Sleiman v Tow Truck Authority of New South Wales (GD)

[2005] NSWADTAP 46

Appeal Panel - Internal

CITATION:	Sleiman v Tow Truck Authority of New South Wales (GD) [2005] NSWADTAP 46
PARTIES:	APPELLANT Fadi Sleiman RESPONDENT Tow Truck Authority of New South Wales
FILE NUMBER:	049053
HEARING DATES:	8/04/2005
SUBMISSIONS CLOSED:	04/08/2005
DATE OF DECISION:	09/15/2005
DECISION UNDER APPEAL:	Sleiman v Tow Truck Authority of New South Wales (No.2) [2004] NSWADT 270
BEFORE:	O'Connor K - DCJ (President); Leal S - Judicial Member; Antonios Z - Non Judicial Member
CATCHWORDS:	relevant/irrelevant considerations - statutory interpretation - Tow Truck operator or driver - suspension or revocation of licence or certificate
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	043336
DATE OF DECISION UNDER APPEAL:	11/25/2004
LEGISLATION CITED:	Administrative Decisions Tribunal (General) Regulation 2004 Administrative Decisions Tribunal Act 1997 Drug Misuse and Trafficking Act 1985 Passenger Transport Act 1990 Tow Truck Industry Act 1998 Tow Truck Industry Regulation 1999
CASES CITED:	Sleiman v Tow Truck Authority of New South Wales [2004] NSWADT 270 Musgrave v Director General, Ministry of Transport [2004] NSWADT 141 Williamson v Director General, Department of Transport [2001] NSWADT 3 House v The King (1936) 55 CLR 499 Farquharson v Director General, Department of Transport [1999] NSWADT 53 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Hughes and Vale Pty Ltd and Anor v State of New South Wales and Ors [No.2] (1955) 93 CLR 127 Maxwell v Dixon [1965] WAR 167 Petracaro v Commissioner of Consumer Affairs (1994) 62 SASR 387 Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 A Solicitor v Council of Law Society of NSW [2004] HCA 1; (2004) 78 ALJR 310 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 New Broadcasting Ltd v Australian Broadcasting Tribunal (1987) 73 ALR 420 Coulthard v Henneker [2003] WASCA 187
REPRESENTATION:	APPELLANT G Blake SC instructed by Sage Solicitors RESPONDENT D Jordan of counsel instructed by Smythe and Mallam, Solicitors
ORDERS:	1. Appeal dismissed; 2. Decision to suspend affirmed, on basis of ground (b) only; set aside as it relates to ground (f)

1 The Tow Truck Authority of New South Wales (the TTA) suspended the tow truck drivers certificate issued to the appellant, Mr Sleiman, under the Tow Truck Industry Act 1998 (the Act) on 8 October 2004. He was at the time a driver of 11 years’ experience. He held an annual certificate due to expire on 1 August 2005.

2 He applied to the Tribunal for review of the decision. On 15 October 2004 the Tribunal stayed the suspension pending urgent determination of the application for review. The hearing proceeded on 11 November 2004. On 25 November 2004 the Tribunal delivered its decision, deciding that the application should be dismissed and the decision of the TTA affirmed: Sleiman v Tow Truck Authority of New South Wales(No. 2) [2004] NSWADT 270. Mr Sleiman has been unable to work as a tow truck driver since that time. He has appealed to the Appeal Panel, contending that the decision of the Tribunal was affected by errors of law and should be set aside. He has applied for leave to extend the appeal to the merits. See Administrative Decisions Tribunal Act 1997 (Tribunal Act), ss 112, 113. The appeal hearing was held on 8 April 2005.

3 Tow truck drivers must meet competency standards. Disciplinary action may be taken against a driver on various grounds, some of which relate to competency but others of which concern other conduct. In this instance the TTA moved to suspend Mr Sleiman’s certificate on the following grounds found in s 42 of the Act:

Ground (a): any reason for which the certified driver would not have been granted a drivers certificate initially,

Ground (b): the certified driver has been charged with an indictable offence,

Ground (f): the TTA is of the opinion that the certified driver is no longer a fit and proper person to hold a drivers certificate.

4 So far as Ground (a) is concerned, the discretionary grounds for refusing an application set out in s 22(3) of the Act include the following:

‘(a) that the applicant is not, in the opinion of the TTA, a fit and proper person to hold a drivers certificate …

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

5 The TTA acted after being informed by the Police that Mr Sleiman had been charged with conspiracy to defraud a bank. He had been released on bail. He was alleged to have been connected to one of several transactions. This transaction was said also to involve the licensed operator who employs him (and a close relative), a Mr Kalache. The overall fraud was said to involve $3.5 million. The transaction to which Mr Sleiman is said to have been connected involved $316,000. The allegation is that Mr Sleiman had used a false name to apply to the bank for a loan of that amount using an inflated valuation in connection with a property that had in fact been purchased in the recent past for a much lower amount. The information is set out in this way in the Tribunal’s reasons at para [5]:

‘The charge relates to the purchase of a low value residential property and the sale of that property at a grossly inflated price. It is alleged that there were approximately 16 co-conspirators including Mr Kaled Kalache who is the sole director of Kalache Investments Pty Ltd, Mr Sleiman’s employer. Mr Kalache is also Mr Sleiman’s nephew. Mr Kalache and his wife allegedly purchased a residential property for $155,000 in December 2000 and Mr Sleiman used a false identity, “Rabii El Bodden” to apply for a loan of $316,000 from the National Australia Bank. The property was then sold for $395,000. Both parties agreed that the matter with which Mr Sleiman has been charged is serious. The Tow Truck Authority highlighted the fact that the offence was an indictable offence and that the amount involved was substantial.’

6 The TTA may exercise the power to suspend without giving the licensee an opportunity to be heard: Act s 41(4). That occurred in this case.

TTA’s Reasons

7 Though it did not hold a hearing, the TTA did give brief reasons for its decision. They stated that ‘the TTA must be satisfied that a person possesses sufficient moral virtue and character as to permit the person to be safely accredited to the public, without further inquiry, as a person who can be entrusted with the work of a tow truck driver’. The reasons continued:

‘The charge preferred against Mr Sleiman relates to dishonesty and deception. It is an indictable charge with a penalty of imprisonment. This is a serious offence that relates to deceptive behaviour involving wilful false representations to defraud.’

8 The reasons then recited that it is in the public interest that Mr Sleiman’s drivers certificate be suspended immediately.

9 The TTA is not required to conduct internal reviews of decisions, unlike most administrators whose decisions are reviewable by the Tribunal: Administrative Decisions Tribunal (General) Regulation 2004, cl 11(g).

10 Consequently Mr Sleiman’s first opportunity to put his case in reply was provided by the Tribunal hearing.

Further Material

11 At the hearing the TTA relied in support of its decision on additional material. One of the prescribed particulars that must be completed by the applicant when filling out an application for a drivers certificate is ‘the name of the applicant (including any aliases by which the applicant is or was known)’: Tow Truck Industry Regulation 1999, cl 13. The making of a statement which the person knows to be false or misleading in a material particular is an offence punishable by a maximum penalty of 50 penalty units or imprisonment for 6 months or both: Act, s 36.

12 The TTA produced evidence showing that at the time Mr Sleiman filled out his 2002 application form for a drivers certificate he had in fact registered a new name, Freddy Lee Man. In the form he gave his usual name, ‘Fadi Sleiman’, and in answer to the question asking applicants to state whether they are known by any other names, Mr Sleiman marked the ‘no’ box. He gave the same answer in the 2003 and 2004 application forms.

Tribunal’s Reasons

13 It will be seen that the TTA’s reasons did not refer precisely to the statutory grounds on which it relied. But the text of the reasons does draw at various points on the language of grounds (a) (and the related grounds (a) and (b) of s 22(3)), as well as grounds (b) and (f) in s 42.

14 At hearing the Tribunal only considered the applicability of grounds (b) and (f) of s 42. It was satisfied that ground (b) was properly relied upon, but went on to consider ground (f). It held that ground (f) was also properly relied upon.

15 The following information was before the Tribunal:

(a) the absence of any prior criminal convictions of Mr Sleiman;

(b) two testimonials as to character furnished by Mr Sleiman;

(c) the charge;

(d) police statements; and

(e) Mr Sleiman’s explanation given in evidence, and subjected to cross- examination, as to the reasons for his incorrect reply to the question on the application form.

16 As to Ground (b), the Tribunal said at [7]:

‘The fact that there is a separate provision allowing the Tow Truck Authority to suspend a person’s driver’s certificate when they have been charged with an indictable offence reflects the legislature’s concern about possible criminal activity by people within the industry. There are further provisions that oblige the Tow Truck Authority to refuse a licence if the person (or a close associate) has been convicted, or been found guilty with no conviction being recorded, of certain offences including any offence involving fraud, dishonesty or stealing. In my view, the objective seriousness of the charge which involves large scale fraud is sufficient in its own right to justify the suspension of his tow truck driver’s certificate.’

17 As to Ground (f), the Tribunal said:

‘9 Character . It is not in dispute that Mr Sleiman does not have a criminal record. He tendered two references attesting to his honesty and good character. However, apart from the criminal charges there is an allegation that he completed the tow truck application form dishonestly. In April 2002 Mr Sleiman applied to the Registrar of Births Deaths and Marriages to change his name to Freddy Lee Man. On 3 May he was advised that his name had been changed. When filling out an application for a tow truck driver’s certificate at the end of July 2002 he answered “No” to the following question. “Do you now, or have you ever, used a different name or identity?” Mr Sleiman said that he read the question and understood the importance of answering it correctly, but assumed that the question was asking whether he had used another name or identity as a tow truck driver. He says that he gained that impression from the previous question which asked whether he holds or has ever held a tow truck driver’s certificate.

10 Mr Sleiman’s explanation is implausible. Despite the fact that he gave evidence that he did not understand a lot of what he read, I am satisfied that he did understand the question. The question was short, written in plain English and was visually separate from the previous question. Mr Sleiman had officially changed his name just three months earlier. In those circumstances, I find that he knowingly gave an incorrect answer to this question on the application form.

11 Reason for change of name. Mr Sleiman was also cross-examined about the reason he gave for changing his name. He said that his brother has been convicted of murder and that he had been told that members of the deceased’s family had made threats against him. He said that he feared for his life and decided to change his name. However he did not use his new name or change any identity documents. He did not move away from the area in which he was living. The reason he gave for not acting on his fears was that his mother was diagnosed with cancer in April 2002 and he spent the majority of his time caring for her in her home. It is alleged that Mr Sleiman used the alias “Rabii El Bodden” when applying for the loan from the National Australia Bank. While I am not satisfied that Mr Sleiman’s motive for changing his name to Freddy Lee Man was that he feared for his life, there is insufficient evidence to draw any adverse inference about Mr Sleiman’s use of aliases which would otherwise reflect adversely on his character.

12 Similar cases. Mr Blake representing Mr Sleiman usefully summarised some of the Tribunal’s decisions in similar cases in order to make a comparison between the facts in this case and the facts in other cases involving a suspension or cancellation of a licence or authority where criminal charges had been laid. Mr Blake relied in particular on the decision of Musgrave v Director General, Ministry of Transport [2004] NSWADT 141. In that case the Tribunal set aside a decision of the Director General of the Ministry of Transport suspending a taxi driver’s authority in circumstances where Mr Musgrave had been charged with 153 counts of fraudulently producing Taxi Transport Scheme Subsidy vouchers to the Ministry of Transport and receiving payment of some $14,381.45 for those vouchers.

13 In Musgrave’s case, the Judicial Member took into account:

(a) the seriousness of the allegations which have been made against Mr Musgrave

(b) the circumstances in which the conduct is alleged to have occurred

(c) the fact that charges have been laid, but there has been no finding of guilt

(d) previous complaints against Mr Musgrave in respect of the authorities he has held ; and

(e) Mr Musgrave’s otherwise previous good character.

14 The Judicial Member concluded that the matters with which Mr Musgrave had been charged involved a systematic course of conduct over a period of time and involved a substantial amount of money. However it was not in dispute that tax payers in general, rather than the individual passengers, were out of pocket. The Judicial Member noted that the suspension of an authority is justified where the person’s fitness to drive is sufficiently compromised by allegations of impropriety for it to be in the public interest that the person not drive until those issues are resolved: Williamson v Director General, Department of Transport [2001] NSWADT 3 at [21].

15 Conclusion. While I do not disagree with the legal principles enunciated by the Judicial Member in Musgrave, each case turns on its own facts. The alleged fraud in this case involves a considerably greater amount than that in Musgrave and the nature of the fraud is more serious. I am satisfied because of the seriousness of the charge and the fact that Mr Sleiman knowingly gave an incorrect answer to a question on the application form, that he is no longer a fit and proper person to hold a driver’s certificate. …’

18 The Tribunal did not deal with ground (a), which, as we have noted, links in turn in this case to grounds (a) and (d) of s 22(3).

The Appeal

19 Mr Sleiman was represented before us by Mr Blake, SC. Mr Blake made detailed written and oral submissions in support of the appeal. Mr Jordan appeared for the TTA, in support of the Tribunal’s decision.

20 This decision deals with the question of law grounds. The Appeal Panel ruled that in this case it would only go on to consider the question of extension to the merits if the question of law appeal was successful, i.e. an error was demonstrated sufficient to justify reopening the merits of the decision.

Points of Appeal

21 As set out in Mr Blake’s written submissions filed 23 March 2005, Mr Sleiman’s points of appeal can be summarised as follows.

22 In relation to ground (b), the Tribunal:

• Failed to consider how a reasonable member of the public would think about Mr Sleiman continuing to work as a tow truck driver having regard to the nature and circumstances of the charge;
• Failed to take account of various facts: limited scope for dishonest dealings by a tow truck driver; the charge is an isolated one; no evidence of adverse record as tow truck driver; and fact of bail;
• Took into account irrelevant considerations: namely the existence of ss 5, 18(2)(b) and (3)(i) of the Act and cl 7 of the Regulation which relate to an applicant for a tow truck operators licence or a close associate of such an applicant; but not to an applicant for a drivers certificate.

23 In relation to ground (f), the Tribunal:

• Failed to determine the meaning of the words ‘fit and proper person’;
• Failed to apply the principles enunciated by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 in finding that Mr Sleiman knowingly gave an incorrect answer to the question ‘Do you know, or have you ever, used a different name or identity?’ on the application for a tow truck drivers certificate;
• Made an illogical or irrational finding in that regard (referring also to the view of the Tribunal that the charge under notice was more serious than one considered in Musgrave v Director-General, Ministry of Transport [2004] NSWADT 141).

24 The remaining grounds under this heading were, essentially, the same objections made at points two and three under ground (b).

25 Mr Jordan’s reply for the TTA was, essentially, that the Tribunal properly exercised the discretion available to it.

Challenges to Discretionary Decisions

26 The Tribunal’s obligation is to make the ‘correct and preferable decision’ having regard to the material then before it: Tribunal Act, s 63. In cases such as this the Tribunal makes a discretionary judgment. The discretionary judgment must, of course, relate itself to the particular statutory ground relied upon by the primary decision-maker. In this case there was one relatively specific ground relied upon by the Tribunal – ground (b), and one broader ground relied upon – ground (f).

27 Appellate courts are loath to overturn trial court decisions involving the exercise of discretion. They have not had the same exposure to the evidence that the trial court has had. There must be some acceptance that minds will differ, reasonably, as to the assessment of material. The well-known statement of principles by Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-05 reflects these reservations (a case involving an unqualified right of appeal not confined to questions of law, the appeal being on the ground that a sentence imposed by a federal court was excessive):

‘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. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.’
Appeal as it relates to s 42(b)

28 It will be seen that the points of appeal as they relate to ground (b) seek to expose errors of the kind referred to in House v The King as warranting intervention.

29 In our view the objective of including ground (b) in s 42 was to provide the TTA with a more specific basis for moving to remove a licence or certificate than is provided by broad criteria such as present fitness.

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.

33 As we understand Mr Jordan’s submission, if the Tribunal has regard to the one factor, the charge for the indictable offence, in making its decision it has done its job. Mr Blake, on the other hand, contended that the Tribunal was obligated to approach the task of determining the correct and preferable decision in circumstances where a charge had provided the basis for the exercise of discretion by having regard to a number of factors. The failure to have regard to some of them meant that the decision was defective.

34 We do not agree with the very restricted approach suggested by Mr Jordan, nor would we go as far as Mr Blake suggests.

35 A discretionary judgment is involved. It is open, as we see it, here for the Tribunal to have regard to factors in addition to the mere fact that a person has been charged with an indictable offence.

36 As we understood Mr Jordan’s submission, he would only see as relevant matters directly related to the indictable offence such as the gravity of the charge, the circumstances alleged in the police brief and the degree of connection or otherwise of the alleged offence to the kind of work undertaken and responsibilities exercised by the licence-holder. We accept that these are the primary considerations.

37 But we do not think that reference to other factors should be excluded. For example it may be an isolated charge in an otherwise impeccable record. There may be personal circumstances that should be taken into account. There may be supervision arrangements available that might allow for a balance to be struck between the public interest in keeping the industry free of persons charged with serious crime and allowing the driver to pursue his usual occupation pending trial.

38 But this does not mean that the inquiry should then default to the more general kind of inquiry found in the cases involving the assessment of whether a person can be said to be of good repute or involving the application of a statutory ‘public interest’ test.

39 In support of this broader approach, Mr Blake sought to draw on the approach taken in the case of Farquharson vDirector General, Department of Transport [1999] NSWADT 53. This case has frequently been relied upon in the Tribunal in dealing with licence suspension cases, especially where the suspension has been imposed pending hearing of a criminal charge.

40 In that case the relevant law, the Passenger Transport Act 1990, allowed the administrator to suspend a driver authority ‘having regard to the purpose of an authority’ (s 14). The Act declared that the purpose of an authority is ‘to attest that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle’ and that the authorised person ‘is considered to have sufficient responsibility and aptitude to drive the vehicle … in accordance with law and custom’ (s 11).

41 The administrator suspended the driver authority of a taxi driver after being notified that the driver was free on bail after being charged with two counts of conspiracy to murder two people (his separated wife and her new partner). It was accepted by the administrator that he was a person of good character. The administrator stated that the objective gravity of the charges was the sole reason for taking action.

42 The Tribunal took account of ‘the lack of connection of the charges to the use of a taxi’ (at [34]). Nonetheless it considered that ‘a reasonable member of the travelling public … would … be inclined to the view that the objective seriousness of the charge is sufficient in its own right to permit the administrator to suspend the licence’ (at [42]).

43 Mr Blake submitted that the Tribunal had erred in law in this case in not applying an objective test akin to the ‘reasonable member of the travelling public’ test in its consideration of s 42 (b). While he agreed with the outcome in Farquharson, he contended that had a test of this kind been applied it is likely that there would have been a different outcome. He referred to many differences between tow truck driving and taxi driving. He compared the relative lack of intimacy of contact with the public that applies to tow truck driving with the degree of intimacy of contact that is involved in bus and taxi driving.

44 In our view, there was no error of law. First of all, the legislation under notice in Farquharson did not contain numerous specific grounds for intervention by the administrator in the way found in the tow truck legislation. As already noted, the administrator’s powers were ones that were broadly expressed, and referred to considerations such as ‘repute’. The word ‘attest’ is also used in describing the purpose of the authority. This carries the connotation of the administrator giving a guarantee or assurance to the public that the person holding the authority can be trusted to use their authority properly.

45 Against this background, it is helpful to use a test which seeks to take account of the hypothetical user of the services to which the authority relates. This approach is simply used as an aid to reaching a fair decision in all the circumstances. It is not of the order of a rule of law, the non-use of which gives rise to error. Here there was a more closely expressed ground relied upon. The Tribunal mainly looked at the case through the prism of that ground. That seems to us to have been appropriate.

46 Mr Blake submits that the Tribunal failed to have adequate regard to the fact that the conduct alleged against Mr Sleiman is non-work related. This is a factor that works in favour of a favourable exercise of discretion. In this instance it is clear from the reasons read as a whole (there are express references to Farquharson in the decision when the Tribunal deals with ground (f)) that it was conscious of the submission that the non-work related nature of the conduct should make a difference, but the Tribunal, nonetheless, upheld the suspension having regard to the objective gravity of the alleged conduct.

47 As to whether the conduct had any relationship to the work context, the position is not absolutely clear-cut. The Tribunal referred to the links to the tow truck industry raised by the particulars alleging that Mr Sleiman’s employer (and close relative), Mr Kalache, was said to be involved. So while the conduct was unconnected with the work of a tow truck driver, the particulars suggested that associations made within the industry may have provided an opportunity for the alleged crime.

48 The Tribunal stated at [7], in support of its conclusions: ‘There are further provisions that oblige the Tow Truck Authority to refuse a licence if the person (or a close associate) has been convicted, or been found guilty with no conviction being recorded, of certain offences including any offence involving fraud, dishonesty or stealing.’ It continued: ‘In my view, the objective seriousness of the charge which involves large scale fraud is sufficient in its own right to justify the suspension of his tow truck driver’s certificate.’

49 Mr Blake submitted that the Tribunal erred by taking account of a consideration (the associates provisions) that only applied to the licensing of operators, not the grant of certificates to drivers. It is clear that the associates provisions do only apply to operators. But we do not think that the Tribunal thereby took into account an irrelevant consideration (or, if it did, that it in any way materially affected its judgment having regard to the second sentence of [7]). The Tribunal, as we see it, was simply reinforcing, in a short hand way, the point that the legislative scheme demonstrated a particular concern with ridding the industry of criminal elements, and illustrated that point by reference to the associates provisions.

50 We do not see any problem with the way the Tribunal went about exercising its discretion so as to give rise to a transgression of the standards laid down by House v The King.

51 As to the general points made by Mr Blake as to the differences between taxi driving work and tow truck work, we accept a number of points that he made, and return to them when dealing with the suspension in so far as it relied on s 42(f).

Appeal as it relates to s 42(f)

52 As Mason CJ noted in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (Bond) at 348: ‘[T]he reference to ‘no longer’ looks generally to some alteration in the perception of the fitness and propriety of the licensee occurring since the licence was granted or to some supervening event or circumstance relating to such fitness and propriety.’

53 The requirement that a person given a licence or authority to operate in a regulated industry be a ‘fit and proper person’ is a standard requirement of the governing legislation.

54 As to what the words ‘fit and proper’ denote, the usual starting point of the Australian discussion is the statement of the High Court in Hughes and Vale Pty Ltd and Anor v State of New South Wales and Ors [No.2] (1955) 93 CLR 127 at 156:

‘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.’ – [Sir Edward] Coke [a seventeenth-century English jurist].’

55 Mason CJ reiterated the point that these words concern themselves with the personal qualities of the individual. He said in Bond at 380:

‘[T]he statutory concept of ‘fit and proper person to hold the licence’, which is undefined, takes account of qualities and characteristics of the licensee apart from [requirements particular to the statutory scheme, such as technical and similar requirements]. …’.

56 In forming a view as to the degree of virtuousness of character required of a licence-holder, it is important to look at the nature of the occupation covered by the licence (or certificate). As Gaudron and Toohey JJ noted in Bond 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.’

57 It is also apparent from these observations that there is an element of public perception involved in the assessment that takes place. The inquiry is not confined to an assessment of the intrinsic moral character of the individual. Issues of ‘reputation’ can be canvassed.

58 This is a case where the issue is ‘reputation’ more so than intrinsic character. Mr Sleiman has not been convicted. The case against him has to do with the damage to his standing in the eyes of others caused by the criminal charges. There is in addition one matter going directly to his character – the Tribunal’s finding as to his state of mind when he filled out the application form incorrectly.

59 Gaudron and Toohey JJ said in Bond at 388, echoing the thinking reflected in the passage already cited from House v The King:

‘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.’

60 Mr Blake’s first criticism of the Tribunal’s application of s 42(f) is that it did not form a view as to the kind of qualities required by the particular occupation, and did not form a view, however imprecise, as to the standard to be met in that type of occupation. The position will vary as between occupations. A very high standard of probity and honesty might be expected of a lawyer. A more relaxed view could be taken where the occupation is of a more manual or physical kind, where trust plays only a small part.

61 We accept a number of the comparisons that Mr Blake made. Tow truck drivers have limited involvement with the public. Their main task is to attend the scene of an accident, and to take away vehicles for repair having obtained the required authorisation. A tow truck driver, as distinct from an operator, has no involvement in financial matters involving the public. The position is different from that of the taxi driver, who manages the meter, charges fares, processes credit card payments or handles change. The job of a tow truck driver is a heavy manual one. It does not involve the levels of trust or the question of risk to personal safety that go with being a taxi driver.

62 Honesty and integrity are relevant to the work of a tow truck driver, but are, we acknowledge, not as central as they are to the work, say, of a lawyer. At the accident scene, the driver may have to deal with the car owner, and make promises to an owner in a vulnerable and distressed state. The driver’s task is not merely one of getting a wreck from one place to another, though that is the main thing he or she does. It is also important that the driver can be trusted to be honest in his or her dealings with the TTA and other people engaged in official tasks, such as police and ambulance personnel at the accident scene. The question raised by s 42(f) is whether the driver is ‘no longer a fit and proper person to hold a … drivers certificate’.

63 It is important to focus on the characteristics of the particular occupation or profession under notice when making an assessment of fitness. A finding that a person does not have the character or standing (reputation) to qualify them as ‘fit and proper’ to continue to pursue an occupation is a grave one. It is more significant, because of its reflection on the personal qualities of the individual, than, for example, a finding based on s 42(b). A Tribunal needs to approach the making of such a finding with caution.

64 As Hale J said in Maxwell v Dixon [1965] WAR 167 at 169:

‘Clearly different qualifications are needed by eg lawyers, transport operators, hotel keepers and land agents, but as is shown by the cases cited in the judgment referred to, it is not necessary to confine oneself to the special provisions of the Act in question in deciding whether a man is fit provided one gives weight only to matters which can fairly be seen to be relevant to the vocation in issue.’

65 In Petracaro v Commissioner of Consumer Affairs (1994) 62 SASR 387 the applicant appealed against a refusal of a licence to perform work as a bricklayer, a stonemason and as a building work supervisor because of offences of dishonesty. These had been related to drug dependency which had subsequently been overcome. He was considered not to be a fit and proper person to hold the licences sought.

66 The Supreme Court found that the decision-maker (a tribunal) had fallen into error in refusing the licence in that it took into account aspects of general character which were peripheral to the issue of fitness to hold the licences sought. Ollson J said at 392:

‘Whilst I am sympathetic to the desire of the Tribunal to ensure that only persons of the highest personal character are licensed, I do not think that, in relation to this level and type of employment, that is the real focus of the legislation. This man is patently a skilled and reliable tradesman who has not set a foot wrong in the work environment – whatever else he may have done. It is not the function of the Tribunal to certify to his general good conduct, but as to his trade qualifications and reliability.’

67 There is, we consider, considerable strength in the approach taken by Hale J and Ollson J in the passages cited.

68 Even in the case of occupations which are relatively august because of the importance to their conduct of characteristics such as honesty, integrity and freedom from criminality, the Courts have tended to be lenient in their treatment of conduct that is unconnected with the licensed occupation; especially where there is strong countervailing evidence favourable to the licensee. In the area of the legal profession see such cases as Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279, esp at 298 per Kitto J and A Solicitor v Council of Law Society of NSW [2004] HCA 1; (2004) 78 ALJR 310.

69 Had the circumstances remained as they were known to the TTA when it made its decision, it is unlikely, we consider, that the Tribunal could properly have concluded that the charge, despite its seriousness, bore any real significance in relation to the assessment of Mr Sleiman’s fitness to continue to drive tow trucks and engage in the tasks associated with that role. The case is different from, for example, Farquharson where the charge related to the most serious offence of violence and the applicant was responsible for the physical safety of people.

70 The one extra factor here, as compared for example to the situation in Petracaro, is the failure to complete the forms accurately. The Tribunal rejected Mr Sleiman’s explanation, and found that he had knowingly misled the TTA in each of the years since he changed his name. Mr Blake criticised that finding, by reference in particular to the Briginshaw standard (Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336).

71 There Dixon J discussed the standard of proof of an allegation required for the making of a finding in civil (i.e. non-criminal) proceedings, and said at 361-63:

‘The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. …This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues …. But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.’

72 It is clear from the terms used by the Tribunal in paras [9] and [10] of its reasons that it was conscious that it was making a finding as to conduct which is the subject of a criminal offence provision. We accept Mr Jordan’s submission, in reply to a criticism of Mr Blake, that it is not necessary that the Tribunal make an express reference to Briginshaw when making such a finding. The principle is long established, and can be expected, as he submits, to be well known to an experienced and senior member of the Tribunal.

73 Mr Blake submitted that the Tribunal had not satisfied the injunctions sounded in Briginshaw when dealing in civil proceedings with an allegation of serious misconduct. In our view the Tribunal’s reasons are satisfactory, measured against the observations in Briginshaw, in relation to the circumstances that surrounded the filling in of the form in 2002. The Tribunal formed a view as to Mr Sleiman’s general understanding of forms, his explanation as to his interpretation of the form, and was most influenced by the recency in time of the name change (only three months previously).

74 However, we do not find the reasons so persuasive, measured against the Briginshaw standard, as to the application forms of 2003 and 2004. What evidence there is points towards Mr Sleiman having continued to use his usual name, Fadi Sleiman. The circumstances, as recounted by him, that led him to change his name had receded by 2003 and 2004. The factor of recency on which the Tribunal placed great weight in relation to its finding in respect of 2002 had passed. It seems to us that the Tribunal should have explained more fully why it considered that he had continued ‘knowingly’ to give wrong information in the case of the 2003 and 2004 forms.

75 The Tribunal noted that there were particulars in the charge alleging that Mr Sleiman had used a false name (one that bore no connection to his usual name) in connection with the fraud. But it declined to draw any adverse inference going to any propensity to use false names; and appears ultimately not to have taken that matter into account.

76 In our view, therefore, there is really only one item of misconduct related to his certificate which stands against Mr Sleiman when approaching the question of fitness and propriety in this case. The requirement that people give true names and reveal aliases is there, presumably, to ensure that proper record searches can be done by the regulator. The regulator may wish to check past industry records or past criminal records. The importance of criminal record checking is reflected in the provision in the Act, s 96, disapplying the spent convictions legislation. The use of aliases may have relevance for police intelligence purposes.

77 Significance must always be attached to a conviction or convictions that occur in the course of or relate to the carrying out of the occupation: see, for example, New Broadcasting Ltd v Australian Broadcasting Tribunal (1987) 73 ALR 420.

78 Any misconduct towards the regulator is a serious matter. While the misconduct found by the Tribunal (as qualified by us) involved misconduct towards the regulator, and therefore is a matter of seriousness, we think it should be seen as lying at the lower end of the scale. It does not, for example, show a ‘course of disregard for the law’, a phrase used by Barker J in Coulthard v Henneker [2003] WASCA 187 at [44]. Coulthard is generally instructive on the weighing process to be used in ‘fitness and propriety’ cases.

79 Candour in dealing with a regulator is important for the effective operation of a regulatory system. Here one instance of lack of candour in dealing with the regulator has been identified. But this does not seem to be an instance where any great harm flowed from the lack of candour. It would seem that Mr Sleiman continued to be commonly known in the industry by his original name (that is reflected in the way a local police officer greeted him in the account of an interview held with him, see statement, 21 December 2003, p 2085, folder before Tribunal). There is no suggestion that a criminal record or adverse history was somehow concealed because of the non-revelation of the new name. Moreover, the new name does not seem to have involved any attempt at a serious change of identity. It is no more, in our view, than an Australianised version of his original name (Freddy Lee Man for Fadi Sleiman).

80 Mr Blake also criticised the Tribunal for having taken an approach which was out of line with Musgrave v Director General, Ministry of Transport [2004] NSWADT 141. We will deal briefly with this point.

81 This is not a precedent in the strict sense but, obviously, it is desirable that the Tribunal, like administrators, be seen to deal consistently with similar cases so as to foster public confidence in the fairness of the regulatory system, especially on the part of those regulated.

82 In Musgrave the holder of a bus operator accreditation was charged with fraudulently producing Taxi Transport Scheme Subsidy vouchers to the Ministry of Transport for payment. The Ministry suspended the accreditation. The operator applied to the Tribunal for review of the suspension. A systematic course of conduct over a significant period of time was alleged, and a substantial amount of money was involved. The Tribunal set aside the suspension decision on the bases that the applicant denied the charges, the conduct was unlikely to re-occur, and the applicant had twenty years’ service without complaint. That case involved an examination of a range of factors including positive evidence put forward by the applicant, and conditions were applied which were seen as an appropriate mechanism in the circumstances. This is typical of the broad ranging inquiry that is often involved in these cases.

83 In our view there is no significant comparison to be made between Musgrave and this case, when all the circumstances are examined.

84 Conclusions. In our view, the Tribunal erred in law by failing to consider the relationship between ‘fitness’ and the relevant occupation. The Tribunal also erred, we consider, in not explaining more fully how the Briginshaw standard was satisfied in relation to the filling out of the 2003 and 2004 application forms. We think that the Tribunal should have had greater regard, as Mr Blake submitted, to the nature of the occupation, made a narrower finding on the filling out of the application form and weighed the degree of that misconduct before putting it into the balance on the fitness question.

85 The result is, we consider, that there has been a ‘substantial wrong’ (to use the words of House v The King) so far as the finding in respect of ground (f) is concerned. While there is an aura of criminality surrounding Mr Sleiman (the charge, the connection made in the conspiracy allegations with his relative and employer, the circumstances of his brother’s death), we do not think the point has been reached where an adverse finding as to his fitness to continue as a tow truck driver could properly be made.

Leave to Extend to Merits

86 Leave is refused. There were, in our view, errors of law identified in relation to the reasoning in connection with ground (f). All that needs to occur is that the decision be set aside in that respect.

Order

1. Appeal dismissed.

2. Decision to suspend affirmed, on basis of ground (b) only; set aside as it relates to ground (f).