Whittaker v General Manager, Tow Truck Authority

[1999] NSWADT 54

CITATION:	Whittaker v General Manager, Tow Truck Authority [1999] NSWADT 54
DIVISION:	General
APPLICANT:	Syd Whittaker
RESPONDENT:	General Manager, Tow Truck Authority
FILE NUMBER:	993033
HEARING DATES:	06/01/1999
SUBMISSIONS CLOSED:	06/14/1999
DATE OF DECISION:	21 July 1999
BEFORE:	M A Robinson - Judicial Member
PRIMARY LEGISLATION:	Tow Truck Act 1989
APPLICATION:	Review of refusal to grant tow truck drivers certificate -
MATTER FOR DECISION:	Principal matter
REPRESENTATION:	Applicant: H Gulpers of counsel instructed by Margiotta Solicitors Respondent: T Xenos, Bayside Solicitors
ORDERS:

1 This is an application made by Mr Whittaker ("the applicant") for review of a “reviewable decision” within the meaning of that expression in section 8 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”) made by the Tow Truck Authority of New South Wales ("the Authority") to refuse the applicant's application for the issue of a tow truck drivers certificate on 9 February 1999.

2 Internal review of the adverse decision was sought by the applicant and resolved adversely to him by the Authority on 1 March 1999 when the decision to refuse the original application was affirmed.

3 The applicant applied to the Tribunal for review of the original decision on 12 February 1999 and sought and obtained from the Tribunal interim orders staying the operation of the decision on 25 February 1999. The stay order has been further extended to the date of the Tribunal's determination of the matter.

4 The principal issue in these proceedings is whether or not the applicant would be, in the opinion of the Tribunal, "a fit and proper person" to hold a drivers certificate within the meaning of that expression in section 19(a) of the Tow Truck Act 1989. Section 15 of that Act provides in short that a person must not drive or use a tow truck unless the person holds a drivers certificate.

5 The Tow Truck Act 1989 will be repealed in due course upon the commencement in full of the Tow Truck Industry Act 1998(No 111 of 1998). Parts of that Act have already commenced on 19 February 1999. Section 7 of the new Act constitutes the Tow Truck Authority of New South Wales. The new authority is described in subsection (2) as a body that does not represent the Crown. The Authority's functions are set out in section 8 of the new Act. A significant function is that the Authority is to regulate the tow truck industry in New South Wales. Schedule 2 of the new Act contains savings and transitional provisions relevant to decisions made under the 1989 Act.

6 The new Act has brought significant change in relation to the issue of drivers certificates in the tow truck industry. It has introduced some "mandatory grounds" in section 26(2) relating to past convictions of applicants, retains “discretionary grounds" in section 26(3) based in part on the ”fit and proper person" test and adds a new “public interest" test.

7 Both parties agree that the present application is to be decided by the Tribunal based upon the 1989 Act so that the only test applicable here is the fit and proper person test and that the Tribunal has jurisdiction to review the Authority's decision upon interval review dated 1 March 1999. In any case, I am satisfied that the Tribunal has jurisdiction to deal with the application.

8 The reasons why the Authority refused the issue of drivers certificate to the applicant here primarily involve about 8 traffic and other offences said to have been committed by the applicant from 4 March 1997 to about 22 December 1997 from which some were appealed. Plainly the most significant offence alleged is the conviction of the applicant on about 22 December 1997 when he was convicted by the Local Court at Campbelltown for driving under the influence of alcohol or a drug when the applicant was fined $1000 and disqualified from driving for 1 year. The conviction related to an event, which occurred on about 19 January 1997. The applicant appealed that conviction to the District Court at Parramatta and on 24 November 1998 that Court dismissed the appeal and set aside the disqualification.

9 The hearing of this matter before the Tribunal took place on 1 June 1999. In addition to the documents contained in the Tribunal file, which I have read, the applicant relied on his affidavit sworn 1 June 1999 and the Authority relied on the affidavit sworn 18 May 1999 of Mr Charlie Rosiello, an Acting Senior Officer of the Authority. Both the applicant and Mr Rosiello gave oral evidence at the hearing and were cross-examined. I reserved my decision.

10 The Authority's evidence reveals that officers of the Authority issued the applicant with a Notice to Show Cause on about 20 January 1999 which was responded to by the applicant's solicitors by letter dated 3 February 1999. In that letter, the applicant addressed, in my opinion, to a satisfactory standard, most of the traffic and other offences relied upon by the Authority in its decision. As I have said, the most significant event is that which occurred on about 19 January 1997 resulting in his conviction on 22 December 1997. The applicant's explanation for his conduct then underwent significant scrutiny by both the Local Court and the District Court on appeal. In essence, the applicant alleged that he suffered from "a fugue state" around the relevant period resulting probably from a blow to the head. There followed a significant period of memory loss for the applicant who was ultimately admitted to the Psychiatric Unit at Campbelltown Hospital in January 1997.

11 The Authority tendered into evidence before the Tribunal a medical report prepared by a psychologist Ann-Marie Petrinas dated 7 August 1998. In that report, the psychologist sets out by reference to hospital clinical notes and consultations with the applicant details relating to the commission by the applicant of the January 1997 offence and of his subsequent admission into hospital and his memory loss around that time. The psychologist concludes that in her opinion the applicant's problem did not relate to alcohol at all. It related to his fugue state in January 1997 which was "most probably caused by a head injury". At page 3 of her report, the psychologist defined a fugue state as:

“A condition of altered consciousness in which the subject wanders away from home or work. Often a fugue occurs in the setting of a depressive illness and sometimes appears to be the symbiotic equivalent of suicide. And hysterical fugue (dissociative reaction) is related to an intolerable situation from which the subject feels compelled to escape; there is often partial or complete amnesia for the event. A fugue may occur in organic brain damage eg after a head injury.”

12 I accept this evidence from a medical expert and I am satisfied that it explains to a significant extent the January 1997 incident which led to the conviction of the applicant.

13 In his oral evidence, the applicant said that he has had no further convictions of any kind since the matters giving rise to these proceedings occurred. He said that he works seven days a week for 12 to 14 hours per day and takes an occasional day off from time to time. He holds an operators certificate under the 1989 Act which as at the date of the hearing was current and whilst he smoked marijuana from time to time prior to the events of January 1997 on the recommendation of a medical doctor in order to relieve pain in his knees from an accident which occurred in 1973, he has not smoked that drug since January 1997 at all. He said that he is medically fit to continue driving and operating his tow truck business and the further medical evidence tendered by the applicant in the report of Dr Sabir dated 31 May 1999 supports this.

14 From my observation of the applicant in the witness box at the hearing, I am satisfied that the applicant is a witness of truth. He appeared to me to be honestly attempting to deal with the relevant issues and he deeply regretted the incidents around January 1997 and the other traffic offences examined at the hearing. The applicant has been a tow truck driver for the last 30 years and requires his driving certificate so as to continue his livelihood.

15 In his affidavit, the applicant tendered seven letters of reference from business customers and other associates of the applicant. Whilst it would have been preferable for those referees to have plainly stated that they were aware of the nature of the proceedings at the Tribunal and of the reasons for the adverse decision by the Authority, I accept the references as going to the question of whether or not the applicant is a fit and proper person to hold a drivers certificate under the 1989 Act.

16 The expression "a fit and proper person" to hold a drivers certificate within the meaning of that expression in section 19(a) of the Tow Truck Act 1989 has not been considered by the Tribunal to date. In the helpful written and oral submissions of the legal representatives of the applicants, the Tribunal's attention was drawn to the appropriate test for determining its meaning. Attention was also drawn to a number of Local Court decisions applying the relevant expression under the 1989 Act.

17 As a general proposition, I accept what was said by the President of the Tribunal in the context of security industry licensing in New South Wales. In Haining v Commissioner of Police, NSW Police Service [1999] NSWADT 6 at [41] His Honour said:

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

18 In considering the regulation of the tow truck industry in New South Wales under the 1989 Act, it is plain that the Act was created for the primary purpose of the protection and safety of the public and so as to create public trust and confidence in the licensing and regulation of tow truck operations in New South Wales. It is significant to note the requisite standard of conduct and relevant duties of tow truck drivers is set out in regulation 23 of the Tow Truck Regulation 1990 in the following terms:

“ Conduct and duties of tow truck drivers

23. (1) The driver of a tow truck that is authorised to be operated under the authority of a licence must:

(a) behave in an orderly manner and with civility and propriety while:

(i) operating the tow truck, or

(ii) attending the scene of an accident, or

(iii) complying with a requirement under paragraph (b) or (c), and

(b) comply with any reasonable requirement made of the driver by an authorised officer or police officer in relation to the administration of the Act or the regulations, and


(c) comply with any reasonable requirement made of the driver by an emergency services officer,

within the meaning of section 32A of the State Emergency and Rescue Management Act 1989, who is attending the scene of a motor vehicle accident.
(2) The holder of the licence under which the tow truck is being operated must ensure that each tow truck driver

whose services are being used by the holder of the licence complies with subclause (1).

Maximum penalty (subclauses (1) and (2)): 5 penalty units.”

19 I am satisfied that the applicant here is a fit and proper person to hold a drivers certificate under the 1989 Act. The reasons for my determination are:

(a) The principal incident of concern to the Authority, which occurred in January 1997, has been

satisfactorily explained by the applicant and the medical evidence.

(b)No other relevant incident or offence has occurred since then.

(c) The applicant is medically fit to drive and operate his tow truck business.

(d) The traffic and other convictions relied upon by the Authority in the making of its decision was

satisfactorily explained by the applicant through his legal advisers.

(e) The seven references tended by the applicant going to his good character, reputation and moral

standing in the community at Campbelltown, where his business is based, when taken together with

my observation of the applicant in the witness box at the Tribunal hearing assist me in determining

that he has the requisite character to deserve the public trust given to tow truck drivers in New

South Wales.

20 At the hearing, the applicant applied for costs to be awarded should the Tribunal determine in favour of the applicant. The application was opposed by the Authority. The Tribunal has power to award costs in all cases involving review of reviewable decisions if the Tribunal is satisfied that there are "special circumstances" warranting an award of costs - section 88 of the ADT Act.

21 The application for costs was based essentially on the delay of the Authority in taking the action it did in circumstances where there was earlier opportunity for it to take action against the applicant by way of disciplinary proceedings or certificate refusal. In my opinion, notwithstanding that there was some significant delay here on the part of the Authority, such delay is sufficiently explained in the affidavit of Mr Rosiello for the Authority. The Authority was entitled to take the steps it took. However, it clearly would have been preferable for it to have taken steps earlier to consider and deal with the applicant.

22 Accordingly, there are no special circumstances here that would warrant the imposition of costs on the Authority.

Decision and Orders

23 I make the following determination:

(a) The decisions of the Tow Truck Authority to refuse the applicant's application for the issue of a tow truck drivers certificate on 9 February 1999 and 1 March 1999 are set aside.

(b) The applicant is granted a tow truck drivers certificate.