Power v Transport for New South Wales [2021] NSWCATOD 225

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Power v Transport for New South Wales [2021] NSWCATOD 225 Hearing dates: 13 December 2021 Date of orders: 17 December 2021 Decision date: 17 December 2021 Jurisdiction: Occupational Division Before: Emeritus Prof GD Walker, Senior Member Decision: Decision under review affirmed Catchwords: LICENSING – bus driver – refusal of authority – driving record – repute – fit and proper person. Legislation Cited: Administrative Decisions Review Act 1997 (NSW Civil and Administrative Tribunal Act 2013 (NSW Passenger Transport Act 1990 (NSW) Cases Cited: Director-General, Department of Transport v AIC [2011] NSWCATAP 65; Honyandari v Transport for New South Wales [2021] NSWCATOD 117; Keane v Roads and Maritime Services [2015] NSWCATAD 114; Lal v Director-General, Department of Transport [2001] NSWADT 74; Loye v Director-General, Department of Transport [2000] NSWADT 1 Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10; Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 320; Re T and Director of Youth and Community Services [1980] 1 NSWLR 392; Saadieh v Director-General, Department of Transport [1999] NSWADT 68. Category: Principal judgment Parties: Mr Richard Power (Applicant) Transport for New South Wales (Respondent) Representation: Solicitors: Applicant in person Smythe Wozniak Lawyers (Respondent) File Number(s): 2021/00289184

reasons for decision 1. The applicant Mr Richard M Power applied to the respondent on 7 June 2021 (exhibit R1, pp 3 – 10) for an authority to drive a bus. That application was refused on 20 July 2021 on the ground of his driving record (id., pp 11 – 14), the authorized officer noting that "Since 10 November 2016, you had incurred 11 traffic fines which included six (6) 'Exceed speed limit' which contributed to a 14 month good behaviour condition on your driver licence…. The offences demonstrated a blatant disregard for the law, whereby placing the safety and well-being of you, your passengers and other road users at risk. These offences cast doubt that you possess sufficient responsibility or aptitude to drive a public passenger vehicle…." 2. The applicant applied for an internal review of the refusal decision, which was dismissed on 7 September 2021 (id., pp 14 – 20). On 11 October 2021 the applicant applied to this tribunal for review of the refusal decision. The hearing was conducted by telephone on 13 December 2021.

Applicable legislation 1. Under s 12 of the Passenger Transport Act (PT Act), the Director-General may grant authorities to persons applying for them: 12 Criteria and procedure (1) Having regard to the purpose of an authority, RMS may grant authorities to persons applying for them. (2) Applicants must meet any criteria set forth in the regulations and must satisfy RMS as to any matter RMS considers relevant. (3) Procedures for the purposes of this section may be settled by RMS, subject to any provision in that behalf made by the regulations. 1. Pursuant to s 11(1) of the PT Act, a person who drives a public passenger vehicle other than a ferry is guilty of an offence unless holding an appropriate authority. Section 11(2) explains the purpose of such authorities: 11 Authorities (1) A person who drives a public passenger vehicle (other than a ferry) is guilty of an offence unless the person is the holder of an appropriate authority under this Division. Maximum penalty: 100 penalty units. (2) The purpose of an authority under this Division is to attest: (a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle, and (b) that the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates: (i) in accordance with the conditions under which a public passenger service is operated, and (ii) in accordance with law and custom. (3) The regulations may create categories or grades of authority. 1. The issue in this application is therefore whether the respondent (and by derivation this tribunal) is able to attest that the applicant is of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle.

The evidence 1. The respondent called no oral evidence but relied on the s 58 documents (exhibits R1 and R2). The applicant gave oral evidence and was cross-examined by Mr Wozniak on behalf of the respondent. The applicant also tendered certain written character references (part exhibit A1). 2. In oral evidence the applicant adopted his written statement dated 7 December 2021 (part exhibit A1), which consisted in part of submissions rather than evidence of fact. He invited the tribunal to take "a wider judgmental view" of his case and to give more appropriate weight to his demonstrated real-world superior passenger care and safety ethics than to the "apparently perfunctory treatise of these qualities by [the respondent] TfNSW, dismissed in seven words in an addendum to what resembles a lightly customized form judgment". 3. The respondent's decision, he stated, focused on his traffic record over the last five years. In that regard he fully acknowledged fault and was very regretful, apologetic and resolved to change. He had reformed his bus driving over the last half year, to fully comply with road law. 4. As regards his record, his speeding violations were by low margins in city zones, three being less than 10 km/h over, and 3 less than 20 km/h. The U-turn over double lines occurred while he was accessing a difficult hotel driveway in the CBD. He had stopped for 30 seconds in a disabled parking space to pick up a passenger on a hotel kerbside as there were no other spaces available. His U-turn at traffic lights was with a green arrow, and his red arrow infringement occurred when he was blindsided by tall trucks adjacent, a big bus in front and his lowered sun visors. He was fractionally late missing a red light when entering a wide intersection with expansive side vision. 5. His offences reflected incidental transgressing where speed limits appeared intuitively to be too low, while prioritizing hyper-alert and skilled wariness in accumulating high professional mileages driving in traffic of varying civility and competence, or both, in and around Sydney. In 56 years of driving, he had injured no one. 6. For example, on 23 June 2021 on Pyrmont Street he peripherally saw a car approaching along Pyrmont Bridge Road looking like it was going to run the red light and cross his mini-bus' path. So he simultaneously sounded his horn, told his 10 passengers to brace themselves and braked hard to stop, sparing them any crash trauma. Not so the taxi driver alongside, who missed the cues, continued on and crashed heavily into the offender's car. 7. As to the "custom" of New South Wales, what was that? On the roads, low range speeding is endemic, including by public buses. That again suggested that speed limits were intuitively too low in places. The allegation that he did not possess sufficient moral integrity and character to be a bus driver rested on extreme assumptions. For example, his last bus driving role (since April 2020) was to shuttle Star Casino staff coming off shift late at night from the casino to Central Station, and vice-versa, because late night light rail services had been curtailed because of Covid restrictions. As many of the staff were female and resided in the city or in inner suburbs not on the route to Central, he took it upon himself to divert and drop off at or nearest to the front doors of their residences of any passengers who asked. That ensured safety, especially for female staff, one of whom had experienced a severe harassment episode while walking home. He offered her and her colleagues that extra safety, which was the essential mission of the service. That was not the behaviour of someone lacking in moral integrity and character as claimed. 8. He was an impecunious, renting pensioner, as was his wife, having spent most of his career income on educating their two children, who are now adult, respectful and successful. A cancelled bus driver authority on his record would severely limit his prospects in other driving jobs of interest, such as aged care transport or possibly even goods-only delivery. Few other non-standing jobs are available for his age and circumstances. He is 74 but fitter, more flexible with faster reflexes than most younger bus or limousine drivers. He enjoys skilled driving, considers it more an art than a chore, and relating positively with passengers. 9. In oral evidence at the hearing, the applicant reiterated those points, adding that his character referee Mr Ian Wilson (part exhibit A1) had pointed out that just that week, state government and opposition leaders had vowed to axe cameras after it was revealed that fine revenue rose sharply after warning signs were removed, proving what most drivers knew, that speed limits in many locations were too low and had not kept pace with vehicle safety advances. 10. Cross-examined by Mr Wozniak, the applicant stressed that the speed limits were too low, and especially that the 40 km/h limit was too slow and would hold up the traffic. He conceded that when obtaining his licence he had agreed to abide by the road rules. He agreed that his authority had been suspended in March 2018 and had expired, which he said was the result of his changing his address. He had never renewed his authority, which was why he had made a new application. The bus service had been for staff only, who had formerly been able to use light rail. 11. He agreed that since applying for a new authority, he had incurred a red light violation and had received a demerit courtesy letter. He also agreed that he had 20 speeding offences and four licence suspensions, accumulating a total of 91 demerit points. Asked what he thought would be the attitude of parents about his driving school children, he replied that they might be cautious, until they learned about how he drove. His contraventions were mainly in the course of private driving, not when driving the bus. He admitted that his character referees had not been told about his driving record. 12. The applicant explained that his last offence arose when he was driving his wife to hospital, not in the course of driving a bus. He had waited a long time at a red light but had been stopped after proceeding as he wished to convey his wife to hospital as quickly as possible. An unmarked police car had been waiting. 13. He said his offences looked bad if considered out of context, but they were never dangerous. They were safe manoeuvres. 14. The applicant also relied on three character references, one being from Ms Rosamina Bold, dated 7 December 2021. Ms Bold wrote that she had encountered the applicant upon beginning her work at the Star Sydney in March 2021. He was one of the two permanent drivers for late-night bus service for the staff as the light rail services stopped after midnight. 15. She had come to know him quite well, as she used the service almost every night. He worked more frequently than the other driver, so as a result she saw him almost every night after her shift. Until May 2021 she lived in Marrickville, so he used to set her off at Central Station, where she caught the train home. But she noticed instantly that he goes out of his way to help everyone who uses the service. He asked every one of them what was the most convenient stop for the staff bus regulars. He had memorized their requirements and noted them on his sheet, and for any new faces, he asked their names and where was the easiest and closest stop to their homes. 16. She moved into the Park Lane, Chippendale, in May. Although it is closer to her work, from Central Station to the building, it can be a less than ideal route to walk alone at night. When she told Richard that she had moved to Chippendale, he asked her new address and offered to drive her past Central Station, stating that it was not very safe to walk past the station, the parks and the dark streets. In fact, he turned to the dark and narrow street where Park Lane and Carlson Street adjoin and took her right to her building. Ever since, he always drives her right to her building. He is absolutely professional at his job, and a very caring individual with a pleasant manner. 17. In her statement dated 28 October 2021, Ms Emilia Bode stated that she has been a weekly passenger in the Star Casino-provided late-night staff shuttle bus driven by the applicant from late 2020 until late June 2021 lockdown, and again in this October's relaxation of lockdown. Casino management determined that the bus run should start from the Star and goes via the most direct route to Central Station, replacing the Covid-cancelled light rail. Last December, on her first ride in Mr Power's bus, she asked him to drop her off in the city, a small deviation from his run route, to which he agreed. 18. Two nights later, she told him she had been approached by a naked male near her home past St Vincent's Private Hospital. Asked, he subsequently drove her home, a considerably more time-pressured diversion from his run, for her safety. Walking alone through near city streets after midnight is unsafe for a young woman, and Mr Power, going beyond his duty of care, protected her and others from such danger. He had made an impression on her and many other passengers through his dedication to keeping their teams safe and on time, getting to public transport or harm. He is a very safe driver, always taking precautions to ensure his bus avoids incidents on the road while skilfully navigating Sydney's traffic. 19. Mr Ian Wilson is a limousine driver for Royale Limousines, and a fellow worker of Richard Power, who he has known since 2015. In his statement dated 3 December 2021, Mr Wilson explained that he had first met the applicant while visiting the Gold Coast, where he (the applicant) had started driving night shift for Royale's operation in the then Jupiter's Casino in Broadbeach. Since early 2017, he had been a work colleague of the applicant's since he moved to Sydney and continued to drive for Royale, based at the Star Casino in Pyrmont. 20. Since April 2020, between them they had alternated late-night shift (midnight to 6 a,m.) bus driving, shuttling Star Casino staff to and from the casino and Central Railway after Covid restrictions caused the cancellation of the light rail service. He had also ridden with him driving the bus on occasions. He had found the applicant very cooperative and competent in his work. Their passengers hold him in high regard as a driver and personality. For those passengers who do not go to Central but live in or near the CBD, they very much appreciate his initiative to drop them off at or near as possible to their residences. That is especially so with their female passengers, for safety assurance. 21. Bus drivers cover thousands of kilometres a year, and their present route has 27 traffic light sets, many with cameras, and numerous 40 or 50 km/h zones similarly surveilled. It is very difficult to avoid being booked on occasion, especially when timing is tight and traffic flow pressures speeding. Just that week, State government and opposition leaders had vowed to axe cameras after it was revealed that fine revenue rose sharply after warning signs were removed, proving what most drivers know, that the speed limits in many locations are too low and have not kept pace with vehicle safety advances. 22. Mr Wilson used to own and run a bus company and obtained a certificate of coach management from Sydney University Economics Faculty's Institute of Transport Studies, under its director, Professor David Hensher. If still involved, he would employ the applicant as a driver based on his safe and skilled driving, record of no serious crashes, his good character, honesty and his welcoming relations with passengers.

Applicant's submissions 1. As was noted above, a considerable portion of the applicant's submissions was incorporated in his witness statement, the contents of which have already been outlined. In oral submissions at the hearing, the applicant added that all his character referees had travelled with him as a passenger, so they had experience of his work performance. The respondent had treated his moral stature as inconsequential and had relied totally on his driving record. In the real world, speed infringements are endemic and a vehicle travelling at 40 km/h, including public buses, would hold up the traffic, 2. He was rendering a service above and beyond the requirements of his employment and protected his passengers when they were outside the bus. That deserved special consideration as evidence of his moral character.

Consideration 1. This tribunal has jurisdiction to review the respondent's decision refusing to grant the applicant an authority by reason of s 29 of the Civil and Administrative Tribunal Act 2013 (CAT Act) and s 52 of the PT Act. The latter permits a person whose application for an authority has been refused to apply to the Civil and Administrative Tribunal for review. 2. Under s 63 of the Administrative Decisions Review Act 1997 (ADT Act), the tribunal is to decide what is the correct and preferable decision having regard to the material then before it and the applicable law. In doing so it may exercise all of the functions conferred or imposed by any relevant enactment. There is no onus of proof as that term is generally understood: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] – [30], [34]. 3. The respondent's case under s 11(2) of the Act was based on the applicant's not being a person of good character and repute. An authority under that provision can be granted only if it is possible to "attest" that the person is "of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle". As the Appeal Panel noted in Director General, Transport New South Wales v AIC [2011] NSWADTAP 65, [12], "The Parliament, in using this word, seeks, we consider, to emphasise the idea that the conferral of an authority involves a declaration of public trust. While this is true of all licensing, the word gives special emphasis to it in the present context". 4. The Appeal Panel went on to explain that the concepts of "good repute" and "fit and proper" character involve different considerations: "The former concept goes to the way in which a person is regarded by others in the community (fairly or unfairly), while the latter concept goes to an individual's intrinsic characteristics, whether they are known to others or not" (at [27]). 5. Taking it a little further, Waddell J in Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 393 said: "A person's reputation, in fact and in law, is to be found in the estimate of his moral character entertained by some specific group of people, such as those who live in the neighbourhood of his residence, those who work with him or those with whom he associates in his occupation or profession". 6. Again, evidence of a person's repute comes from people who can say what a "specific group of people" think of the person. A person may hold a position in the community from which it is reasonable to infer that the person is well regarded: Loye v Director-General, Department of Transport [2000] NSWADT 145 at [32]. 7. In Saadieh v Director-General, Department of Transport [1999] NSWADT 68, Hennessy DP pointed out that "being a 'fit and proper person' includes being of 'good repute'" (at [12]). At [17] her Honour listed five factors to be considered on the question of suitability in such cases: * 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 reoffend, be the subject of further complaints or commit further traffic offences. 1. The tribunal then added (at [18]), "In assessing the last factor, several considerations are relevant. These include: the length of time since the offence/s were committed or the complaint/s made; the circumstances in which those offences or complaints occurred or are alleged to have occurred; whether the applicant admits responsibility for the offences or complaints and shows genuine remorse; the efforts the applicant has made to rehabilitate himself or herself during that time and; any change in the applicant's circumstances such as increased support from friends, family or professional service providers". 2. Also relevant, as was stated in Keane v Roads and Maritime Services [2015] NSWCATAD 114, [53] where a refusal was set aside, is whether the offences related to taxi (or, by analogy, bus) driving and whether they involved any sexual misconduct: see also Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 320, [14]. On the other hand, the court in the latter case noted that conduct not occurring in the course of the respondent's professional activities could, if sustained over a long period, show a systematic non-compliance with legal and civic obligations. The application to strike the practitioner off the roll was, however, dismissed. 3. The first two factors set out in Saadieh do not apply in this instance as the applicant has no non-traffic convictions and there is no evidence that there have been any complaints against him. The third factor, however, is his driving record, and here the applicant's record is poor. 4. As the internal review decision notes, since 10 November 2016 he had incurred 11 traffic fines which included six speeding infringements which contributed to a 14-month good behaviour condition on his driver licence. Since 1997 he has accumulated some 30 penalties for exceeding the speed limit, 5 warning letters, one courtesy letter, 5 suspensions and an extraordinary total of 91 demerit points. As the respondent pointed out, the applicant has accumulated a continual record of traffic infringements, including one (for which he offered the explanation set out above) of disobeying a red light in July 2021, after he had applied for his bus driver authority. Almost all of his offences have been moving violations. 5. The applicant contended that his record did not disclose any danger to the public and pointed out that there is no record of any person being injured through his conduct. He stated that most of his infringements occurred in the course of private vehicle use, not when driving a bus. In recent years his speeding offences have indeed been in the lower range. Nevertheless, there are several separation lines and red light infringements, which must be regarded as potentially dangerous. While it must be challenging, as Mr Wilson averred, to drive professionally in Sydney traffic and Sydney's streets for any length of time without ever committing an infringement, the applicant's record is an egregious one. The overall impression his record gives is of flagrant disregard for the traffic laws. 6. In the present context, it should be borne in mind that as the holder of a bus driver authority, the applicant could be driving school buses or other vehicles carrying children or adolescents. While the evidence does not suggest that the applicant is in any way a danger to children or young people, quite the reverse in fact, one could understand parents of young children being troubled by the thought that their offspring were in the charge of someone with such a disturbing traffic history: Honyandari v Transport for New South Wales [2021] NSWCATOD 117, [58]. 7. The next factor listed in Saadieh is the applicant's reputation in the community. He tendered two highly supportive references from women staff of the Star Casino who have made regular use of the shuttle bus service he has operated on behalf of the management and speak highly of his helpful and protective attitude in driving them to, or near, their places of residence after they finish late night shifts so that they do not have to walk alone along city streets. 8. Mr Ian Wilson, a driver who alternates with the applicant on the late night shift for the shuttle bus service regards the applicant as very cooperative and competent in his work and states that their passengers hold him in high regard as a driver and for his personality. They greatly appreciate his initiative in dropping them off as close as possible to their residences. He maintains that if he was still running a bus company, as he did formerly, he would employ the applicant as a driver on the basis of his safe and skilled driving, his record of no serious crashes, his good character, honesty and welcoming relations with passengers. 9. The applicant could thus be said to be of good repute in the community, but for the fact that, as he admitted, he did not inform his referees about his traffic infringement record. Further, except in the case of Mr Wilson, it does not appear that the referees were aware of the purpose for which the references were sought. That must dilute the value of that evidence: Loye, at [42]. 10. The final Saadieh factor relevant in this case is the likelihood that the applicant will commit further traffic offences. The applicant is a married man aged 74 with two adult children. He has no non-traffic offences, no history of drug or alcohol abuse and no associations with criminal or irresponsible elements. There have been no complaints about his behaviour towards passengers or other persons. He has expressed remorse over his bad record and states that he has changed his whole approach to driving in the last six months in such a way as to avoid any future contraventions. The evidence shows that, putting aside his poor infringement record, he is a skilful driver. 11. While it may well be that he has changed his approach to driving in the last half year, it has taken him an inordinate length of time to decide to comply fully with the traffic laws. His expressed attitude was that the fault often lay with the laws, not with his driving style. 12. The applicant submitted that he is "an impecunious renting pensioner" who needs the income from driving and at his age has limited suitable employment opportunities. Questions of possible hardship to an applicant cannot, however, be taken into account in determining whether the respondent has made the correct and preferable decision: Lal v Director-General, Department of Transport [2001] NSWADT 74, [47]. 13. The applicant urges the tribunal to take "a wider judgmental view" of his case. But even from such a perspective, such a long and continuous record during which the applicant has shown a flagrant disregard for traffic law and has wasted repeated chances to change makes it impossible at present to attest that he is a fit and proper person to hold a bus driver authority. More time without adverse notice would need to elapse before such an attestation could be given. The decision under review must be affirmed.

Order 1. Decision under review affirmed.

********** 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 February 2023