck industry, hardship to an applicant is not a consideration that the Tribunal can take into account in determining whether the respondent has made the correct or preferable decision: Lal v Director-General, Department of Transport [2001] NSWADT 74. To do so would be to elevate the private interests of the applicant against the public.

67. The respondent stressed in oral submissions that the offence of 3 August 2022 “doesn’t sit in isolation to the remainder of the offences”, and that the offences showed a pattern of disregard in the recent past. As noted above, the respondent accepted the principle arising from Grenfell, but submitted it would be “too soon” to the events in question for Mr Melki to be issued with a Certificate.

68. I refer to my consideration at paragraphs 57 to 60 above to which I have had regard in finding that Mr Melki is a “fit and proper person”. For the same reasons, I am not of the opinion that the granting of the Certificate would be contrary to the public interest for the purpose of s 26(3)(d).

What is the correct and preferable decision?

69. I am of the view that the correct and preferable decision is to not exercise the discretion to refuse the application under s 26(1)(b) of the TTI Act, notwithstanding the satisfaction of the precondition to the discretionary ground in cl 14(1) of the TTI regulations.

70. I have had regard to the driving record and the matters set out at paragraphs 57 to 60 above. The respondent did not directly challenge Mr Melki’s affidavit, his change in personal circumstances, his ownership of his past behaviour or his commitment to change. And in respect of Question 2 on the form, I have concluded above that Mr Melki didn’t intentionally lie.

71. The respondent submitted that in the event I were to decide not to exercise the discretion to refuse the grant of the Certificate, it should be issued subject to a condition that Mr Melki not commit any traffic offences for a period of 12 months.

72. I neither condone nor excuse Mr Melki’s past actions. Nor do I rank his personal desires above the protection of the public, or ensuring that there is public confidence in the licensing system.

73. The legislative regime is not about punishment but rather about protecting the public. In my opinion, the public protection will be best safeguarded by granting the Certificate, but subject to a condition - as permitted by s 29(1) of the TTI Act (and s 63(2) of the ADR Act). The condition to be specified under s 29(1) is that Mr Melki not commit any traffic offence that carries demerit points or licence suspensions for a period of 12 months from the date of issue.

74. For completeness, I have had regard to the case of Health Care Complaints Commissioner v Litchfield [1997] 41 NSWLR 630, where the Supreme Court of NSW reviewed a decision of the Tribunal to impose a significant period of suspension on a doctor followed by the imposition of a condition upon his registration to undergo a for a psychiatric assessment. Relevantly, the Supreme Court said:

The Tribunal must have had misgivings about the doctor’s future behaviour because of the conditions it imposed…

…

With the greatest of respect the necessity for imposing such conditions on the appellant’s registration demonstrated that he was unfit to practice medicine and in those circumstances the only appropriate order was one dismissing his appeal.

75. That case involved a doctor who had committed ongoing sexual offences against females for a number of years, who denied he had committed (and strongly defended) the claims, and who offered no explanation which made it unlikely that the conduct would occur again. The relevant condition imposed was also held to be inappropriate because there was no mechanism by which appropriate action could be taken if the assessment showed the doctor was unfit to practice. Further, the Supreme Court noted that the purpose of proceedings was purely protective, and the Tribunal had erred in treating the stress on the doctor from the criminal trial and the disciplinary proceedings as a relevant consideration.

76. That case is, in my view, clearly distinguishable. Mr Melki has admitted his actions. He has shown remorse. I have had no regard to impermissible matters. I have not placed Mr Melki’s needs above those of the public. Rather, the imposition of the condition is reinforcement – to both Mr Melki and the public – of the primary role of the licensing regime to public protection and appropriate standards being maintained.

77. If the condition is breached within the 12 month period, the Certificate would be revoked. In that event, Mr Melki could make a fresh application for a Certificate, which would be assessed by the respondent at that time.

78. I have not had regard in the reasons above to the issue to Mr Melki of the heavy vehicle licence, which is issued under a different regulatory regime to the Certificate. However, the decision in this matter to impose a condition on the Certificate is not intended to have any effect on the heavy vehicle licence.

Orders

79. I make the following orders:

1. The decision under review is set aside.

2. In substitution, the decision is that the application a Tow Truck Driver Certificate is granted, subject to a condition under s 29(1) of the Tow Truck Industry Act 1998 (NSW) that the applicant not commit any traffic offence that carries demerit points or licence suspensions for a period of 12 months from the date of issue.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

28 June 2024 - Coversheet - Hearing date corrected

Decision last updated: 28 June 2024