Australia, May 9 -- New South Wales Land and Environment Court issued text of the following judgement on April 9:

1. The Applicant has applied to the Tribunal for an administrative review of a decision made by the Secretary, Department of Customer Service (the Respondent) to take disciplinary action against the Applicant under the Tow Truck Industry Act 1998 (NSW) (TTI Act) by permanently revoking the Applicant's drivers certificate and disqualifying the Applicant from holding a tow truck operators licence ('licence') or tow truck drivers certificate ('drivers certificate') for a period of two years.

2. The Respondent took this action on the grounds that the Applicant was charged and convicted of an indictable offence (common assault) and that the Applicant is not a fit and proper person to hold a licence or a drivers certificate.

3. For the reasons below, the Tribunal has decided that the correct and preferable decision is to set aside the decision under review.

Material before the Tribunal

4. The hearing was held on 24 March 2025. The Applicant gave oral evidence and was cross-examined by the Respondent. The Respondent's Authorised Officer/Senior Investigator ('Senior Investigator') was cross-examined by the Applicant. No other witnesses were required by either party. Both parties made oral submissions.

The following material was relied on in the Applicant's case during the hearing:

1) Administrative review application form filed on 28 November 2024.

2) Character reference dated 11 November 2024, by a person who has known the Applicant for 10 years.

3) Applicant's affidavit affirmed on 6 December 2024.

4) Affidavit of Applicant's son affirmed on 6 December 2024.

5) Character reference dated 7 February 2025, by a person who has known the Applicant since 2021.

6) Applicant's affidavit affirmed on 20 February 2025.

7) Applicant's submissions dated 20 February 2025.

6. The following material was relied on in the Respondent's case during the hearing:

1) Bundle of documents filed pursuant to s 58 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act).

2) Respondent's submissions dated 14 March 2025.

3) Unredacted, unsigned and undated copy of the Respondent's Prosecution Report by the Senior Investigator.

4) Letters of Advice of complaints, addressed to the Applicant from the Respondent dated 28 August 2018 and 20 June 2019.

5) Video recording of incident occurring on 22 June 2021.

Background and procedural history

7. The Applicant has been working in the tow truck industry for approximately 40 years.

8. On 17 July 2003 the Applicant was issued with a drivers certificate.

9. Around 2016/2017, the Applicant started a tow truck business with his son. Prior to the decision under review, the Applicant held a drivers license and was employed as a tow truck driver by his son who is the licensee of their tow truck business.

10. On 22 June 2021, an incident occurred when two tow truck drivers from another tow truck business attended the business address of the Applicant and his son to retrieve several vehicles which were to be towed to another location. An altercation occurred between the Applicant and his son (and another tow truck driver of their business) and the two tow truck drivers from the other tow truck business.

11. The Police investigated this incident and decided not to take any action.

12. The Senior Investigator investigated the incident and completed a Prosecution Report. The Applicant was then served with a Court Attendance Notice to attend Wyong Local Court on 23 November 2022 with the Respondent identified as the Prosecution Authority. The Applicant was charged with the offence of common assault under s 61 of the Crimes Act 1900 (NSW).

13. On 11 March 2024, the Applicant pleaded guilty to this offence and was ordered by Belmont Local Court to pay a fine of $800 as well as $2,000 in professional costs to the Respondent as the Prosecution Authority.

14. On 11 March 2024, after the matter was dealt with at Belmont Local Court and as the parties were leaving the Court room, the Respondent alleges that the Applicant 'lunged' towards the Senior Investigator from the other side of the public area and shouted/swore at him. No charges were pursued by the Respondent as a result of this incident.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19613c6a589d95b87995b58d)

Disclaimer: Curated by HT Syndication.