Siguenza v Secretary, Department of Infrastructure
[2002] VSC 46
•6 March 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 8022 of 2001
| CRISTOBAL SIGUENZA | Appellant |
| v | |
| SECRETARY TO THE DEPARTMENT OF INFRASTRUCTURE | Respondent |
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JUDGE: | Balmford J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 February 2001 | |
DATE OF JUDGMENT: | 6 March 2002 | |
CASE MAY BE CITED AS: | Siguenza v Secretary, Department of Infrastructure | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 46 | |
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APPEAL FROM MAGISTRATES’ COURT – appeal dismissed – suspension and cancellation of driving instructor authority under section 33 of the Road Safety Act 1986 – the meaning of ‘fit and proper person’ – purpose of section 33 of Road Safety Act 1986 – deception in application for driving instructor authority – relevance of general character and the impact of cancellation upon the appellant – reasonableness of the Magistrate’s conclusion upon the evidence presented during the trial.
Interpretation of Legislation Act 1984 – section 35
Magistrates’ Court Act 1989 – section 109
Road Safety Act 1986 – section 33
Supreme Court (General Civil Procedure) Rule 1996 – rule 58.13
DPP v Hinch (unreported, decided on 5 August 1994)
Buckman v Barnawatha Abattoirs (unreported, decided on 14 July 1994)
Popovski v Ericsson Australia Pty Ltd 1998 VSC 61
Buzatu v Vournazos [1970] VR 476
Spurling v Development Underwriting Inc [1973] VR 1
New South Wales Bar Association v Evatt (1968) 117 CLR 177
Glynn v Denman and Monk (1978) VR 349
Re Troy and City of Oakleigh (1991) 5 VAR 105
Petracaro v Commissioner of Consumer Affairs (1994) 62 SASR 387
Hughes & Vale v New South Wales (No 2) (1955) 93 CLR 127
Secretary to the department of Justice v Frugtniet (1994) 8 VAR 23
Director of Consumer Affairs v Jay Jacq Pty Ltd (unreported, decided on 4 May 1988)
Sobey v Commercial Agents Board (1979) 22 SASR 70
McCool v Rushcliffe Borough Council [1998] 3 All ER 889
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
House v The King (1936) 55 CLR 499
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr M Klemens | Antonio Caamaño |
| For the Respondent | Mr J Healy | DA Robbie |
HER HONOUR:
This is an appeal on a question of law under section 109 of the Magistrates’ Court Act 1989 from a final order made on 19 September 2001 by the Magistrates’ Court of Victoria at Dandenong constituted by Mr Hallenstein, Magistrate, whereby:
(i)the appellant’s appeal pursuant to section 33(13) of the Road Safety Act 1986 (“the Act”) against the respondent’s decisions made on 29 March 2001 to suspend and on 19 July 2001 to cancel the appellant’s Victorian Driving Instructor Authority No. 896 was dismissed; and
(ii)the appellant was ordered to pay the respondent’s costs fixed in the sum of $5,400.
On 29 October 2001 Master Evans found the following questions of law to be shown by the appellant to be raised by the appeal:
(a)did the learned Magistrate fail to re-determine the matter of the suspension of the appellant’s Victorian Driving Instructor Authority No. 896 as required by section 33(15) of [the Act] and thereby err in law?
(b)on the evidence, was it reasonably open to the learned Magistrate to infer that upon applying for Victorian Driving Instructor Authority No. 896 the appellant had intended to deceive the respondent?
(c)on the evidence, was it reasonably open to the learned Magistrate to infer that the appellant was ‘unfit’ within the meaning of section 33(10) of [the Act] to hold Victorian Driving Instructor Authority No. 896?
(d)was there any evidence that the appellant was ‘unfit’, within the meaning of section 33(10) of [the Act] to hold Victorian Driving Instructor Authority No.896?
The submissions of counsel were not specifically directed to any of the questions contained in the order of the Master. On other occasions judges of this Court have expressed the view and acted upon the principle that in that situation a judge is not authorised to amend an order made by the Master; but that Rule 58.13 of the Supreme Court (General Civil Procedure) Rules 1996 empowers the Court in the words of Mandie J in DPP v Hinch [1]:
to direct, in an appropriate case, that the appeal be decided upon the questions of law identified and canvassed in the arguments advanced, where this is necessary to achieve the effective, complete and economic determination of the appeal and is otherwise just and convenient.
See also, Buckman v Barnawatha Abattoirs [2], and Popovski v Ericsson Australia Pty Ltd [3]. I find this to be an appropriate case for such a direction, and on the basis of those authorities, I direct that the appeal be decided on the questions of law identified and canvassed in the arguments advanced.
[1]Unreported, decided on 5 August 1994
[2]Unreported decision of Smith J, decided on 14 July 1994
[3]1998 VSC 61 (Ashley J)
The relevant legislation appears in section 33 of the Act, a relatively new provision introduced in 1998, apparently replacing an earlier provision on the same subject which was repealed in 1993. The section reads, so far as relevant:
33.Driving instructor authorities
(1)The Secretary to the Department of Infrastructure may, on the application of the holder of a full driver licence, grant a driving instructor authority if the Secretary is satisfied that the applicant is qualified to hold such an authority.
(2)The Secretary may, before granting an authority, require the applicant -
(a)to demonstrate that he or she is a fit and proper person to hold an authority; and
(b)to pass a training course approved by the Secretary or otherwise demonstrate to the Secretary's satisfaction that he or she is competent to hold an authority; and
(c)to comply with any prescribed procedures and requirements.
(3)An authority authorises the holder to teach other persons to drive a motor vehicle, other than a motor cycle, with a GVM of not more than 4·5 tonnes and with a seating capacity of not more than 12 adults including the driver, for the term, and subject to any conditions, specified in the authority.
(4)The Secretary may, by notice in writing to the applicant, refuse to grant an authority.
(5)If the Secretary decides to refuse to grant an authority, the applicant may appeal against the refusal to the Magistrates' Court.
(6)On an appeal under sub-section (5) the applicant must -
(a)file a notice of appeal at the venue of the Magistrates' Court nearest to the applicant's residence or place of business; and
(b)send a copy of the notice of appeal to the Secretary -
within 28 days after the date of the notice of refusal to grant the authority.
(7)On an appeal under sub-section (5) the court must -
(a)re-determine the matter of the refusal; and
(b)hear any relevant evidence tendered by the appellant or the Secretary; and
(c)without limiting its discretion, take into consideration anything that the Secretary ought to have considered.
.. .
(10)The Secretary may, if of the opinion that the holder of an authority is unfit to hold the authority, by notice in writing to the holder of the authority, cancel the authority or suspend or vary the authority for such period as the Secretary determines.
(11)The Secretary must not suspend, cancel or vary an authority unless the holder of the authority has been given a reasonable opportunity to show cause why the authority should not be cancelled, suspended or varied.
(12)An authority is of no effect while suspended.
(13)If the Secretary decides to cancel, suspend or vary an authority, the holder of the authority may appeal against the cancellation, suspension or variation to the Magistrates' Court.
(14)On an appeal under sub-section (13) the applicant must -
(a)file a notice of appeal at the venue of the Magistrates' Court nearest to the applicant's residence or place of business; and
(b)send a copy of the notice of appeal to the Secretary -
within 28 days after the date of the notice of cancellation, suspension or variation of the authority.
(15)On an appeal under sub-section (14) the court must -
(a)re-determine the matter of the cancellation, suspension or variation; and
(b)hear any relevant evidence tendered by the appellant or the Secretary; and
(c)without limiting its discretion, take into consideration anything that the Secretary ought to have considered.
(16)Every decision of the Magistrates' Court on an appeal under sub-sections (5) or (13) must be given effect to by the Secretary.
The evidence is contained in affidavits of the appellant, sworn on 27 May 1999, 3 April 2001 and 18 October 2001, and of Mr Robbie, sworn on 26 November 2001, and the exhibits thereto. Mr Robbie deposes that he is the solicitor to the Victorian Taxi and Tow Truck Directorate, which is a division of the Department of Infrastructure. (Subsequent references herein to the “Victorian Taxi Directorate” are based on the letterhead employed for relevant correspondence.) Where there is conflict between the affidavits I have applied what Newton J, in Buzatu v Vournazos [4] described as:
the arbitrary rule that where there is a material conflict between the parties’ affidavits as to the evidence or other proceedings in the court of petty sessions, the version which supports the decision of the court of petty sessions should be accepted, in the absence of any fair and practicable method of resolving the conflict:
[4][1970] VR 476 at 478
The appellant became a self-employed driving instructor in 1991. He deposes that as a result of changes to the Act (presumably the introduction of section 33) all driving instructors were notified that those wishing to continue instructing should apply to the Victorian Taxi Directorate (“the Directorate”) for a Driving Instructor Authority (“an Authority”). He completed and lodged an application in the prescribed form. By a letter dated 18 March 1999 he was notified by the Directorate that he might not be a fit and proper person to hold an authority, having regard to five speeding offences for which he had been convicted between January 1996 and April 1998, particulars of which were given in the letter. He was invited to make a submission to the Directorate and his solicitor did so on his behalf. In the submission the solicitor advised that the appellant having pleaded guilty on 10 July 1996 to “knowingly obtaining payment of a pension, benefit or allowance under the Social Security Act 1991 which was not payable at all”, had been fined $1500, and ordered to pay $228 costs as well as to make reparation to the Department of Social Security in the sum of $16,419.44.
The appellant was advised by a letter dated 6 April 1999 from the Director of the Directorate (“the Director”) that his application had been refused. He appealed to the Magistrates’ Court against that refusal. It was put to the Court for the Director that, in terms of section 33(2)(a) of the Act, he was not a fit and proper person to hold an Authority, on the grounds of the five speeding offences and the Social Security offence, and his failure to disclose these matters on his application form. As to the incorrect information on the application form, the Magistrate found that confusion as to one of the questions on the form was reasonable, that the failure to disclose was at best careless and at worst reckless, and that because the applicant’s history was on the public record, the incorrect answers did not misdirect the Directorate. He found that the speeding fines did not disqualify the appellant from holding an Authority; his uncontested evidence was that two of the offences were attributable to other persons, and no convictions had been recorded. The social security offence he found to be unrelated to fitness to hold an Authority. He noted that the appellant had held a driver’s licence for nine years, that it had never been cancelled or suspended, no convictions had been recorded on traffic matters, he had been a driving instructor since 1991, no complaints had been recorded against him and he met the training and medical criteria. In the end, the Magistrate was not satisfied that the appellant was other than a fit and proper person to hold an Authority, and on 30 June 1999 ordered that the respondent (“the Secretary”) issue him with an Authority.
In March 2001 the appellant completed a Driving Instructor Authority renewal form. By a letter dated 19 March 2001 he was notified by the Directorate that he might not be a fit and proper person to hold an Authority, having regard to:
§ the five speeding convictions
§ an additional speeding conviction in April 2000
§ the Social Security conviction
§ a number of pending charges, namely
¨ 7 charges of indecent act with child under 16
¨ 2 charges of harassing witness
¨ 2 charges of attempting to pervert the course of justice
§ the incorrect statement in his renewal application that he was not presently under investigation for a criminal offence, nor had he any criminal charges laid against him.
Through his solicitor, the appellant made submissions in reply, but was advised by a letter dated 29 March 2001 from the Director that his Authority was suspended effective from that date, but that the matter would be reviewed following the outcome of the criminal charges. The Director indicated that he had taken into account the matters referred to in the preceding paragraph as well as two more charges of indecent act with child under 16 and three charges of common law assault.
By letter dated 24 May 2001 from the Office of Public Prosecutions, the appellant’s solicitor was advised that the Director of Public Prosecutions had directed the entry of a nolle prosequi in respect of the matters for which his client had been committed for trial on 16 March 2001, namely the charges of indecent act with a child under 16, attempting to pervert the course of justice and common law assault. The two summary charges of harassing witnesses remained on foot, but I was informed by counsel that they have not been proceeded with.
By letter dated 19 July 2001 the Director wrote to the appellant, referring to the letter of 29 March 2001 (thereby no doubt intending to refer to the advice in that letter that the matter would be reviewed following the outcome of the criminal charges). The letter concluded, after referring to the matters referred to in [8] to [10] above:
I have determined that you are not a fit and proper person to hold a Driving Instructor Authority. Accordingly, your Driving Instructor Authority, DI 000896, shall now be cancelled, effective of the date of this letter.
Section 33(13) of [the Act] provides for the right to appeal to the Magistrates’ Court against this decision. As you have already lodged an appeal against the suspension of your [Authority], the Directorate is prepared to consent that your existing appeal can be lodged against both suspension and cancellation of the [Authority].
Both the decision to suspend and the decision to cancel the appellant’s Authority are expressed to be made by the Director, on the letterhead of the Directorate. It is to be presumed that the Director was acting as delegate of the Secretary, who is the person authorised by section 33 of the Act to grant, refuse, suspend, cancel or vary an Authority. I note that the Master’s order of 29 October 2001 names the Directorate as respondent, following the appellant’s affidavit of 19 October 2001, but by a further order of the Master made on 30 October 2001 the name “Secretary to the Department of Infrastructure” was substituted for the name of the respondent and the title to the proceeding amended accordingly.
The appeal was heard on 19 September 2001 pursuant to section 33(15), which provides for the hearing de novo on the merits of the decision of the Secretary, with the admission of further evidence. The appellant was unrepresented, conducted his own case, took an active part in the proceedings with the assistance of an interpreter, but did not give evidence. Counsel for the Secretary relied on the five speeding convictions, the additional speeding conviction in April 2000, the Social Security conviction, the facts on which the discontinued charges were based and the failure to disclose those charges in the renewal application. Evidence was given by the four children associated with those charges and by their mother, as well as by the police informant in regard to those charges.
The full text of the Magistrate’s formal order dismissing the appeal with costs reads as follows, unaltered here save for the insertion of additional paragraphing for ease of comprehension:
Grant leave to use remote witness facility for four child complainants and for the four children to be presented with the appellant’s questions by audio facility only and not video facility with respect to the appellant himself.
The applicant obtained driving instructor authority by way of false presentation by omission of both traffic offence and of criminal proceedings pending. The criminal matters did not proceed in circumstances of credible and formal complaint being made of sexual offences by four children, of evidence on oath of complaint in committal proceedings being made by the four children, of two of the children making complaint and giving evidence in committal of matters involving alleged harassment of witnesses and attempted perversion of the course of justice and then followed in the present proceedings of all four children swearing on oath that by their initial formal complaints and by their evidence on oath - all of them had lied.
The evidence to that effect in these proceedings, coupled with the children’s mother’s evidence in these proceedings of her continued support of the appellant lead these proceedings to hold the gravest concern about the evidence of the four children in these proceedings. At the very least the position of the appellant is concluded as murky with respect to the complaints of the children and the position taken by their mother. These matters do not decide the application but give weight to the highly unsatisfactory position of the appellant in misleading the licensing authority to grant licence, this being the second occasion on which that has occurred.
The first occasion was concluded as confusion, carelessness or recklessness. This second occasion is not concluded in those terms but as intended to deceive the licensing authority.
Where these proceedings have no confidence in the status of the appellant when applying for driving instructor authority, where consideration must be given to the public who rely on the licensing process in presenting the appellant to be what he appears – that conclusion cannot be reached in this case.
Accordingly it is concluded that the licensing authority conclusion that the appellant is unfit to hold a driving instructor licence is upheld. The appeal is refused.
C. Siguenza (Other Party) ordered to pay costs in the amount of $5400. Stay to 31/12/2001.
The transcript of the Magistrate’s oral reasons for decision indicates that he referred to the findings of the Magistrate who heard the 1999 appeal (see [7] above). He considered the evidence of the four children and their mother, as to which his views appear sufficiently from the formal order set out in the preceding paragraph. He concluded on the evidence that the appellant had “knowingly deceived the licensing authorities with a view to getting the licence [i.e. the Authority]”. He stated that the appellant’s competence as a driving instructor was not in issue, after which the transcript continues:
Another part of the licensing authority consideration is that the appellant is what the licence holds him out to be. A person who is doubtful as being fresh and clean and members of the public who might rely on it for that purpose.
In this case there is no licence that might ever be granted to the appellant as a driving instructor having seen and heard what’s happened in these proceedings to date. That this court would ever be content to have the appellant presented as fresh and clean and safe to be dealt with on a single person basis. In other words, a licence sought to be obtained by deceit with a prior appeal on virtually the same matters and in circumstances of murkiness and suspicion it has to be concluded, and I do conclude, that the licensing authority properly formed an opinion that the appellant was not fit to hold a driving instructor licence.
The Magistrate’s findings can be summarised as:
(i)That the appellant’s competence as a driving instructor was not in issue;
(ii)That the appellant knowingly made false statements in his application, which were not the result of confusion, carelessness or recklessness as on the previous occasion, but were intended to deceive the Directorate in order that he might obtain an Authority;
(iii)That the evidence as to the events leading to the making and discontinuance of the charges relating to the children was equivocal and left an impression of “murkiness and suspicion”;
(iv)That the grant of an Authority to the appellant would be taken as holding him out to the public to be “fresh and clean and safe to be dealt with on a single person basis”;
(v)That the effect of items (ii) and (iii) was that he could not be held out as having those qualities;
(vi)That accordingly he was not a fit and proper person to hold an Authority, in terms of section 33(2)(a), and the appeal against the suspension and cancellation of his Authority must fail.
There is no dispute as to the occurrence of the convictions for speeding, the Social Security conviction, or the failure to disclose the pending charges. The Magistrate formed views as to the intention of the appellant in making the false statement, and as to the reliability of the evidence relating to the discontinued charges. He had the opportunity of hearing the children and their mother, who gave evidence before him, and of observing the demeanour of the appellant in presenting his case and examining those witnesses. There was evidence before the Magistrate which was clearly hearsay, but Mr Klemens for the appellant indicated that he would not be taking issue as to the admission of that evidence.
In the well-known passage in Spurling v Development Underwriting Inc[5] Stephen J said:
In the case of decisions of magistrates the position in Victoria is well established by a line of decisions culminating in Taylor v Armour and Co. Pty Ltd, [1962] VR 346, in which the Full Court of this State held that in the case of any question of fact the Court should treat the matter as an appeal from the verdict of a jury and should not make up its own mind upon the evidence but rather confine itself to seeing whether there was evidence upon which the magistrate might, as a reasonable man, come to the conclusion to which he did come. In saying this the Full Court stated that it was following the view of Herring, CJ, in Young v Paddle Bros. Pty Ltd, [1956] VLR 38; [1956] ALR 301. The Chief Justice, in that case, adopted as the test whether "on any reasonable view of the evidence that decision can be supported"; a party aggrieved can thus only succeed if a decision contrary to the view of the magistrate is "the only possible decision that the evidence on any reasonable view can support" (see at VLR p. 41).
[5][1973] VR 1 at 11
Considering the factual findings of the Magistrate according to the principles there enunciated, there is no basis on which I could do anything other than accept those findings, despite the submissions of Mr Klemens to the contrary.
Mr Klemens submitted further that the failure to disclose the traffic offences and the pending charges was not significant because these were matters which it would be easy for the Directorate to find out for itself. However, that submission does not go to the gravamen of the Magistrate’s view of that failure, which was that it was a deliberately deceitful action, performed with the intention of obtaining an Authority.
Mr Klemens also submitted that the Magistrate had erred in law in that he had failed to take into account certain matters which he should have regarded as balancing factors to set against the factors which had led him to the conclusion that the appellant was not a fit and proper person to hold an Authority. Those matters were first, that the appellant had been a driving instructor for nine years with no complaints made against him, and the mother of the children had given evidence before the Magistrate that he had taught her to drive and was a very attentive and patient instructor. Second, the Magistrate’s decision had the effect of depriving the appellant of his livelihood. And finally, the decision had the effect of imposing a further penalty on the appellant in respect of the driving offences and the Social Security offence for all of which he had already paid the penalty, as well as penalising him for matters which had been the subject of a nolle prosequi and not properly proved.
Whether or not the failure to take those matters into account, had they been relevant to the issue before the Magistrate, would have been an error of law is a matter which I have not found it necessary to consider. In my view they were not relevant to that issue. Section 35 of the Interpretation of Legislation Act 1984 provides that in the interpretation of a legislative provision a construction that would promote the purpose or object underlying the legislation shall be preferred to a construction that would not promote that purpose or object; and permits consideration being given to inter alia reports of proceedings in any House of the Parliament. The purpose of the Act is set out clearly in the Second Reading Speech on the Road Safety (Driving Instructors) Bill in the Legislative Assembly [6] . The Minister for Transport said, after referring to the recommendations of the Driving Instructor Consultative Committee established in January 1997 [7] :
The recommendations of the committee have received widespread support from the industry and consumers and the standards identified have been accepted by the government as the minimum necessary to ensure appropriate levels of personal safety and security for learner drivers and adequate training competency of driving instructors, recognising that novice drivers are at present four times more likely to be injured or killed in a road crash than a more experienced driver.
[6]Hansard, Assembly 9 April 1998 p 979
[7]At 980
Thus the legislation is concerned with the safety and security of learner drivers as much as with the quality of the training which they receive. That being so, it cannot be said that matters personal to the applicant for an Authority (including the agent’s experience and skill as an instructor) are intended to be set in the balance against matters directly relevant to the concerns as to safety and security. It follows also that the legislation has no punitive purpose and should not be considered as having a punitive effect.
The High Court in New South Wales Bar Association v Evatt[8] considered the exercise by the Supreme Court of New South Wales of its power to disbar a barrister. The Court (Barwick, CJ, Kitto, Taylor, Menzies and Owen, JJ.), in a joint judgment, stated the scope of this power in the following passage:
The Supreme Court thought, moreover, that as the exercise of its disciplinary powers was to some extent a punishment for wrong- doing, mercy might be shown towards a young man who had not understood the error of his ways. The power of the Court to discipline a barrister is, however, entirely protective, and, notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved.
[8](1968) 117 CLR 177 at 183-4
That decision was followed by Harris J in Glynn v Denman and Monk[9] where His Honour said of the power under section 19(2) of the Estate Agents Act 1958 to cancel an estate agent’s licence:
. . the context of this legislation indicates that the discretionary power is one that is to be exercised for the protection of the public and it is not to be exercised for the purpose of punishing the respondents to any information.
[9][1978] VR 349 at 357
The principal question before the Court is whether the findings of the Magistrate set out in [16] (ii) to (v) above justified his conclusion that the appellant was not a fit and proper person to hold an Authority in terms of section 33(2)(a). Mr Healey submitted that, as the appellant’s Authority had been suspended and later cancelled, both under section 33(10), the correct test was, in terms of that sub-section, whether the appellant was “unfit” to hold an Authority, rather than, in terms of section 33(2)(a), whether he was “a fit and proper person” to hold an authority. However, that seems to me to be a distinction without a difference, and I say no more about it, save to refer to the passage from Secretary to the Department of Justice v Frugtniet cited in [31] below.
Mr Klemens submitted that those findings of the Magistrate related to aspects of the appellant’s general character, and were peripheral to the issue of fitness to hold an Authority. The purpose of the section, in his submission, was to ensure that instructors met minimum standards of fitness and competence. Accordingly, the emphasis should be on whether the applicant had the skills of an instructor and was medically fit to undertake the task.
He relied on the decision of the Victorian Administrative Appeals Tribunal (“the Tribunal”) in Re Troy and City of Oakleigh[10] where the Tribunal found that failure to disclose convictions for a driving offence and failure to complete records required under legislation relating to secondhand dealers did not disqualify an applicant for a secondhand dealer’s licence from obtaining such a licence. The Tribunal referred [11] to decisions of the Australian Broadcasting Tribunal which had found that only those attributes directly concerned with the carrying out of the specific or relevant task were to be considered when assessing a person’s qualification as a fit and proper person to hold a licence under the Broadcasting and Television Act 1942. Those several Tribunal decisions, while not without interest, do not of course bind this Court.
[10](1991) 5 VAR 105
[11]At 116
The other authority on which Mr Klemens relied was the decision of Olsson J in Petracaro v Commissioner of Consumer Affairs[12] in which His Honour found that aspects of general character, being convictions for offences of dishonesty related to drug dependency which had been overcome, were peripheral to the issue of fitness to hold a licence as a bricklayer, stonemason and building work supervisor. His Honour said, with emphasis, [13] :
It cannot be stressed too strongly that the Act is not pre-occupied with general character aspects, except to the extent that these may directly be relevant to the clear purposes of the statute, which essentially focus on the fitness of a person to discharge the responsibilities applicable to a particular type of licence. The statute is primarily concerned with the protection of the public by ensuring that the building work is not carried out by persons who are not suitably skilled or who are, or are likely to be, dishonest with those with whom they enter into contracts. . . .
Moreover, the test to be applied to the required characteristics of a bricklayer are fundamentally different from those related to (say) a security guard under the Commercial and Private Agents Act 1986 – where general good character is a vital feature of inherent qualifications for much of the work involved, for quite obvious reasons.
His Honour concluded [14] :
As was pointed out by Hale J in Maxwell v Dixon [1965] WAR 167 at 169, weight must be given only to matters which can fairly be seen to be relevant to the vocation in issue. That inquiry must primarily be directed to the situation as it stands at the time of the application, given that past events may assist as being relevant indicative background. Although the expression “fit and proper” is capable of extending to the three characteristics of honesty, knowledge and ability, what is pertinent for consideration depends on the statutory context and the qualifications directly relevant to the particular vocation.
[12](1994) 62 SASR 387
[13]At 390
[14]At 392
There are many other cases where courts have been required to consider the question of whether a particular individual is a fit and proper person in a particular statutory context, although neither counsel referred me to any case relating to the fitness of a person to be authorised as a driving instructor. Dixon CJ and McTiernan and Webb JJ said, generally, in Hughes & Vale v New South Wales(No 2)[15] :
The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. "Fit" (or "idoneus") with respect to an office is said to involve three things, honesty knowledge and ability: "honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it"—Coke. When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances: R. v. Hyde Justices (1912) 1 K.B. 645, at p. 664. In another such case it was decided that if in the view of the justices the security of tenure enjoyed by the proposed licensee in the premises was insufficient, that was a good ground for holding that he was not a fit and proper person to be the holder of the licence: R. v. Holborn Licensing Justices; Ex parte Stratford Catering Co. Ltd. (1926) 42 T.L.R. 778.
[15](1955) 93 CLR 127at 156-7
The Appeal Division of this Court (Ormiston, Nathan and Vincent JJ) in Secretary to the Department of Justice v Frugtniet[16] was considering whether the respondent was, in terms of section 20(1) of the Travel Agents Act 1986 “a fit and proper person to continued to hold” a travel agent’s licence. Their Honours said [17] :
What must be considered is the fitness of the individual concerned to operate as a licensed travel agent. Unfitness may be manifested in a variety of circumstances and in a multitude of ways. Some of those may be associated with employment as a travel agent but there is no requirement that this be the case and unfitness may be demonstrated by conduct totally unconnected with any such employment or employment at all.
[16](1994) 8 VAR 23
[17]At 37
Nathan J in Director of Consumer Affairs v Jay Jacq Pty Ltd [18] was concerned with a provision in the Motor Car Traders Act 1973 requiring in effect that a licensed motor car trader be “a fit and proper person to hold a licence”. He said at 7a:
The Act is one designed to protect the interests of the community. It establishes a licensing system which regulates the business of motor car trading to those persons who, because they are fit and proper, are permitted by way of licence to trade. Accordingly, the community is entitled to have confidence in the fitness and propriety of motor car traders.
And, referring to the facts before him [19] :
The convictions and behaviour go to the very substance of the honesty, integrity and reliability of a motor car trader. The Act has established a system which entitles a purchaser to rely upon the honesty and integrity of a vendor. If that is undermined, the very structure of the Act is eroded.
[18]Unreported, decided on 4 May 1988
[19]At 11a
One particular concern of the Magistrate in the present case seems to me to be well expressed in the judgment of Walters J, who said in Sobey v Commercial Agents Board [20] of an applicant for a licence under the Commercial and Private Agents Act 1972-78:
The issue whether an appellant has shown himself to be “a fit and proper person”, within the meaning of s. 16(1) of the Act, is not capable of being stated with any degree of precision. But for the purposes of the case under appeal, I think all I need to say is that, in my opinion, what is meant by that expression is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence under the Act, but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails.
[20](1979) 22 SASR 70 at 76
It is clear from the authorities that the test of a “fit and proper person” must depend, in each case, on the purpose of the legislation under which the test is being applied. I have already found that in the present case that purpose is, as expressed in the Second Reading Speech (see [22] above) “to ensure appropriate levels of personal safety and security for learner drivers and adequate training competency of driving instructors”. The question is thus whether a given applicant, in the general terms adopted by Walters J, has the qualities which would “permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails”.
The duties of a driving instructor, i.e. “the sort of work which the licence entails” necessarily involve being in close proximity with one learner driver at a time, in the confines of the front seat of a motor vehicle, which the instructor is better able to control than is the learner. Learner drivers are entitled to assume that the holder of an Authority is a person who is honest, and with whom they will be physically safe. As to honesty, the appellant has been required to make reparation to the Department of Social Security of over $16,000, having received a pension benefit or allowance which was not payable at all. Further, in his application for renewal of his Authority he made statements which, after his previous appearance in the Magistrates’ Court, he must have known were untrue, and which can only have been made with the intention of obtaining the Authority. Those are two significant episodes of dishonesty.
As to the physical safety of the learner driver, it can be said that the discontinued charges related to offences against children, who would not be of an age to be learning to drive. As to whether or not it was appropriate for the Magistrate in all the circumstances to take those charges into account, I note the finding of the English Court of Appeal (Lord Bingham of Conrail CJ with whom Thomas J agreed) in McCool v Rushcliffe Borough Council [21] , expressed with some caution, that in licensing proceedings generally the civil standard of proof applied. I note that Toohey and Gaudron JJ said in Australian Broadcasting Tribunal v Bond[22] :
The question whether a person is fit and proper [to hold a commercial broadcasting licence] is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision-maker.
[21][1998] 3 All ER 889
[22](1990) 170 CLR 321 at 389
In House v The King [23], Dixon, Evatt and McTiernan JJ said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
[23](1936) 55 CLR 499 at 504-5.
While the expression of the Magistrate’s reasons for his decision, both as appearing from the transcript and in the formal order, leaves something to be desired, I find nothing in the exercise of his discretion to justify me in setting aside his decision. The appeal will be dismissed. Counsel may wish to make submissions as to costs.
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