Missaglia v VicRoads
[2012] VSC 488
•24 October 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
No. S CI 2012 209
| BETWEEN: | |
| FRANCO MISSAGLIA | Plaintiff |
| v | |
| VICROADS | Defendant |
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JUDGE: | ROBSON J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 September 2012 | |
DATE OF JUDGMENT: | 24 October 2012 | |
CASE MAY BE CITED AS: | Missaglia v VicRoads | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 488 | |
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ADMINISTRATIVE LAW – Judicial Review – Victorian Civil and Administrative Tribunal (VCAT) – Exercise of discretion – Error of Law – Adequacy of reasons – Decision set aside and remitted to a differently constituted Tribunal – Accident Towing Services Act 2007, ss 97, 106 and 109 – Victorian Civil and Administrative Tribunal Act 1998, s 148.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F J Bentley | P&B Law |
| For the Defendant | Ms S L Hinchey | DLA Piper |
HIS HONOUR:
Introduction
Mr Missaglia has been a tow truck driver for eighteen years and was an accredited tow truck driver under the Accident Towing Services Act 2007 (the Act). Mr Missaglia’s existing licence under the Act was due to expire in July 2011. In June 2011, Mr Missaglia applied to renew his tow truck driver accreditation.
VicRoads may refuse an application for tow truck accreditation if VicRoads is aware that the applicant has been found guilty of certain offences which are offences other than serious violent offences and sexual offences, and fraud, dishonesty, violence, or drug trafficking offences.[1]
[1]Accident Towing Services Act 2007 s 109(1)(a) and Sch 2, cl 3.
The applicant had been found guilty of such offences. In November 2010, the applicant was convicted of two counts of possessing an unregistered general category handgun, one count of possessing a prohibited weapon without exemption or approval, and one count of failing to store long arm ammunition correctly. He was sentenced to 9 months imprisonment (with 6 months suspended) and fined $3,000. In October 2004, the applicant had previously been convicted of firearm offences and fined $2,750.
In July 2011, VicRoads informed Mr Missaglia that his application had been refused because he had been convicted of offences relating to the possession of unregistered firearms and incorrect storage of ammunition.
Mr Missaglia sought a review of VicRoads’ decision by the Victorian Civil and Administrative Tribunal (‘VCAT’). In carrying out a review, the Tribunal acts as if it were the original decision maker. In December 2011, the Tribunal refused the application of Mr Missaglia for accreditation and affirmed VicRoads’ decision.
In refusing the application, the Tribunal considered whether Mr Missaglia satisfied the driver accreditation objective set out in s 97 of the Act. Mr Missaglia says that the Tribunal was wrong to do so.
Mr Missaglia seeks leave to appeal against the Tribunal’s decision on seven proposed grounds of appeal. The appeal is made under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (the ‘VCAT Act’) and, as such, is limited to questions of law. The hearing before me proceeded on the basis that if leave were granted, I should decide the appeal instanter.
Essentially, Mr Missaglia contends that the Tribunal erred:
(a) in wrongly taking into account the driver accreditation objective;
(b) in its construction of “appropriate character” in the driver accreditation objective;
(c) in failing to take into account the matters that it was required to; and
(d) in failing to give adequate reasons for its decision.
The Scheme of the Act
Under the Act, a person may not drive a licensed tow truck or a tow truck that is being used for the purposes of providing accident towing services without a tow truck driver accreditation.[2] VicRoads is given the power to accredit a person to drive a licensed tow truck or a truck driven for the purposes of providing accident towing services.[3] A person may apply to VicRoads for the grant or renewal of a tow truck driver accreditation.[4] Provision is made as to the form of the application and the information to be provided to VicRoads.[5] The Chief Commissioner of Police may supply information to VicRoads.[6]
[2]Ibid s 98(1).
[3]Ibid s 99.
[4]Ibid s 101.
[5]Ibid ss 102-103.
[6]Ibid s 104.
Part 4 of the Act deals with driver accreditation. Division 1 is headed “Objective and requirement for accreditation.” Section 97 of Division 1 of Part 4 states that the statutory objective for driver accreditation is that drivers of tow trucks —
(a)provide safe and convenient services to persons using the tow trucks and other persons, particularly persons involved in road accidents; and
(b)are technically competent to drive the relevant tow truck and provide the relevant services; and
(c)are of appropriate character; and
(d)when providing the services, act with integrity and in a manner that is safe, timely, efficient, responsible and law abiding.
[The ‘driver accreditation objective’.]
Division 2 is entitled “Application for accreditation”. Under this Division – and relevantly to this case – an application may be considered under s 109 or s 106, or under both. Under s 106, VicRoads has a discretion to approve an application for accreditation, if the application has not been refused under s 109 and VicRoads is satisfied of certain conditions, including that the issuing of the accreditation is appropriate having regard to the driver accreditation objective.[7] Under s 109, VicRoads has a discretion to refuse an application if the applicant has been convicted of certain offences and other reasons. Under s 109, there is no requirement on VicRoads to have regard to the driver accreditation objective. An application may not be approved under s 109; it may only be refused. An application may only be approved under s 106.
[7]Ibid s 106.
Relevantly, s 106 provides:
VicRoads may approve an application for accreditation under this Part, with or without imposing conditions, if—
(a) the application has not been refused under section 107, 108 or 109; and
(b) VicRoads is satisfied that—
(i)the applicant has complied with the application requirements under this Part; and
(ii)the applicant is technically competent and sufficiently fit and healthy to be able to provide the service to which the accreditation relates; and
(iii)the issuing of accreditation is appropriate having regard to the driver accreditation objective.
Under s 107 of VicRoads must refuse an application if, for example, the applicant has been found guilty of serious violent and sexual offences.[8] As mentioned above, under s 109, VicRoads has a discretionary power to refuse an application if, for example, the applicant has been convicted of an offence that is not an offence involving fraud, dishonesty, violence, sexual offences or drug trafficking.[9] VicRoads refused Mr Missaglia’s application, exercising its discretion under this provision.
[8]Ibid s 107 and Sch 2, cl 1.
[9]Ibid s 109(1)(a) and Sch 2, cl 3.
As indicated above, under the approval of accreditation procedure under s 106, VicRoads must be satisfied (amongst other matters) that the issuing of the accreditation is appropriate having regard to the driver accreditation objective.[10] As mentioned above, the procedure for discretionary refusal of accreditation under s 109 contains no express requirement for VicRoads to have regard to the accreditation objective.[11] Rather, VicRoads must have regard to the following:[12]
[10]Ibid s 106(b)(iii).
[11]See ibid s 109(3).
[12]Ibid.
(a)the nature and gravity of the offence or alleged offence and its relevance to the activities in respect of which accreditation is sought; and
(b)the period of time since the offence or alleged offence was committed or was alleged to have been committed; and
(c)if there has been a finding of guilt or a conviction, whether the finding of guilt or the conviction was recorded; and
(d)if there has been a finding of guilt or a conviction, the sentence (if any) imposed for the offence; and
(e)the age of the applicant when the offence or alleged offence was committed or was alleged to have been committed; and
(f)if there has been a finding of guilt or a conviction, whether or not the conduct that constituted the offence has been decriminalised since the offence was committed; and
(g)the behaviour of the applicant since committing the offence or since the offence was alleged to have been committed; and
(h)the likelihood of the applicant committing an offence in the future, in particular, any future threat to persons involved in accidents or the owners of accident damaged motor vehicles; and
(i)any information given by the applicant; and
(j)any other matter that VicRoads considers relevant.
Review of a discretionary decision
As mentioned above, the appeal is limited to whether the Tribunal erred in law. There is no issue between the parties that the Tribunal’s discretion under s 109 of the Act was enlivened. In dealing with appeals against an exercise of discretion, the High Court said in House v The King:[13]
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
[13](1936) 55 CLR 499, 504-505 (Dixon, Evatt and McTiernan JJ).
Consistent with this principle, the Tribunal may err in law by taking into account an irrelevant consideration.[14]
[14]Bell Corp Victoria Pty Ltd v Stephenson (2003) 20 VAR 280, [36] (Ashley J); Martin v Fasham Johnson Pty Ltd [2007] VSC 54, [39] (Bell J).
Did VCAT err in taking the driver accreditation objective into account?
Mr Missaglia contends that VCAT erred in using the s 97 driver accreditation objective as a separate test for assessing Mr Missaglia’s application.[15] Mr Missaglia says that s 97 is simply an objective provision serving the purposes of clarifying the aims and purposes of the legislation. Mr Missaglia says that s 97 does not provide a separate test or provide matters that must be considered by the decision maker in making a decision under s 109. Mr Missaglia says that s 97 could only be used to construe or assess the mandatory factors expressly set out in s 109.
[15]Plaintiff’s Ground of Appeal 1.
In response, VicRoads concedes that the Tribunal did make s 97 the focus of its analysis, but says that Mr Missaglia misconceives the decision made by the Tribunal. VicRoads says that the Tribunal did not make an adverse finding under s 109. Rather, VicRoads says that the Tribunal decided that the application should not be granted under s 106. VicRoads says that the Tribunal exercised its powers under s 106, and in doing so properly made the s 97 accreditation objective the focus of its analysis. VicRoads says that although VicRoads originally made its decision under s 109, the Tribunal powers were at large to decide whether or not to accept the application under s 106.
In my opinion, the Tribunal was reviewing the decision of VicRoads to refuse an accreditation under s 109. I am not satisfied that the Tribunal considered that it was making a decision under s 106 (as contended by VicRoads).
I accept that the Tribunal did have the jurisdiction to approve or not approve the application under s 106 (as well as to refuse of not refuse the application under s 109). Nevertheless, the parties proceeded before the Tribunal on the basis that the sole matter for rehearing was the decision of VicRoads to refuse the application under s 109, and that if the review had been successful the matter would have gone back to VicRoads to deal with under s 106. In its Reasons,[16] the Tribunal did not refer to s 106 nor to the other requirements that VicRoads had to be satisfied of to approve an application under s 106. To further explore this issue it is necessary to turn to Mr Missaglia’s application and its consideration.
[16]Missaglia v VicRoads [2011] VCAT 2388.
Mr Missaglia’s application
On 13 May 2011, Mr Missaglia applied for renewal of his accreditation as a tow truck driver.[17] On 15 July 2011, VicRoads informed Mr Missaglia that his application was refused. VicRoads said that because he had a relevant conviction, VicRoads must refuse his application. Nevertheless, a statement of reasons was attached, which listed the s 97 driver accreditation objective and (after referring to his most recent conviction) concluded that he did not meet the objectives required under the Act to obtain a tow truck driver accreditation. On 10 August 2011, Mr Missaglia applied to VCAT for a review of the decision regarding his “application for tow truck driver renewal accreditation.” He gave as his reasons for making the application that VicRoads failed to exercise its discretion properly under s 109(3) of the Act by not having regard to all the factors as stated in s 109(3)(a)-(j) of the Act.
[17]Exhibit IJM 1 to the Affidavit of Iona Jean McNab (16 March 2012).
Under the Act, a person affected by a decision of VicRoads to refuse an application to grant or renew a tow truck driver accreditation may apply to VCAT for a review of that decision.[18] Under the VCAT Act, the Tribunal has all the functions of the decision-maker.[19] The decision under review was the decision to refuse Mr Missaglia’s application for a renewal of his accreditation as a tow truck driver. Accordingly, the Tribunal had power to make a decision under s 106 to grant or not grant an accreditation.
[18]Accident Towing Services Act 2007 s 133.
[19]Victorian Civil and Administrative Tribunal Act 1998 s 51(1).
In VicRoads’ written submissions (filed in advance of the Tribunal hearing), VicRoads did not invite the Tribunal to make a decision under s 106. Rather, VicRoads referred to the matters that regard must be had to under s 109, and added that regard must also be had to the driver accreditation objective and made submissions about these matters. VicRoads’ submissions concluded that when considering Mr Missaglia’s application, it was reasonable for VicRoads to have decided that it could not be satisfied of these matters.[20]
[20]Exhibit IMJ 6 to the Affidavit of Iona Jean McNab (16 March 2012) (Court Book, 214).
Mr Missaglia’s written submissions filed in advance of the hearing did not invite the Tribunal to approve Mr Missaglia’s application under s 106.[21] Mr Missaglia’s written submissions addressed the matters that VicRoads was to have regard to under s 109(3). Mr Missaglia also submitted that in interpreting, applying and considering the discretionary facts, it was important to have regard to the objectives of the Act and referred to s 97. Mr Missaglia made express written submissions on the separate elements of s 97, including “appropriate character” under s 97(c). In conclusion, Mr Missaglia submitted that having regard to the purpose, scope and objectives of the Act and the relevant part, the offences that Mr Missaglia has been found guilty of should not render him unable to be an accredited tow truck driver.
[21]Court Book, 40.
The oral submissions made on behalf of Mr Missaglia by his counsel Ms Bentley before the Tribunal proceeded on the basis that the decision being reviewed was the decision under s 109. Ms Bentley did not rely on s 106 or refer to that section. Rather, her submissions proceeded along the lines of the written submissions. Ms Bentley said that in assessing the s 109(3) factors it was important to have regard to the driver accreditation objective of the Act in s 97. Ms Bentley went through those objections in some detail. She did conclude, however, by saying that Mr Missaglia was a responsible, trustworthy and experienced individual that made him fit be a tow truck driver and that he should be accredited.[22] I do not take that submission reference to be an invitation for the Tribunal to make a decision under s 106.
[22]Transcript of Proceedings, Missaglia v VicRoads (VCAT, Ms Bentley, 24 November 2011), 62-71 (Case Book, 310-319).
Counsel for VicRoads, Ms Hinchey, did not invite the Tribunal to make a decision under s 106. Ms Hinchey referred to the s 109(3) factors. She also addressed the “appropriate character” element in s 97.[23]
[23]Transcript of Proceedings, Missaglia v VicRoads (VCAT, Ms Hinchey, 24 November 2011), 78 (Case Book, 326).
In its Reasons, the Tribunal sets out the background facts, Mr Missaglia’s criminal history, the legislative framework, and considers the factors that the Tribunal is required to consider set out in s 109(3). The Tribunal expressly refers to VicRoads discretion to refuse an application under s 109(1)(a) and the factors that must be taken into account. The learned Deputy President makes no reference to VicRoads discretion to grant an application under s 106, nor to the matters that VicRoads must be satisfied of in order to approve the application.
Immediately after considering the factors required by s 109(3), the Tribunal turned to the driver accreditation objective in s 97, saying it was relevant to consider those factors. The Tribunal discussed Mr Missaglia’s convictions and the circumstances surrounding them, and concluded that these offences are relevant in considering whether Mr Missaglia is of appropriate character to be accredited (my emphasis).
The Tribunal concluded that:
[52]Having regard to the nature and seriousness of the offences, and Mr Missaglia’s seemingly blatant disregard for his legal responsibilities in possessing and handling firearms and ammunition, I cannot be satisfied that he will provide the services in a responsible, law abiding manner, or that he is an appropriate person to be accredited as a tow truck driver.
[53]Accordingly, this application must be refused and VicRoad’s decision affirmed.
It can be seen, therefore, that the parties did not proceed before the Tribunal on the basis other than that the Tribunal was reviewing the decision of VicRoads under s 109. Nor did the Tribunal refer to s 106 or all the factors that had to be considered under s 106.
As indicated above, I reject the submission of VicRoads that the Tribunal made a decision under s 106 to refuse to grant accreditation to Mr Missaglia.
That brings me to the next issue – whether in making the decision under s 109, the Tribunal erred in the manner in which it had regard to the accreditation objective in s 97.
VicRoads agrees that if a decision was being made under s 109 there was no reason to look at the driver accreditation objective in the manner that the Tribunal in fact did. VicRoads agrees with Mr Missaglia’s submissions that the driver accreditation objective sets the background against which any section of the Act would be examined.[24] However, VicRoads concedes that what actually occurred in the Tribunal’s decision was that the driver accreditation objective and (in particular) whether Mr Missaglia was of “appropriate character” for the purposes of s 97 became the focus of the analysis, and it was in that context that all of the circumstances surrounding both the 2004 offending and the 2010 offending were taken into account.
[24]Transcript of Proceedings, Missaglia v VicRoads (Supreme Court of Victoria, Ms Hinchey, 6 September 2012), 30.
VicRoads accepts that if the Tribunal was solely deciding upon the matter decided by VicRoads – that is, to refuse the application under s 109 – that it would not have been appropriate to apply the s 97 accreditation objective in the manner that the Tribunal did (where it became the focus of the application, rather than the background against which the express factors set out in s 109(3) should have been judged).
Nevertheless, s 109(3)(j) obliges the Tribunal to have regard to “any other matter” that it “considers relevant”. VicRoads did not seek to argue before me, however, that whether or not Mr Missaglia met the driver accreditation objective, or (in particular) whether or not Mr Missaglia was of appropriate character, was a relevant matter that VicRoads could have had regard to under this provision. Rather, as discussed above, VicRoads sought to uphold the Tribunal’s decision on the grounds that it was in fact made under s 106. There may be grounds for suggesting that “any other matter” does not include having regard to the accreditation objective, because s 106 expressly requires VicRoads to be satisfied about it, whereas s 109 lists several matters that VicRoads must have regard to but does not include the accreditation objective. As it is, I did not hear argument on the issue.
In light of that position, and my decision that the Tribunal did not make a decision under s 106, I conclude that the Tribunal erred in law in treating the accreditation objective and its satisfaction as a relevant independent matter for consideration in making a decision under s 109.
In so finding, I should not be taken as deciding or expressing any view that the s 109(3)(j) obligation on the Tribunal to have regard to “any other matter” that it considered relevant would or would not include a consideration of whether the driver accreditation objective would be met or whether the applicant was of “appropriate character”. As I have noted above, I did not hear argument on that issue.
Did the Tribunal misconstrue the meaning of “appropriate character”?
As indicated above, one of the objectives of driver accreditation is that drivers of tow trucks are of “appropriate character.” Mr Missaglia contends that the Tribunal misinterpreted the phrase “appropriate character” in s 97 by treating its meaning as akin to “fit and proper”.[25] Mr Missaglia submits that its meaning is narrower and more confined than the expression “fit and proper”. Mr Missaglia contends that in addressing that objective, the Tribunal should have asked the question, “Having regard to the overall aims of the Act, and the task to be undertaken by an accredited tow-truck driver, what makes someone of appropriate character?”
[25]Plaintiff’s Ground of Appeal 2.
VicRoads contends that, at the invitation of both sides, the Tribunal did have regard to authorities on the “fit and proper person” test. VicRoads says that the Tribunal merely sought guidance by extrapolation from the reasoning of the Court in cases such as Australian Broadcasting Tribunal v Bond.[26] VicRoads says that the passage quoted by the Tribunal drew upon considerations of “character” in the context of the fit and proper person test and, therefore, is apposite to the concept of an “appropriate character” test, viz:
However, depending upon 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 that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive, but it does indicate that, in certain context, character, because it provides indication of likely future conduct or reputation, because it provides indication of public perception as to the likely future conduct, may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.[27]
[26](1990) 170 CLR 321.
[27](1990) 170 CLR 321, [56] (Toohey and Gaudron JJ).
VicRoads says that the Tribunal’s consideration of Mr Missaglia’s offending behaviour was relevant to its assessment of the appropriateness of his character in this context, viz:
[46]On Mr Missaglia’s own evidence, he has held firearms licences for a number of years and is an experienced handler of firearms and ammunition. Yet, on two occasions, he has been found in possession of unregistered/unlicensed firearms. In this hearing the applicant attempted to pass the responsibility for him being in possession of those firearms to others. …
[47]Further, on two occasions, some 6 years apart, he has been convicted of failing to store long arm ammunition correctly.
[48]I note Mr Daemen’s evidence that it was not unusual for there to be loose ammunition on the window sills in the workshop.
[49]It is also relevant that in each instance, the offences occurred at Mr Missaglia’s business premises. In 2004 the handgun was in a damaged car which had been towed by a towing company next door to the repair business.
[50]In my view, these offences are relevant in considering whether Mr Missaglia is of appropriate character to be accredited.
[51]Mr Missaglia’s evidence that in each instance the firearms were in the office area, and not in an area open to members of the public, reinforce my concerns about his lack of responsibility. It matters not where they were – the firearms were not secured in accordance with the relevant statutory requirements. [28]
[28] See Missaglia v VicRoads [2011] VCAT 2388, [46]-[52] (emphasis original).
VicRoads says that it is incorrect for Mr Missaglia to submit that the Tribunal “directly substituted and applied” a fit and proper person test for the expression “appropriate character” as referred to in s 97(c) of the Act.
I accept that the Tribunal did not substitute and apply the fit and proper person test. I accept that the case law referred to by the Tribunal was relevant to its consideration of the expression “appropriate character”. However, I also accept that the application of the test has to be made in the light of the purpose of the accreditation process.
Mr Missaglia’s counsel before the Tribunal invited the Tribunal to have regard to cases dealing with “fit and proper”. The Tribunal did no more than adopt the submissions of counsel.
I am not satisfied that the Tribunal erred in its construction of the meaning of “appropriate character”.
Did VCAT err in failing to have regard to the factors required in s 109?
Mr Missaglia contends that the Tribunal failed to take into account three mandatory matters that it was required to have regard to under s 109.
First, Mr Missaglia says that the Tribunal failed to take into account whether or not the offences committed by him were relevant to the activities in respect of which accreditation was sought, and, when considering the relevance of the offence, failing to consider the specific tasks to be undertaken as part of the accredited tow truck driving.[29]
[29]See Accident Towing Services Act 2007 s 109(3)(a).
Mr Missaglia contends that the Tribunal erred in its interpretation of this factor by only focussing on whether or not the offences were relevant to whether Mr Missaglia was of appropriate character, rather than whether the offences were relevant to the activities to be undertaken by him as a tow truck driver.
The Tribunal had regard to the nature and gravity of the offences as required by s 109(3)(a). The Tribunal was also required to have regard to the relevance of the offences to the activities in respect of which accreditation is sought. The Tribunal quoted from the Second Reading Speech by the then Minister for Roads and Ports where he specified the activities undertaken by a tow truck driver and said that the legislation would:
… help to protect crash victims who are in a vulnerable state and who may get a lift home in a tow truck from the unacceptable risk of falling prey to a driver who has previously committed a serious criminal offence. It will also help protect victims from having their motor vehicle or possessions being mistreated at the depot by operators or depot managers.[30]
[30]Quoted in Missaglia v VicRoads [2011] VCAT 2388, [14].
The Tribunal’s failure to expressly refer to a relevant matter in its reasons does not necessarily mean that the Tribunal failed to take that matter into account.[31] I consider that – having regard to the reasons as a whole – the Tribunal did have regard to the activities to be under taken by a tow truck driver.
[31]Hunnam v Evans [203] VSC 284 ,14 (Balmford J) (and cases referred to therein); see discussion in Kyrou and Pizer, Victorian Administrative Law, [VCAT.148.340].
In those circumstances, I am not satisfied that the Tribunal did not have regard to the activities in respect of which accreditation was sought. On the contrary, I am satisfied that the Tribunal did.
As to the relevance of the offences to those activities, after referring in some detail to the nature of the offences and Mr Missaglia’s evidence about them the Tribunal found that it had concerns about Mr Missaglia’s lack of responsibility. The Tribunal concluded:
Having regard to the nature and seriousness of the offences, and Mr Missaglia’s seemingly blatant disregard for his legal responsibilities in possessing and handling firearms and ammunition, I cannot be satisfied that he will provide the services in a responsible, law abiding manner, or that he is an appropriate person to be accredited as a tow truck driver.[32]
[32]Missaglia v VicRoads [2011] VCAT 2388, [52].
This passage indicates that the Tribunal did have regard to how the offences were relevant to the provision of the specific services for which Mr Missaglia sought accreditation. The Tribunal considered that because of Mr Missaglia’s convictions it could not be satisfied that Mr Missaglia would carry out his responsibilities as a tow truck driver in a responsible and law-abiding manner.
The second objection raises similar issues to the first.[33] Mr Missaglia contends that the Tribunal failed to take into account whether or not Mr Missaglia posed any future threat to persons involved in accidents or the owners of accident-damaged vehicles.[34]
[33]Plaintiff’s Ground of Appeal 4.
[34]See Accident Towing Services Act 2007 s 109(3)(h).
Mr Missaglia submits that the Tribunal merely found that “it was difficult to have any confidence that he [Mr Missaglia] will not re-offend, particularly once the period of the suspended sentence has passed”.[35] Mr Missaglia says that such consideration lacks any analysis or identification of how, if at all, any potential reoffending might pose a future threat to persons involved in motor accidents.
[35]Missaglia v VicRoads [2011] VCAT 2388, [31].
Nevertheless, as discussed above, the Tribunal did identify how it considered the offences bore on the likelihood of Mr Missaglia providing tow truck services in a responsible and law-abiding manner when they referred to his blatant disregard for his legal responsibilities in handling firearms and ammunition. In my view, the failure to provide tow truck services in a responsible and law abiding manner constitutes a threat to persons involved in accidents or the owners of damaged vehicles within the meaning of s 109(3)(h).
I am not satisfied that the Tribunal did not have proper regard to this mandatory requirement.
Thirdly, Mr Missaglia contends that the Tribunal failed to take into account the behaviour of Mr Missaglia since committing the offence.[36] Mr Missaglia submits that the Tribunal merely said “[i]t has only been a relatively short time since the 2010 offences were committed, and Mr Missaglia is currently subject to a suspended sentence”.
[36]Plaintiff’s Ground of Appeal 5, see Accident Towing Services Act 2007 s 109(3)(g).
VicRoads responds that this was factually correct and a relevant consideration. VicRoads says that the Tribunal was putting his good behaviour into context – Mr Missaglia must not re-offend during the period between November 2010 and November 2012, for fear that he would re-enliven the suspended 6 month gaol sentence.
The Tribunal had heard evidence that Mr Missaglia had not offended since the previous convictions. The observation of the Tribunal seeks to put that good behaviour into context. I am not satisfied that the Tribunal failed to have proper regard to this mandatory element.
Did the Tribunal err in failing to give proper reasons for its decision?
Mr Missaglia relies on two aspects under this issue. Mr Missaglia contends that the Tribunal made an error of law in failing to take into account a mandatory relevant consideration (viz, information given by Mr Missaglia in the form of Mr Bucci’s evidence) or, alternatively, in failing to sufficiently explain what consideration (if any) was given to the evidence.[37]
[37]Plaintiff’s Ground of Appeal 6, see Accident Towing Services Act 2007 s 109(3)(i).
Mr Bucci, a former member of the Victorian Police, gave evidence as to Mr Missaglia’s performance as a tow truck driver and as to his character. The Tribunal summarised his evidence as follows:[38]
Mr Bucci is a former member of Victoria Police. He resigned in December 2007 to take up a position as a director with the True North Group Pty Ltd which provides security technologies alarm systems.
Mr Bucci states that he has known Mr Missaglia for approximately 17 years, both socially and professionally. He confirmed that when a police officer he attended many accident scenes where he observed Mr Missaglia and other tow truck drivers. He said that he always found Mr Missaglia to be very professional and technically competent, as well as showing compassion, care and concern for the victims of motor vehicle accidents.
He also confirms that he considers Mr Missaglia to be a person of integrity who can be trusted.
[38]Missaglia v VicRoads [2011] VCAT 2388.
Under s 109(3)(i) (and probably also (g) and (h)), VicRoads was required to have regard to this evidence in making a decision under s 109. Mr Missaglia submits that “to have regard to” requires the decision maker to “take the [matter] into account and give weight to it as a fundamental element” in his decision.[39] The decision maker must have regard to the matter in a “real sense”.[40] “If the regard was not adequate or not sufficient” there would be a failure to have regard.[41]
[39]Re Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327, 333 (Gibbs CJ); see also Reg v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322, 329 (Mason J; Gibbs J agreeing).
[40]Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 (Gummow J).
[41]Department of Defence v Fox (1997) 24 AAR 171 (O’Loughlin J).
Mr Missaglia says that the Tribunal summarised the evidence of Mr Bucci, but made no comment as to whether such evidence was accepted, what weight was given to it, or what use was made of it (if any). Mr Missaglia says that the need to express what use (if any) was made of the evidence was particularly important in circumstances where the Act itself required the decision maker to “have regard” to such information. He says that had the Tribunal decided, for one reason or another, to disregard the evidence, it was obliged to say so and indentify why.
VicRoads says that this submission ignores the fact that the Tribunal recited Mr Missaglia’s own evidence about his offending conduct and his actions in seeking to pass on to others responsibility for his offending. VicRoads says that in the circumstances, it was open to the Tribunal to prefer Mr Missaglia’s evidence about his own behaviour over Mr Bucci’s evidence when reaching its conclusions about Mr Missaglia’s character. VicRoads says that this ought not lead to a conclusion that Mr Bucci’s evidence was disregarded; rather, that when compared with Mr Missaglia’s evidence, its weight was diminished.
In my opinion, the Tribunal was obliged to disclose in its reasoning what use (if any) was made of this evidence, which it was required to have regard to. The evidence was relevant to the matters the Tribunal was required to consider under s 109. The Tribunal was obliged to make clear whether such evidence was accepted, what weight was given to it, or what use was made of it (if any).[42]
[42]Hunter v TAC [2005] VSCA 1, [21]-[22] (Nettle JA, with whom Batt and Vincent JJA agreed); Rodda v TAC [2008] VSCA 276, [98].
In Hunter v TAC, Nettle JA (with whom Batt and Vincent JJA agreed) said:[43]
When a judge decides an application under s. 93(4)(d) of the Act the judge is under a duty to provide reasons for his or her decision. Furthermore, while the extent of the reasons will depend upon the circumstances of the case, the reasons should deal with the substantial points which have been raised; include findings on material questions of fact; refer to the evidence or other material upon which those finding are based; and provide an intelligible explanation of the process of reasoning that has led the judge from the evidence to the findings and from the findings to the ultimate conclusion. It should also be understood that the requirement to refer to the evidence is not limited to the evidence that has been accepted and acted upon. If a party has relied on evidence or material which the judge has rejected, the judge should refer to that evidence or material and, in giving reasons which deal with the substantial points that have been raised, explain why that evidence or material has been rejected. There may be exceptions. But, ordinarily, where a judge rejects or excludes from consideration evidence or other material which is relevant and cogent, it is simply not possible to give fair and sensible reasons for the decision without adverting to and assigning reasons for the rejection or exclusion of that material. Similarly, while it is not incumbent upon the judge to deal with every argument and issue that might arise in the course of a case, where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue. Above all the judge should bear steadily in mind that reasons are not intelligible if they leave the reader to wonder which of a number of possible routes has been taken to the conclusion expressed. Failure to expose the path of reasoning is an error of law.
[43]Hunter v TAC [2005] VSCA 1, [21] (my emphasis) (citations omitted).
I am satisfied that the Tribunal failed to have proper regard to “any information given by” Mr Missaglia in the form of Mr Bucci’s evidence.
Secondly, Mr Missaglia contends that the Tribunal erred in law in failing to sufficiently explain the path of reasoning that led to the conclusion that Mr Missaglia will not provide the services in a responsible, law-abiding manner and is not of appropriate character to be accredited.[44]
[44]Plaintiff’s Ground of Appeal 7.
It is unnecessary for me to determine this ground. The reasoning complained of by the Plaintiff is reasoning involving the satisfaction of the s 97 driver accreditation objective. As I have already found, the Tribunal erred in making its decision on the basis of s 97 (see my reasons in relation to Plaintiff’s Ground of Appeal 1, above). It is therefore not necessary to determine the adequacy or otherwise of reasoning supporting a finding made under the incorrect legal test.
Conclusion
I refuse leave to appeal on all grounds save grounds 1 and 6. I grant leave to appeal on those grounds and allow the appeal. The orders of VCAT should be set aside. The matter should be remitted to the Tribunal for rehearing.[45]
[45]See Victorian Civil and Administrative Tribunal Act 1998 s 148(7)(c).
Where a matter is remitted by this Court for rehearing, a direction must be made as to whether the rehearing is to occur before a Tribunal constituted of the same or different members.[46] This will depend upon all the circumstances of the case,[47] but when:
… a decision has been set aside for error and remitted for rehearing, it will generally seem fairer to the parties that the matter be heard and decided again by a differently constituted tribunal. This is because the member constituting the tribunal in the original inquiry or hearing will already have expressed a view upon facts which will have to be determined in the rehearing. The aggrieved party may think that a rehearing before the tribunal as originally constituted could be worthless, for the member’s views have been stated.[48]
[46]Victorian Civil and Administrative Tribunal Act 1998 s 148(8).
[47]Kyrou and Pizer, Victorian Administrative Law [VCAT.148.500], and see Vegco Pty Ltd v Gibbons [2008] VSC 328, [33] (Kyrou J).
[48]Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39, 42 (Davies and Foster JJ), see also cases cited in Kyrou and Pizer, Victorian Administrative Law, [VCAT.148.500].
Bearing these principles in mind, it appears to me that the hearing should therefore be before a differently constituted Tribunal. The differently constituted Tribunal should determine the matter in accordance with these reasons.
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