Novak v Chief Executive, Department of Transport and Main Roads
[2012] QCAT 160
•17 April 2012
| CITATION: | Novak v Chief Executive, Department of Transport and Main Roads [2012] QCAT 160 |
| PARTIES: | John Novak |
| v | |
| Chief Executive, Department of Transport and Main Roads |
| APPLICATION NUMBER: | GAR103-11 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Kerrie O'Callaghan, Senior Member |
| DELIVERED ON: | 17 April 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Chief Executive, Department of Transport and Main Roads to cancel John Novak’s approvals as the Proprietor of Approval Inspection Station number 3716 and as an Approved Examiner number 8226 is confirmed. |
| CATCHWORDS: | REVIEW APPLICATION – whether cancellation of approvals to issue vehicle safety certificates correct and preferable decision – where applicant conceded contravention of conditions of approval Queensland Civil and Administrative Tribunal Act 2009, s 20 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Background
John Novak (“Mr Novak”) was an approved examiner and the proprietor of an approved transport station under the Transport Operations (Road Use Management) Act 1995 (“the Transport Operations Act”). This entitled him to inspect vehicles to establish that the vehicle was free of defects.
Legislation (Transport Operations (Road Use Management – Vehicle Standards and Safety) Regulation 1999) (“the Regulation”) prescribed what is meant by “defective” in a vehicle.
A certificate issued by an approved examiner that a vehicle is not defective is relied upon when a vehicle is being sold, when the vehicle is being registered or when the vehicle’s registration is being transferred.
The Regulation also provides[1] that such a certificate should not be signed by an approved examiner unless “after a full inspection of the vehicle, the person reasonably considers the vehicle is not defective”.
[1]Transport Operations (Road Use Management – Vehicle Standards and Safety) Regulation 1999, s 17(2)(a).
There is a compliance process established in the legislation framework to ensure that an approved examiner and an approved inspection station are not acting in breach of the requirements set out in the legislation. The legislation[2] imposes statutory conditions on the appointment of approved examiners. This includes a condition that the approved examiner must not contravene the provisions of the Transport Operations Act, the Regulation or the relevant codes of practice.
[2]Transport Operations (Road Use Management – Accreditation and Other Provisions) Regulation 2005, s 8.
Under section 18(1)(b) of the Transport Operations Act if the approved examiner has contravened a condition of approval then a ground is established for suspending or cancelling an approval.
The decision under review
In December 2010 Mr Novak’s approvals as an approved examiner and as proprietor of an approved inspection station were suspended and he was given a notice to show cause why they should not be cancelled. The approvals were subsequently cancelled.
The basis of the decision was that Mr Novak had breached the statutory imposed conditions of his approval namely he had contravened provisions of the Transport Operations Act, the Regulation and the code of practice.
This decision was subject to internal review and confirmed by the Department of Transport and Main Roads (“DTMR”) on 8 July. This is the decision which Mr Novak seeks to review.
Agreed facts
Following a compulsory conference in these proceedings the parties were directed to file a list of agreed facts.
As well as the administrative decision to cancel Mr Novak’s approval he was also subject to proceedings in the Magistrates Court where charges were laid against him. The basis of the charges were the same contraventions of the legislation which resulted in the decision to cancel his approval. There were 11 charges in total, 3 were withdrawn and Mr Novak pleaded guilty to the remaining 8.
Instead of filing an agreed list of facts in these proceedings Mr Novak provided the Tribunal with a copy of the charges, his submissions in relation to the charge and correspondence from DTMR’s legal officer and advised that “averments in the complaint, read with the schedule and the emails comprised the agreed facts.”
OTRM also advised that the agreed facts were contained in those documents.
It should not be for the Tribunal to read through that material and decipher what actual facts were agreed between the parties. In light of the fact that Mr Novak pleaded guilty to the charges, the Tribunal is assuming that Mr Novak does not take issue with the facts alleged in those charges and concedes same. I will proceed on that basis.
On that basis the following facts are agreed:
§At various times during March 2010 to August 2010 Mr Novak in respect of 5 different vehicles:
1. Issued at least 2 safety certificates when he did not carry out a proper inspection of the vehicles and the vehicles were subsequently found to be in a defective condition.
For example following the issue of one certificate the owner had the vehicle inspected by another mechanic who found a number of defects including the front brakes completely out of pads and the disc roters were under the minimum specifications set by the manufacture.
2. In respect of one vehicle:
oOn 23 February 2010 he issued a safety certificate when the vehicle was subsequently found to be defective.
oOn 8 March and 10 March 2010 he issued further certificates for the same vehicle without inspecting the vehicle and it was still defective; and
oThe certificate issued on 8 March had an entry in the certificate (the odometer reading) which had been altered before he signed the certificate.
oThe certificates issued on 8 March and 10 March contained information which Mr Novak knew to be false namely the incorrect inspection date, inspection time, odometer reading, percentage of brake and handbrake tests and misrepresentation that the vehicle had been road tested.
3. Mr Novak issued 4 other certificates which he knew contained false information for example issuing certificates without carrying out road tests and brake tests and therefore the brake tests percentages recorded on the certificates were false.
4. Mr Novak charged more ($150) then the prescribed fee ($64.25) for the issue of the certificates.
Having conceded these facts there is no dispute that Mr Novak has breached the following provisions of the Regulation: in issuing certificates without conducting a full inspection of the vehicle (section 17(2)(a)), in signing the certificates where the certificate had been altered (section 17(5)(b)) and making/using a document that contained information that Mr Novak knew to be false or misleading (section 35) and charging in excess of the prescribed fee.
Accordingly, Mr Novak is in contravention of his conditions of approval and under section 18 of the Transport Operations Act grounds existed for the respondent to suspend and/or cancel Mr Novak’s approvals.
Parties Submissions
Mr Novak seeks to review the decision to cancel his approvals.
He submits that the decision to cancel should be set aside and instead his approvals suspended until 31 March 2012 at which time his approval would have been suspended for 15 months.
Whilst conceding the breaches of the legislation he submits that cancellation of his approval was harsh and unjust. The DTMR submits public safety is their primary consideration when dealing with all accreditation holders. They submit based on the nature and number of contraventions cancellation is appropriate because of the impact on public safety. Mr Novak says the following circumstances should be taken into account in considering whether cancellation was the appropriate course of action.
Mr Novak cooperated with authorities by engaging in a frank interview with investigating officers.
I have read the transcript and it is correct that he did engage in a cooperative manner with investigators. This however does not have any significant bearing on whether it was correct and preferable decision for his approvals to be cancelled.
I agree with the Department that it does not bear on their obligation to and expectation of the public that the Department will provide a system which will protect public safety. This is the primary consideration in considering whether Mr Novak’s approvals should be cancelled.
The period of offences
Mr Novak submits that whilst there were 13 charges in all over a period of 5 months, only 5 vehicles were involved.
This is correct. However as noted by the DTMR in their submissions Mr Novak displayed a pattern of behaviour in contravening his conditions of approval. It was not a one off incident.
I accept the DTMR’s summary of the excuses that Mr Novak provided for the breaches as explained by him in the interview. The inspections were not fully carried out because of:
§“His heavy workload
§Stress from being made sole operator
§Being rushed to clear the area outside his shop as the tenants were complaining about Mr Novak restricting customer access to other businesses
§Having to complete other jobs”.
In the record of interview he made a number of comments which indicated that in rushing to get the work completed for the above reasons, the safety of the public was not a priority.
For example:
§“In respect of one vehicle he agreed that the suspension should have had a “bump stop” and that if it didn’t that would be a reason for rejection. When asked why he didn’t fail the vehicle because there was in fact no “bump stop” he said, “I just assumed it would be there” and he conceded in doing that he had not met the requirements of the code of practice.
§With respect to another vehicle he was asked why he did not road test it as required, he said:
“I had too many cars up there, probably around that time and they were standing outside waiting so I didn’t want to leave them waiting too long.”
§In another case when asked why the vehicle had not been inspected as per the code of practice, he said:
“the only thing, as I said, there was too many cars blocking the driveway… I just wanted to get them out of the way.”
“I was probably more worried about screaming neighbours, screaming landlords and screaming truck drivers that they can’t get in and out of the place.””
These types of comments do evidence a concerning pattern of behaviour. Mr Novak was obviously busy and stressed when the inspections took place and certificates issued. However when the end result is that the public safety may be at risk it is not excusable.
As such, the fact that there were only 5 vehicles involved over a 5 month period is not a point in Mr Novak’s favour.
Antecedents
Mr Novak submits he is financially responsible for his wife and 5 children and he will lose substantial income if he is prohibited from issuing safety certificates. He solicitor submits in the written submissions that Mr Novak will be forced into bankruptcy, however, as the DTMR notes in their submissions he has not provided any evidence in support of his contention.
I accept the DTMR’s submission that the possibility that Mr Novak will suffer financial hardship is secondary to the wider public interest and that public safety is the DTMR’s primary consideration.
Mr Novak himself notes that he continues to work as a mechanic which will provide some income.
Mr Novak will be eligible to reapply for approval in December 2012.
Findings
The purpose of a review is to produce the correct and preferable decision.[3] The Tribunal must hear and decide a review by way of a fresh hearing on the merits[4] and then it may confirm or amend the decision, set the decision aside and substitute its own decision, or set the decision aside and return it to the decision maker for reconsideration.
[3] QCAT Act, s 20(1).
[4] QCAT Act, s 20(2).
The question to be decided is whether on the evidence and submissions provided by both parties the correct and preferable decision was to cancel Mr Novak’s approval.
Mr Novak’s submission is essentially that whilst conceding he breached the conditions of his approval a suspension of his approvals would be a preferable decision for the reasons outlined in his submissions above.
The essence of the DTMR’s submission is that cancellation of Mr Novak’s licence is the appropriate decision having regard to the nature of the offences and their impact on public safety.
The DTMR maintains that if the Tribunal confirms its decision to cancel Mr Novak’s approvals, this will act as a general deterrent to other approval holders and that Mr Novak will not be able to carry out safety inspections for vehicles used on public roads.
Mr Novak has, through his actions in issuing certificates in circumstances where necessary inspections have not been conducted, shown a disregard for public safety.
During the relevant period he was clearly working under stressful conditions however he should not have short cut his obligations to ensure thorough inspections were carried out in the vehicles that he was certifying.
The correct and preferable decision is to cancel his approvals and accordingly I confirm the decision of the DTMR to do so.
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