The case involves an application by [NKT] Pty Ltd for review of a decision by the Commissioner for Fair Trading to refuse renewal of the company’s tow truck operator licence. I was instructed by Mr Asher Liew of Jack Riggs Solicitor. The key points are:
The company’s director was convicted of common assault in January 2023 and sentenced to a 12-month conditional release order.
The director is considered a “close associate” of the company. The Commissioner found he was not a fit and proper person to hold a tow truck licence due to the assault conviction.
In the licence renewal application, the director answered “No” when asked if any director had proceedings for an offence pending, even though assault charges were pending against him at the time.
The Tribunal considered whether the director is a fit and proper person in light of the assault conviction and the false information provided in the application.
After considering the circumstances of the assault, character references, the director’s remorse and unlikelihood of reoffending, the Tribunal found the assault alone should not prevent the licence being granted.
While critical of the inaccurate information in the application, the Tribunal accepted it was an oversight that would not be repeated.
The Tribunal concluded the director is a fit and proper person and there are no public interest reasons to refuse the licence.
The Tribunal set aside the Commissioner’s decision and substituted a decision granting renewal of the tow truck operator’s licence.
===
The Law on ‘Fit and proper’
In Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 at 156 – 157, the High Court said:
The expression ‘fit and proper’ is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. 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 …
The concept of “fit and proper” takes it meaning from its context and “cannot be entirely divorced from the conduct of the person who is or will be engaging” in the relevant activity: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (ABT v Bond) at 380, per Toohey and Gaudron JJ
The Chief Justice in the same judgement at 64 said that
“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.”
Whether a person is “fit and proper” will depend upon whether the person is “possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public … as a person to be entrusted with the sort of work the licence entails”: Sobey v Commercial and Private Agents Board (1979) 20 SASR 70 (SASC) at 76, per Walters J.
Poytress v Director General, NSW Fair Trading [2015] NSWCATOD 100 at [82] the Tribunal stated:
…the Tribunal is required to take into account the nature and seriousness of the original conduct, any events relevant to an assessment of the Applicant’s fitness which have occurred since then, the candour with which the Applicant has approached the issue of past conduct, the Applicant’s explanation of the conduct, the impact of the effluxion of time, and the Applicant’s present circumstances and reputation.
In Saadieh v Director General, Department of Transport [1999] NSWADT 68 (‘Saadieh’) at para [17] developed a ‘5 point test’ which is a very helpful yardstick for these matters:
- 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; {For this case, it would be his Tow Truck record; which I assume is zero/nil}
- 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.
=====
Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: [NKT] Pty Ltd v Commissioner for Fair Trading [2024] NSWCATAD 85
Hearing dates: 14 November 2023
Date of orders: 28 March 2024
Decision date: 28 March 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Montgomery, Senior Member
Decision:
(1) The Decision under review is set aside.
(2) In substitution, the Decision is made that the application by [NKT] Pty Ltd to renew its tow truck operator licence is granted.
Catchwords:
ADMINISTRATIVE LAW — tow truck operators licence — close associate — assault conviction — fit and proper person to hold a tow truck operators licence — public interest
Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW)
Administrative Decisions Review Act 1997 (NSW)
Tow Truck Industry Act 1998 (NSW)
Tow Truck Industry Regulation 2020 (NSW)
Cases Cited:
Assadourian v Roads and Traffic Authority [2013] NSWADT
Australian Broadcasting Tribunal v Bond 170 CLR 321; (1990) 94 ALR 11; [1990] HCA 33
BSR v Office of the Children’s Guardian [2015] NSWCATAD 264
ENK v Commissioner for Fair Trading [2020] NSWCATAD 320
Green v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 59
Grenfell v Director General Department of Finance and Services [2013] NSWADT 57
Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127
Meacham v Commissioner of Police [2020] NSWCATAP 107
Mohammed Shamsuzzaman v Roads and Maritime Services [2015] NSWCATAP 62
Poytress v Director General, NSW Fair Trading [2015] NSWCATOD 100
Saadieh v Director General, Department of Transport [1999] NSWADT 68
Singh v Director General, Department of Transport [1999] NSWADT 96
Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184.
Sobey v Commercial and Private Agents Board (1979) 20 SASR 70
Trombetta v Commissioner for Fair Trading [2018] NSWCATOD 167
Texts Cited:
Nil
Category: Principal judgment
Parties: [NKT] Pty Ltd (Applicant)
Commissioner for Fair Trading (Respondent)
Representation:
Counsel:
A Strik (Applicant)
Solicitors:
Jack Rigg Solicitors (Applicant)
Smythe Wozniak Lawyers (Respondent)
File Number(s): 2023/00253970
Publication restriction: Nil
REASONS FOR DECISION
Introduction
This is an application by [NKT] Pty Ltd (“the Applicant”) for review of a decision by a delegate of the Commissioner for Fair Trading (“the Respondent”). The Respondent determined to refuse the Applicant’s application to renew its tow truck operator licence. The application was refused in accordance with sections 18 and 34 of the Tow Truck Industry Act 1998 (NSW) (“the TTI Act”).
It is not in dispute that the Applicant’s director, Mr [First name] [Director], was convicted of a charge of Common Assault (DV)-T2 on 31 January 2023 and sentenced to a 12 month conditional release order.
Mr [First name] [Director] is a close associate of the Applicant. The Respondent found that Mr [Director] is not a fit and proper person to hold a tow truck operators licence and it is not in the public interest to grant the Applicant such a licence.
The decision was affirmed on internal review and the Applicant has applied to the Tribunal for external review of the decision.
Background
The internal review statement of reasons sets out a chronology of events which relates to the Applicant’s licence application. A bundle of material that the Respondent has provided support the chronology. The Respondent’s internal review statement of reasons provide the following background to the decision:
ASIC records show that [First name] [Director] was appointed as company director and secretary of [NKT] Pty Ltd on 9 December 2008.
On 30 November 2022, [NKT] Pty Ltd submitted an application to renew its tow truck operators licence which was due for expiry on 10 December 2022. The application was completed and submitted by Mr [Director] as company director.
On 12 December 2022, the company’s licence expired. On the same day, Mr [Director] contacted Transport Licensing to express his concern about the licence status, highlighting the renewal application was lodged in late November 2022. There is no record of response from Transport Licensing to this query. It is noted that section 22(4) of the TTI Act provides that if an application for renewal of a licence has been made but the application is not finally determined by the Secretary before the expiry of the licence, the licence (if not suspended or sooner cancelled) continues in force until the application is finally determined.
On 23 January 2023, Transport Licensing forwarded a notice to [NKT] requesting an ASIC company statement/extract and evidence of current insurance policies. The notice conveyed that if the information was not provided by 30 January 2023, the application may be refused. On 24 January 2023, Mr [Director] submitted the requested information.
On 26 April 2023, Transport Licensing forwarded another notice to the company, noting that Mr [Director] was convicted of a Common assault (DV)-T2 at Belmont Local Court on 31 January 2023 and sentenced to a 12 month conditional release order commencing 31 January 2023 and concluding 30 January 2024. This notice requested the company to provide a statutory declaration by 5 May 2023 addressing the matter, including:
- a written explanation of its failure to disclose the criminal matter in the application and reasons why it should be granted a tow truck operators licence
- details of the circumstances of the criminal offence
- other relevant information, including Court fact sheets/documents
- references where the referee is aware of the criminal history.
The original decision conveys that Mr [Director] was contacted by telephone on 4 May 2023 and reminded of the requirement to submit the requested material by close of business the following day. Mr [Director] replied that he had spoken with his legal representative and the documents were being prepared and would be lodged by the stated deadline, but an extension would be requested if necessary.
Records show that Mr [Director] was contacted on 11 May 2023 and reminded again of the need to respond to the notice. Mr [Director] stated he would follow up with his legal representative. The same day, the company’s legal representative forwarded an email to Transport Licensing seeking an extension of time to provide the information due to the need to obtain legal documents. An extension was granted until 18 May 2023.
On 31 May 2023, the subject application was refused. The original decision conveys that no further response to the notice was received.
The Respondent has provided material which relates to the Applicant’s licence application which support the chronology of events.
The Issues
The issue to be determined is whether the correct and preferable decision is to grant the Applicant’s application for an operators licence under the TTI Act. This requires consideration of whether Mr [Director], as a close associate of the Applicant, is a fit and proper person to hold a licence.
The Respondent has not pressed the issue of whether it would be contrary to the public interest to grant the licence.
Relevant Legislation and decisions.
Section 9 of the Administrative Decisions Review Act 1997 (NSW) (“the ADR Act,”) provides that the Tribunal has jurisdiction in regard to an application for review of a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review. This application is made under section 45 of the TTI Act and the ADR Act. The Tribunal has jurisdiction in regard to a number of licensing issues. The Tribunal’s jurisdiction includes review of a decision by the Respondent to refuse to grant a licence.
Section 63 of the ADR Act provides that in determining an application, the Tribunal is to determine what is the “correct and preferable decision” having regard to the material before it. In reaching the correct and preferable decision, the Tribunal may:
exercise all of the functions that are conferred or imposed by the TTI Act on the Respondent; and
affirm the decision, vary the decision, set aside the decision, and make a decision in substitution of the decision, or set aside the decision and remit the matter for reconsideration by the Respondent.
There is no formal onus of proof. In considering the Application, the Tribunal may have regard to any relevant material before it at the time of its review. Its consideration is not limited to material that was before the Respondent at the time it made the decision which is under review, or as was the situation in this matter, material that had not been provided to the Respondent.
The Tribunal is to make its own decision and there is no presumption that the Respondent’s decision is correct. The Tribunal should consider all relevant materials and ignore all irrelevant materials.
The requirements for proof of questions of fact in administrative review proceedings generally were summarised by an Appeal Panel in Meacham v Commissioner of Police [2020] NSWCATAP 107 at paragraphs [54] and [83]:
“[54] Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on “logically probative material”, and not on “mere suspicion or speculation”, as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 (“Pochi”) at 62, 68 (Deane J); [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 (“Sullivan”) at [5]-[8], [15]-[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it.
…
[83] Proof of matters which are asserted is required in a practical sense, and a party asserting a fact is generally required to provide evidence to substantiate it. As noted above, the Tribunal is required to base its findings of fact on “logically probative material”: Pochi at 62, 68; Sullivan at [5]-[8], [15]-[17].”
As Principal Member Britton observed in BSR v Office of the Children’s Guardian [2015] NSWCATAD 264 at paragraph [17]:
… a practical or “forensic” burden can arise from the material presented. A party who asserts a fact has a responsibility to prove that fact: Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303; Holbrook and Australian Postal Commission (1983) 5 ALN N46.
The TTI Act establishes a licensing and certification scheme for tow truck operators and drivers and regulates other matters relating to the tow truck industry. Part 3 of the TTI Act deals with operators licences and drivers certificates.
Division 1 of Part 3 deals with tow truck operators licences. Under section 15, a person “must not carry on a business as a tow truck operator unless the person holds a tow truck operators licence that authorises the kind of towing work carried on by the person in the course of that business.”
For tow truck operators licences, there are mandatory and discretionary grounds to refuse to grant an application. Section 18(1)(b) of the TTI Act states that the Secretary may refuse to grant an application for a licence on discretionary grounds.
Section 18(3)(i) of the TTI Act provides that the discretionary grounds for refusing to grant an application for a licence include that any close associate of the applicant has, within the period of 10 years before the application for the licence was made, been convicted by a Court in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law.
The term “close associate” is defined in section 5 of the TTI Act:
5 Meaning of “close associate”
(1) For the purposes of this Act, a person is a close associate of an applicant for a licence, or of a licensee (whether or not that applicant or licensee is a corporation), if the person—
(a) holds or will hold any relevant financial interest, or exercises any relevant power (whether in his or her own right, or through an agent or on behalf of any other person), in the business of the applicant or licensee, and by virtue of that interest or power is or will be able (in the opinion of the Secretary) to exercise a significant influence over or with respect to the conduct of that business, or
(b) holds or will hold any relevant position, whether in his or her own right, or through an agent or on behalf of any other person, in the business of the applicant or licensee.
(2) In this section—
relevant financial interest in relation to a business means—
(a) any share in the capital of the business, or
(b) any entitlement to receive any income derived from the business, whether the entitlement arises at law or in equity or otherwise.
relevant position means the position of director, manager, and any other executive position and secretary, however those positions are designated, and such other positions as may be prescribed by the regulations for the purposes of this definition.
relevant power means any power, whether exercisable by voting or otherwise and whether exercisable alone or in association with others—
(a) to participate in the day to day management of the business concerned, or
(b) to participate in any directorial, managerial or executive decision, or
(c) to elect or appoint any person to any relevant position.
It is common ground that Mr [Director] is a close associate of the Applicant.
The application was refused under sections 18(1)(b), 18(3)(a), 18(3)(i), 18(4), 34(1)(a), 34(1)(b), 34(1)(c), 34(1)(d), and 34(2) of the TTI Act.
Section 18 of the TTI Act provides:
18 Restrictions on granting licence
(1) The Secretary—
…
(b) may refuse to grant an application for a licence on discretionary grounds.
…
(3) The discretionary grounds for refusing to grant an application for a licence are as follows—
(a) that the applicant is not, in the opinion of the Secretary, a fit and proper person to hold a licence or is otherwise not competent to carry on the kind of towing work to which the proposed licence relates,
…
(i) that any close associate of the applicant has, within the period of 10 years before the application for the licence was made—
(i) been convicted, or
(ii) been found guilty (but with no conviction being recorded),
by a court in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law,
(j) that the granting of the licence would, in the opinion of the Secretary, be contrary to the public interest.
(4) The regulations may provide additional mandatory or discretionary grounds for refusing to grant an application for, or renewal or restoration of, a licence.
…
Section 34 of the TTI Act provides:
34 The Secretary may require further information in relation to application
(1) The Secretary may, by notice in writing, require a person who has applied for a licence or drivers certificate or who, in the opinion of the Secretary, has some association or connection with the applicant that is relevant to the application, to do any of the following things—
(a) to provide, in accordance with directions in the notice, such information (including financial and other confidential information), verified by statutory declaration, as is relevant to the investigation of the application and is specified in the notice,
(b) to produce, in accordance with directions in the notice, such records (including any financial records) relevant to the investigation of the application as are specified in the notice and to permit inspection of the records, the taking of extracts from them and the making of copies of them,
(c) to authorise a person described in the notice to comply with a specified requirement of the kind referred to in paragraph (a) or (b),
(d) to furnish to the Secretary such authorisations and consents as the Secretary directs for the purpose of enabling the Secretary to obtain information (including financial and other confidential information) from other persons concerning the person and his or her associates or relations.
(2) If a requirement made under this section is not complied with, the Secretary may refuse to consider the application concerned.
…
The discretionary grounds for refusing to grant an application for a drivers certificate include that the Applicant is not a fit and proper person to hold the certificate or otherwise not competent to carry on the kind of towing work to which the certificate relates. The regulations may also provide additional grounds for refusing to grant an application for, or renewal or restoration of, a licence or certificate.
The Tow Truck Industry Regulation 2020 (NSW) lists prescribed offences for purposes of section 18 of the TTI Act. Clause 7 of the Regulation states:
7 Discretionary grounds for refusing licence application
For the purposes of section 18(4) of the Act, the Secretary may refuse an application for a licence if—
(a) a close associate of the applicant has, within the period of 10 years before the application was made—
(i) been refused a licence, or
(ii) had his or her licence permanently revoked, or
(iii) been the subject of disciplinary action under Division 4 of Part 3 of the Act that resulted in the close associate being disqualified from holding a licence or having his or her licence suspended or permanently revoked, or
(b) the applicant or a close associate of the applicant is subject to—
(i) a firearms prohibition order under the Firearms Act 1996, or
(ii) a weapons prohibition order under the Weapons Prohibition Act 1998, or
(iii) a serious crime prevention order under the Crimes (Serious Crime Prevention Orders) Act 2016, or
(c) the applicant or a close associate of the applicant has, within the period of 10 years before the application was made, been convicted or been found guilty (but with no conviction being recorded) of the following offences (regardless of whether the offence was committed in New South Wales)—
(i) an offence relating to the possession or use of a firearm or imitation firearm (within the meaning of the Firearms Act 1996) or other weapon,
(ii) an offence involving the supply or possession of a prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985,
(iii) an offence involving the cultivation (for a commercial purpose), supply or possession of a prohibited plant within the meaning of the Drug Misuse and Trafficking Act 1985,
(iv) an offence relating to organised car, boat or trailer rebirthing activities under section 154G of the Crimes Act 1900,
(v) an offence of dealing with property suspected of being proceeds of crime under section 193C of the Crimes Act 1900,
(vi) an offence involving the recruitment of another person to carry out or assist in carrying out a criminal activity within the meaning of section 351A of the Crimes Act 1900,
(vii) an offence involving participation in a criminal group or participation in any criminal activity of a criminal group within the meaning of Division 5 of Part 3A of the Crimes Act 1900,
(viii) the offence of contravening a serious crime prevention order under section 8 of the Crimes (Serious Crime Prevention Orders) Act 2016,
(ix) an offence under section 74 of the Firearms Act 1996 relating to a firearms prohibition order,
(x) an offence under section 34 of the Weapons Prohibition Act 1998 relating to a weapons prohibition order,
(xi) an offence involving an assault of any kind against a person,
(xii) an offence involving fraud, dishonesty or stealing,
(xiii) an offence involving robbery (whether armed or otherwise),
(xiv) the offence of habitually consorting with convicted offenders under section 93X of the Crimes Act 1900,
(xv) the offence of contravening a public safety order under section 87ZA of the Law Enforcement (Powers and Responsibilities) Act 2002,
(xvi) an offence of making, using or interfering with unique identifiers under section 154H of the Crimes Act 1900,
(xvii) the offence of having possession of a motor vehicle, vessel or trailer where the unique identifier has been interfered with under section 154I of the Crimes Act 1900,
(xviii) the offence of having possession of an identification plate not attached to the motor vehicle or trailer to which it relates under section 154J of the Crimes Act 1900, or
(d) the applicant has not obtained a necessary approval for the use of a specified place as a holding yard in carrying on the applicant’s business, or
(e) the applicant has been subject to disciplinary action under Division 4 of Part 3 of the Act in relation to the requirements for holding yards under Part 4, or
(f) the Secretary reasonably believes that information given in the licence application is false or misleading in a material particular.
Fitness and Propriety
Section 18(3)(a) of the TTI Act provides that the discretionary grounds for refusing to grant an application for a licence include that the Applicant (or a close associate of the Applicant) is not, in the opinion of the Secretary, a fit and proper person to hold a licence or is otherwise not competent to carry on the kind of towing work to which the proposed licence relates. As noted, Mr [Director] is a close associate of the Applicant.
The expression ‘fit and proper’ has been considered by this Tribunal and in other jurisdictions in numerous cases.
In Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 at 156-7, the High Court said that fitness and propriety involve three things, honesty, knowledge and ability. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J at paragraph [40] said:
In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence … but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public … as a person to be entrusted with the sort of work which the licence entails.
It is generally accepted that what is fit and proper needs to be determined by reference to the activities in issue and is to be gauged in light of the nature and purpose of the activities that the person will undertake. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380; (1990) 94 ALR 11 at 65; [1990] HCA 33, Toohey and Gaudron JJ explained that:
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, or 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.
Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184 at paragraph [40].
In Poytress v Director General, NSW Fair Trading [2015] NSWCATOD 100, in the context of an application under the Home Building Act 1989 (NSW), I stated at paragraph [82]:
The issue of whether a person is fit and proper due to past conduct is a matter of judgement. In considering that issue the Tribunal is required to take into account the nature and seriousness of the original conduct, any events relevant to an assessment of the Applicant’s fitness which have occurred since then, the candour with which the Applicant has approached the issue of past conduct, the Applicant’s explanation of the conduct, the impact of the effluxion of time, and the Applicant’s present circumstances and reputation.
In Grenfell v Director General Department of Finance and Services [2013] NSWADT 57, the Tribunal considered the effect of a past criminal record on a person’s fitness and propriety and stated at [15]:
The issue of whether a person is fit and proper due to past criminal conduct is a matter of judgment. In considering that issue the Tribunal is required to take into account the nature and seriousness of the original misconduct, any events relevant to an assessment of the applicant’s fitness which have occurred since then, the candour with which the applicant has approached the issue of past misconduct, the applicant’s explanation of the misconduct, the impact of the effluxion of time, and the applicant’s present circumstances and reputation.
In Trombetta v Commissioner for Fair Trading [2018] NSWCATOD 167, the Tribunal noted at paragraph [67], that:
… The licensing requirements of the Act are not imposed by way of punishment for those convicted of crimes. They are imposed for the protection of the public.
At the time of the hearing, Mr [Director] was still subject to a conditional release order which was not due to expire until 30 January 2024. The Tribunal has on a number of occasions been called upon to address the issue of fitness and propriety where the person is still subject to a court order. In ENK v Commissioner for Fair Trading [2020] NSWCATAD 320, Senior Member Ludlow stated at paragraphs [44]-[47]:
- In [Nizhnikov v Commissioner for Fair Trading [2006] NSWADT 284] the applicant was still on a good behaviour bond and it was determined that it was too soon to be sure that he was a fit and proper person to be [to be granted a certificate of registration as a real estate salesperson].
- [McEvoy v Director-General of the Department of Fair Trading [2000] NSWLEC 183] was considered in Offner v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2018] NSWCATOD 22 where the applicant wished to obtain a certificate of registration as a real estate salesperson. She was still on parole following her conviction for assault causing grievous bodily harm to her partner. There were special circumstances around the case, including alcohol abuse and domestic violence. She wished to hold a certificate with a condition that she not handle real estate sales.
- In that case Montgomery SM granted the certificate with the proposed condition, on the basis that he was satisfied on the evidence as to her professionalism, trustworthiness and honesty that she could safely be accredited to the public. The applicant still being on parole was not an obstacle to her being found of good character in that case, but the circumstances of the offence were different from the present case and the applicant was seeking approval to work in an industry where she already worked with the support of her employer, who was aware of her history.
- I agree that a person still serving under parole, a good behaviour bond or corrections order can occasionally be found to be a fit and proper person to carry on an occupation; but there must be clear and unequivocal evidence to demonstrate their fitness. …
In Saadieh v Director General, Department of Transport [1999] NSWADT 68 (“Saadieh”), Deputy President Hennessy pointed out at paragraph [12] that “being a ‘fit and proper person’ includes being of ‘good repute’”. At paragraph [17], her Honour listed five factors to be considered on the question of suitability and fitness to obtain a taxi authority. These factors include:
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.
The Applicant points to these factors as equally applicable to the considerations under the TTI Act. However, I note that the Respondent contends that weight must be given to specific provisions in the TTI Act which were not considered in Saadieh.
In Assadourian v Roads and Traffic Authority [2013] NSWADT 6 (“Assadourian”) I considered a number of authorities that had dealt with the issue of ‘fit and proper person’ with respect to the TTI Act. I stated:
43 Deputy President Chesterman recently considered the concept for the purposes of the Act in Gurdler v Roads and Maritime Services [2012] NSWADT 29. At paragraph [48] the Deputy President made reference to the decision by Deputy President Hennessey in Palumberi v General Manager, Tow Truck Authority of New South Wales [2001] NSWADT 206 where she stated at paragraph [37]
37 A person who has been found to be of bad character, and not a fit and proper person to operate in an industry, may redeem him or herself: In re Davis [1947] HCA 53; (1947) 75 CLR 409. Character is not fixed, but is capable of change and rehabilitation: Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25. In Trilin v Commissioner of Fair Trading [2003] NSWADT 222 in the context of the Motor Dealers Act, I said:
“The issue of whether a person who has been determined not to be a fit and proper person to hold a dealer licence has been so reformed that she or he is now fit and proper, is a matter of judgement. In considering that issue the Tribunal is required to take into account the nature and seriousness of the original misconduct, any events relevant to an assessment of the Applicant’s fitness which have occurred since then, the candour with which the Applicant has approached the issue of past misconduct, the Applicant’s explanation of the misconduct, the impact of the effluxion of time, and the Applicant’s present circumstances and reputation. The Tribunal should bear in mind the warning sounded by the Court of Appeal in Law Society of NSW v Bannister (unreported Court of Appeal, 27 August 1993, BC930181) where Sheller JA, delivering the judgment of the Court, observed:
“… absent some acceptable explanation of how greed and opportunity led the Solicitor to carefully plan a course of action which he knew was dishonest and deceitful, character evidence is not particularly helpful to a court or tribunal in determining whether it can be confident that there will not be a repetition.””
44 Deputy President Chesterman also made reference to the decision in Ereira v Roads and Traffic Authority (No 2) [2010] NSWADT 220 which had considered a number of other often quoted decisions. At paragraph [54] he noted:
54 A further extract from the decision in Ereira (No 2) (at [46]) demonstrates the significance of this proposition that the Act is ‘savage’ legislation:-
46 A person’s fitness is to be gauged in light of the nature and purpose of the activities that the person will undertake: Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127. Knowledge, ability, moral integrity and the rectitude of character necessary to fulfil the role for which a licence is sought are proper considerations: Sobey v Commercial and Private Agents Board 20 SASR 70. Criminal convictions can be of great importance in such as assessment: the more so where the activity to be undertaken requires public confidence and reliance on the propriety and integrity of the licensed person: Raymond Robbins v Business Licensing Authority (2000) VCAT 457. Thus the nature of the industry in which the person concerned wishes to operate affects a consideration of whether a person is a “fit and proper person” to operate in that industry. In Chaining v Commissioner of Police, NSW Police Service (1999) NSWADT 6 at [41] the President of this Tribunal made the following comments on the issue, in the context of the security industry:
Whether a person isfit 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 objective leading the legislature to regulate the industry.
45 The proper functioning of the tow truck industry requires public confidence and reliance on the propriety and integrity of those licensed to work within it. Consideration of the question of whether a person is fit and proper to participate in the industry involves taking account of the person’s compliance with regulatory requirements and the extent to which their record of compliance reflects the person’s attitude to the regulatory regime.
Material before the Tribunal
The Applicant mainly relies on the evidence of Mr [Director] who provided an affidavit, attended the hearing, gave evidence and was cross-examined. Affidavit evidence was also provided by Mr Douglas Brown, Ms Sandra Hebberd, Mr Milad Nader and Ms Christie Blunden. The Applicant’s counsel, Mr Strik, provided both written and oral submissions.
The Respondent relies on a bundle of documents lodged pursuant to section 58 of the ADR Act. The bundle includes documentation related to the Applicant’s licence application dated 30 November 2022 and Mr [Director]’s criminal record. The Respondent’s solicitor, Mr Wozniak, also provided written and oral submissions.
The Respondent’s case
The Respondent submits that the Applicant’s licence application should not be granted because of Mr [Director]’s assault conviction and because information that Mr [Director] provided in the licence application was false or misleading in a material particular.
The Respondent submits that Mr [Director]’s charge and conviction is relevant to the assessment of whether a close associate of the Applicant is fit and proper.
It is common ground that Mr [Director] is the sole Director and Secretary of the Applicant and therefore he is captured by the definition of “close associate” in section 5 of the TTI Act. It is also not in dispute that Mr [Director] was convicted of an assault on 31 January 2023 and sentenced to a Conditional Release Order for 12 months.
Mr [Director] initially pleaded not guilty to four charges related to an incident involving his children that occurred on 20 February 2022. Mr [Director] ultimately entered a plea of guilty to a single charge of assault which rolled up the conduct specified in the original four charges.
The Respondent submits that Mr [Director]’s conduct, as specified in the original charges, involved:
an open back hand slap across the child’s face,
taking hold of the child around the throat causing him to feel sick and choking him,
pushing him in the back causing him to fall forward striking his head on the frame of a bed.
The Respondent submits that, in effect, Mr [Director] entered a plea to all the charges/conduct but they were rolled up into a single charge.
Mr Wozniak referred to the principles set out my decision in Assadourian, in particular at paragraphs [39]-[45] and notes that the principles have been adopted in numerous decisions of the Tribunal over many years.
The Respondent submits that Mr [Director] has attempted to diminish the level of criminal responsibility, however the Tribunal cannot go behind the agreed facts upon which he was sentenced or the penalty that was imposed. In addition, Mr Wozniak noted that Mr [Director] was also the subject of an Apprehended Domestic Violence Order for the same period as the Conditional Release Order.
The Respondent also points to the responses that Mr [Director] provided on behalf of the Applicant when completing the application for renewal of the operators licence. Section 8 of the application form raises a series of questions. The final question, which appears at point 8, asks:
“Does the applicant or any partner, Director or shareholder have proceedings for an offence pending against them”.
Mr [Director] ticked the box indicating “no”. However, at the time he had four charges pending against him. The answer was clearly wrong. Mr Wozniak submitted that the answer is dishonest and goes directly to the issue of fitness and propriety.
Mr [Director] agreed that the answer was wrong. He also agreed that he signed the form acknowledging that the information was true and correct. Mr Wozniak noted that the application form contained a notice that indicated that it is a serious criminal offence to make a false or misleading statement and the maximum penalty is $22,000 and or 2 years imprisonment.
The Respondent submits that Mr [Director] has committed a serious offence. Further, an application for a licence may be refused if the Secretary reasonably believes that information given in the licence application is false or misleading in a material particular.
Mr Wozniak referred to the views expressed by Deputy President Hennessey in Singh v Director General, Department of Transport [1999] NSWADT 96. At paragraph [27] of her decision, she stated:
“27. The presence of dishonesty was taken very seriously by the Supreme Court of South Australia in McNamara v Arnold (unreported decision of the Supreme Court of South Australia, 26 October 1995 BC9502405 at 10). Matheson J said that:
“In this matter, even if the Tribunal merely looks at the [appellant’s] dishonest answer on the application form, this conduct brings into question the honesty of the [appellant]. Honesty is a quality implicit in the notion of a fit and proper person.””
With respect to material filed by the Applicant which refers to financial hardship if the licence is not granted, Mr Wozniak submitted that financial hardship is not a relevant consideration in this matter. He referred to the Appeal Panel decision in Mohammed Shamsuzzaman v Roads and Maritime Services [2015] NSWCATAP 62. At paragraph [17] the Appeal Panel noted that the jurisdiction in this field is protective not punitive, and at paragraph [18], it adopted the words appearing at paragraph [25] in Khan v Roads and Maritime Services [2014] NSWCATOD 23:
…possible hardship to the applicant, or his family, cannot be taken into account in determining the correct and preferable decision…
With respect to the Applicant’s reliance on the decision in Saadieh, Mr Wozniak submitted:
Whilst the Deputy President set out a series of matters to be considered it must be borne in mind that that decision is in relation to the then Passenger Transport Act that dealt with the taxi, hire car and bus industries. The Passenger Transport Act did not contain the detail of the Tow Truck Industry legislation and did not set out any offences or sections such as s 18 of the Act and Clause 7 of the Regulations.
The Tow Truck legislation as set out in these submissions has been described as “savage”.
The Tow Truck legislation clearly sets out offences that are relevant to the non-issue of a Licence and in this case any assault is listed, as is providing false information in application forms. The Passenger Transport Act had no such provisions.
The mere fact that the applicant was convicted of an assault falls squarely within the Tow Truck Industry Act and the matters in Saadieh such as the nature of the assault carry far less weight, if any, as the Tow Truck Industry Act simply refers to “an assault of any kind against a person”. The concept of fit and proper is simply one ground that can be relied upon by the regulator and is not the sole deciding factor in this matter.
The Respondent submits that in the circumstances, the application should be dismissed.
The Applicant’s case
As noted, the Applicant relies on the evidence of Mr [Director] and a number of statements from other individuals.
Mr [Director]
Mr [Director] is the director of the Applicant and the sole shareholder. He runs the business with his wife, Christie Blunden. It currently employs 10 people.
The Applicant received its tow truck licence on 19 May 2016. Since that time the company’s application for a tow truck licence was never refused until the application made on 31 May 2023.
He acknowledged that the Applicant received a Notice under Section 34 of the TTI Act seeking further documents. He provided some material and contacted his solicitor to answer the Respondent’s requests for information relating to his conviction.
He explained the delay in forwarding the material to the Respondent as due to a failure on the part of the solicitor and the difficulty in getting any communication from them. The Application was on refused on discretionary grounds, one of which was the failure to provide the requested information.
In relation to his criminal conviction, he stated that:
He was charged with offences on 11 March 2022. The charges stemmed from an incident on 20 February 2022. At the time, his children were playing in the pool and commenced arguing and fighting.
One child hit another with a pool noodle, and he told them to come inside.
He open-palmed hit one of the children on top of his shoulders and the back of his neck.
The child swore at him and ran upstairs to his room and carried on.
He went upstairs and asked the child “Why are you acting like this?” The child swore at him and then told him that he was going to be sent home.
He then left the child in his room to calm down and went downstairs.
He told his legal team that he never choked or pushed his child when he was upstairs in his room.
After receiving legal advice, he entered a plea of not guilty to the charges.
When he attended court, the magistrate was displeased that his children had been subpoenaed to court.
The magistrate advised them to settle this matter out of court.
He then discussed this matter with the prosecution.
He saw that the process made the children hysterical, and he decided to enter a plea of guilty.
The prosecution and his legal team could not come to agreement about having the facts reflect his position that he never choked or pushed the child.
He did not want to put the children through the experience of being cross-examined and being in Court and agreed to the amended facts which were provided to the Court.
Mr [Director] stated that he holds himself to a high standard and strives to be an upstanding citizen. He had a few criminal matters when he was younger, and he is ashamed of that record.
He has worked in the tow truck industry for a period of 15 years and held a tow truck licence for seven years. Prior to this application he has never had an application to renew his licence refused.
Since filing the Application, he has reviewed it and is now aware of a question under the disclosure section of the Application which asks whether the director has proceedings for an offence pending against them. He stated that at time he mistakenly marked “No” to this question when he should have answered “Yes.”
He said that this was an oversight on his part as he did not read the document closely. He said that the form was completed on his behalf, and he should have checked the answers before signing the form. He said that he did not intend to mislead the authority and if he had read the Application more closely, he would have marked “Yes” to this question.
Since 2015, Mr [Director] and his wife have made donations and participated in fundraisers to help people in need and help give back to the community.
Following the refusal of the tow truck licence, the Applicant complied with the legislation and stopped tow trucking. The company is presently experiencing difficult times. It is now operating as a car carrier company. It had 15 employees in June 2023, but it had to let go of 5 employees and is considering having to lay off further employees. The Applicant is the only income for Mr [Director] and his family.
Mr Douglas Brown
Mr Brown provided an affidavit in which he stated that:
He is the office manager for the Applicant.
He has known Mr [Director] for 6 years and over this time have formed a close relationship with him.
He is aware that Mr [Director] is appealing the rejection of the Applicant’s application for a Tow Truck Operators Licence.
He is also aware that Mr [Director] was charged with common assault.
Mr Brown was surprised when he heard of the charges, and in his experience, it was out of character for Mr [Director]’s to do anything harmful to his children.
He knows that the criminal charges have taken a toll on Mr [Director].
He believes that Mr [Director] has always done his very best to be the best father to his children.
Over the years he has known him, Mr [Director] has always been a good person and an upstanding member of the community as well as a dedicated business owner and father. He has spent time with Mr [Director]’s family and witnessed him to be a kind and caring parent.
In his experience Mr [Director] strives to be the very best person he can be by applying the Christian values he believes in to his life.
He has witnessed Mr [Director]’s generous and charitable nature regularity and am often inspired by his willingness to help others. He has witnessed Mr [Director] help many people who, in his opinion, were underserving of the help.
Ms Sandra Hebberd
Ms Hebberd provided an affidavit in which she stated that:
She is the manager at Coffs Coast Mountain Retreat.
She has known Mr [Director] for over forty years and has always found him to be a very level-headed person in all facets of his life.
Mr [Director] has shown that he has good morals, values, and integrity in all aspects of his life, and is a trusty worthy friend.
Mr [Director] reaches out in the community with over a dozen different charities, but the ones I know that are close to his heart are suicide prevention and beyond blue.
She is aware that Mr [Director] has a conviction for assault against his son. She found it to be extremely out of character and she is confident that he would not repeat it.
Mr [Director] is a very good manager in his workplace, always courteous and helpful with his staff and customers. She cannot speak of him highly enough.
In her view Mr [Director] is a person of good character who is willing to give back to the community.
Mr Milad Nader
Mr Nader provided an affidavit in which he stated that:
He has known Mr [Director] for over 20 years.
They know each other on a personal and business level.
He is aware of Mr [Director]’s criminal conviction for assault on his son.
Over the years he has come to know Mr [Director]’s extremely good character and to see how dedicated and devoted he is to his family
He has come to see how important Mr [Director]’s beliefs are. This is reflected in his kindness, forgiveness, and being the best version of himself.
Mr [Director] has always gone above and beyond to help Mr Nader, Mr Nader’s family, and anyone else around him.
He has a high level of respect for Mr [Director] and enjoys his company.
The offence was completely out of Mr [Director]’s character, and he has expressed remorse about his actions. He is extremely regretful and upset. He does not believe these actions to be repeated.
He finds that Mr [Director] is a person of good character and a great benefit to society.
Ms Christie Blunden
Ms Blunden provided an affidavit in which she stated that:
She is Mr [Director]’s wife. They have been together for 13 years. She explained the family structure.
She works as an Administrative Assistant with the Applicant and has done so for 12 years.
She was present at the family home on 20 February 2022 when the incident occurred between Mr [Director] and his children. She heard the discussion between Mr [Director] and his children, and she heard shouting and swearing. She did not see Mr [Director] hit his son, but she did see him use his left hand on the top of his back to usher the children inside. Once inside, the son’s swearing continued.
At no time did she see Mr [Director] choke his son.
She explained about the communication between herself, Mr [Director] and the Applicant’s lawyers to advance the process with the Respondent and said that it was met with very limited success.
In relation to Mr [Director]’s character, she stated that he spends most of his time working in the Applicant’s business to make sure that the family’s finances and needs are met.
She stated that when he is not at work, Mr [Director] prioritises his time with his family and there has never been any violence within the family. She has never seen Mr [Director] be violent to anybody. He is a very loving and caring person whose nature is to help people in need.
She said that in 2015 she and Mr [Director] agreed to make donations to various groups and became active in fundraisers for people in need. She listed a number of associations with which they are involved.
She explained that the loss of the Applicant’s tow truck licence, has affected the business and family dramatically, and she has noticed a deterioration in Mr [Director]’s mental health.
Mr Strik submitted that Mr [Director] has had no other adverse interactions with the authority. He has a good reputation in the community as seen by his references in this proceeding. He is a good community minded individual who donates money to local charities and the community on a semi-regular basis. The likelihood that he will re-offend is incredibly low. He has lost significant business income already as a result of the Applicant not having the tow truck operator licence and he would not be placing it in jeopardy in the future.
The Applicant submits that the Tribunal should not be concerned about Mr [Director]’s fitness and propriety and that there are no public interest considerations which should prevent the Applicant holding a licence. Therefore, the Applicant’s application to renew its tow truck operator licence should be granted.
Consideration
As has been noted, there are two main areas for concern in relation to the Applicant’s application to renew its tow truck operator licence. These relate to Mr [Director]’s assault conviction and his failure to declare the pending charges when completing the application for renewal of the operator’s licence.
In relation to the assault charge, it is not in dispute that Mr [Director] entered a guilty plea for the charge relating to an assault on his son. I agree with Mr Wozniak that the Tribunal cannot go behind the findings of the court and I also agree with Mr Wozniak’s submission in regard to the tow truck industry and the need to maintain close scrutiny of the conduct of those who operate within the industry. I agree that the proper functioning of the tow truck industry requires public confidence and reliance on the propriety and integrity of those licensed to work within it.
I note that, notwithstanding the guilty plea, Mr [Director] has not wavered from his position that he was not guilty of the assault for which he was convicted. He has continued to assert his innocence notwithstanding his guilty plea to the charge.
In Green v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 59, Senior Member Walker observed at paragraphs [63]-[64]:
- … Unfortunately, it is not unknown for a person to be inappropriately sentenced or wrongly convicted. In some instances people have pleaded guilty to offences they did not commit, sometimes as a result of pressure. In a Migration Act case in the federal Administrative Appeals Tribunal, I made this observation:
“My own view has always been that a person who genuinely believes himself or herself to be innocent of, or less than fully blameworthy for, an offence should be permitted to say so without being unduly prejudiced for it. The real question is what the denial says about the offender’s record, mitigating circumstances, any persistent tendency to self-identify as a victim and the general reasonableness or unreasonableness of the claim”: Re Toro Martinez and Minister for Immigration and Citizenship [2008] AATA 511, [101].
- As far as I know that proposition has never been rejected or criticized by any court or tribunal. In this case, the applicant has had no criminal convictions, either before or after 1994, has not had any other AVO issued against him, and never breached the conditions of the AVO obtained in favour of Fiona. He has never behaved in an aggressive or rancorous manner towards Fiona or any of the witnesses against him at the AVO hearing, although he has had 20 years in which to do so.
In this matter, Mr [Director] has been convicted of the offence. However, the penalty that was imposed was towards the lower end of the scale. He was sentenced to a 12 month conditional release order commencing 31 January 2023 and concluding 30 January 2024. This is an indication of how the presiding magistrate regarded the seriousness of the offence. The order has expired and there is no suggestion that Mr [Director] has failed to comply with the conditions imposed by the Local Court.
I have taken into account the various character references that have been provided on behalf of Mr [Director]. In my view, the conduct for which he was convicted can be seen as out of character. I accept that he is remorseful and that the conduct is unlikely to be repeated. There is no suggestion that he has engaged in unlawful conduct while working in the tow truck industry.
As noted above, the licensing requirements of the TTI Act are not imposed by way of punishment for those convicted of crimes. They are imposed for the protection of the public.
In the circumstances of this matter, it is my view that the protection of the public does not require that Mr [Director]’s conviction should prevent the grant of the Applicant’s application for renewal of the operator’s licence.
In relation to Mr [Director]’s failure to provide accurate information on the licence renewal application form, the wording of the question, which appears at point 8, is clear. It asks:
“Does the applicant or any partner, Director or shareholder have proceedings for an offence pending against them”.
There is no doubt that the correct answer to that question was “Yes.”
Given the history of problems in the tow truck industry, it is vital that the information provided by applicants is accurate. The Respondent does not have ready access to information about pending charges or court outcomes and therefore it relies on the accuracy of the information that it receives to make its decisions.
I accept that Mr [Director]’s failure to provide accurate information was an oversight and that he did not read the document closely. I also accept that he did not intend to mislead the Respondent. However, in the circumstances of this industry, it a poor explanation.
Nevertheless, I accept that Mr [Director] is remorseful and that the conduct is unlikely to be repeated. In the circumstances, I am satisfied that Mr [Director] is a fit and proper person to hold a licence. For completeness I note that on the material before me I would not find that it would not be contrary to the public interest to grant the licence. It is my view that the licence should be granted.
Orders
The Tribunal makes the following orders:
The Decision under review is set aside.
In substitution, the Decision is made that the application by [NKT] Pty Ltd to renew its tow truck operator licence is granted.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar