RTA v Sharp Towing Pty Ltd and Ors (GD)

[2008] NSWADTAP 49

Appeal Panel - Internal

CITATION:	RTA v Sharp Towing Pty Ltd and ors (GD) [2008] NSWADTAP 49
PARTIES:	APPELLANT: Roads and Traffic Authority, New South Wales RESPONDENTS: Sharp Towing Pty Ltd, Rennie Agius and Alison Agius
FILE NUMBER:	089020
HEARING DATES:	26 May 2008
SUBMISSIONS CLOSED:	26 May 2008
DATE OF DECISION:	4 August 2008
BEFORE:	O'Connor K - DCJ (President)
CATCHWORDS:	Statutory Interpretation - "offence involving" - Tow Truck Industry Regulation 1999, cl 7, cl 15
MATTER FOR DECISION:	Interlocutory Ruling
DECISION UNDER APPEAL:	Sharp Towing Pty Ltd and ors v Tow Truck Authority of New South Wales [2008] NSWADT 57
FILE NUMBER UNDER APPEAL:	073253, 073254, 073255
DATE OF DECISION UNDER APPEAL:	02/20/2008
LEGISLATION CITED:	Tow Truck Industry Act 1998 Administrative Decisions Tribunal Act 1997 Crimes Act 1900 Controlled Substances Act 1984 (SA) Legal Profession Act 1987 Criminal Code 1899 (Qld) Tow Truck Industry Regulation 1999 Drug Misuse and Trafficking Act 1985
CASES CITED:	Bourke & ors v The Commissioner of Police [1998] NSWADT Commissioner of Police v Wilson & anor, Court of Appeal, 29 July 1994 Jacobs v Commissioner of Police, New South Wales Police Service [2003] NSWADT 180 Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659 Barber v Law Society of NSW (No 2) [2001] NSWSC 861 Doyle v Commissioner of Police [1999] NSWADT 84 Doyle -v- Commissioner of Police, New South Police Service (GD) [2000] NSWADTAP 1 Joyce -v- Commissioner of Police, New South Wales Police Service (GD) [2000] NSWADTAP 17 Winika v Commissioner of Police, New South Wales Police Force [2001] NSWADT 8 Kerkham v Director General, Department of Fair Trading [2002] NSWADT 63 Jacobs v Commissioner of Police, New South Wales Police (GD) [2003] NSWADTAP 55 Smith [1982] 7 A Crim R 437 Stone’s case (1955) 56 SR (NSW) 25 Inspector-General in Bankruptcy v Matthews, (20 December 1990, unreported Federal Court of Australia) R v L (1991) 174 CLR 379 Sleiman v Tow Truck Authority of New South Wales (GD) [2005] NSWADTAP 46 Re Magna Alloys & Research Pty Ltd (1975) 1 ACLR 203
REPRESENTATION:	APPELLANT P O'Donnell - counsel / Smythe Wozniak Solicitors FIRST RESPONDENT A Agius SECOND RESPONDENT In person THIRD RESPONDENT In person
ORDERS:	1. Leave to appeal granted. 2. Appeal allowed 3. Tribunal’s decision on the interlocutory issue set aside 4. Tribunal to proceed to determine the application in accordance with this decision.

1 The Roads and Traffic Authority, as administrator of the Tow Truck Industry Act 1998 (the Tow Truck Act) has appealed against an interlocutory ruling of the General Division of the Tribunal. The Tribunal is dealing with three applications for review of disciplinary decisions.

2 The applicants for review and respondents to the appeal are Sharp Towing Pty Ltd (the Company), Mr Rennie Agius and his wife, Ms Alison Agius. The Company used to hold a licence as a tow truck operator. Mr Agius used to be the Company’s certified driver. Ms Agius is the Company’s managing director. Between 25 and 27 August 2007, the administrator (then the Tow Truck Authority) made the following decisions, now under review by the Tribunal:

- It refused to renew the Company’s tow truck operator’s licence.

- It disqualified Mr Agius from holding a driver’s certificate for 5 years.

- It refused an application for a driver’s certificate from Ms Agius.

3 These decisions followed the prosecution and conviction of the Company, Mr Agius and Ms Agius for offences under the Tow Truck Act. The Company and Mr Agius were each convicted of 22 counts of contravention of a condition of their licence or certificate, an offence created by s 58. Ms Agius was convicted as a director knowingly concerned in the commission of 5 counts of the above offence.

4 The condition read:

‘The [licensee/certified driver] must not charge a fee for the towing, salvage or storage of motor vehicle that exceeds any maximum fees determined by the [the administrator].’

5 Section 58 provides:

‘ 58 Contravention of conditions

(1) A licensee must not contravene any condition of the licence.

Maximum penalty: 50 penalty units or imprisonment for 6 months, or both.

(2) A certified driver must not contravene any condition of the drivers certificate.

Maximum penalty: 50 penalty units or imprisonment for 6 months, or both.’

6 In the reasons accompanying each of the decisions the administrator held that the relevant person was not a ‘fit and proper person’ to be granted or retain the relevant authority.

7 At hearing before the Tribunal the administrator relied on an additional ground which it said was mandatory and determinative of the matter. It was not, therefore, necessary to examine the issue of the applicants’ character.

8 The administrator relied on provisions in the Act which require the administrator to refuse authorities to persons who have been convicted of offences ‘involving fraud, dishonesty or stealing’. The administrator referred to the circumstances that had resulted in the convictions, and submitted that they showed that the offences had involved conduct which was, at the least, dishonest if not fraudulent. The Tribunal held that the question of whether an offence ‘involved’ dishonesty was to be determined by reference to a consideration of the terms of the relevant provision, and further, dishonesty (or fraud, or stealing) had to be an element of the offence. Accordingly it declined to entertain the submission, and ruled that the applications were to be dealt with on a discretionary basis.

The Appeal

9 The appeal is confined to a question of law, expressed as follows:

‘The Tribunal erred in law in determining that ‘an offence involving fraud, dishonesty or stealing’ involved an analysis of solely the elements of the offence of which the applicants were convicted.’

10 An appellant against an interlocutory ruling must obtain leave from the Appeal Panel to proceed: Administrative Decisions Tribunal Act 1997, s 113(2A). The Appeal Panel may be constituted for that purpose by a single presidential member: s 113(2B). If leave is granted, the substantive appeal may be heard by a single presidential member, where there is an ‘interlocutory issue’: s 24A. It is constituted in that way for both purposes on this occasion.

11 Mr O’Donnell of counsel appeared on behalf of the administrator, and spoke to his written submissions.

12 Mr and Ms Agius appeared at the hearing of the appeal. They urged the Appeal Panel not to interfere with the ruling made by the Tribunal, and referred to what they saw as the injustice of the steps being taken against them by the administrator. They noted that their livelihoods depended on their continuing to work in the industry.

13 They did not have any specific submissions to make on the question of law.

Mandatory Grounds for Administrative Decision

14 If action is taken against an authority on a mandatory ground, the Tribunal has accepted that it is restricted when reviewing decisions to the question of whether any pre-conditions for the mandatory decision are made out. If that is the case, it has no independent discretion, unless the Tribunal is expressly given a discretion on review not enjoyed by the administrator responsible for the primary decision: see Bourke & ors v The Commissioner of Police [1998] NSWADT, and the case upon which it relied, Commissioner of Police v Wilson & anor, Court of Appeal, 29 July 1994, unreported. There was no separate discretion given to the Tribunal in this case.

15 The provisions on which the administrator now relies are as follows.

16 Refusal of Operator’s Certificate. Section 18 of the Act provides relevantly:

‘(1) The RTA:

(a) must refuse to grant an application for a licence on mandatory grounds, …

(2) The mandatory grounds for refusing to grant an application for a licence are as follows: …

(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,…’

17 Refusal of Driver’s Certificate. Section 26 has provisions in the same terms.

18 Offence Prescribed by Regulations. The relevant Regulations have provisions in common terms (see Reg 7 (operator’s licences), Reg 15 (driver’s certificates)):

‘(1) … the following offences are prescribed (regardless of whether they were committed in New South Wales): …

(d) any offence involving fraud, dishonesty or stealing,

- being an offence in respect of which the penalty imposed was imprisonment for any period, a direction under a community service order that the offender perform community service work for 100 or more hours or a monetary penalty of $1,000 or more, or a combination of those penalties.’

19 The Tribunal said:

‘19 If an offence under section 58 of the Tow Truck Industry Act 1998 is to come within the ambit of regulation 7, it must be an offence involving ‘fraud, dishonesty or stealing.’ Mr Wozniak submits that the actions of Alison Agius and Sharp Towing, as set out in the prosecution facts, disclose such ‘fraud, dishonesty or stealing’, thereby bringing the matters within the reach of regulation 7.

20 I do not accept Mr Wozniak’s reasoning. As Higgins JM observed in Jacobs v Commissioner of Police, New South Wales Police Service [2003] NSWADT 180, the matter in issue is answered by considering the elements of the offence for which an applicant for a licence has been convicted and not by considering the particular facts surrounding the conviction. Had Parliament intended the latter it would have made reference to the conduct the subject of the conviction, instead of referring to the offences themselves.

21 Section 58 of the Tow Truck Industry Act 1998 creates an offence for the contravention of any condition of a licence. No mens rea is required. All that needs to be proven is that the condition was contravened. There is no requirement that fraud, dishonesty or stealing be found in the contravention. On this basis, I find that an offence under section 58 does not fall within the ambit of section 18(1) of the Tow Truck Industry Act as a mandatory ground for refusing to grant an application for a licence, nor does it fall within section 26 of the Act as a mandatory ground for refusing to grant an application for a drivers certificate.’

20 It will be seen that the Tribunal adopted an approach to the interpretation of the scope of the provision which confined its examination to the text of the provision. The Tribunal only considered one of the many cases in the Tribunal which have dealt with this issue. In addition there are two Supreme Court decisions going to the matter.

21 The two Supreme Court cases are Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659 (Abadee J), and Barber v Law Society of NSW (No 2) [2001] NSWSC 861 (Bell J). The Tribunal cases that have considered the issue have done so in the context of similar provisions in the firearms and security guards licensing laws. Apart from Jacobs at first instance, the others include: Doyle v Commissioner of Police [1999] NSWADT 84; Doyle -v- Commissioner of Police, New South Police Service (GD) [2000] NSWADTAP 1 (Doyle Appeal); Joyce -v- Commissioner of Police, New South Wales Police Service (GD) [2000] NSWADTAP 17; Winika v Commissioner of Police, New South Wales Police Force [2001] NSWADT 8; Kerkham v Director General, Department of Fair Trading [2002] NSWADT 63; and Jacobs v Commissioner of Police, New South Wales Police (GD) [2003] NSWADTAP 55 (Jacobs Appeal).

22 With the one exception of the ruling in Jacobs, the cases are consistent in holding that it is not determinative of whether an offence ‘involves’ prescribed conduct that the conduct be an element of the offence. It is enough that the offence can be said to be of a kind that deals with a subject matter that would ordinarily be regarded as conduct of the kind prescribed. The Tribunal erred in its understanding of the previous authority.

23 There is a division of views in the authorities over whether the administrator (or Tribunal) can, in instances where the offence provision does not involve a subject matter that might reasonably be said to amount to the prescribed conduct, go on to look at the underlying circumstances of the offence.

24 The preponderant view in the cases is that the issue is to be determined by consideration only of the terms of the offence provision (which in these reasons I have called ‘the textual’ interpretation or approach).

25 However one of the two Supreme Court cases takes the wider approach. The administrator relies on dicta in that case in support of its appeal. There are two Tribunal cases where the wider approach is referred to, without disapproval.

26 Mr O’Donnell submitted that the wider view was to be preferred.

Survey of Case Law

27 The Supreme Court Decisions. Pollard concerned the following situation. The plaintiff had been convicted of an offence under s 178BB of the Crimes Act 1900. The offence is having, with intent to obtain a financial advantage, made a statement which was false in a material particular and making it with reckless disregard as to whether it was true or false. He was subsequently convicted of the Companies Code offence (s 227(2)(b)) of being involved in the management of a corporation when he had been convicted of an offence ‘involving fraud or dishonesty’ punishable on conviction by imprisonment for not less than 3 months (as s 178BB was). The plaintiff contended that the subsequent conviction was wrong, as the earlier conviction was not one for an offence involving fraud or dishonesty, as neither of these types of conduct constituted an element of the offence.

28 The Court accepted the correctness of this submission – had the expression been conviction ‘of’ an offence of fraud or dishonesty. But it saw ‘involving’ as a word with a wider denotation. The Court was satisfied that the offence of obtaining a financial advantage could be regarded as an offence ‘involving’, at the least, dishonesty. Because of this conclusion it did not consider it necessary to rule on the further submission that the words ‘offence involving … dishonesty’ covered offences which in their terms might not obviously be connected with lack of honesty, but the facts proven in the proceedings leading to the conviction demonstrated dishonesty.

29 The Court nonetheless considered the issue, and expressed its support for this wider view, at 663. Abadee J said:

‘[Counsel for the defendant] submitted that s 227(2)(b) was not confined in its operation to an offence, which on its ‘face’ was an offence of fraud or dishonesty. He pointed to the presence of the word ‘involving’ and submitted that an offence ‘involving fraud or dishonesty’ did not necessarily mean that the offence was one which involved the essential legal elements of fraud or dishonesty. He argued that involving meant the presence of an element answering the description of fraud or dishonesty, an element, ‘not restricted to an element of the offence’ itself. In the reasons to which I have made reference, the magistrate appears to have posed the question as to whether there was an element of dishonesty in his conduct.

Although the parties’ submissions were primarily addressed to the question as to the nature of the offence under s 178BB of the Crimes Act, it is appropriate if I now express views in relation to this alternative submission.

The offence under s 227(2)(b) is concerned with the conviction of the person charged, of an offence, ‘involving fraud or dishonesty’. The inquiry is directed towards ascertaining whether fraud or dishonesty was ‘involved’ in the offence. The word used in the section is ‘involving’ and not ‘of’. In my view ‘involving’ is a word that should be given its ordinary meaning. Were it necessary for me to finally determine Mr Farmer’s alternative submission, I would be disposed to the view that if conduct or behaviour answering the description of fraud or dishonesty was involved in commission of the earlier offence, then, the offence under s 227(2)(b) would be established.’

30 In Barber, Bell J, without considering the dicta in Pollard, adopted the narrower (‘textual’) view.

31 A client made a claim against the Law Society’s compensation fund for pecuniary loss caused by a solicitor’s incompetence. The client alleged that the loss was due to a ‘failure to account’ for monies entrusted, it was said, to the solicitor for investment purposes. Not all types of failure to account are covered by the fund. A client can only recover from it if it is shown that the failure to account ‘arises from an act or omission … (a) for which the solicitor … has been convicted of a crime or an offence involving dishonesty … or (b) which the Law Society Council has found to be dishonest.’ The Law Society Council made a finding that the conduct was not dishonest. The solicitor had been convicted of two offences of taking part in the production of a controlled substance (Controlled Substances Act 1984 (SA), s 32(1)(b)) and for conspiracy to produce a controlled substance. The solicitor’s property had been confiscated following his arrest and retained following his conviction. This meant, the client submitted, that he was unable to get back the money lent to the solicitor, and the solicitor’s failure to account ‘arose from’ the conviction. After considering the meaning to be given to the words ‘arises from’, Bell J moved on to the question of what constitutes a ‘crime or offence involving dishonesty’.

32 Her Honour took a textual approach. She said at [32] (emphasis added):

‘32 The conviction of which s 79A(2)(a) speaks is one for a crime or offence involving dishonesty. It seems to me that the crime or offence the subject of the conviction must be one which answers that description without further inquiry . Offences involving dishonesty embrace those such as stealing and robbery in which the property of another is taken with the intention thereby of permanently depriving the rightful owner of it and offences where property or some advantage is gained through indirect means such as false pretences, conspiracy to defraud and the like. Glanville Williams notes that while the great majority of offences of dishonesty relate to property it is not true to say that all do; Textbook of Criminal Law , 2nd Ed, Stevens, Lond. 1983, at p 699. He cites as an illustration of an offence of dishonesty not involving property the commission of perjury in order to avoid going to prison.’

33 The Tribunal Decisions. There have been several cases in the Tribunal dealing with the approach to be taken to the interpretation of the word ‘involving’ in provisions in licensing schemes in similar terms and with an identical object (mandatory removal from the industry). Almost all of them have adopted the textual approach.

34 In an early case, Doyle v Commissioner of Police [1999] NSWADT 84, I considered the issue. There the conviction was also (like Pollard) under s 178BB of the Crimes Act. I said, dealing with similar arguments to those made in Pollard, but unaware of that case:

‘14 A reasonable approach should be adopted to determining whether a specific offence can properly be described as one involving “fraud, dishonesty or stealing”. These are all offences involving the deprivation of someone else’s property with some requisite intent. It would, I consider, be artificial to sub-divide this group of offences as between those that depended on proof of a positive criminal intent as against an intent based on reckless disregard for the consequences of conduct (as to which, see Smith [1982] 7 A Crim R 437 (Victorian Court of Criminal Appeal) and Stone’s case (1955) 56 SR (NSW) 25). Whether the intent is actual or founded on reckless disregard for the consequences, it is reasonable, I consider, to describe the conduct involved as “dishonest”.’

35 On appeal, the Appeal Panel located through ‘its research’ the decision in Pollard. It cited with approval my statement, above, and essentially elaborated on the conclusion. It saw it as consistent with the decision in Pollard.

36 The administrator drew attention to the Appeal Panel’s further observations at [12] and [13], especially the reference to von Doussa J’s views recorded at [13]:

‘12 In Pollard , counsel for the plaintiff argued that an offence “involving” fraud or dishonesty means an offence “of” fraud or dishonesty. In rejecting this view, Abadee J stated that:

The word “involving” appears to have been deliberately inserted in contradistinction to the insertion of the word “of”. Further, the argument fails to give the section its ordinary meaning, which in my view, leads to no ambiguity or uncertainty. It appears to me that there is a clear difference between an offence “involving” fraud or dishonesty, and an offence ‘of” fraud or dishonesty.

13 This view is supported by a comment of von Doussa J in Inspector-General in Bankruptcy v Matthews, (20 December 1990, unreported Federal Court of Australia). This case involved an application for the cancellation of the applicant’s status as a trustee in bankruptcy under s 155(5B) of the Bankruptcy Act 1996. In the course of his decision, von Doussa J commented at [20] that:

In the present case the respondent has not been convicted of an offence of fraud or dishonesty. The Court has however found, according to a lesser standard of proof, that he engaged in conduct in relation to the two cars of a serious kind which involved fraud and dishonesty.’

37 In a later Appeal Panel case in 2000, Joyce -v- Commissioner of Police, New South Wales Police Service, in which I presided, the textual approach was adopted. The Appeal Panel dismissed the appeal, agreeing with the Tribunal below that the offence of goods in custody may properly be one ‘involving dishonesty’ within the meaning of relevant legislation. The Appeal Panel continued:

‘ Looking Behind the Conviction

27 The Tribunal did not accede to the second submission made before it, that it look to the circumstances surrounding the offence in this case to ascertain whether it could be said to have involved any dishonesty. As has been customary in the Tribunal in dealing with refusals on grounds regarded as mandatory, the Tribunal simply satisfied itself that the objective facts upon which the Commissioner relied were made out. In this instance the questions were did the offence fall into a prescribed category, did it meet any penalty threshold and was it within the last 10 years.

28 In this regard, we see no reason to depart from the observations made by the President sitting at first instance in the cases of Commissioner of Police v Bourke and others [1998] NSWADT 1 and Doyle v Commissioner of Police [1999] NSWADT 84.

29 We consider this approach is clearly supported by the terms of s 16 of the Act and cl 11 of the Regulation both of which seek to address the offences which give rise to mandatory consequences in a categorical way.’

38 It will be seen that the Appeal Panel did not see it as necessary to go to the wider issue raised by this case.

39 In a case decided in January 2001 before Barber, Winika v Commissioner of Police, New South Wales Police Force [2001] NSWADT 8 the Tribunal (Hennessy DP) dealt with a case where a licence applicant had been refused a licence on a mandatory basis, the ground being that he had been convicted of an offence ‘involving’ fraud, dishonesty or stealing. The offence was that of knowingly obtained a social security payment for which the person was not eligible. The Tribunal made reference to the underlying material in its account of the history of the conviction. However, the core reasoning adopted the textual approach: see [13].

40 The first Tribunal case to refer to Barber is Kerkham v Director General, Department of Fair Trading [2002] NSWADT 63. This case arose under the licensed conveyancers disciplinary provisions contained in the Legal Profession Act 1987. The Tribunal (Hennessy DP, sitting at first instance, and who had presided in the Doyle Appeal and later on the Jacobs Appeal) said:

‘12 Based on this decision, the question the Tribunal must ask itself is whether the offences in s 48B(1) and s 48E(2) of the Legal Profession Act 1987 are offences involving dishonesty, without further inquiry . “Without further inquiry” means that the Tribunal cannot look behind the conviction to determine whether the particular acts or omissions of Mr Kerkham involved dishonesty. The Tribunal is confined to looking at the terms of the offences themselves and determining whether those offences “involve dishonesty.” For this reason I have not taken into account the evidence about the circumstances of the offence.’

41 As to the interpretation placed by the Tribunal in Kerkham on the words ‘further inquiry’ used by Bell J in Barber, Mr O’Donnell’s submission is that those words were meant simply to indicate that no further inquiry should be conducted into the correctness of the conviction, as to do so would be to conduct a de facto appeal. In my view, it is difficult to put that construction on Bell J’s comments. Her Honour was, as I see it, plainly addressing the issue by reference to the textual approach, as I have called it. This view is confirmed, I consider, by her statements at [33] (emphasis added):

‘33 I am not persuaded that on a generous interpretation of the concept of a crime or offence involving dishonesty that a conviction for the offence of taking part in the manufacture of a prohibited drug (or conspiring to produce) contrary to s 32(1)(b) of the Controlled Substances Act 1984 (SA) might properly come within the terms of s 79A(2)(a) of the Act.’

42 The case of Jacobs at first instance, on which the Tribunal relied, concerned a mandatory ground for refusal in respect of prior convictions ‘involving assault’. In that case the applicant for a security industry licence had been convicted, after pleading guilty, of two offences of sexual intercourse with a male person under the age of 16 years and above the age of 10 years; namely 14 years. He was sentenced to imprisonment for two years and six months, with a non parole period of twelve months. The Tribunal said (emphasis added):

‘37 In his written submissions, Mr Capper, on behalf of the Commissioner, argued that the phrase “involving assault of any description” in cl. 11(c) of the SI Regs included the offence of which Mr Jacobs was convicted as well as every other unlawful sexual intercourse offence contained in the Crimes Act, 1900 (Crimes Act). In support of this proposition he relies on the decision in R v L (1991) 174 CLR 379 at 401 where Brennan J stated the following:

“… rape has always been essentially a crime of violence and indeed no more than an aggravated assault. Even in Hume’s time there was no immunity for a husband who assaulted his wife even if the assault contained elements of the grossest indecency…”. …

Mandatory Refusal: s. 16 prescribed offence

40 It is convenient to first deal with the issue of whether a conviction for the offence for which Mr Jacobs was convicted is an offence coming within the terms of cl. 11(c) of the SI Regs. If it does, the Commissioner (and the Tribunal) has no discretion and must refuse to grant Mr Jacobs’ application for a licence as cl. 11(c)(i) is satisfied in this case as Mr Jacobs was sentenced to a term of imprisonment.

41 The issue is one of legislative construction. The first thing to note is that s. 16(1)(a) of the SI Act makes reference to the applicant having been “convicted” of an “offence prescribed by the Regulations”. The introductory words of cl. 11 of the SI Regs state that the “following offences are prescribed offences” for the purposes of s. 16(1)(a) of the SI Act.

42 Having regard to the wording of s. 16(1)(a) of the SI Act and the introductory words of cl. 11 of the SI Regs, in my opinion, the matter in issue is answered by considering the elements of the offence for which the applicant for a licence has been convicted of and not by considering the particular facts surrounding the conviction. Had Parliament intended the latter it would have made reference to the conduct the subject of the conviction, instead it has used the words “ an offence prescribed by the regulations” (see s.16(1)(a)).

43 Accordingly, what must be determined is whether the elements of the offence for which the applicant has been convicted involves elements which would also give rise to an offence of assault. It is the latter which is given a broad meaning in cl. 11(c) of the SI Regs by the qualifying words of “… any description”. The reason for this is obvious as s. 16(1)(a) of the SI Act and cl. 11(c) of the SI Regs applies to conduct that occurred outside of New South Wales and which amounted to an offence of assault under a law other than New South Wales law. In such cases the elements of the offence may differ to those which apply under New South Wales law, however a conviction of such an offence will never the less come within the terms of cl. 11(c) of the SI Act (e.g. s.245(1) Criminal Code 1899 (Qld) which codifies the offence of assault).’

43 While Bell J has expressed a narrower view than Abadee J, neither judge went so far as to require that the specified conduct be an element ‘of’ the offence. Nor had Tribunal decisions taken that view, prior to Jacobs at first instance. In the Jacobs Appeal, the Appeal Panel upheld the appeal on the narrow point that the offence under notice did involve an ‘assault’ in the legal sense, and rejected the Tribunal’s view that consent was essential to the meaning of that concept.

44 As to the wider question, it made the following passing reference at para [10]:

‘10 Tribunal’s reasoning. The Tribunal found that one must look at the elements of the offence, rather than the facts of the particular case, in order to determine whether the offence comes within the meaning of “an offence involving assault of any description”. While the Commissioner agreed with that finding, certain offences may or may not involve an assault. For example s 66D of the Crimes Act 1900 makes it an offence to attempt to commit an offence under s 66C or to assault any person with intent to commit such an offence. A conviction for attempting to commit an offence under s 66C may not involve an assault. In such cases the facts of the case will be relevant.’

45 The administrator accepts that the offence of contravention of a condition could not be described, adopting a textual interpretation, as an offence ‘involving fraud, dishonesty or stealing’. Mr O’Donnell’s final submission was:

‘In the majority of cases the description of the offence itself will be sufficient. For example a conviction for larceny is clearly an offence involving stealing. In cases where the elements of the offence do not expressly include the words fraud, dishonesty or stealing, further enquiry will be required. In such cases it is submitted that the permissible scope of factual material to which the Tribunal may have resort include:

(a) the Indictment or Court Attendance Notice;

(b) the facts as disclosed in any statement of facts tendered in sentence proceedings, or if there was a dispute as to the facts, the Court’s findings as to the relevant facts;

(c) record of conviction and penalty imposed.’

46 One of the several meanings given for the word ‘involve, -volved, -volving’ in the Macquarie Dictionary (1st ed. 1981) is ‘3. to include, contain, contain or comprehend within itself or its scope’. These definitions do not answer the issue raised by this case. The question is whether the provision is to be construed as meaning ‘an offence, the terms of which, involve [the prescribed conduct]’ or ‘an offence, the circumstances of which, involve [the prescribed conduct]’, or, in both ways.

47 The provisions under notice appear as part of a licensing scheme which emphasises the need for honesty and integrity on the part of licensees. In Sleiman v Tow Truck Authority of New South Wales (GD) [2005] NSWADTAP 46 the Appeal Panel said:

‘30 According to the Second Reading Speech, this legislation was introduced in response to a report that the tow truck industry was ‘infiltrated by criminal elements and pervaded by fear of intimidation, physical harm and property damage’ ( Hansard , 14 October 1998, p 170). It is clear that one purpose of the legislation was to remove the ‘criminal elements’ from the industry and that this was achieved, in part, by giving the TTA power to suspend a drivers certificate where serious charges against the driver had been laid.

31 The Parliament and the Government’s concern over criminality in the industry is further reflected in cl 7 of the Tow Truck Industry Regulation 1999 which provides for automatic disqualification where the holder of a licence or certificate is convicted of:

‘(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.’

32 It will be seen that this provision embraces most, if not all, forms of criminality, and reaches down as far as any matter in which a fine of $1000 is imposed. Only minor convictions (as judged by the fine imposed, and the absence of a penalty of imprisonment) are left outside the catchment.’

48 In Pollard Abadee J referred to the comments of Bowen CJ in Equity in Re Magna Alloys & Research Pty Ltd (1975) 1 ACLR 203 at 205 where, speaking in the context of the company director disqualification provisions, he said of the relevant provision:

‘It is not punitive. It is designed to protect the public and to prevent the corporate structure from being used to the financial detriment of investors, shareholders, creditors and persons dealing with the company. In its operation it is calculated to act as a safeguard against the corporate structure being used by individuals in a manner that is contrary to proper commercial standards.’

49 With appropriate adjustments of language, the same can be said of the provisions under notice in this case. They are designed to protect the public from persons who have conducted themselves in a dishonest or fraudulent way.

50 I do not agree that the expression ‘an offence involving [prescribed conduct]’ should be limited in its operation to a scrutiny of the terms of the offence provision. I agree with Abadee J in Pollard that an offence may be able to be shown to involve prescribed conduct, such as dishonesty, even though the offence itself is not an offence that directly refers in its terms to that kind of conduct or can be readily characterised as an offence about that kind of conduct.

51 While s 58 is expressed in a way that has no apparent connection with honesty, once it is read alongside the condition that was said to have been contravened, a connection can be seen. While there can be innocent explanations for excessive charging, sometimes the explanations will only be consistent with dishonesty on the part of the person engaging in excessive charging. It may be possible to form a view based on the court material that such is the case. In my view the regulatory scheme does seek to reach out to circumstances of this kind, and the words found in the provision may be interpreted in that way. The word ‘involving’ can, it seems to me, be interpreted as allowing reference to the circumstances of an offence, not merely the terms of the offence provision.

52 Where the court imposing the conviction has not been obliged by the offence provision to make findings going to the prescribed type of conduct, an administrator (or the Tribunal) must, it seems to me, take great care before finding that the prescribed conduct is established by the underlying circumstances. The finding may have, as here, the grave consequence of exclusion from the industry and loss of livelihood.

53 As noted earlier, in his submissions Mr O’Donnell referred to what he saw as the relevant material for that purpose. The key item in his list is (b): the facts as disclosed in any statement of facts tendered in sentence proceedings, or if there was a dispute as to the facts, the Court’s findings as to the relevant facts. I would agree that these documents would, ordinarily, set the boundaries of the material to be considered where the question of the applicability of cl 7, cl 15 and like provisions can not be answered by what I have called the textual approach.

54 I recognise that this decision has the effect of widening the net of mandatory exclusion provisions, as compared to past understanding in the Tribunal. As I have noted in many previous cases, the mandatory grounds provisions operate in a very draconian way in the licensing schemes with which this Tribunal is most familiar (firearms, security guards, tow truck industry); and, in my view, should be moderated. Sometimes quite trivial convictions have led to a person being caught by the provisions and having their livelihood taken away. Sometimes people have pleaded to prosecution cases unaware that the pleas might result in convictions with consequences for their licences.

Orders

1. Leave to appeal granted.

2. Appeal allowed.

3. Tribunal’s decision on the interlocutory issue set aside.

4. Tribunal to proceed to determine the application in accordance with this decision.