Shuttleworth v Tow Truck Authority of NSW

[2006] NSWADT 301

CITATION:	Shuttleworth v Tow Truck Authority of NSW [2006] NSWADT 301
DIVISION:	General Division
PARTIES:	APPLICANT Darren Leslie Shuttleworth RESPONDENT Tow Truck Authority of NSW
FILE NUMBER:	063147
HEARING DATES:	2 August 2006
SUBMISSIONS CLOSED:	10/27/2006
EXTEMPORE DECISION DATE:	09/30/2006
DATE OF DECISION:	10/27/2006
BEFORE:	Molony P - Judicial Member
CATCHWORDS:	Tow Truck Industry Act - tow truck operator or driver - grant of licence or certificate - Tow Truck operator or driver - grant of licence or certificate
MATTER FOR DECISION:	Principal Application
LEGISLATION CITED:	Administrative Decisions Legislation Amendment Act 1997 Tow Truck Industry Act 1998 Tow Truck Industry Regulation 1999
CASES CITED:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Palumberi -v- General Manager, Tow Truck Authority of New South Wales [2001] NSWADT 206 Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 Sobey v Commercial and Private Agents Board 20 SASR 70 Raymond Robbins v Business Licensing Authority (2000) VCAT 457 Haining v Commissioner of Police, NSW Police Service (1999) NSWADT 6 Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 In re Davis (1947) 75 CLR 409 Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25 Trilin v Commissioner of Fair Trading [2003] NSWADT 222 Law Society of NSW v Bannister (unreported Court of Appeal, 27 August 1993, BC930181)
REPRESENTATION:	S Titmarsh, solicitor A Wozniak, solicitor
ORDERS:	The decision of the Tow Truck Authority to refuse Mr Shuttleworth’s application for a drivers certificate is affirmed.

1 On or about 5 December 2005 Mr Shuttleworth made an application to the Tow Truck Authority (TTA) for a tow truck drivers certificate. Under section 45(2) of the Tow Truck Industry Act 1998, an application for a drivers certificate which is not granted within 90 days of the application is taken to be refused. This occurred in Mr Shuttleworth's case.

2 On 14 March 2006 Mr Shuttleworth sought an internal review of that assumed decision. On 24 March 2006 a review officer affirmed the decision to refuse Mr Shuttleworth's application for a tow truck drivers certificate. The decision was affirmed on the basis that Mr Shuttleworth is not a fit and proper person to hold a drivers certificate and that it would be contrary to the public interest to grant him a certificate. In reaching that conclusion the review officer relied on Mr Shuttleworth's past record, whilst the holder of a tow truck drivers certificate, the fact that he had just completed a period of disqualification from holding a drivers certificate, alleged nondisclosure of that disqualification period to Queensland tow truck regulators, and the circumstances of an incident which occurred at the Balmain shipyards on 17 November 2005.

3 On 5 April 2006 Mr Shuttleworth lodged an appeal with this Tribunal to review the decision of the TTA to refuse his application. That appeal was heard on 2 August 2006. It is important to note that at that hearing the TTA did not rely on the events of 17 November 2005, and that, in accordance with an agreement reached between the parties, I have not had regard to any of the material filed relating to that alleged incident. At the conclusion of the hearing I reserved my decision.

The Legislative Scheme

4 The Tow Truck Industry Act 1998 establishes the TTA which has responsibility for licensing tow truck operators and granting drivers certificates. It is an offence to drive or stand a tow truck without a drivers certificate (s.23). Applications for drivers certificates are to be made to the TTA (s.25) which may grant drivers certificates (s.27). Section 26 sets out both mandatory and discretionary grounds for refusing a drivers certificate. In Mr Shuttleworth’s case, his application has been refused on discretionary grounds set out in sub-section (3) (a) and (d). Section 26 relevantly provides:

“(1) The TTA:
(a) must refuse to grant an application for a drivers certificate on mandatory grounds, and

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

…

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

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

(b) that the granting of the drivers certificate would, in the opinion of the TTA, be contrary to the public interest.”

5 Section 29 is concerned with the conditions of a drivers certificate.

“(1) drivers certificate may be granted subject to such conditions as may be specified in the drivers certificate.

(2) In addition to the conditions specified in a drivers certificate, a drivers certificate is subject to the following conditions:

(a) the certified driver must take all reasonable precautions to prevent loss of or from, or damage to, any motor vehicle that is towed by a tow truck used or operated by the driver,

(b) the certified driver must not charge a fee for the towing, salvage or storage of motor vehicles that exceeds any applicable maximum fees determined by the TTA,

(c) such other conditions as may be prescribed by the regulations.”

6 Section 41 enables the TTA to take disciplinary action against licensee and certified drivers. It sets out a variety of penalties that may be imposed and the procedure to be followed when considering disciplinary action. Section 42 sets out the ground for taking disciplinary action. In respect of certified drivers it provides:

“The TTA may take disciplinary action under this Division against a licensee or certified driver for any of the following reasons:
(a) any reason for which the licensee or certified driver would not have been granted a licence or drivers certificate initially,

(b) the licensee or certified driver has been charged with an indictable offence,

(c) the licensee or certified driver supplied information that was (to the licensee’s or drivers knowledge) false or misleading in a material particular in, or in connection with, the application for the licence or drivers certificate,

(d) the licensee or certified driver has contravened any provision of this Act or the regulations, whether or not the licensee or driver has been convicted of an offence for the contravention,

(e) the licensee or certified driver has contravened any condition to which the licence or drivers certificate is subject,

(f) 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, respectively,

(g) the licensee failed to specify the name of each close associate of the licensee in the application for the licence,

(h)

(l) any other reason prescribed by the regulations.”

7 Section 45(1) gives a person whose application for a drivers certificate has been refused a right to apply to this Tribunal for review of that decision. When read with s.38 of the Administrative Decision Tribunal Act 1997, that provision confers jurisdiction on the Tribunal to review the decision. The Tribunal’s task when reviewing the decision is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law: s.63 Administrative Decision Tribunal Act 1997.

The Evidence

8 Mr Shuttleworth was first issued with a tow truck drivers certificate in 1989. Since then, he has accumulated a significant disciplinary history.

9 On 21 September 1993 he was fined $500 at a disciplinary hearing for inappropriate conduct in breach of the conditions of his drivers certificate committed on 26 January 1993. He was also fined $150 for a further count of inappropriate conduct committed on the 25 March 1993.

10 On 16 May 1995 his drivers certificate was cancelled and he was fined $500 for following a field officer and not wearing his drivers certificate on 12 May 1995. He obtained a stay of that cancellation, and appealed the decision to the Sutherland Local Court. That appeal was dismissed on 3 November 1995 when Mr Shuttleworth failed to appear. In the interim, his drivers certificate had been cancelled again, as a result his New South Wales drivers licence being cancelled and him being disqualified from driving for a period of 12 months on 23 October 1995.

11 On 21 March 1997 Mr Shuttleworth again applied for a tow truck drivers certificate. This was refused on the basis that he was not fit and proper. He appealed to the Sutherland Local Court, but that appeal was dismissed. A transcript of the Magistrate's decision reveals that Mr Shuttleworth was told that he should wait at least two years before re-applying. The Magistrate also commented on Mr Shuttleworth's ‘selective memory.’

12 On 16 December 1997 and 4 August 1998 Mr Shuttleworth again applied for a tow truck drivers certificate: on both occasions his application was refused on the basis that he was not a fit and proper person. He appealed the latter decision to the Redfern Local Court, which dismissed the appeal on 20 November 1998.

13 On 29 August 1999 Mr Shuttleworth was charged with refusing or failing to submit to a breath test. His drivers license was cancelled, he was disqualified from obtaining a drivers licence for three years and was fined $500. He appealed to the District Court. His appeal against conviction was dismissed, but the penalty was varied by increasing the fine to $1000, and the imposing a reduced period of disqualification of 18 months, to expire on 27 February 2000.

14 In the ensuing years Mr Shuttleworth made a number of unsuccessful applications for a tow truck drivers certificate. These were refused on mandatory grounds because his drivers licence had been suspended or cancelled on more than one occasion in the three year period before he made those applications.

15 Eventually, on 1 June 2002, Mr Shuttleworth was issued with a drivers certificate.

16 On 30 September 2003, after Mr Shuttleworth had applied for a tow truck operator’s licence in addition to his drivers certificate, the TTA, as a result of a number of alleged breaches of the Act by Mr Shuttleworth, determined to cancel his drivers certificate and disqualified him from obtaining a drivers certificate for two years. His application for an operators licence was also refused. This decision was affirmed on internal review.

17 Mr Shuttleworth then appealed to this Tribunal, and obtained a stay of the cancellation pending the determination of the appeal. The appeal was heard by Judicial Member Higgins over six days in the first half of 2004. On 14 May 2004 Judicial Member Higgins delivered an oral decision in which she affirmed the decision of the TTA.

18 In her reasons for decision Judicial Member Higgins rejected the evidence given by Mr Shuttleworth. She was satisfied that Mr Shuttleworth had committed a number of serious breaches of the Tow Truck Industry Act 1998. She found that on 52 occasions between 19 November 2002 and 11 April 2003 Mr Shuttleworth had carried on business as a tow truck operator without a licence. The evidence revealed that Mr Shuttleworth had operated up to four trucks, with drivers, under a registered business name. It was not an unsophisticated operation. Judicial Member Higgins found that Mr Shuttleworth did not know he was contravening the Act in this regard, but had proceeded in reckless disregard as to whether or not he was.

19 Judicial Member Higgins found that Mr Shuttleworth had on six occasions charged drop fees to smash repairers for taking vehicles to their businesses. On six occasions he had also contravened the conditions of his certificate by charging a fee in excess of the prescribed maximum. He had also obtained two towing authorities at the same accident, on two separate occasions, and had towed two vehicles at the same time on each occasion. Judicial Member Higgins found that Mr Shuttleworth had advertised his towing service in the Yellow Pages in breach of section 71 of the Act. She found at that an accident scene, on 3 April 2003, Mr Shuttleworth had acted inappropriately when he had told a female driver, who had asked for his name,“ You can’t fucking have it you slut.” Judicial Member Higgins accepted that Mr Shuttleworth regretted this conduct and was making every effort to ensure it would not be repeated. With respect to each of these breaches, Judicial Member Higgins found that Mr Shuttleworth had committed them knowingly.

20 In an affidavit filed in this proceeding, Mr Shuttleworth explained that in early 2004 he and his family moved to Queensland, because his mother in law was ill. On 28 July 2004 he applied to Queensland Transport for a tow truck drivers certificate. He disclosed that his certificate had been previously suspended or cancelled. On the 22 September 2004 he was granted a certificate to drive tow trucks in Queensland for one year. Following this, he worked for a business called Tow Trucks Light and Heavy for a number of weeks before returning to New South Wales.

21 In May 2005 he returned to Queensland with his wife and family and worked for Pacific Towing until early September 2005. Mr Shuttleworth said that whilst working in Queensland he ensured that he acted appropriately at all times, was respectful to members of the public and other tow truck drivers, and complied with relevant legislation.

22 In September 2005 he moved back to New South Wales and applied for a tow truck drivers certificate. It was Mr Shuttleworth's view that he had served his period of disqualification and had demonstrated, during his work in Queensland, his ability to comply with the regulatory regime and treat others appropriately.

23 In his application for a tow truck drivers certificate in Queensland Mr Shuttleworth answered yes to the following questions:

“Have you ever had your drivers license suspended or cancelled?”

“Have you ever been disqualified from holding or obtaining a driver licence?”

“Have you ever received a notice in relation to any traffic offence other than parking?”

“Have you ever been convicted of a criminal, firearms or weapons of events and the charge has not been finally disposed?”

“Have you ever had a previous licence/certificate of this type suspended, cancelled or refused?”

24 With respect to each of these questions, when asked to provide details, Mr Shuttleworth wrote, “as per the police check.”

25 Evidence produced by the Tow Truck Authority shows that on 2 December 2004, at the Local Court at Parramatta, Mr Shuttleworth faced a number of charges for breaches of the Tow Truck Industry Act 1998 and Regulation. Mr Shuttleworth made no mention of this in his affidavit, but did tell the Tribunal, in evidence, that he is still paying off the fines. The Court found that he:

a. failed to behave in an orderly manner towards a member of the public on 3 April 2003 for which he was convicted and fined $400.00 with $61.00 Court costs.

b. carried on business as a tow truck operator between 27 March 2003 and 11 April 2003 for which he was convicted and fined $2,000.00 with $61.00 Court costs and $4,000.00 professional costs.

c. contravened a condition of a drivers certificate between 31 March and 11 April 2003 for which he was convicted and fined $800.00 with $61.00 Court costs.

d. failed to provide information between 4 and 11 June 2003 for which he convicted and fined $2,000.00 with $61.00 Court costs.

e. advertised by business card the business of a tow truck operator in the name of Sutherland Tilt Tray and Towing Service between 28 March and 10 April 2003 for which he convicted and fined $500.00 with $61.00 Court costs.

f. advertised by business card the business of a tow truck operator in the name of Engadine Yarrawarra Towing on 2 April 2003 for which he was convicted and fined $500.00 with$61.00 Court costs.

g. carried on business as a tow truck operator between 19 November and 31 March 2003 for which he was convicted and fined $2,000.00 with $61.00 Court costs.

h. received "drop fees" between 12 December 2002 and 12 January 2003 for which he convicted and fined $1,000.00 with $61.00 Court costs.

i. received payments in excess of the maximum scheduled fees on 12 December 2002 for which he was convicted and fined $500.00 with $61.00.

26 In addition documents produced by the Tow Truck Authority show that, as well as the matters already mentioned, Mr Shuttleworth has convictions for the following criminal offences:

a. esisting an officer of in the execution of his/her duty (two counts) for which he was convicted and fined $250 at the Sutherland Local Court on 9 June 1999.

b. using offensive language in a public place for which he was convicted and fined $250 with $52 Court costs at the Sutherland Local Court on 9 June 1999.

c. offensive conduct for which he was convicted and fined $150 with $46 Court costs at the Sutherland Local Court on 3 November 1994.

d. resist arrest (two counts) for which he was convicted and fined $200 each at the Sutherland Local Court on 3 November 1994.

e. malicious damage for which he was convicted and fined $300 and ordered to pay $470 in compensation at the Sutherland Local Court on 16 April 1992.

f. offensive conduct for which he was convicted and fined $100 at the Sutherland Local Court on 31 August 1989.

g. offensive behaviour for which he was convicted and fined $120 at the Sutherland Local Court on 4 May 1989.

27 Mr Shuttleworth also has an extensive record of traffic offences in addition to those already mentioned. They date back over many years. The most recent is an offence of using a mobile phone while driving for which he was fined $235 on 24 September 2005. There are a significant number of speeding offences (22) ranging from when Mr Shuttleworth first obtained his licence in 1989 to November 2003, together with a miscellany of other traffic offences, including two of negligent driving.

28 Mr Shuttleworth gave evidence in support of his application and was cross-examined. The cross-examination was directed first to the answers provided by him when he applied to Queensland Transport for a tow truck drivers certificate. He agreed that he did not provide a police check to Queensland Transport. It was suggested to him that, in any case, the records of his disqualifications and prosecutions (both past and pending) for breaches of the Tow Truck Industry Act 1998 would not appear on his criminal record, and would not appear on a police check. Mr Shuttleworth said that he did not know that. Mr Shuttleworth was asked why he didn’t list the charges pending against him at the time he completed the application to Queensland Transport. He said he assumed the Queensland authorities would check as he had alerted them to the existence of the matters.

29 It was put to Mr Shuttleworth that he had managed to put off the hearing of the charges against him in relation to breaches of the Tow Truck Industry Act 1998, which were determined on 2 December 2004, until after the hearing of his disciplinary appeal in this Tribunal and his successful application to Queensland Transport. Mr Shuttleworth agreed that he had initially pleaded not guilty to the Tow Truck Industry Act 1998 charges, but changed his plea when the matter was listed for a contest at Parramatta on 2 December 2004. It was suggested that Mr Shuttleworth had done this so as not to have convictions under the Tow Truck Industry Act 1998 against his name when he applied to Queensland Transport. Mr Shuttleworth said that he had initially pleaded not guilty on legal advice. He had changed his plea on advice for his new solicitor, Mr Titmarsh.

30 It was suggested to Mr Shuttleworth that he had an anger problem. Mr Wozniak directed Mr Shuttleworth’s attention to a number of events disclosed in the material before the Tribunal. The first of these relate to events which on 28 March 2003 when Mr Shuttleworth attended the scene of an accident. Police subsequently attended the scene, and told Mr Shuttleworth that his services would not be required. In a statement about the incident Senior Constable Smith describes, in considerable detail, how Mr Shuttleworth reacted to this instruction aggressively, threatened the Senior Constable, and roundly and offensively abused him. Constable Briffa, who was also at the scene, in his statement says that he observed a heated conversation between Senior Constable Smith and a tow truck driver, but provides no further details. The second event concerned Mr Shuttleworth following a TTA officer home in 1995. The third event concerned his incivility to a female driver in April 2003, which Judicial Member Higgins found against him, and concerning which he was convicted by the Local Court at Parramatta. Mr Shuttleworth, in cross-examination, denied the conduct alleged against him in respect of each and every one of the allegations, save for agreeing that he had called the woman a “bitch”.

Submissions

31 For the TTA Mr Wozniak pointed to Mr Shuttleworth’s significant TTA history, his other antecedents, and what Mr Wozniak referred to as Mr Shuttleworth’s “history of aggressive behaviour”. Of concern, he submitted, were Mr Shuttleworth’s continuing denials of the facts surrounding the following of the TTA officer, and incivility to the woman driver. Mr Wozniak pointed out that these denials persisted despite the fact that Mr Shuttleworth had pleaded guilty to and been convicted of the incivility offence. Mr Wozniak noted that Mr Shuttleworth had presented the Tribunal with no references testifying to his present reputation, or any evidence that he had addressed his anger issues. He submitted that Mr Shuttleworth is not fit and proper to hold a drivers certificate, and that it was not in the public interest that he be granted a drivers certificate.

32 Mr Wozniak also made a number of specific submissions with respect to Mr Shuttleworth’s move to Queensland. The principal one was that he had avoided the disqualification imposed in NSW by moving to Queensland. The second was that there was no evidence as to what work he had actually done while there.

33 For Mr Shuttleworth it was submitted that both the TTA and Judicial Member Higgins had thought cancellation of his drivers certificate, together disqualification of two years, appropriate disciplinary action for his breaches of the Act and Regulation. He has now served that two years disqualification and has shown, during his time driving tow trucks in Queensland, a capacity to comply with the requirement of the regulatory environment. No breaches or complaints have been recorded in Queensland. The move to Queensland was in fact a “two edged sword” for Mr Shuttleworth: if he had breached the regulatory regime there it would spell disaster for his present application. He had not committed any offences in the past three years, apart from the mobile phone, and had thereby demonstrated a significant change. That change, together with the expiration of his period of disqualification, was sufficient, it was submitted, to enable the Tribunal to be satisfied that he is a fit and proper person to hold a drivers certificate. Further, the strides he had made pointed to a definite public interest in him being granted a drivers certificate.

Consideration

34 In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321,Chief Justice Mason explained that, at 380:

‘The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.’
Toohey and Gaudron JJ said at 380:
“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. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed 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 contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.”
In Palumberi -v- General Manager, Tow Truck Authority of New South Wales [2001] NSWADT 206 Deputy President Hennessey adopted that well known passage in the context of the Tow Truck Industry Act 1998.

35 A person’s fitness is to be gauged in light of the nature and purpose of the activities that the person will undertake: Hughes and Vale Pty Ltd v New South Wales(No. 2) (1955) 93 CLR 127. Knowledge, ability, moral integrity and the rectitude of character necessary to fulfill the role for which a licence is sought are proper considerations: Sobey v Commercial and Private Agents Board 20 SASR 70. Criminal convictions can be of great importance in such as assessment: the more so where the activity to be undertaken requires public confidence and reliance on the propriety and integrity of the licensed person: Raymond Robbins v Business Licensing Authority (2000) VCAT 457. Thus the nature of the industry in which the person concerned wishes to operate affects a consideration of whether a person is a "fit and proper person" to operate in that industry. In Chaining v Commissioner of Police, NSW Police Service (1999) NSWADT 6 at [41] the President of this Tribunal made the following comments on the issue, in the context of the security industry:

`Whether a person is `fit and proper' to hold a licence in a regulated industry will be affected by general considerations relating to the character of the person, special considerations that take account of the nature of the industry in issue and the public policy objective leading the legislature to regulate the industry.'

36 Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability in the context of the role they are seeking to undertake. The discretion vested in a decision maker in determining whether a person is fit and proper, in any given context, was said by the Full Court of the Federal Court in Commissioner for ACT Revenue v Alpha one Pty Ltd (1994) 49 FCR 589 at 389, per Northrop, Miles and French JJ, to “give wide scope for judgement and allow broad bases for rejection.”

37 A person who has been found to be of bad character, and not a fit and proper person to operate in an industry, may redeem him or herself: In re Davis (1947) 75 CLR 409. Character is not fixed, but is capable of change and rehabilitation: Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25. In Trilin v Commissioner of Fair Trading [2003] NSWADT 222 in the context of the Motor Dealers Act, I said:

“The issue of whether a person who has been determined not to be a fit and proper person to hold a dealer licence has been so reformed that she or he is now fit and proper, is a matter of judgement. In considering that issue the Tribunal is required to take into account the nature and seriousness of the original misconduct, any events relevant to an assessment of the Applicant's fitness which have occurred since then, the candour with which the Applicant has approached the issue of past misconduct, the Applicant's explanation of the misconduct, the impact of the effluxion of time, and the Applicant's present circumstances and reputation. The Tribunal should bear in mind the warning sounded by the Court of Appeal in Law Society of NSW v Bannister (unreported Court of Appeal, 27 August 1993, BC930181) where Sheller JA, delivering the judgment of the Court, observed:
"... absent some acceptable explanation of how greed and opportunity led the Solicitor to carefully plan a course of action which he knew was dishonest and deceitful, character evidence is not particularly helpful to a court or tribunal in determining whether it can be confident that there will not be a repetition."”

38 Mr Shuttleworth has an extensive history of violations of the Tow Truck Industry Act 1998 and its predecessor. He first entered the industry in 1989. The evidence demonstrates that, in the time which has passed since then, his drivers certificate has been cancelled on a number of occasions. He has been without a drivers certificate in NSW as a result of cancellations and subsequent refusals to grant him a certificate, either because he was not considered fit and proper or was otherwise ineligible, during the following periods: from October 1995 to June 2002 and from 14 May 2004 to date. This represents approximately half the nearly 18 years which has elapsed since he first entered the industry. The earlier period of disqualification did not have the desired effect of bringing about a change in his behaviour, as is demonstrated by the subsequent serious regulatory breaches he committed. Those breaches resulted in the most recent cancellation and disqualification. Since that disqualification was imposed he has been convicted of numerous, serious breaches of the Tow Truck Industry Act 1998 by the Local Court at Parramatta relating to the same circumstances as the cancellation and disqualification. Those convictions were recorded less than two years ago.

39 Mr Shuttleworth also has an extensive record of road traffic offences and a significant number of criminal convictions, mostly for public order offences which do not reflect credibly on him. To his credit, is that, apart from being apprehended using a mobile phone while driving in 2005, he has not been convicted of a criminal offence since June 1999, or been detected committing a traffic offence since November 2003. When compared to his earlier record this is a positive improvement. This picture, however, must be balanced against the series of convictions recorded at Parramatta Local Court on 2 December 2004 for serious breaches of the Tow Truck Industry Act 1998. These offences took place in the environment of the regulated industry to which Mr Shuttleworth is now seeking readmission. They, together with Judicial Member Higgins’ decision of 14 May 2004, paint a picture of a man who was both careless and contemptuous of the regulations relating to the tow truck industry. A picture which is consistent with his earlier disciplinary record.

40 Mr Shuttleworth’s denial of the facts relating to the charge of incivility to the woman driver, which he subsequently pleaded guilty to and was convicted of, is of considerable concern. The evidence relating to that incident given to and accepted by Judicial Member Higgins shows that Mr Shuttleworth’s behaviour was brutish, rude and intimidating. It was consistent with Mr Shuttleworth’s behaviour at a crash scene in March 2003 reported by Senior Constable Smith, but denied by Mr Shuttleworth. The circumstances, which occurred on that day, have not been fully tested in the past, but those relating to the incivility incident have. Mr Shuttleworth continuing refusal to acknowledge his conduct towards the woman driver, and to accept responsibility for his very worrying behaviour is of significant concern. The reality is that rather than explaining, acknowledging, and moving on from that conduct, Mr Shuttleworth still denies it.

41 Mr Shuttleworth made no explanation to me of the numerous breaches of the Tow Truck Industry Act 1998 for which he was convicted in December 2004. Judicial Member Higgins found that the breaches of the operator provisions were made in reckless disregard of those provisions, and that the breaches of the other provisions of the Act were made knowingly by Mr Shuttleworth.

42 Mr Shuttleworth’s case is that he has served his disqualification period and will not breach the provisions of the Act again, as demonstrated by his record while driving tow trucks in Queensland. A number of points need to be made about that Queensland experience. First, on Mr Shuttleworth’s own evidence, he actually drove tow trucks in Queensland for, at best, six months: half the time he held a Queensland drivers certificate for. While that work is not verified by testimonials or other evidence, I have no reason to reject Mr Shuttleworth’s evidence of the work he did in Queensland. When considered against his overall experience in the industry, six months work in Queensland is a very short period. Secondly, Mr Shuttleworth was criticised in cross-examination for not providing details of his convictions, cancellations and disqualifications to the Queensland authorities, and simply advising them to see the Police check. I do not accept these criticisms, in all but one respect. Having made my way through the extensive records relating to Mr Shuttleworth’s history, I accept that it would not be reasonable to expect him to reliably give details of his record from memory, and that referring to a Police check is the most reliable disclosure he could make. The criticism I do accept is that of Mr Shuttleworth failure to disclose the matters then pending against him at the Parramatta Local Court. These were current and were charges brought by the TTA. Given Mr Shuttleworth’s long experience with such matters, I do not accept that he believed that the pending TTA matters would be revealed by a police check. This points to Mr Shuttleworth not dealing honestly with the Queensland regulatory authority. Thirdly, the criticism was made that Mr Shuttleworth had avoided the disqualification imposed in NSW by moving to Queensland. While this is true in that Mr Shuttleworth was able to continue working in the industry, but in Queensland, it is a matter for the Queensland regulator and not something, which can be held against him.

43 The expiration of Mr Shuttleworth’s period of disqualification does not mean that he is automatically entitled to a drivers certificate. Section 27 makes it clear that the TTA when considering an application shall refuse it on mandatory grounds, and may refuse it on discretionary grounds.

44 In this case I consider that the correct and preferable decision is to refuse Mr Shuttleworth’s application for a drivers certificate on the discretionary ground that he is not fit and proper to hold a certificate, despite the fact that his period of disqualification has expired.

45 In the period of disqualification Mr Shuttleworth has been convicted by the Local Court at Parramatta of numerous, serious breaches of the regulatory regime relating the tow truck industry, including breaches additional to those considered by Judicial Member Higgins in May 2004. While Mr Shuttleworth has not been in any trouble since then - the mobile phone incident aside - given the seriousness of the breaches of the regulatory regime found against him and his extensive disciplinary history, I do not believe that sufficient time has passed for me to be satisfied that he has reformed, and is likely to comply with the obligations of the holder of a drivers certificate. Past experience indicates that Mr Shuttleworth did not reform despite spending some years without a drivers certificate following earlier cancellations. This confirms my doubts that sufficient time has now passed.

46 Additionally, even if the time which has elapsed was sufficient, I do not accept that Mr Shuttleworth has displayed the understanding of, or insight into, his past conduct necessary for me to be satisfied it will not be repeated. Mr Shuttleworth’s failure to disclose the charges relating to breaches of the Tow Truck Industry Act 1998 pending against him to Queensland Transport, gives me little confidence that he will deal honestly with the TTA. I am particularly concerned by Mr Shuttleworth failure to acknowledge the facts relating to the incivility charge, or to offer any explanation of that conduct. He did not proffer any evidence, apart from the effluxion of time, that it will not be repeated. His record and past conduct lead me to conclude that if granted a drivers certificate I cannot be satisfied that he will not again engage in brutish, rude and intimidating behaviour. All these factors point to the fact that Mr Shuttleworth is not fit and proper to hold a drivers certificate.

47 As a result, I will affirm the decision to refuse Mr Shuttleworth’s application for a drivers certificate. I would add that the concerns highlighted above in relation to Mr Shuttleworth disciplinary record, and the prospect of such behaviour reoccurring if granted a drivers certificate, also point to the public interest in refusing Mr Shuttleworth’ application.

Order

48 The decision of the Tow Truck Authority to refuse Mr Shuttleworth’s application for a drivers certificate is affirmed.