Symons v Transport for NSW [2020] NSWCATOD 163

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Symons v Transport for NSW [2020] NSWCATOD 163 Hearing dates: 6 August 2020 Date of orders: 12 October 2020 Decision date: 12 October 2020 Jurisdiction: Occupational Division Before: D Dinnen, Senior Member Decision: The Respondent's Reviewable Decision is affirmed Catchwords: ADMINISTRATIVE REVIEW – bus driver authority – driving offences - whether of good repute and fit and proper person to be the driver of a public passenger vehicle Legislation Cited: Administrative Decisions Review Act 1997 Passenger Transport Act 1990 Cases Cited: Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357 Saadieh v Director General, Department of Transport [1999] NSWADT 68 Texts Cited: None cited Category: Principal judgment Parties: Warren James Symons (Applicant) Transport for NSW (Respondent) Representation: Solicitors: Applicant (Self Represented) Smythe Wozniak Lawyers (Respondent) File Number(s): 2020/00168053 Publication restriction: None

reasons for decision

Background 1. On 20 September 2019 Warren James Symons ('the Applicant') applied to Transport for NSW ('the Respondent') for a bus driver authorisation pursuant to the Passenger Transport Act 1990 and Passenger Transport Act 2014 ('the PT Act'). 2. On 3 February 2020 the Respondent refused the Applicant's application for a bus driver authority. The Applicant sought internal review and on 20 May 2020 the Respondent affirmed its decision to refuse the Applicant's application, on the basis of grounds specified under section 12 of the PT Act. Those grounds included that the Respondent could not be satisfied that the Applicant was of 'good repute' or that he was a 'fit and proper person' to be the driver of a public passenger vehicle, on the basis of the Applicant's extensive traffic record, convictions and licence enforcement action ('the Reviewable Decision'). 3. By application dated 5 June 2020 the Applicant sought administrative review of the Respondent's Reviewable Decision. The grounds for his application were stated as: I believe that neither my bus drivers application and/or subsequent submissions were considered on their merits. The refusal of my bus drivers application is consistent with a pattern of behaviour I suffered between 1990 & 2018 at the hands of the RTA/ RMS following my success in defeating numerous prejudicial prosecutions in the Local and District Courts.

Legal Principles 1. Section 52 of the PT Act confers jurisdiction on the Tribunal for administrative review of the Respondent's decision pursuant to s 9 of the Administrative Decisions Review Act 1997 ('the ADR Act'). The Tribunal's role is to decide whether, having regard to the underlying facts in the matter and the applicable law, the decision is the correct and preferable one: s 63 of the ADR Act. 2. The Tribunal must make its own decision. There is no presumption that the decision under review is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.

PT Act 1. The Respondent may grant a person a bus driver authority which permits a person to drive a public passenger vehicle.pursuant to s 12 of the PT Act. Section 11(2) of the PT Act provides that the purpose of an authority is to "attest" that the 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. The authorised person is also required under s 11(2) to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates in accordance with the conditions under which a public passenger service is operated, and in accordance with law and custom. 2. In Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 the Appeal Panel stated at [12]: The first point to note is the use of the word 'attest'. The primary meaning of this word is 'to bear witness to; certify; declare to be correct, true or genuine; declare to the truth of, in words or writing: especially in an official capacity' (Macquarie Dictionary , 4th ed. 2005). 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. 1. The expression "of good repute and in all other respects a fit and proper person" was considered in numerous decisions of the Tribunal. In Saadieh v Director General, Department of Transport [1999] NSWADT 68 ('Saadieh') the Tribunal stated at [17] – [18]: 17. Taking into account the terms of the legislation and the case law interpreting similar provisions, there are a number of factors that need to be taken into account in determining a person's 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. 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.

Consideration 1. The Applicant has an extensive history of traffic infringements and traffic-related criminal offence convictions, in New South Wales and Queensland. Those referred to in the Reviewable Decision were: 1. 3 August 2011: convicted at Fairfield Local Court for the offence of 'Negligent driving (not occasioning death/gbh)'; 2. 20 July 2016: convicted at Fairfield Local Court of 'Use heavy vehicle contravenes standard' and 'Fail to comply with Notice displaying mass requirements'; 3. 13 February 2015: infringement for offence of 'disobey traffic lights – camera detected'; 4. 5 January 2016: infringement for offence of 'exceed speed limit by not more than 10km/h whilst driving a coach or heavy vehicle – camera detected'; 5. 17 August 2016: infringement for offence of 'exceed speed limit by not more than 10km/h whilst driving a coach or heavy vehicle – camera detected'; 6. 21 September 2016: infringement for offence of 'exceed speed limit in speed zone by less than 13km/h' (Queensland); 7. 12 October 2016: infringement for offence of 'exceed speed limit by not more than 10km/h whilst driving a coach or heavy vehicle – camera detected'; 8. 10 December 2016: infringement for offence of 'exceed speed limit by not more than 10km/h whilst driving a coach or heavy vehicle – camera detected'; 9. 25 April 2017: infringement for offence of 'exceed speed limit in speed zone by less than 13km/h' (Queensland); 10. 1 August 2017: infringement for offence of 'exceed speed limit by not more than 10km/h whilst driving a coach or heavy vehicle – camera detected'; 11. 23 August 2017: infringed for offence of 'disobey traffic lights – camera detected'; 12. 18 November 2017: infringed for offence of 'disobey traffic lights – camera detected'; 13. 21 December 2017: infringement for offence of 'exceed speed limit by more than 10km/h but not more than 20km/h whilst driving a coach or heavy vehicle – camera detected'. 1. The Respondent's records of the Applicant's driving record demonstrated that the Applicant's traffic infringements stretched beyond those relied on in the Reviewable Decision, including 12 additional infringements between 2013 and 2007, with further additional infringements in the decades preceding. The Applicant had also had a number of additional driving offence convictions quashed on appeal in 2002 and in 2008. 2. The Applicant provided a lengthy affidavit explaining his history and the circumstances of the various infringements and offences. The Applicant ran a transport company, 'Paradigm Transport Pty Ltd' with his ex-wife. He retired in 2013 but continued to work as a contractor for Sydney Wide Containers Pty Ltd, which was managed by his ex-wife. The Applicant claims that his traffic history prior to 2015 is a result of the company he was working for or managing, nominating him as the driver of the vehicles involved in the infringements or offences, when he was not the driver. In December 2015 the business premises of the company he was driving for were moved from Smithfield to Chipping Norton. The Applicant explained that the majority of driving work he had done in New South Wales over the past 20 years was "running the shuttle", which means that the driver continually drives between the employer's yard and Port Botany wharves, usually at night. He maintained the same route where possible. He submitted that all the speeding allegations on his driving record occurred in the immediate 23 months after the business' move to Chipping Norton, between January 2016 and December 2017, and blames this move and the resultant route change and traffic conditions for his speeding infringements. 3. The Applicant also provided evidence of the difficulties and concerns he had with traffic control at various intersections, road quality, red light and speeding cameras, and traffic lights. He submitted that when driving his 'usual route', three times per night, there were approximately 300 sets of traffic lights he negotiated each night, and estimated that over a 10 year period he had negotiated 468,000 traffic lights while driving a heavy vehicle in Sydney. This provided context for the traffic offences. The Applicant submitted the following in summary: I say that, there are 2 UNDENIABLE facts that Transport for NSW has conveniently ignored. Firstly, the problem of identifying the correct driver in the camera recorded allegations is, A PROBLEM THAT THE RTA/RMS HAS CREATED, BY NOT IDENTIFYING THE VEHICLE BEING DRIVEN. Secondly, the fact that, in more than 57 years of driving, I have NOT HAD AN ACCIDENT THAT WAS MY FAULT, and the allegations made against me are, INCONSISTANT WITH THAT PERFECT SAFETY RECORD!! No Australian, has a better safety record than me! I say that, I am a person of good character, and in my submissions, the evidence I provided was ignored. In this Affidavit, I have restated that evidence, and 2 facts stand out. Firstly, I worked and supervised in the Building Industry for 20 years and never had a single complaint to the Builders Registration Authorities, about the quality or standard of my work. Secondly, I have the ability and experience to recognise road safety hazards, and when I do, I draw the appropriate organisation's attention to the problem, and if ignored I take what action I can, to solve the problem myself. I say that, I applied for a Bus Drivers Authorisation, after having answered an advertisement by the local bus company. I was promised nothing, but told that if I passed a medical examination, obtained a bus drivers Authorisation, had suitable references, lived locally and was prepared to work on a part time basis, I would probably be accepted. I am in 'better shape' than most men ½ my age. I have never been a smoker or a drinker and have always worked outdoors and still exercise by swimming and walking regularly. I am 1.8 metres tall and a bit over weight at 82 kilos. I was and still am, hoping to gain employment, working about 25 hours per week, for which I would have received in excess of $500 per week, after tax. My application was rejected on the 6.1.2020. I believe my application was wrongly rejected and that I am entitled to compensation in the sum of $14,000. 1. The Applicant stated that he gave up driving trucks in 2018. In submissions the Applicant reiterated that he had never had any accidents for which he was at fault, and had a perfect safety record. He submitted that even if the infringements and convictions were his, they were "trivial", that the 2011 conviction was recorded because of "a commercial decision", and he had never had a DUI or dangerous driving charge. 2. The Respondent submitted that the Applicant had not contested those infringements or convictions which were on his record, and that they were therefore attributable to the Applicant. I accept that submission. Whilst the Applicant has provided a detailed explanation as to why he should not be held responsible for the various infringements and convictions on which the Respondent has relied, he has made a decision on each occasion to not contest the infringement or charge. Whilst he suggested that his ex-wife may have nominated him for infringements for which he was not responsible, he has provided no evidence to support this allegation, and there was no evidence provided to support his other assertions. I do not accept that the Applicant has or had a "perfect safety record" and rely on the Respondent's records of the Applicant's driving history as accurate. 3. The conferral of a bus driver authority attests to the Applicant being a "fit and proper" person. The Respondent submitted that the Tribunal could not attest to the Applicant having the aptitude or responsibility to transport members of the public safely, in accordance with the law. When driving professionally prior to 2018, the Applicant committed numerous traffic offences and this demonstrated an inability to comply with law and custom, as required by s 11(2) of the PT Act. 4. I agree. I have considered the Applicant's explanations for his infringements and convictions, but I do not accept them. The Applicant has not taken responsibility for his past driving record and there is no basis, other than his unsupported assertions, that his past driving and traffic record should not be given significant weight. There is every indication to me that the Applicant would continue to deflect responsibility for any driving or traffic infringements incurred by him. Whilst there is no record of traffic infringements since he stopped driving professionally, I do not consider this to be indicative of his future conduct if he was driving professionally as a bus driver. In considering the factors suggested as relevant by Saadieh, there is no positive evidence before the Tribunal demonstrating that the Applicant's attitude to driving and traffic regulations has changed since 2018 or will change. I consider it likely on the currently available evidence that the Applicant will commit further traffic offences when driving professionally. Potential factors relevant to driving public passenger buses of driving on unfamiliar routes, being subject to timetables and passenger distraction would only increase this likelihood. 5. The Applicant stated that he is of good character and reputation, based on a 20 year history of working in the building industry, and his ability to draw attention to or otherwise solve problems caused by road safety hazards. However the Applicant did not provide any references to support his reputation in the community. Without any references, I cannot find that he is, indeed, of good repute in the community. In any event, even if there was such evidence, it would need to counteract the significance of the Applicant's driving record. 6. The assessment of a person's suitability and fitness to obtain a bus driver authorisation must include consideration of their driving and traffic record. The Applicant has an extensive record demonstrating a long history of regular traffic offences and some associated convictions. Even if these were deemed to be "trivial" (which they are not), their regularity and cumulative effect, and the Applicant's failure to take responsibility for them, demonstrates that he does not have sufficient responsibility and aptitude to drive a public passenger bus in compliance with its operational conditions, law and custom. His lack of responsibility and aptitude, combined with no evidence of his repute in the community, demonstrates that he not a fit and proper person to be granted a bus driver authority. The correct and preferable decision is therefore to affirm the Respondent's decision.

Orders 1. The Respondent's Reviewable Decision is 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: 02 March 2023