Palumberi -v- General Manager, Tow Truck Authority of New South Wales

[2001] NSWADT 206

CITATION:	Palumberi -v- General Manager, Tow Truck Authority of New South Wales [2001] NSWADT 206
DIVISION:	General Division
PARTIES:	APPLICANT Antonio Palumberi RESPONDENT General Manager, Tow Truck Authority of New South Wales
FILE NUMBER:	013183; 013264
HEARING DATES:	07/11/2001
SUBMISSIONS CLOSED:	11/07/2001
DATE OF DECISION:	12/04/2001
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	Tow Truck Industry - tow truck operator or driver - giving a direction under s.84 - Tow Truck Industry Act - tow truck operator or driver - grant of licence or certificate - Tow Truck Industry Act - tow truck operator or driver - suspension or revocation of licence or certificate - Tow Truck operator or driver - giving a direction under s.84 - Tow Truck operator or driver - grant of licence or certificate - Tow Truck operator or driver - suspension or revocation of licence or certificate
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Tow Truck Industry Act 1989 Tow Truck Industry Regulation 1999
CASES CITED:	Australian Broadcasting Tribunal -v- Bond (1990 94 ALR 11)
REPRESENTATION:	APPLICANT D Bazzi, solicitor RESPONDENT A Wozniak, solicitor
ORDERS:	1. The TTA's decision not to grant Mr Palumberi a tow truck operator's certificate is affirmed; 2. The TTA's decision to give a direction to Mr Palumberi under s 84 of the TTI Act is affirmed; 3. The TTA's decision to permanently revoke Mr Palumberi's drivers certificate is affirmed.

Introduction

1 Mr Palumberi applied to the Tribunal for a review of three decisions made by the Tow Truck Authority of NSW (TTA) under the Tow Truck Industry Act 1998 (TTI Act). The first two decisions were:
· to refuse to grant Mr Palumberi an operator’s licence; and
· to give a direction to Mr Palumberi under s 84 of the TTI Act.
2 On the day of the hearing I gave Mr Palumberi’s representative, Mr Nicol, leave to file a futher application for review in relation to a third decision. That decision was to permanently revoke Mr Palumberi’s drivers certificate.

Jurisdiction
3 The Tribunal has jurisdiction to hear this matter under s 45 of the TTI Act and s 38 of the Administrative Decisions Tribunal Act 1997 (ADT Act). Under s 45 of the TTI Act:
(1) A person may apply to the Administrative Decisions Tribunal for a review of any of the following decisions:
(a) the refusal or failure by the TTA to grant a licence or drivers certificate to the person,
(b) a condition imposed by the TTA in relation to a licence or drivers certificate granted to the person,
(c) the suspension or revocation of a licence or drivers certificate granted to the person,
(d) the disqualification of the person from holding a licence or drivers certificate,
(e) the imposition of a fine on the person,
(f) the giving of a direction under section 84 to the person.
(2) For the purposes of this section, an application for the grant of a licence or drivers certificate is taken to have been refused if the licence or drivers certificate is not granted within 90 days after the application is made in accordance with this Act.
The decisions under review are those in bold.

Refusal to grant an application for an operator’s certificate
4 The first decision was a refusal by the TTA to grant Mr Palumberi’s application for an operator’s certificate. The TTA submitted that the refusal was based on mandatory statutory grounds.

5 On 21 May 1997 Mr Palumberi was convicted of common assault and fined $2000.

6 Section 18 of the TTI Act states that:

(1) The TTA:
(a) must refuse to grant an application for a licence on mandatory grounds, and
(b) may refuse to grant an application for a licence on discretionary grounds.
(2) The mandatory grounds for refusing to grant an application for a licence are as follows:
(a) that the applicant is under the age of 18 years,
(b) that the applicant has, within the period of 10 years before the application for the licence was made:
(i) been convicted, or
(ii) been found guilty (but with no conviction being recorded),
by a court in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law and whether or not committed before the commencement of this section,
(c) that the applicant is disqualified from holding a licence.
7 Clause 7(1)(a) of the Tow Truck Industry Regulation 1999 (the Regulation) states that:
Offences that disqualify applicants for licences: section 18 (2) (b) and (3)(i)
(1) For the purposes of section 18 (2) (b) and (3) (i) of the Act, the following offences are prescribed (regardless of whether they were committed in New South Wales):
(a) any offence involving an assault of any kind against a person,
(b) any offence relating to the possession or use of a firearm or other weapon,
(c) any offence involving the supply or possession of a prohibited drug (within the meaning of the Drug Misuse and Trafficking Act 1985),
(d) any offence involving fraud, dishonesty or stealing,
(e) any offence involving robbery (whether armed or otherwise),
Being an offence in respect of which the penalty imposed was imprisonment, or a monetary penalty of more than $1,000, or both.
(2) An offence under the law of an overseas jurisdiction is prescribed only if it would, had it been committed in New South Wales, be an offence punishable by imprisonment or a monetary penalty of more than $1,000.
8 There was no dispute that the conviction took place within 12 months before Mr Palumberi applied for the licence. The parties also agreed that the offence fell within the definition of mandatory offences in s 7 of the Regulations. In those circumstances, neither the Tow Truck Authority nor this Tribunal has a discretion to grant the certificate. Consequently the decision of the TTA not to grant Mr Palumberi an operator’s certificate is affirmed.

Decision to give a direction to Mr Palumberi under s 84 of the TTI Act.
9 Under s 84 of the TTI Act, the TTA may, for the purposes of ensuring compliance with the TTI Act or the regulations, or in taking disciplinary action, give directions with respect to particular matters. Those matters are:
(a) the use or operation of any tow truck,
(b) the business of a tow truck operator,
(c) any matter connected with towing work.
10 Under s 84(2) and (3), any direction must be in writing and may require a person to do any specified thing, or to refrain from doing any specified thing.

11 The s 84 notice to Mr Palumberi dated 18 July 2001, directed him to deliver to the TTA by 20 July 2001: registration plates 4178TT and "any documents evidencing the undertaking of towing work by you, including but not limited to, any invoices, orders, forms of authorisation, receipts, booking forms and records of motor vehicles towed." The notice also directed Mr Palumberi to "refrain immediately from undertaking any towing work and refrain immediately from any activity that may be reasonably considered by the General Manager as carrying on business as a tow truck operator."

12 In his oral evidence, Mr Palumberi agreed that he had not complied with the directions in the notice. He offered two reasons for not complying. He said that he had been advised by his legal representative to fight the case and secondly he said that he had an agreement with a Mr Greg Henson of James Callaghan Smash Repairs to lease registration plates 4178TT from him for 12 months. This was an annual agreement that had been renewed in the past, but since he had a falling out with his partner, who was Mr Henson’s mother, Mr Henson had requested the return of the plates. Mr Henson sent a facsimile dated 4 July 2001 to the TTA in which Mr Henson advised that the leasing agreement "will no longer be standing as A Palumberi has made application for it’s own schedule." Mr Palumberi did not return the plates to Mr Henson or the TTA as he took the view that he still had a current lease for the plates.

13 Mr Palumberi is a 53 year old man who owns his own tow truck and has been working as a tow truck driver since 1997. Mr Palumberi admitted during the course of the hearing that he had been working for himself. In the context of these questions, the clear inference from Mr Palumberi’s response was that he has been driving his tow truck up until 6 November 2001, without the necessary certificates and licences. I gave Mr Palumberi a certificate under s 128 of the Evidence Act 1995 in respect of this admission. I find that Mr Palumberi has been driving his tow truck without an operator’s certificate, driver’s certificate or registered plates in his name as required by the TTI Act. Furthermore this work has been undertaken in clear breach of the s 84 notice directing him to refrain from undertaking any towing work. If Mr Palumberi has an issue with Mr Henson in relation to the leasing of the plates, then that matter should be taken up with him separately. It does not provide Mr Palumberi with any justification whatsoever for deliberately failing to comply with a lawful notice under s 84.

14 I find that the directions in the s 84 notice were given for the purposes of ensuring compliance with the TTI Act or the regulations and/or in taking disciplinary action. Those directions were reasonable and appropriate in the circumstances. The TTA made the “correct and preferable” decision in giving Mr Palumberi a notice under s 84.


Decision to permanently revoke Mr Palumberi from holding a driver’s certificate
15 Under s 41(2)(b) of the TTI Act, the TTA may permanently revoke a licence or drivers certificate. The grounds on which such a revocation can be made appear in s 42. Those grounds include "any reason for which the licensee or certified driver would not have been granted a licence or drivers certificate initially" and where "the TTA is of the opinion that the licensee or certified driver is no longer a fit and proper person to hold a licence or drivers certificate". Although the TTA relied only on the first ground in their written statement of reasons, at the hearing Mr Wozniak added the ground that Mr Palumberi was not a fit and proper person to hold a driver’s certificate. Mr Palumberi’s representative did not object to the addition of this ground.

16 The first ground relied on by the TTA is that they should not have issued Mr Palumberi with a drivers certificate on the two previous occasions (1999 and 2000) because there were mandatory grounds for refusing to issue the certificate. Section 26 of the TTI states that the TTA must refuse to grant an application for a drivers certificate on mandatory grounds, one of which is that the applicant has been convicted of certain offences within the previous 10 years. Those offence are set out in s 15 of the Regulation. Mr Palumberi’s conviction for assault, for which he was fined $2000 is a prescribed offence.

17 Details of the assault for which Mr Palumberi was convicted are contained in a decision of the Local Court dated 21 May 1997 which was in evidence. The legislation provides for any application for a drivers certificate to be refused for a period of 10 years after such a conviction. The TTA has a discretion under s 41 to suspend a driver’s certificate for a specified period, to disqualify a person from holding a drivers certificate for a specified period or to permanently revoke a drivers certificate. In my view, if Mr Palumberi’s conviction was the only relevant matter to be taken into account, the TTA should have suspended Mr Palumberi’s certificate for the remainder of its term. Any further application made by Mr Palumberi would then have been refused on mandatory grounds for a period of 10 years from the conviction.

18 But Mr Palumberi’s conviction is not the only relevant matter before the Tribunal. The TTA submitted that the decision to permanently revoke Mr Palumberi’s certificate was also made on the ground that he is no longer a fit and proper person to hold a drivers certificate. That submission was based on the fact that Mr Palumberi has not complied with a lawful direction of the TTA to return plates in his possession and to refrain from undertaking any towing work.

19 The term "fit and proper" person was discussed by the High Court in Australian Broadcasting Tribunal v Bond (1990 94 ALR 11) Toohey and Gaudron JJ at stated at p 65 that:

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 and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities.
20 Mr Palumberi has not only refused to obey a lawful direction of the TTA, he has continued to operate a tow truck business without complying with many of the basic provision of the TTI Act. He does not have an operators certificate or a drivers certificate. He does not own the plates he is using. I am satisfied that Mr Palumberi understood his legal obligations but chose to ignore them. If Mr Palumberi had complied with the s 84 direction, there would have been no justification for a permanent revocation of his drivers certificate. He would have been eligible for another certificate in 2007. But by his own actions Mr Palumberi has demonstrated that he is not a fit and proper person to have a drivers certificate. He shows no remorse for his behaviour, in fact he continued to press his right to retain the plates in view of his agreement with Mr Henson. Mr Palumberi had the benefit of legal advice and has no excuse for his persistence in openly flouting the TTA’s directions by continuing to operate a tow truck business. He is no longer a fit and proper person to hold a drivers certificate.

21 The TTA’s decision to permanently revoke his drivers certificate is affirmed.