Vasilevski v Ministry of Transport (No 2) - [2007] NSWADT 180

No judgment structure available for this case.

CITATION: Vasilevski v Ministry of Transport (No 2) [2007] NSWADT 180

DIVISION: General Division

PARTIES: APPLICANT
Bogoja Vasilevski
RESPONDENT
Ministry of Transport

FILE NUMBER: 053428

HEARING DATES: 2 March 2006, 17 May 2006 & 20 June 2007

SUBMISSIONS CLOSED: 20 June 2007

DATE OF DECISION:
8 August 2007

BEFORE: Pearson L - Judicial Member

CATCHWORDS: Bus driver - cancellation of authority - Passenger Transport Act - bus driver - cancellation of authority

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Passenger Transport (Bus Services) Regulation 2000
Passenger Transport Act 1990

CASES CITED: Farquharson v Director General, Department of Transport [1999] NSWADT 53
Ghachame v Director General, Department of Transport (2000) NSWADT 113
Hasegawa v Director General, Department of Transport [2000] NSWADT 96
Health Care Complaints Commission v Litchfield (Court of Appeal, unreported, 8 August 1997)
Hughes & Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127
Kent v Ministry of Transport [2007] NSWADT 37
Lal v Director General, Department of Transport [2001] NSWADT 74
R v Carroll (2002) 213 CLR 635
Re Flynn and Department of Aviation (1987) 13 ADL 279
Re Gruzman and Secretary, Department of Aviation (No 2) (1986) 11 ALD N145
Re Murfet and Secretary, Department of Aviation (1984) 5 ALD N494
Re Taylor and Department of Transport (1978) 1 ALD 312
Saadieh v Director General, Department of Transport [1999] NSW ADT 68
Vasilevski v Ministry of Transport [2007] NSWADT 48

REPRESENTATION:
APPLICANT
P Clough, solicitor
RESPONDENT
A Wozniak, solicitor

ORDERS: Decision under review affirmed

Background

1 On 2 December 2005 the respondent cancelled the applicant’s Driver Authority No. CX 6588 under s14 of the Passenger Transport Act 1990 (the PT Act). The respondent relied on eight infringement notices issued in relation to breaches of clauses 19 and 21 of the Passenger Transport (Bus Services) Regulation 2000 (the Bus Services Regulation) during the period 12 November 1998 to 2 November 2005, involving soliciting for passengers at Sydney airport and leaving the bus driving seat, as the basis for a determination that the applicant did not meet the requirements of s11 of the PT Act.

2 The applicant lodged an application for review with the Tribunal on 9 December 2005, and applied on the same date for a stay of the decision. The stay was granted on 13 December 2005 on condition that the applicant not pick up a passenger at the airport unless he has a prior booking.

3 The decision to cancel the applicant’s driver authority was affirmed on internal review on 10 January 2006.

4 The applicant’s submissions raised, among other things, the issue of whether the New South Wales legislation under which the infringement notices had been issued was inconsistent with Commonwealth legislation governing Sydney airport. That issue was determined as a preliminary matter. I concluded that this application for review must be determined on the basis that the NSW legislation governing the operation of passenger transport vehicles applies to the applicant’s activities as a bus driver, and that the infringement notices for the offences under cl 19(c) of the Bus Services Regulation were properly issued: Vasilevski v Ministry of Transport [2007] NSWADT 48. That conclusion requires that I now determine the substantive issue, namely whether the decision to cancel the applicant’s driver authority is the correct and preferable decision.

5 As noted in the earlier reasons, in submissions filed on 13 February 2007 the respondent’s representative advised that there were further acts of alleged misconduct by the applicant. At a directions hearing on 13 March 2007 the applicant’s representative advised that infringement notices had been issued in relation to two further incidents, being a breach of cl 19(c) of the Bus Services Regulation on 24 December 2005 (soliciting for passengers at Sydney airport) and a breach of cl 21 on 31 July 2006 (leaving driving seat). The applicant had chosen to contest these matters at Parramatta Local Court, and the constitutional issue of inconsistency between the NSW legislation and the Commonwealth legislation governing activities at Sydney airport had been raised in those proceedings. Notices had been issued under s78B(1) of the Judiciary Act 1903 (Cth), and the matter was adjourned for mention on 28 March 2007.

6 A further directions hearing was scheduled for 5 April 2007. On that occasion the applicant’s representative advised that the NSW Attorney General was intervening in the proceedings in the Local Court, and the matter was to be heard on 30 May 2007. A hearing date was set in these proceedings for 20 June 2007.

7 On that date the applicant’s representative advised that the decision on the constitutional issue had been reserved. Both parties agreed that, given the intervention of the Attorney-General, the matter was likely to go further whatever the outcome. In those circumstances, given the length of time which this matter has taken already, and in particular the consequent uncertainty for the applicant, and with the agreement of the parties, I considered it appropriate to proceed to determine the issues remaining in this application for review on the basis of the evidence before me, and not further adjourn the matter to await the outcome of the proceedings currently before the Local Court.

Relevant legislation

8 Section 14 of the PT Act provides:

Having regard to the purpose of an authority, the Director-General may at any time vary, suspend or cancel any person’s authority.

9 Section 11 of the PT Act sets out the purpose of an authority:

(a) 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

(b) that the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates:

(i) in accordance with the conditions under which a public passenger service is operated, and

(ii) in accordance with law and custom.

10 Clause 19 of the Passenger Transport (Bus Services) Regulation 2000 (the Bus Services Regulation) provides:

The driver of a bus must not do any of the following:

(a) smoke in a bus at any time,

(b) eat or drink in a bus while the bus is conveying any passenger,

(c) solicit for passengers or for a hiring,

(d) move the bus while the doors are open,

(e) negligently or wilfully start or cause the bus to be started so that any passenger or intending passenger in or on it or entering or alighting from it is subjected to the risk of injury.

11 Clause 21 provides:

The driver of a bus must not, without reasonable excuse, leave the driving seat of the bus.

12 The respondent relies on the documentary evidence contained in its file, including details of the infringement notices issued to the applicant, and material provided by the applicant in response to the Notice to Show Cause issued before the decision to cancel the driver authority. Further documentary evidence, as outlined below, was tendered at the hearing on 20 June 2007.

13 The respondent’s decision to cancel the applicant’s driver authority was based on eight infringement notices issued in relation to breaches of cl 19 of the regulation, as follows:

27 June 2005 – soliciting for passengers, Virgin terminal, Mascot Airport; bus driver leave driving seat

13 May 2005 – soliciting for passengers, Virgin terminal, Mascot; bus driver leave driving seat

19 November 2004 – soliciting for passengers, Mascot airport

19 April 1999 – soliciting for passengers, Ansett terminal, Mascot Airport

12 November 1998 – soliciting for passengers, Qantas terminal, Mascot Airport

14 It was common ground that the applicant did not contest these notices, and has paid the penalties.

15 The respondent has issued two further infringement notices, which the applicant is contesting. The respondent filed copies of Court Attendance Notices in relation to two matters, the first for soliciting for passengers or for a hiring in breach of cl 19(c) of the Bus Services Regulation on 24 December 2005, and the second for being the operator of a bus without reasonable excuse leaving the driving seat of the bus, in breach of cl 21 of the Bus Services Regulation, on 31 July 2006.

16 The details of the incident of 24 December 2005 are recorded in a file note on the respondent’s file dated 3 January 2006 by Mr Charlie Rosiello, Operations Officer. It is apparent from the file note that Mr Rosiello was at the airport on 24 December 2005 in a private capacity, and the file note states:

The driver turned and noticed that I was standing nearby, I asked him why he was at the Airport soliciting for passengers as I believed that his driver authority had been cancelled by the Ministry. He indicated that he had received an urgent stay from the ADT, subject to him not attending the Airport unless he had a pre arranged booking.

I indicated to the driver that I had just heard him soliciting for passengers therefore he was in breach of his condition issued by the ADT. The driver stated that he did have a booking, however it was later. I asked him why he was soliciting for passengers and contravening his conditions issued by the ADT, the driver indicated that his wife does not work and he was trying to make money to survive.

17 The respondent has provided a copy of a statement made by Mr Rosiello on 26 September 2006 which is in similar terms.

18 The Statement of Facts filed by the respondent in relation to the incident of 31 July 2006 is in the following terms:

Rosiello said: “Do you have a pre arranged booking”

Driver said: “No”

Rosiello said: “Why are you standing insider the terminal if you do not have a pre arranged booking”

He said: “No reason”

Rosiello said: “Are you aware its an offence not to remain with your vehicle”

He said: “yes, but I just went for a coffee”

Rosiello said: May I see your driver authority please”

He said: “It’s in the bus”

Officers Rosiello, Dick and the driver proceeded to the holding bay for buses and hire cars on Keith Smith Avenue and Seventh Street. The driver then pulled out authority CX6588 in the name of Bogoja Vasilevski from bus TV4567. Officer Rosiello then informed the driver he would receive an infringement.

19 The applicant provided two personal references in response to the notice to show cause before the authority was cancelled. The applicant did not give oral evidence.

Applicant’s case

20 The applicant’s representative stated that the applicant accepted the infringements, which had been paid, and agreed that he had contravened cl 19 of the Bus Services Regulation. The applicant’s submissions were based on two arguments: first, that the original decision maker had taken into account irrelevant considerations in having regard to alleged offences unrelated to the driving of any vehicle, and secondly, that the applicant had already been found guilty of the offences and to cancel his authority would amount to double jeopardy

21 The applicant’s representative argued that paragraphs (a), (b), (d) and (e) of cl 19 relate to the conduct of a bus driver while driving the bus; paragraph (c) should be read in similar terms, and should not be construed in such as way as to prohibit the applicant from running his business. If cl 19(c) applies in the way contended for by the respondent, then the applicant’s placement of ads in the Yellow Pages and distribution of flyers is equally a contravention. There are no shortcomings in the applicant’s abilities as a driver, and his business depends on his being able to solicit for passengers. The applicant’s representative submitted that seeking passengers in the way used by the applicant is not serious misconduct, as asserted in the delegate’s decision, and that consideration of whether the applicant is a fit and proper person should focus on his performance as a driver rather than how he derives his business, relying on the decisions of the Administrative Appeals Tribunal in Re Flynn and Department of Aviation (1987) 13 ADL 279 and Re Murfet and Secretary, Department of Aviation (1984) 5 ALD N494. The applicant’s representative submitted that financial hardship to the applicant was a relevant factor, relying on the decisions of the Administrative Appeals Tribunal in Re Gruzman and Secretary, Department of Aviation (No 2) (1986) 11 ALD N145, and Re Taylor and Department of Transport (1978) 1 ALD 312.

22 The applicant’s representative submitted that cancellation of the driver authority is a forfeiture of the authority and thus punishment, and relied on R v Carroll (2002) 213 CLR 635. The applicant’s representative submitted that the applicant has difficulty in reading and writing English.

Respondent’s case

23 The respondent’s representative relied on the record of infringements, and formal warnings given to the applicant on 21 November 1996 and 8 July 1999. The respondent’s solicitor submitted that the applicant’s record was one of continual warnings and apologies, and continued breaches of the Bus Services Regulations. The applicant can still operate his business if his driver authority is cancelled. The applicant has put the opportunity to collect fares above compliance with the law. All the breaches occurred at the Airport, where the conduct of drivers is regulated to avoid the chaos that could result with competition for fares.

Consideration

24 The test the Tribunal must apply under s11 of the PT Act is whether it can be attested:

(b) that the applicant is considered to have sufficient responsibility and aptitude to drive a passenger transport vehicle.

25 President O’Connor said in Farquharson v Director General, Department of Transport [1999] NSWADT 53, that:

Re T and Director of Youth & Community Services

26 The applicant provided two references to the respondent in response to the Show Cause notice issued on 7 November 2005, from Dr Rasiah Vikeyarasa and from Rev Mitko Mitrev. Both references refer to “the letter” from the Director General of the Ministry of Transport. Dr Rasiah Vijeyarasa states that “to the best of my knowledge he is a person of integrity and honesty”, and “the wrong doings mentioned in the letter are out of character”. Rev Mitko Mitrev states that the applicant “and his family are good believers and very respected by the Macedonian Orthodox Community”. These references, provided by persons who have known the applicant for some time, and who know of the Show Cause notice, are evidence to attest that the applicant is considered to be of good repute.

27 The activities in which the person will be engaged are relevant to consideration of whether he is a “fit and proper person”: Hughes & Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 at 156-7. In Saadieh v Director General, Department of Transport [1999] NSW ADT 68 at [17] Deputy President Hennessy set out several factors which should be considered when determining a person's fitness and suitability to hold a taxi authority:

- the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted;

- the nature, seriousness and frequency of any complaints made against the applicant;

- the applicant's driving record;

- the applicant's reputation in the community; and

- the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences.

28 In Kent v Ministry of Transport [2007] NSWADT 37 DP Hennessy considered the approach to be adopted to documents on the Ministry file:

6 That conclusion is not entirely consistent with comments made by the Appeal Panel in Taylor v Director General, Department of Transport [2001] NSWADTAP 29 (12 September 2001). In that decision, the Appeal Panel (over which I presided) said at [87] to [89], that the Tribunal could admit or reject documentary evidence of complaints from passengers. I now think that the better view is that if documentary material recording details of complaints from passengers is provided to the Tribunal in compliance with s 58 of the ADT Act, and that material is relevant factual material, then, in accordance with s 63, the Tribunal must have regard to it when determining the application. The Tribunal may decide to give little or no weight to that material, but it may not disregard it.

7 The Ministry did not call any witnesses and Mr Kent did not give oral evidence. Consequently, the material that is before the Tribunal are the documents filed by the Ministry under s 58 and Mr Kent’s written response to the 16 most recent complaints. Mr Kent’s potential financial hardship if he is no longer able to drive a taxi is not relevant: Lal v Director General, Department of Transport [2001] NSWADT 74 at [47]. Nevertheless, it must be borne in mind that if the Ministry’s decision is affirmed, Mr Kent will be deprived of any realistic opportunity to earn a living.

8 The Tribunal must be satisfied, to the civil standard of proof (on the balance of probabilities) before making a finding: McDonald v Director General of Social Security (1984) 1 FCR 354 at 357. A proper evidentiary foundation must be found for a decision based on reasonable satisfaction as to relevant circumstances. As with any occupational decision, "in such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences. ... weight is given to the presumption of innocence and exactness of proof is expected." (Briginshaw v Briginshaw (1938) 60 CLR 336 at 362-3 per Dixon J.) A state of "comfortable satisfaction on the balance of probabilities" should be achieved: Bannister v Walton (1993) 30 NSWLR 699 at 711-2, also McCarthy v Law Society of NSW (1997) 43 NSWLR 42 at 58.

29 In Kent, the documents on the Ministry file were records of complaints from members of the public. In assessing the weight to be given to the records of complaints, Deputy President Hennessy concluded:

Re Pochi and Minister for Immigration and Ethnic Affairs

Briginshaw

30 In this matter, the respondent is relying in part on infringement notices issued under Part 6 of the PT Act. A penalty notice is a notice to the effect that, if the person served with the notice does not wish to have an alleged offence dealt with by a court, the person may pay, in accordance with the notice, the penalty specified in the notice: s59(1) PT Act. As noted above, the applicant has not contested the fact of the issue of the eight infringement notices issued between November 1998 to November 2005. While payment of a penalty notice is not to be regarded as an admission of liability (s59(6) of the PT Act), I regard the issue of an infringement notice, which records the issuing officer’s observations of the applicant’s conduct, as a different matter to the record of a complaint made to an officer. I consider that the infringement notices should be given significant weight in considering the previous conduct of the applicant.

31 The applicant is contesting the two infringement notices issued after his application for review was lodged. However, this challenge is based on the constitutional argument, rather than on any dispute as to the facts recorded. I consider that the two subsequent infringement notices should also be given considerable weight.

32 In his written submissions filed on 24 April 2006 the applicant’s representative did not dispute that the applicant “obtains passengers for his bus by approaching passengers in or outside passenger terminals at Sydney Airport”. The applicant’s case has not been put on the basis that the specific acts alleged in the infringement notices did not take place, rather that cl 19(c) has no application to the applicant’s conduct, either because of constitutional inconsistency, or because as a matter of statutory interpretation it can only apply to actions while driving a bus.

33 I agree with the applicant’s submission that paragraphs (a), (b), (d) and (e) of cl 19 relate to the behaviour of a bus driver while in the bus. It does not follow, however, that paragraph (c) has application only when a driver is in the bus. The term “solicit” has a broad meaning, and is defined in the Macquarie Dictionary to mean:

To seek seriously and respectfully; to seek the custom of; to try to get (orders or trade) for business

34 Clause 19 is one of several provisions in Part 2 Div 2 of the Bus Services Regulation which regulates the conduct and behaviour of bus drivers. There is no indication either in the express terms of these provisions, or in the scheme of Div 2 of Part 2 as a whole, that they should be read so as to apply only when a bus driver is in his or her bus. I am satisfied that the applicant has, on several occasions, solicited for passengers while at Sydney Airport, in contravention of cl 19(c) of the Bus Services Regulation.

35 The applicant argued that cancellation of his authority on the basis of the infringement notices would amount to punishment again for the same matters, relying on R v Carroll (2002) 213 CLR 635. Carroll concerned a prosecution for perjury in relation to sworn evidence given by the respondent in his trial for murder. The High Court in that decision held that the perjury indictment was an attempt to controvert the previous acquittal on the charge of murder, given that the charge of perjury raised the same ultimate issue as that which had been raised in the trial. The issues in this matter are different. Previous decisions of this Tribunal have made it clear that the regulatory avenues of suspending, cancelling, or refusing to grant, an authority, are predominantly designed to protect the public rather than further punishment of the offender: see Ghachame v Director General, Department of Transport (2000) NSWADT 113. That approach is consistent with that of the Court of Appeal in characterising disciplinary proceedings against a medical practitioner as being for a purely protective purpose, and involving no element of punishment: Health Care Complaints Commission v Litchfield (unreported, 8 August 1997). In considering whether the applicant can be considered to be “in all other respects a fit and proper person”, I have had regard to the eight infringement notices.

36 The respondent argued that the infringement notices establish a pattern of conduct. The respondent also relied on two Show Cause notices issued to the applicant. The first, dated 24 October 1996 was in relation to the applicant’s conviction for an offence of knowingly defraud the Commonwealth, for which the applicant was sentenced to nine months periodic detention. The offence was unrelated to his driving, and no action was taken at that time. The second, dated 15 June 1999, was in response to the infringement notices of 12 November 1998 and 20 April 1999. In response, the applicant referred to construction work at the airport, and denied that he approached passengers personally. No action was taken by the respondent at the time, however in a letter dated 8 July 1999 the applicant was advised that further consideration would be given to his fitness to hold a public passenger vehicle authority “should you come under any further adverse notice”. Apart from an incident in May 2000, in respect of which not action was taken because of lack of evidence, there was no further adverse conduct until the infringement notice of 19 November 2004.

37 The infringement notices issued in relation to the breaches of 13 May 2005 and 27 June 2005 record statements by the applicant that “I’m sorry I won’t do it again” and “If you give me a chance I will never come back here again”. In response to the show cause notice issued on 7 November 2005 his then representative provided a written statement in which he stated:

We advise you that he understands the seriousness of the matters raised by you and the affect any action on your part will have on his livelihood.

38 In his request for internal review dated 9 December 2005 the applicant stated, in part:

…

I realise that soliciting from the airport is illegal and is no longer a viable strategy to sustain my business. For this reason I am now running advertisements in the local yellow pages and local newspaper and have printed pamphlets as an alternative strategy to grow my business and to take away any need to solicit.

39 Notwithstanding this statement, a subsequent breach of cl 19(c) occurred on 24 December 2005.

40 The consideration of whether the applicant is “a fit and proper person” involves consideration not just of his competence as a driver, but an overall assessment of his conduct: Hasegawa v Director General, Department of Transport [2000] NSWADT 96. The applicant has committed breaches of the Bus Services Regulation on several occasions. Despite statements that he would not do so again in May, June and December 2005, the applicant has continued to breach the Bus Services Regulation by soliciting for passengers. There is no indication from the way in which his application for review has been put that he will not continue to breach the prohibition on soliciting imposed by cl 19(c) of the Bus Services Regulation. Rather, his representative’s submissions indicate that he regards this as a necessary part of running his business. The applicant’s representative has submitted that cancellation will cause financial hardship. However, the view has been taken consistently in this Tribunal that this is not a relevant factor: Lal v Director General, Department of Transport [2001] NSWADT 74 at [47]. The applicant relied on decisions of the Administrative Appeals Tribunal which support the argument that hardship to the applicant is a relevant factor, including Re Taylor and Department of Transport and Re Gruzman and Secretary, Department of Aviation (No 2). Those decisions concern review of decisions to cancel pilot’s licences under the Air Navigation Regulations (Cth), and support the proposition that while relevant, hardship must be weighed against the interests of navigational safety and of the public at large. In the context of this review, that would include the interests of efficient and effective regulation of passenger transport services, particularly at busy and congested locations such as Sydney Airport. In any event, as pointed out by the respondent’s representative, the applicant retains his accreditation under the PT Act and would still be able to operate his bus.

41 Having regard to all these factors, I cannot be satisfied that the applicant is a fit and proper person to drive a passenger transport vehicle, and I am satisfied that the decision to cancel his driver authority is the correct and preferable decision.

Order

Decision under review affirmed.

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Citations

Vasilevski v Ministry of Transport (No 2) [2007] NSWADT 180

Cases Citing This Decision

0

Cases Cited

15

Statutory Material Cited

3

Vasilevski v Ministry of Transport [2007] NSWADT 48

Walton v Gardiner [1993] HCA 77

CITATION:	Vasilevski v Ministry of Transport (No 2) [2007] NSWADT 180
DIVISION:	General Division
PARTIES:	APPLICANT Bogoja Vasilevski RESPONDENT Ministry of Transport
FILE NUMBER:	053428
HEARING DATES:	2 March 2006, 17 May 2006 & 20 June 2007
SUBMISSIONS CLOSED:	20 June 2007
DATE OF DECISION:	8 August 2007
BEFORE:	Pearson L - Judicial Member
CATCHWORDS:	Bus driver - cancellation of authority - Passenger Transport Act - bus driver - cancellation of authority
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Passenger Transport (Bus Services) Regulation 2000 Passenger Transport Act 1990
CASES CITED:	Farquharson v Director General, Department of Transport [1999] NSWADT 53 Ghachame v Director General, Department of Transport (2000) NSWADT 113 Hasegawa v Director General, Department of Transport [2000] NSWADT 96 Health Care Complaints Commission v Litchfield (Court of Appeal, unreported, 8 August 1997) Hughes & Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 Kent v Ministry of Transport [2007] NSWADT 37 Lal v Director General, Department of Transport [2001] NSWADT 74 R v Carroll (2002) 213 CLR 635 Re Flynn and Department of Aviation (1987) 13 ADL 279 Re Gruzman and Secretary, Department of Aviation (No 2) (1986) 11 ALD N145 Re Murfet and Secretary, Department of Aviation (1984) 5 ALD N494 Re Taylor and Department of Transport (1978) 1 ALD 312 Saadieh v Director General, Department of Transport [1999] NSW ADT 68 Vasilevski v Ministry of Transport [2007] NSWADT 48
REPRESENTATION:	APPLICANT P Clough, solicitor RESPONDENT A Wozniak, solicitor
ORDERS:	Decision under review affirmed