Young v Roads and Maritime Services
[2013] NSWADT 216
•04 October 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Young v Roads and Maritime Services [2013] NSWADT 216 Hearing dates: 3 April 2013 Decision date: 04 October 2013 Jurisdiction: General Division Before: P H Molony, Judicial Member Decision: I confirm the decision to refuse Mr Young accreditation to operate a passenger transport service.
Catchwords: Passenger Transport - public passenger transport service -accreditation Legislation Cited: Passenger Transport Act 1900
Passenger Transport Regulation 2007Cases Cited: McTiernan v RMS, unreported, District Court, Newcastle, Judge Maiden SC, 27 February 2013 Category: Principal judgment Parties: Christopher Young (Applicant)
Roads and Maritime Services (Respondent)File Number(s): 133004
REasons for decision
Introduction
Mr Young operates a vehicle rental business that, among other things, rents out passenger buses. In September 2012 he applied to Roads and Maritime Services (RMS) for accreditation to operate a bus service of four buses as a public passenger transport service. The application was accompanied by a three page letter from Mr Young in which he made specific comment as to:
- His proof of competency to be an operator
- His ability to provide proof of Council approval for the storage of the buses.
The contents of that letter were important. The relevant portions read -
1. Competency
I have personally been involved in the retail automotive industry including vehicle rental operations (car, bus and truck) all my working life of 40+ years, and have operated as a sole trader renting trucks and buses for the past fifteen years. I also spent eight years as an Army Reservist, mostly as a Transport NCO within an Infantry Officer Training Unit, naturally involving the types of responsibilities covered by this application. The specifics of this service are covered in the attached reference from my Army Transport Supervisor, and my service records as attached to my request for Standing from the University of Sydney.
Further training has been completed. I paid the $850 fee, attended the 2001 Certificate of Coach Management course at Sydney University, sat and passed the formal examination at its conclusion as well as the first assignment of short answer questions (result sheet attached 40/40).
I submitted the remaining assignments to Sydney but did not follow up the issue of the Certificate at the time, as I had been advised during the course by the attending industry representatives that my operations did not require accreditation.
In 2005 I applied to obtain a copy of the Certificate for my records.
Following numerous telephone calls and an unanswered letter, I was finally advised by telephone the course records were a mess and there was no record of even my test results, let alone the receipt of my remaining assignments.
Following a number of office relocations during those intervening years, my copies of these remaining assignments and my notes in completing them could not be located. As a result of this, and the stated lack of other records, I formally applied for Standing in a letter of May 2007 (credit or previous learning / experience), by attaching my academic, Army and aviation records and providing a reference as to my managerial background.
This letter as well as a follow up in December 2007 also went unanswered!
I finally wrote to the Vice Chancellor out of frustration in 2009 and received a reply which was frankly an academic defense of ineptitude and laziness. The reply failed to deal with my specific problem when given the opportunity.
I replied to this letter in June 2009 again seeking a ruling on my application for Standing and pointing to the discrepancies in the position Sydney University was defending. Disappointingly, no response was ever received to this letter.
The remaining assignments from memory dealt with business planning and marketing, basic elements of expertise proven by the survival of my own business over fifteen years.
Contact from your Department over the years has always been responded to, and I have no record of customer complaints from either yourselves or the Office of Fair Trading.
I would request the attached material covering this background and experience be considered as proof of my competency.
1. Council Approval
I would assume the requirements of the Act regarding Council approval for the location of storage of buses is to ensure these remain off street when not in use, thereby somewhat secure from any party wishing to damage, deface or tamper with them.
I live and work from a 36 acre farm in .... The location is along an access only road, one kilometer off the main ...Rd, well hidden from view. The site is private and secure, only accessed by local traffic.
All my idle rental fleet including buses have been stored here continuously for over 15 years without conflict, complaint or damage.
I hire my rental vehicles from a site in [town] which has insufficient room or security for storage. I transport them the 6km from home as business requires them.
I do however recognise that as rural land, the property is not formally zoned for this useage and by seeking Council consent I would simply be inviting difficulty. I would however point out though, there has been the exercise of continual use, and it is a common occurrence for small fleets of trucks and buses to be kept on rural land. This is noticeably evident in regional areas.
I have attached the current rate notice confirming details of this home farm comprising two titles and a total of 36 acres. In fact I had a meeting with your Ms Bissett on this site 6/10/2010 where she inspected the buses and could attest to the security and safety of the vehicles on site.
Any argument advanced regarding a potential increase in traffic from this storage activity, is easily negated by an analysis of the zoning allowance of dual occupancy per title which could provide four complete households on the farm. I have only one household, and myself as the only occupant so daily vehicle traffic is well below that envisioned by the zoning allowed development. In addition to this, I have a second, separate sealed access only road to the rear of the farm which remains available but unused.
I would contend that the particulars of this site fall within the general thrust and intentions of the Act, with the added benefit of on site security. I would ask that in view of its long term use, it be considered approved.
On 21 September 2012 RMS wrote to Mr Young asking that he supply RMS with:
- A training certificate saying he had successfully completed an approved operator training course; and
- A letter of approval from the relevant council to keep the number of buses specified at the premises specified.
The letter advised that his application would be held in abeyance "pending receipt" of those items. The letter did not consider the explanations relevant to those matters Mr Young had already provided.
On 25 September 2012 Mr Young replied. He noted that RMS had made no reference to his earlier letter. He submitted that production of a training certificate was not required by the relevant Regulation and argued that he had provided sufficient, alternate proof of his competence. With respect to Council approval he said he confirmed that, "Council would be reluctant to provide an approval or conditional approval in writing."
RMS responded on 27 September 2012 by acknowledging receipt of Mr Young's letter and requesting the same information again. It did not address or respond to any of the matters raised by Mr Young.
RMS subsequently made an undated decision to refuse Mr Young's application to operate a bus service. Among other things that letter advised-
3.2 In this particular case, there are two obligatory standards which the Delegate of the Director General has determined you have not met. These are as follows:-
The applicant must undertake and successfully complete a course of training relevant to operating bus services and conducted by an approved higher education institution, and;
The applicant must provide a copy of an approval from the relevant council to keep the buses required for the service at the premises nominated by the applicant.
3 .3 Your submissions concerning the training you have undertaken with the Institute of Transport Studies at the University of Sydney have been considered however, the fact remains that you have not provided formal evidence that you have successfully completed` the entire worse-.
3.4 Further, your submissions concerning your difficulty in obtaining an approval from the local council to keep buses at your premises have also been considered. The purpose of this requirement relates to acceptance by the local government authority that the premises nominated are acceptable for the purposes of storing, maintaining and operating a fleet of buses. In the absence of the necessary approval document from council it is not possible to approve your application.
Mr Young applied for internal review of that decision on 15 November 2013. In doing so he supplied a letter from his local Council regarding storage of buses at an industrial site leased by him.
On 4 December 2012 the decision to refuse Mr Young's application for operator accreditation was confirmed on internal review. The following reasons were given for the decision -
The Passenger Transport Act 1990 and the Passenger Transport Regulation 2007 clearly set out the purpose and requirements of applicants for bus operator accreditation.
The application process its requires applicants to submit documentation that satisfies the legislative requirements such as an accountant's statement confirming the applicant's financial capacity to maintain the number of buses to be operated in a safe and roadworthy condition, references of good repute and the application fee.
In addition, applicants are to provide evidence that they have undertaken and completed an approved training course and have gained approval from the relevant local government authority to operate buses from the premises that they nominate.
Having comprehensively reviewed all the material that you have submitted with your Internal Review I note that you have attained a Science qualification but withdrew from two (2) other academic courses; Masters of Commerce in 1974 and a Graduate Diploma of Computer Science in 1977. As for your military record, aviation licences and other experiences I fail to accept how they substitution for successfully completing the approved Bus Operator Training course.
The letter from Port Stephen Council dated 7 November 2012 provides approval to store buses within one (1) of the light industrial units on site leased by you. However, this letter is insufficient to satisfy the requirements of clause 11(2) of the Passenger Transport Regulation 2007 in that the number of buses which the approval applies is not indicated nor are the dimensions of the premises provided so that a determination can be made to as to its appropriateness to depot the four (4) buses as applied for in your application.
Taking all the matters that you have raised into consideration, I am unable to waive the requirements for you to undertake and complete the approved training course based on your claims of what could be considered to be an unfortunate series of administrative blunders.
In addition, the letter from Port Stephen Council dated 7 November 2012 simply does not provide sufficient information of the premises that you have nominated to satisfy the legislative requirements.
The fact remains that applicants for bus operator accreditation are required to demonstrate that they have satisfied the standards applicable to the style of accreditation that is applied for.
Accordingly, I affirm the decision of the Delegate of the Director-General to refuse your application for bus operator accreditation.
On 7 January 2013 Mr Young applied to the Tribunal to review the decision of RMS. I heard the application at East Maitland on 3 April 2013 when Mr Young represented himself and Mr Wozniak represented RMS.
Material considered by the Tribunal
In considering this application I have had regard to the following material:
- RMS' section 58 documents.
- Statement of Jane Poole a compliance officer with RMS.
- Mr Young's affidavit and annexures.
- Documents produced by the Applicant under summons.
During the hearing I heard sworn evidence from Mr Young. He confirmed the details of his past experience and qualification to argue that he is qualified to operate a bus service. In the course of his evidence Mr Young agreed that during 2012 when hiring his large buses to persons who did not have an appropriately licenced driver to drive the bus, he had driven the bus for them when asked to. This occurred when the hirer did not have a qualified driver. He said he did not "come with the bus". If he had not driven, the "bus would not have moved." As he saw it, he provided hirers with a personal service by driving the bus for them when they asked him to.
Mr Young produced under summons 34 separate bus hire contracts he entered into in the calendar year 2012. The form of contract includes details of the driver of the vehicle, including name, contact details, and licence details. Licence details for a proposed driver are only provided in one case. With the vast majority there are no details of a driver recorded at all. With a number names or addresses are recorded, but no licence details.
I noted that among the materials before the Tribunal was correspondence dating back to March 2007 in which RMS officers had warned Mr Young that it was an offence to provide a public passenger service without a licence. Indeed, he was convicted of that offence at Newcastle local Court on 22 March 2011. There was no dispute that at the time of the hearing before me Mr Young was applying to have the convictions set aside on the basis that he was not aware of the charges and hence did not appear.
I was also informed that there are a number of pending charges brought by RMS against Mr Young. Two are regarding his alleged failure to comply with request to provide information under s 46M of the PTA, which gives officers power to issue a notice requiring persons to furnish records or information. A third relates to providing a public passenger service without accreditation.
The Legislation
Section 7 of the PTA provides -
7 Accreditation
(1) A person who carries on a public passenger service by means of a bus or other vehicle (other than a vessel), being a service operating within, or partly within, New South Wales, is guilty of an offence unless the person is an accredited service operator for that service.
Maximum penalty: 1,000 penalty units.
(2) The purpose of accreditation under this Division is to attest:
(a) that the accredited person is (or, in the case of an accredited corporation, the designated directors and managers of the corporation are) considered to be of good repute and in all other respects fit and proper to be responsible for the operation of a public passenger service, and
(b) that the accredited person has demonstrated the capacity to meet the government's standards of:
(i) financial viability, and
(ii) safety of passengers and the public, and
(iii) vehicle maintenance,
to the degree and in the manner required in respect of services of the kind specified in the accreditation.
(3) Standards for the purposes of subsection (2) (b):
(a) may be prescribed by the regulations, or
(b) to the extent that they are not so prescribed, may be determined and published by TfNSW and made available to interested persons.
(3A) Different standards for the purposes of subsection (2) (b) may be prescribed or determined under subsection (3) for different classes of public passenger services and different classes of operators of public passenger services.
(4) Any person wishing to obtain from TfNSW a copy of a standard published under subsection (3) (b) must pay the fee (if any) prescribed by the regulations.
(5) Standards published under subsection (3) (b) may be re-determined by TfNSW from time to time, and are to be re-published and made available as occasion requires.
Section 3 contains relevant definitions and. Among other things, provides that -
public passenger service means the carriage of passengers for a fare or other consideration:
(a) by motor vehicle (other than a light rail vehicle) along a road or road related area, or along the whole or part of a transitway route, or
(b) ...
It has been held the words "for a fare or other consideration" do not require that the fare or other consideration necessarily be paid to the bus operator by the passenger. Thus a company that, under a retainer with a club, provided a courtesy bus for patrons and members of the club without fee was found to be operating a public passenger service in McTiernan v RMS (unreported, District Court, Newcastle, Judge Maiden SC, 27 February 2013).
Division 2 of Part 1 of the Passenger Transport Regulation 2007 (the PTR) prescribes standards for accreditation to carry on a bus service. The following regulations prescribe standards that are relevant in Mr Young's case -
7 Applicant to be of good repute
(1) The applicant must be of good repute.
(2) Evidence of the applicant's good repute is to be provided in the form of references from 2 persons (being persons, excluding employees of the applicant, of any class approved by RMS) who have known the applicant for at least 2 years.
8 Applicant to be fit and proper person to carry on relevant service
(1) The applicant must be a fit and proper person to carry on the relevant service.
(2) The applicant must declare in writing that the applicant is aware of the following:
(a) ...
(c) if the applicant:
...
(ii) discloses any convictions or charges in accordance with subclause (3),
RMS may, for the purpose of determining the applicant's fitness to be an operator, cause any investigation that RMS considers appropriate to be made into the winding up, conviction or charge concerned.
(3) The applicant must give RMS written notice of the following:
(a) full details of all offences of which the applicant has been convicted (in any jurisdiction) at any time during the 5 years immediately preceding the date of the application,
(b) full details of all alleged offences with which the applicant has been charged (in any jurisdiction) but only if, as at the date of the application, proceedings are pending in respect of the charge.
(4) If there are no convictions or pending proceedings against the applicant, the applicant must give RMS a written statement to that effect.
9 Applicant to be competent to carry on relevant service
(1) The applicant must demonstrate that the applicant has the necessary knowledge and competence to carry on the relevant service.
(2) In particular, the applicant must:
(a) satisfy RMS as to the applicant's knowledge of the following:
(i) the relevant provisions of the Act and this Regulation,
(ii) other laws relating to traffic,
(iii) the relevant provisions of the Work Health and Safety Act 2011,
(iv) ...
(b) if required to do so by RMS, undertake and successfully complete (or pass an examination in respect of) such course relating to the operation of the relevant service as is approved by TfNSW and conducted by a registered training organisation, or a higher education institution approved by TfNSW.
...
12 Additional requirement: bus services
(1) An applicant for accreditation to carry on a public passenger service by means of one or more buses must also provide RMS with a copy of an approval from the relevant council to keep the buses required for the service at the premises specified by the applicant in compliance with clause 11 (2).
...
Consideration
The evidence demonstrates that throughout 2012 Mr Young drove buses he had hired out to customers, for the purposes of the hire, when the customers did not hold, or were unable to provide a driver, with the required licence. A heavy licence was required to drive one of his hire buses: FUN 012. The relevant hire contracts contained no specified charge for the provision of his services as a driver, over and above the hire charge.
Given Mr Young's evidence that he drove for persons who did not have an appropriately licenced driver to drive that bus, and that licence details of a driver are only recorded on one of the 18 contracts relating to FUN 012 for 2012, I conclude that he drove it on the remaining 17 occasions.
The common mechanism of charging for these hires was the charging of a time based hire fee (hours and days), with an additional charge for mileage being made on two occasions, and no charges being made for petrol. The hiring fees vary from contract to contract. By way of example, a hire on 15 October 2012 from 0615 to 1815 in which the bus travelled 344km cost $630, whereas one on 27 October from 0830 to 2050 in which the bus travelled 336 km cost $750.
RMS submitted that this evidence demonstrated that Mr Young had been operating a public passenger service in that he had carried passengers for consideration; and had done so despite being warned that to do so was an offence against the PTA.
Mr Young disputed this arguing that he had been hiring the buses, but providing his service as a driver without fee as a courtesy.
In my opinion Mr Young's evidence that if he had not driven the "bus would not have moved" point to the true nature of this arrangement. If Mr Young had not driven the bus the hire would not have proceeded. The evidence demonstrates that Mr Young was providing both the bus and his services as a driver to transport the hirer's party, for which the consideration was the payment of the hire fee by the hirer. This is a provision of carriage for consideration, whether or not the individual passengers paid a fee for their transport. The hirer paid that fee. McTiernan v RMS established that if a passenger is carried for a fare or other consideration, it does not matter that the passenger did not pay the consideration.
I would add that the method of charging adopted by Mr Young also points to this conclusion.
I accept that Mr Young was not accredited to provide a passenger transport service throughout 2012, and did so in breach of s 7 of the PTA. I am satisfied that in doing so Mr Young was aware of the fact that RMS considered that his conducted breached s 7. He did not accept that advice being, he said, of the view that he was simply hiring the vehicles.
In the light of the number of times in which Mr Young drove those hired vehicles it clear that the majority of these 2012 included the provision of a driver.
RMS submitted that Mr Young's position illustrated his lack of understanding of what the PTA requires of bus operators and that, in the light of the evidence, Tribunal could not be satisfied he has a sufficient understanding of to grant him an operator's accreditation. Similarly, the Tribunal could not be satisfied that he would comply with the requirements of the regulator. As a consequence RMS argued that Mr Young did not have the necessary knowledge and competence to become an accredited operator as required by clause 9(1) of the PTR.
In response Mr Young relied on his qualifications and life experience as demonstrating his knowledge and competence for the role of an accredited bus operator. He argued that there was nothing in the PTA that specifically provides that the provision of a driver to drive a hire bus can amount to the provision of a passenger transport service. He complained that RMS had always failed to engage with his arguments.
Further, RMS relied on Mr Young failure to produced proof that he had completed the requisite training for bus operators as required by RMS under clause 9(2)(b). He relied on his evidence that he had completed the bus operators training course to demonstrate compliance with clause 9(2)(b). He also argued that the requirements of that clause are discretionary, and that RMS should not have required that he demonstrate completion of a course.
Additionally, RMS relied on Mr Young's failure to provide approval from the council for him to keep the buses required for the service at his nominated premises as required by clause 12. The letter from council did not address the fact that Mr Young planned to keep four buses on the premises. In response Mr Young argued that he had a letter giving council approval and that he had never been asked to provide approval for four buses. He gave evidence that council was aware of his intended use and had consented to it.
It should be noted that since the hearing Mr Young has written to the Tribunal seeking to rely on a further letter from Council. As the hearing had been completed when the letter was received, it is not a matter I can take into account.
Turning first to issue of whether Mr Young has complied with clause 12 and provided RMS with a copy of an approval from the council to him keeping the buses required for the service at the nominated premises, I am satisfied that the letter from council on which Mr Young relied does not provide consent to him keeping the buses required for the service (four) at the premises. The language of clause 12 is clear: it requires a copy of written approval. In the absence of written approval Mr Young has not satisfied the requirements of clause 12.
Secondly, with respect to the issue of concerning proof that Mr Young has undertaken and completed the bus operators training I am satisfied on the evidence that Mr Young undertook such a course at the Institute of Transport Studies in 2001 at Sydney University. Aside from assertions by Mr Young, there is no evidence that demonstrates that Mr Young completed that course. Mr Young says this is so because the University cannot locate the relevant records. He has narrated details of the correspondence he had with the University in his effort to obtain proof, but had not produced that correspondence to RMS or the Tribunal, including evidence that the University cannot locate its records.
In my opinion RMS was correct to find that Mr Young had not provided proof of completing the course of training required by clause 9. In my view his evidence that he had done so is not alone sufficient to satisfy me that he did complete the course. If there was evidence from the University acknowledging that it no longer had the relevant records, then the demonstrated unavailability of those records may lead me to a different conclusion.
While I accept that Mr Young has significant life experience concerned with the hire, sale and servicing of various vehicles and has held responsible position relating to those matters, I am not satisfied that this necessarily equips him with the competence and knowledge required of the operator of a public passenger service. There are responsibilities and accountabilities concerning the regulation of passengers and ensuring their safety associated with the role of an operator that Mr young's past does not necessarily equip him with. I agree with RMS that it was appropriate to require him to prove that he has undertaken and completed an approved course of training for bus operators in accordance with clause 9(b) of the PTR.
Finally, with respect to the issue of knowledge and competence I am not persuaded that the evidence demonstrates that Mr Young does not have sufficient understanding of the legislative regime to be accredited as a bus operator. Having had the opportunity to hear Mr Young I am satisfied that he is an intelligent and articulate man, who has engaged in conduct in breach of s 7 of the PTA in the belief that he has a good and sustainable argument that by driving buses for hirers he was not providing a passenger transport service. The reality of the situation is that the application for the PTA to his circumstances relies on an interpretation of the Act. It is not explicitly stated in the legislation.
I am also satisfied that Mr Young is an independently minded and somewhat stubborn individual, who is much better persuaded than told. His belief that the legislation did not apply to him is one that he stuck to despite the fact that RMS warned him. Having had his arguments heard, properly considered and adjudicated on, I think it likely that he will accept the result. I view his refusal to co-operate with RMS in the same light.
On further point needs to be made with respect to Mr Young's vigorous opposition to RMS in the context of this application. It is clear to me from Mr Young's evidence that he perceives the conduct of RMS towards him as vindictive. He regards his own conduct as reasonable and based on principle. By way of example, as he sees it, his application for accreditation resulted from RMS insistence that it was required under the PTA, despite his belief to the contrary. When he made that application he did his best to address all the deficits he could see in is application, but RMS simply refused him, without engaging with his substantive argument. RMS' responses, as he sees them, have been bureaucratic and inflexible. I am inclined to agree with that assessment. RMS's decisions have not truly engaged with the arguments Mr Young made, particularly those that required the exercise of discretion in his favour. Disregarding his apparently genuine attempts to address the statutory criteria annoyed Mr Young. In those circumstances his adverse view of RMS is understandable.
Conclusion
In the light of the matters discussed above I confirm the decision to refuse Mr Young accreditation to operate a passenger transport service.
I note that there is nothing in these reasons that prevents Mr Young again applying for accreditation if he is able to remedy the deficits I have identified with his application.
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Decision last updated: 04 October 2013
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