Abawi v Director General, Department of Transport

[2003] NSWADT 34

CITATION:	Abawi v Director General, Department of Transport [2003] NSWADT 34
DIVISION:	General Division
PARTIES:	APPLICANT Zarak Abawi RESPONDENT Director General, Department of Transport
FILE NUMBER:	023128
HEARING DATES:	13/08/2002, 30/08/2002, 30/10/2002, 29/11/2002
SUBMISSIONS CLOSED:	12/13/2002
DATE OF DECISION:	02/28/2003
BEFORE:	Higgins S - Judicial Member
APPLICATION:	Passenger Transport Act - taxi driver - cancellation of authority - Passenger Transport Act - taxi operator - cancellation of accreditation - Taxi driver - cancellation of authority - Taxi operator - cancellation of accreditation
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Evidence Act 1995 Passenger Transport (Taxi-cab Services) Regulation 1995 Passenger Transport (Taxi-Cab Services) Regulation 2001 Passenger Transport Act 1990 Road Transport (General) Act 1999 Road Transport (Safety and Traffic Management) Act 1999
CASES CITED:	YG & GG v Minister for Community Services [2002] NSWCA 247 Re T and the Director of Youth and Community Services [1982] 1 NSWLR 392 Director-General, Department of Transport v Z [2002] NSWADTAP 37 Goody v Oldmans Press Ltd [1967] 1 QB 33 Singh v Director-General, Department of Transport [1999] NSWADT 9 Farquharson v Director-General, Department of Transport [1999] NSWADT 53 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 Maythisathit and Registrar of Motor Vehicles [1996] AATACT 165
REPRESENTATION:	APPLICANT In person (13 & 30 August 2002, 30 October 2002) J Overall, barrister (29 November 2002) RESPONDENT A Wozniak, solicitor
ORDERS:	1 The decision of the Director General to cancel Mr Abawi's taxi driver authority is affirmed; 2 The decision of the Director General to cancel Mr Abawi's taxi operator accreditation is affirmed.

1 On 13 June 2002, Mr Abawi filed an application for a review of the decision of the Director-General of the Department of Transport (“Director-General”) to cancel his taxi driver authority and operator accreditation that had been issued to him under the Passenger Transport Act, 1990. The grounds relied on by the Director-General in making his decision were several customer complaints relating to overcharging and a customer complaint alleging the falsification of an American Express credit card voucher on or about 12 July 2002. It was the latter complaint, which led to an internal investigation by the Director-General and the decision to issue Mr Abawi with a show cause notice as to why his authority and operator accreditation should not be cancelled.

2 Mr Abawi has held a taxi driver authority since 3 June 1991. He was issued with an operator accreditation in April 2001.

3 On 11 March 2002, the Director General issued 2 notices to show cause to Mr Abawi. One related to his driver authority and the other related to operator accreditation and both requested that he show cause why his accreditation or authority should not be cancelled for the reasons set out in the attachment to the notice. Mr Abawi’s, then retained, solicitors responded to the Director-General’s show cause application on 22 March 2002. On 20 May 2002 Mr Abawi was advised of the Director-General’s decision to cancel his taxi authority and operator accreditation. Mr Abawi requested an internal review of that decision, as he was entitled to.

4 On 3 June 2002, Mr Abawi was advised that the internal review had been completed and that the Director-General’s decision to cancel his licence and operator accreditation had been affirmed.

Jurisdiction

5 The Tribunal’s jurisdiction to hear Mr Abawi’s application arises from s.52(1) of the Passenger Transport Act, 1990 and s.38 of the Administrative Decisions Tribunal Act, 1997.

Hearing

6 Mr Abawi’s application was heard over several days. The first day of hearing was 13 August 2002. Mr Abawi appeared in person and was assisted by a Mr Isaacs.

7 On this day Mr Wozniak, for the Director-General, informed the Tribunal and Mr Abawi that the Director-General would be seeking to rely on an additional material for the cancellation of Mr Abawi’s driver authority and operator accreditation. The additional material related to a finding of guilt by the Fairfield Local Court on 19 April 2002 that Mr Abawi had on 20 March 2002 driven his taxi with a low range concentration of alcohol contrary to s.9(2)(a) of the Road Transport (Safety and Traffic Management) Act, 1999. While no conviction was entered, the Court placed Mr Abawi on a bond to be of good behaviour for two years.

8 Mr Wozniak explained that he had only been made aware of these proceedings on the morning of the hearing and had that morning requested relevant papers from the Fairfield Local Court. During the course of the hearing and on receiving the papers Mr Wozniak provided copies to Mr Abawi and the Tribunal and confirmed that reliance would be placed on them. The papers included Mr Abawi’s traffic record, which Mr Wozniak noted disclosed a previous conviction of driving with a high range concentration of alcohol on 12 November 1984.

9 As the matter had been set down for half a day’s hearing it was agreed between Mr Wozniak and Mr Abawi that the matter should proceed with the Tribunal hearing evidence which related to the initial material relied on by the Director-General in cancelling Mr Abawi’s driver authority and operator accreditation.

10 In accordance with this agreement, the Tribunal heard oral evidence by telephone from Ms Elizabeth Rex of Queensland and Mr Wozniak summarised the evidence in respect to earlier complaints made against Mr Abawi and which were contained in the Department’s file.

11 The hearing on 13 August 2002 was interrupted by a fire alarm in the building that required all persons to evacuate from the hearing room. As a result the matter was subsequently listed for directions on 30 August 2002 to set a further hearing date. By agreement a further hearing date was set on 30 October 2002. This date had been chosen so as to give Mr Abawi sufficient time to instruct new solicitors to represent him in light of the serious nature of the allegations that had been made against him.

12 On 30 October 2002, on the application of Mr Abawi, the matter was further adjourned to 29 November 2002 as just prior to the hearing his legal representative informed him that he no longer acted on his behalf. The Director-General did not consent or object to the adjournment, however on the application of Mr Abawi the Tribunal stood the matter over to 29 November 2002 and directed that the matter would proceed on this particular date unless, there were exceptional reasons justifying a further adjournment.

13 On 29 November 2002, the matter proceeded to a final hearing. At this hearing Mr Abawi was represented by Mr Overall of counsel.

Relevant Legislation

14 The Passenger Transport Act 1990 sets out a regulatory scheme operators and drivers of public passenger services. This includes taxi drivers and taxi operators. The objectives of the Act are set out in s.4 which provides, so far as is relevant, as follows:

“4. The objectives of this Act are:
(a) to require accreditation by the Director-General, of operators and drivers involved in public passenger services; and
(b)………
(e) to encourage public passenger services which meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services; and…”

15 Part 4 of the Passenger Transport Act, 1990 sets out the procedure and requirements for the accreditation of a taxi cab operator and the authorisation of a taxi driver.

Accreditation of Taxi Cab Operators

16 The provisions relating to the accreditation of a taxi cab operator are contained in Division 3 of Part 4 of the Act. Section 31F in this Division provides that the Director-General may at any time vary, suspend or cancel a person’s accreditation as a taxi cab operator. That section provides, so far as is relevant, as follows:

“S.31F(1) Having regard to the purpose of the accreditation under this provision, the Director-General may at any time vary, suspend or cancel any person’s accreditation under this division”.

17 The purpose of accreditation under Division 3 of Part 4 of the Passenger Transport Act is set out in s.31(2). That subsection provides as follows:

“S.31(2) The purpose of accreditation under this division is to attest :
(a) that the accredited person is (or, in the case of an accredited person that is a corporation, the designated directors and managers of the corporation are) considered to be of good repute and in all other respects fit and proper to be responsible for the operation of a taxi-cab service , and
(b) that the accredited person has demonstrated the capacity to meet and continue to meet the appropriate requirements with respect to:
(i) financial viability, and
(ii) safety of drivers, passengers and the public, and
(iii) vehicle maintenance,
to the degree and in the manner required in respect of services of the kind specified in the accreditation” (emphasis added).

18 The provisions relating to taxi driver authorities are contained in Division 5 of Part 4 of the Passenger Transport Act. Section 33F in this Division provides that the Director-General may at any time vary, suspend or cancel any person’s taxi driver authority. That section provides as follows:

“S.33F Having regard to the purpose of authorisation under this division the Director-General mayat any time vary, suspend or cancel any person’s authority under this division”.

19 The purpose of authorisation under Division 5 of Part 4 of the Act is set out in sub-s.33(3) of the Passenger Transport Act. That sub-section provides as follows:

“S.33(3) 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 taxi cab, and
(b) that the authorised person is considered to have sufficient responsibility and aptitude to drive a taxi cab;
(i) in accordance with the conditions under which the taxi cab service concerned is operated, and
(ii) in accordance with law and custom”.
(emphasis added)

20 Sub-s.33D of the Passenger Transport Act sets out what conditions apply to a taxi driver authority issued under Division 5 of Part 4. These conditions include those which are prescribed by the regulations (s.33D(1)(b)).

Regulations

21 Clause 36 of the Passenger Transport (Taxi Cab Services) Regulation, 2001 provides that the driver of a taxi cab must furnish the Director-General with written details of any alleged offence (other than a parking offence) with which the driver is charged by the police (see cl.36(1)(a)). The clause also provides that the driver is to provide that written notice within seven days of any charge that has been laid against him (see cl.36(3)). A failure to comply with these requirements constitutes an offence, which is punishable by a fine.

22 Clause 69 of the Passenger Transport (Taxi Cab Services) Regulation, 2001 provides that a taxi driver must set in motion the taxi meter fitted in his/her taxi cab as soon as it is hired. A failure to do so constitutes an offence. Clause 39 of the same regulations provides that taxi drivers are to complete a daily work sheet that records the hours they have worked and any faults in the taxi cab or in its equipment that have occurred during his/ her driving shift. Again a failure to comply with this requirement constitutes and offence punishable by a fine. Regulations in the same terms were contained in the repealed Passenger Transport (Taxi Cab Services) Regulations 1995 (see cls 19A and 39).

PCA Offences

23 Section 9 of the Road Transport (Safety and Traffic Management) Act, 1999 (“RT(STM) Act”) creates several offences where a person drives or intends to drive a motor vehicle while having more than the prescribed level of alcohol in his/her blood (“PCA offence”). Section 9(1) of the RT(STM) Act creates an offence where a “special category driver” drives a motor vehicle with the “special range prescribed concentration of alcohol” in his/her blood. Sub-section 8(3)(e) of the RT(STM) Act defines a “special category driver” to include a motor vehicle driven for hire or reward as a public passenger vehicle within the Passenger Transport Act, 1990. The term “special range prescribed concentration of alcohol” is defined in the dictionary of the RT(STM) Act to mean: “a concentration of 0.02 grammes or more, but less than 0.05 grammes, of alcohol in 100 millilitres of blood”.

24 Accordingly, where a taxi driver is driving a taxi or intends to drive a taxi he/she must have less than a 0.02 gramme concentration of alcohol in their blood. Any more than this constitutes an offence, which on conviction attracts an automatic disqualification of the persons drivers licence for a period of no less than 3 months and no more than 6 months, as well as a possible fine of up to $1,100 (ss.9(1), RT(STM) Act and s.25(2), Road Transport (General) Act, 1999).

Evidence

25 Mr Wozniak, on behalf of the Director-General, relied on the material contained in two departmental files that had been previously filed with the Tribunal and served on Mr Abawi. Included in these files was a transcript of a record of conversation between Mr Abawi and Jim Hallahan, operations officer of the Taxi and Hire Car Bureau, dated 29 November 2001 and documents relating to complaints, which had been made against Mr Abawi. Included in the latter material were two unsigned statements of persons whose identity had been deleted, which related to the alleged falsification of an American Express voucher for a taxi fare on 12 July 2001.

26 On 13 August 2002, Mr Abawi and the Tribunal were provided with full copies of the abovementioned statements, which had been signed on 21 January 2002, by Ms Elizabeth Rex and Ms Deborah Ramsey. The Tribunal and Mr Abawi were also provided with a copy of a transcript of an interview between Mr Hallahan and Mr Abawi on 6 December 2001. As mentioned above, on this day Mr Wozniak also informed Mr Abawi and the Tribunal that the Director General was relying on the material that had been received that afternoon from the Fairfield Local Court. This material included Mr Abawi’s traffic record, in particular his conviction of a PCA offence in November 1984. This material was subsequently formerly tendered into evidence on 29 November 2002.

27 Mr Overall called Mr Abawi to give evidence and tendered into evidence a statement of Mr Abawi dated 29 November 2002. Mr Abawi’s evidence and statement were given pursuant to a certificate issued under s.128 of the Evidence Act (NSW), 1995. Mr Overall also relied on five references attesting to the good repute of Mr Abawi and a petition signed by thirteen fellow drivers requesting the reinstatement of Mr Abawi’s accreditation as a taxi operator and the previous submissions made by Mr Abawi’s legal representative.

Submissions

28 In his written submissions, Mr Overall, submitted that the Tribunal was bound by the original grounds on which the Director-General relied in making his decision to cancel Mr Abawi’s driver authority and operator accreditation. The submissions go on to state that the provisions of the Administrative Decisions Tribunal Act 1997 does not give the Tribunal jurisdiction to consider the additional grounds relied on by the Director-General. He also submitted that the Director-General’s reliance on Mr Abawi’s failure to disclose his 1984 cancellation of driver’s licence in his application for a driver authority and its subsequent renewal amounted to a denial of natural justice.

29 In all other respects, Mr Overall, submitted that the evidence given by Mr Abawi in relation to the alleged falsification of the American Express docket should be accepted as should Mr Abawi’s explanation in respect of the earlier complaints. In respect of the 2002 PCA offence, Mr Overall submitted that this “was not a deliberate act of drinking on the job, but a miscalculation on his part as to his sobriety”. Accordingly, it was submitted by Mr Overall that on the material before the Tribunal the Director-General’s decision was not the correct and preferred decision.

30 In his written submissions, Mr Wozniak, on behalf of the Director-General, submitted that the Tribunal should accept the evidence of Ms Rex and Ms Ramsey in regard to the alleged falsification of the American Express docket. He went on to submit that when Mr Abawi’s conduct is considered as a whole it evidences a pattern of dishonest behaviour and therefore an inability to be trusted as a taxi driver or accredited operator. He also submitted that the finding of guilt in respect of the drink driving charge should be regarded seriously as he was well above the .02 limit which applies to taxi drivers while they are driving taxis, and he had failed to report the incident to the Department as he was required to do.

31 Accordingly, it was submitted by Mr Wozniak, having regard to the whole of the matters relied on by the Director-General at the hearing, the Director-General’s decision was the correct and preferred decision.

Findings of Fact
Falsifying AMEX credit card docket

32 In her oral and written evidence Ms Rex stated the following:

• She is employed by MBF Australia as a corporate sales executive and has been employed with that company, in Brisbane, for the past 32 years.
• On 12 July 2001 she attended the MBF National Corporate Sales Conference held at the Stamford Hotel in Kent Street, Sydney.
• She arrived on 11 July 2001 from Brisbane for the conference and travelled to the hotel from Sydney Airport by taxi but did not pay for that journey.
• At about midday on 12 July 2001, during the seminar lunch break, she left the seminar with two other ladies and travelled by taxi (driven by the applicant) to the MBF building in Bathurst Street. She and her colleagues were in a hurry as they only had half an hour. When she arrived at Bathurst Street she saw that the taxi meter was $6.10. She went on to state that: “…so I handed my AMEX card across – he swiped it through – I then wrote the figures six dollars ten cents in there and I signed it – but I did not write it in words – but I know it was six dollars ten cents”.
• In response to questions asked of her by Mr Abawi, she stated that she did not recollect whether she was handed the customer receipt copy of the docket by the driver.
• Subsequently when she received her account from American Express she noted that the taxi driver had submitted a claim for considerably more than $6.10.
• After receiving her AMEX account she requested a copy of the voucher. When she received a copy of the voucher she noticed that it was a copy of the voucher with her signature and the figures “6.10” she had inserted. At the same time she noticed that the trip details had been written in by someone else and that they were incorrect. She also noticed that the number “4” had been inserted before the “6” and that the date of the trip had been incorrectly stated to be 11 July 2001. These details were not in her writing and her trip had been on 12 July 2001.

33 In her statement, Ms Ramsey, corporate sales coordinator of MBF Brisbane, also stated that she attended the conference at the Stamford Hotel in Sydney. She also states that she travelled with Ms Rex at about midday on 12 July 2001 during the lunch break of the conference. She states that she recollects that the fare was about $6 and that she was out of the taxi while Ms Rex was paying the driver.

34 At the hearing Mr Abawi readily admitted that the details concerning the driver, the date, the car number, the driver’s authority number, co-op details and travel details were completed by him. Nor was it disputed that Ms Rex’s signature appeared in the space for the cardholder’s signature. What was disputed was whether Ms Rex had inserted the amount “6.10” or whether she had left it blank. As mentioned above, Ms Rex’s evidence was that she had inserted the details “6.10”. That is, these figures were in her handwriting.

35 In the transcript of the record of conversation between Mr Abawi and Mr Hallahan on 29 November 2001, Mr Abawi gave the following responses (after being receiving a caution) to questions asked of him in regard to the credit card voucher signed by Ms Rex:

“ I said, Do you recall picking up a passenger in Kent Street, Sydney and going to Bathurst Street?
He replied, No I don’t remember, its too long ago.
I said, The complainant said she took a fare from Kent Street to Bathurst Street and was charged a fare of $6.10, would that be about right?
He said, Yes that would be close to the fare.
I said, This passenger paid the fare by way of American Express card, I’d like you to look at a photocopy od (sic) an American Express card that was presented for payment.
Photocopy handed to Mr Abawi
………….
I said, This was the docket given by this complainant to the driver of T1952 for the fare from Kent Street to Bathurst Street City yet the docket ismade out for a trip to the City to Parramatta.
He replied, Yes, I must have taken a trip to there.
I said, This woman was in Sydney attending a seminar in the city. She did this trip in her lunch break, she didn’t go to Parramatta.
He replied, That is my writing, she must have gone there.
I said, This woman is quite adamant she didn’t go to Parramatta, she went from a hotel where the seminar was being held to her office in Bathurst Street, she said the docket was made out for $6.10, she signed it and wrote in the figures and handed it to the driver.
………….
I said, I put it to you that you took this fare and when the woman gave you an incomplete docket you filled in the rest of the particulars and claimed a fare from the City to Parramatta, you also changed the fare from $6.10 to $46.10.
He replied, No that didn’t happen, she must have forgot she did this trip.
I said, I don’t think this is likely to have happened, the woman was in Sydney for a specific reason she had no reason to go to Parramatta.
He replied, She must have otherwise how would the docket say so”.

36 During his conversation with Mr Hallahan, Mr Abawi requested a copy of the receipt relating to the credit card voucher. He stated that he always gave his customers a copy of the receipt.

37 Mr Abawi gave similar responses to the same type of questions during an interview that was conducted by Mr Hallahan, one month later and 5 months after the alleged fasification, on 6 December 2001. That is, he continued to maintain that the passenger, Ms Rex, did travel from the City to Parramatta on the day alleged on the credit card voucher and that he did not put the number “4” in front of the “6.10”. He also stated that

“to write a docket, a receipt, you know, that’s her $46 whatever, that’s her writing you know that one.
… And I wont let people you know to come and just um with a signature you know, I always make them put the amount there you know.”

38 On 22 March 2002, almost 4 months later, in response to the Director-General’s notice to show cause, Mr Abawi’s solicitors, Sayan & Associates, provided the following response in respect of the alleged falsification of the credit card voucher:

“Our client advises that he did receive three passengers on this date who travelled from Kent Street to Bathurst Street, Sydney. The passengers were in a hurry to exit the taxi and simply presented an American Express card to the driver. The driver did not at the time complete the amount to be charged as he was in city traffic. The amount to be charged on the payment slip was left blank.
On or about the day of the complainant’s fare, our client received another fare with three passengers from George Street to Sussex Street, Sydney. Two of the passengers disembarked at Sussex Street and the driver was instructed to continue the journey with the third passenger to the King School in Parramatta. This fare was $46.10.
Our client did not attend to the American Express slip until he was due to submit his slips to Premier Network Base. This is done on a weekly basis. Upon submitting these slips our client noticed the American Express slip did not have an amount on it.
Our client did remember that the American Express slip was from a fare that involved three passengers and when he was required to submit the slip to base he has correctly recalled that the American Express slip was submitted by the three passengers whose journey finished at the King School, Parramatta. He had inadvertently mixed up the fares and had entered the fare charged to the three passengers from King School onto the slip signed by the complainant”.

39 In his statement dated 29 November 2002, and in his oral evidence on that day, Mr Abawi confirmed the version of events as contained in the letter of his solicitors dated 22 March 2002. He again denied having inserted the “4” in front of the “6.10” and stated that the whole amount of “46.10” was in his hand writing and inserted by him. He also went on to state that he did not recollect the amount of the fare for Ms Rex’s trip and that neither did Ms Rex. It was his contention that she had just assumed that it was “6.10”. He then stated:

“When I was reconciling my accounts I confused the MBF docket with the Kings School docket. I mistook the MBF docket for the Kings School docket. I inserted all the handwritten details contained on the face of the MBF docket, that is all but the signature. At that time of doing this I did not recall taking the women from the conference. I genuinely believed that the MBF docket represented the fare from the City to Parramatta for $46.10.

40 In giving his oral evidence, Mr Abawi explained that in March 2002 his wife reminded him that he had confused the two vouchers. It was a result of this reminder that he recollected what had happened and advised his solicitors accordingly. He also stated that at this time he recollected that, in July 2001, when he was reconciling his credit card vouchers he could not find a credit card voucher for the Parramatta trip and had mistakenly duplicated the details on the Ms Rex’s voucher. He also stated that he keeps a record of trips that he does and which are paid for by the passenger by credit card.

41 The Tribunal found Ms Rex to be a truthful and forthright witness. She was in Sydney for a conference and there was no basis for suggesting that she was not telling the truth. From the material contained in the Department’s file she has appeared to acted almost immediately after she received her American Express statement and requested a copy of the relevant voucher and then complained to the Department.

42 Mr Abawi, on the other hand, had much to gain from a false voucher and also much to lose if found out. This of itself does not give rise to an adverse finding against Mr Abawi. What does give rise to adverse findings is the fact that Mr Abawi has given several versions of events, both of which are inconsistent with each other. Initially he said he did not recollect the trip but stated that he had a practice of getting his passengers who paid by credit card to enter the fare details on the voucher and in accordance with that practice the amount “46.10” was in the passengers handwriting and not his. Four months later, and nine months after the fare, he stated that the amount “46.10” was in his handwriting and not that of the passenger and that he had mixed up Ms Rex’s signed voucher with that of another passenger he took to Parramatta that day.

43 While the Tribunal accepts that a mistake, as described by Mr Abawi, can occur, it finds for the reasons stated above that in this case Mr Abawi’s explanation cannot be preferred to those of Ms Rex. The Tribunal also notes that at no stage did Mr Abawi call his wife to give evidence nor did he adduce any independent evidence of the American Express voucher for the trip to Parramatta on that particular day. He stated that he kept a record of all trips he did and which were paid for by credit card. No such record was produced by Mr Abawi, which substantiated his version of events and yet he had ample opportunity to do so if there was such a record.

44 Accordingly, the Tribunal finds as a matter of fact that Ms Rex did insert the figures “6.10” on the credit card voucher and that the number “4” was inserted subsequent thereto by Mr Abawi. This clearly amounts to a falsification of the credit card voucher. However, this does not mean that he has done so with a fraudulent or dishonest intent.

45 It is unnecessary for the Tribunal make a finding in this regard, as its task is to examine Mr Abawi’s conduct in respect of this falsification together with his other conduct in the context of fitness and propriety under the Passenger Transport Act 1990.

PCA Offence

46 The statement of facts to which Mr Abawi pleaded guilty to, on 19 April 2002, in respect of an offence with a low range of alcohol in his blood states the following:

• At about 1.58am on 29 March 2002, Mr Abawi, who was driving his taxi with two male passengers was stopped by police who were conducting stationary random breath testing on the Great Western Highway. Mr Abawi submitted to a random breath test, which returned a positive result of 0.070 gms of alcohol in 100 mls of blood.
• On being questioned by the police Mr Abawi stated that he had not consumed any alcohol that evening. He stated that he had consumed a glass of wine at lunch time and he was taking medication for flu and high blood pressure.
• Mr Abawi was arrested for the purpose of breath analysis and taken to Merrylands Police Station. His breath analysis returned a result of 0.055 gms of alcohol in 100 mls of blood and he was subsequently charged with an offence of drive with low range prescribed concentration of alcohol.
• At the hearing Mr Abawi conceded that he had been drinking that evening but stated that it was not very much. He stated that he had organised a relief driver to drive his taxi that night as he had visitors and that the driver had ceased working just before 2.00am. Mr Abawi then took over driving the taxi, feeling that he was fit to drive. He had only just commenced driving when he was stopped.

47 In his statement of reasons, the Director-General relied on four previous complaints made against Mr Abawi. These complaints are stated to have been made between 2 August 1999 and 9 January 2001. The material relied on by the Director-General in respect of these complaints were contained in the Department’s file. As this file had not been indexed or page numbered, Mr Wozniak identified which document supported which complaint. In summary, the findings of fact in respect of each complaint is as follows:

(a) Complaint 1 – 2 August 1999 . The complainant complained that Mr Abawi refused to take him in his taxi even though he had his vacant light displayed. The refusal occurred after the complainant had entered the taxi and Mr Abawi had asked him where he wanted to go. Mr Abawi was counselled and reprimanded in respect of this complaint. His explanation for the refusal was that he had received a private booking.
(b) Complaint 2 – 3 October 2000 . The customer complaint is recorded on a computer generated record which is headed “Your Say Line – Case Number 94873”. It is addressed to the Complaints Officer from a Victoria Jakobsen and is dated 10 March 2000. Under “customer details” it is stated that the complaint was received on “10/3/2000 9.53”. However, against the entry “Journey Da te ” there has been entered “3/10/2000”. The essence of the complaint is that Mr Abawi “had the meter on the tariff 2 rate”.
A further letter also relied on in support of this complaint, dated 13 April 2000, from the Taxi Complaints Officer to a person whose name has been blacked over makes reference to the complaint having been made on 10 March 2000. Having regard to these documents the Tribunal finds that this particular complaint was in fact made on 10 March 2000 and related to a fare some time prior to this. It did not relate to a fare on 3 October 2000. Furthermore, the contents of the complaint are different to those relied on by the Director-General in his statements of reason.
(c) Complaint 3 – 3 April 2000 . Again the customer complaint is recorded on the same type of computer generated record as complaint 2. In this case it is dated 14 March 2000 and is stated to have been received on/at “14/3/2000 7.33”. Yet the journey date is stated to “3/4/00”. The essence of this complaint is that when the complainant got to his destination in the city, from the airport, he jumped out to get his luggage. Just before getting out he looked at the meter and saw the fare was $20. However, when he went to pay Mr Abawi he had turned off the meter and said the fare was $35 but on being challenged accepted $32.50.
In light of this document the Tribunal finds that this complaint did not relate to a taxi fare on 3 April 2000. It related to a fare that occurred some time prior to 14 March 2000 when the complaint was made.
However, Mr Abawi responded to the substance of the complaint and stated that his meter was defective at the time of the fare and that he estimated what it was.
There is evidence that the meter on the taxi in question was inspected and repaired on 1 May 2000 and that prior to that: “The meter board was dropping out and loosing (sic) the tariff display”.
(d) Complaint 4 – 9 January 2001 . In this case the customer complaint has been recorded in a computer generated document that is in the form of an email message. The date of the email is 12 February 2001 and states that the complaint was received on “2/12/01 11:20:00” and that it related to a taxi fare on “09/02/01”. The essence of the complaint is that Mr Abawi failed to engage the meter and overcharged the passenger in respect of the fare.
Again the Tribunal finds that this complaint relates to a taxi fare on 9 February 2001 and not 9 January 2001 as specified by the Director-General in his reasons for decision. However, Mr Abawi responded to the substance of the complaint. He admitted that he had forgotten to turn on the meter and that he charged what he believed to be the correct fare.

48 In his 1991 application for a driver authority Mr Abawi gave a “No” response to the following questions:

“5. Have you in the last 10 years in New South Wales or
elsewhere:-
(a) Been refused or disqualified from obtaining a licence as a driver or rider of a motor vehicle; or
(b) Having held such licence had it suspended or cancelled?
6. Have you in the last 10 years in New South Wales or elsewhere:-
(a) …………
(b) (i) been convicted or any criminal, traffic or other type of offence”.

49 In the same application form Mr Abawi signed a declaration that he understood the abovementioned questions and that his responses to the best of his knowledge and belief were true.

50 According to the traffic record for Mr Abawi, on 12 November 1984 he was convicted of an offence of driving with a high range of concentration of alcohol and was disqualified from driving for two years. Mr Abawi was again issued with an unrestricted drivers licence on 14 January 1987.

51 Mr Abawi gave the same responses to the same questions in his 1993 application for a driver authority. The responses in this application and the 1991 application are clearly false.

52 During cross examination Mr Abawi stated that he could not remember if he had been disqualified for one or two years, that he understood the question to mean a disqualification or conviction in the previous months, that he did not think about it and maybe he did not understand the form because his English was not that good.

Reasons and Decision

53 The Tribunal, on hearing a merits review application to determine whether the decision of the administrator is the correct and preferred decision, has always approached such hearings by having regard to all the material that is available at the time of hearing and has not been limited to the material available at the time of the original decision was made. This approach was upheld by the NSW Court of Appeal in YG & GG v Minister for Community Services [2002] NSWCA 247 at [25]. In that case the NSW Court of Appeal based its decision on the wording of s.63(1) of the Administrative Decisions Tribunal Act, 1997, which uses the words “is” after the words “correct and preferable decision”, rather than the word “was”.

54 In the Tribunal’s opinion the same applies in respect of specific grounds relied on by the administrator when he/she made her decision. Accordingly, the Tribunal rejects Mr Overall’s submission that in making its determination it is limited to the material/grounds relied on by the Director-General when he made his original decision.

55 However, even though the Tribunal can have regard to material and grounds in addition to those relied on by the administrator when making his/her original decision, the Tribunal is required to ensure that the applicant is afforded procedural fairness in respect of such additional material and grounds.

56 In this case, the Director-General relied on the same grounds for the cancellation of Mr Abawi’s driver authority and operator accreditation namely, that the Director General was unable to attest to Mr Abawi was a person of good repute or otherwise a fit and proper person. However, he did rely on additional material in this regard at the hearing. That material was as follows:

(a) The finding of guilt against Mr Abawi on 19 April 2002 for driving with a low range concentration of alcohol and the factual circumstances related thereto;
(b) Mr Abawi’s failure to report to the Department that he had been charged with the abovementioned offence; and
(c) The false declaration made by Mr Abawi in his 1991 and 1993 application for a driver authority in respect of his 1984 conviction of a high range concentration of alcohol and his suspension from holding a drivers licence for 2 years.

57 In regard to this material, the Director-General did not become aware of it until 13 August 2002 when the matter was first listed for hearing. On this day, Mr Abawi was given the relevant material, including his complete traffic record and Mr Wozniak clearly stated that reliance would be placed on the recent charges for which he was found guilty and that the material gave rise to matters he had declared in his application.

58 The hearing of the matter in respect of this additional material did not occur until 29 November 2002, almost 4 months after Mr Abawi was provide with the material and told reliance would be placed on it. The Tribunal notes that Mr Abawi’s legal representatives had obtained the tape of the hearing on 13 August 2002 some time prior to the hearing on 29 November 2002.

59 Accordingly, the Tribunal finds that Mr Abawi was awarded procedural fairness in regard to this additional material and that the Director-General is able to rely on it.

60 As mentioned above, at issue in this case is whether, having regard to Mr Abawi’s conduct, the Director-General could attest to Mr Abawi being considered a person of “good repute” and in all other respects a “fit and proper person” to be authorised to drive a taxi cab or to be authorised as an accredited operator (see ss.31(2) and s.33(3), Passenger Transport Act, 1990). This means that the Tribunal must assess the evidence as to Mr Abawi’s reputation and whether he is a fit and proper person in the relevant sense. Furthermore, both need to be satisfied.

a) Reputation

61 The Tribunal has often cited the explanation given by Waddell J as to the meaning of “good repute” and how it differs from the requirement to in all other respects a “fit and proper person”: Re T and the Director of Youth and Community Services [1982] 1 NSWLR 392. This explanation was recently followed by the Appeal Panel in Director-General, Department of Transport v Z [2002] NSWADTAP 37.

62 In the decision of Director-General, Department of Transport v Z [2002] NSWADTAP 37 at [38] the Appeal Panel stated:

“Good repute refers to the way reasonably-minded people assess an individual’s current reputation, with reasonably precise knowledge of those matters that put the person’s reputation in doubt. The fact that the person produced evidence from witnesses who vouch in general terms for the person’s reputation can not be conclusive. Equally, care must be taken, as we see it, not to use the “good repute” requirement as a way of bringing into consideration stereotypes or assumptions which offend, for example, against human rights or anti-discrimination standards”.

63 At [20] the Appeal Panel also cited with approval the following statement of Waddell J at 399:

“This definition [‘reputation’, Shorter Oxford Dictionary , 1973, 1083] makes it clear, as is the law, that a person’s reputation is to be found in the estimate of his moral character entertained by some specific group of people, such as by 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”.

64 At [21] the Appeal Panel also cited with approval the dicta of Lord Denning in Goody v Oldhams Press Ltd [1967] 1 QB 33 where he said the following in respect of how old convictions are dealt with in ascertaining reputation in defamation law:

“[Previous convictions] stand in a class by themselves. They are the raw material upon which bad reputation is built up. They have taken place in open court. They are matters of public knowledge. They are accepted by people generally as giving the best guide to his reputation and standing. They must of course be relevant, in this sense, that they must be convictions in the relevant sector of his life and have taken place within a relevant period such as to affect his current reputation…”.

65 In this case, Mr Abawi relied on six references and a petition to the Department of Transport, signed by fourteen fellow taxi drivers, requesting the reinstatement of Mr Abawi’s taxi operator accreditation. The petition makes no reference as to how Mr Abawi is regarded by the persons who signed the petition. The referees each state that in their opinion Mr Abawi is a person of honesty, trustworthiness and high integrity. They each state that they have known Mr Abawi for some years. There is a reference from a Tax Agent, a doctor, an employer and two former passengers.

66 From the terms of these references it would appear that they have no knowledge of Mr Abawi’s drink driving charges, the false declaration on his application for a driver authority or the allegations relating to the falsifying of the American Express vouchers. Had they been aware of these they may of course still adhere to their views. However, in accordance with the test stated by the Appeal Panel in Director-General of Transport v Z [2002] NSWADTAP, in my opinion, these people and others who know Mr Abawi may equally put Mr Abawi’s reputation in doubt when given precise knowledge of the matters that are the subject of this appeal. However, for the reasons set out below it is not necessary for the Tribunal to make a conclusive finding in this regard.

b) Fit and Proper Person

67 Even if Mr Abawi were to be found to be a person of “good repute” it must also be found that he is otherwise a fit and proper person to be responsible for the operation of a taxi cab service and the driver of a taxi cab.

68 It is well established that an assessment of whether a person is “fit and proper” involves different considerations from those relevant to “good repute”: Singh v Director-General, Department of Transport [1999] NSWADT 9 at 25 to 28, Farquharson v Director-General, Department of Transport [1999] NSWADT 53 at 27.

69 The Tribunal has also considered the meaning of a “fit and proper person” on numerous occasions and has followed the reasoning of Chief Justice Mason in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63] where he stated:

“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 witness and propriety are under consideration”.

70 The discretion to issue a licence or authority must be exercised keeping in mind the activities in which the person will be engaged if an authority is granted (see Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 at 156 and Bond v Australian Broadcasting Tribunal (1990) 170 CLR 321). In this case the objectives are those set out in s.4 of the Passenger Transport Act.

71 For the purpose of determining whether a person is a “fit and proper” person to undertake the activity for which a licence or authority is sought the Tribunal and the Appeal Panel has cited with approval the test posed by the equivalent ACT Administrative Appeals Tribunal dealing with an equivalent legislative scheme in Maythisathit and Registrar of Motor Vehicles [1996] AATACT 165 per Curtis P:

“One must put oneself, so far as possible, in the position of a member of the public who might travel in a taxi driven by the applicant and ask whether that member of the public, knowing of the applicant’s criminal record and what he has done…to rehabilitate himself, would object to the applicant as the driver of the taxi”.

72 In this case, the nature of the conduct engaged in by Mr Abawi is all the more serious because the conduct arose from the activity for which he is licensed or authorised. First there is the false declaration on his application for a driver authority in 1991 and 1993. The Tribunal found Mr Abawi’s explanation in respect of this conduct to be evasive. On his own admission he has lived and worked in Australia for 25 years and in 1991, this would have been for about 13 years. In order to obtain his taxi authority he was required to have some command of the English language. Accordingly, it is difficult to envisage that he did not understand the questions or that he forgot about the disqualification. Although the conviction and disqualification occurred some six to seven years previously, a two year period of disqualification after this time is not something a person would forget or consider as being irrelevant.

73 In respect of the most recent PCA offence, Mr Abawi was well above the legal limit of 0.02gms of alcohol per 100ml of blood while driving his taxi. That is, his blood alcohol level was such that it brought him into the next range of the PCA offences. It has already been noted that Mr Abawi initially denied that he had been drinking that evening, which was clearly false. It is the responsibility of Mr Abawi to ensure that he does not drive a taxi if his blood alcohol levels exceed the limit as prescribed under the RT(STM) Act. In the opinion of the Tribunal, Mr Abawi’s PCA charge cannot be viewed as a simple “miscalculation by him as to his sobriety”. The fact is that he was well beyond the legal limit for a taxi driver as his alcohol level had reached the next category of PCA offence.

74 In the Tribunal’s opinion the fact that Mr Abawi had passengers in the taxi at the relevant time, together with his failure to report the incident to the Director-General, as he was required to do, increases the seriousness of this particular conduct.

75 In respect of the allegation of falsifying the American Express credit card voucher of Ms Rex, the Tribunal has found that Mr Abawi was not a reliable witness in this regard. Again it his responsibility to ensure that the details, which he inserts on an incomplete credit card voucher is correct. Members of the public expect to be able to trust an authorised taxi driver to do so. Mr Abawi has failed to do so and his explanation of why he failed to do so demonstrates his inability to meet his responsibilities as a taxi driver. Even if it was accepted, which it is not, that Mr Abawi mixed up the credit card voucher of Ms Rex with that of another passenger that day to Parramatta, when he was reconciling his vouchers some days later, this is not conduct consistent with those of a responsible taxi driver, who would complete the details at the time the fare was completed.

76 In respect of the previous complaints made against Mr Abawi, the Tribunal, for the reasons stated above has only had regard to complaint number 1, 3 and 4. In respect of complaint number 3 there is some evidence that the meter in the taxi Mr Abawi was driving was faulty and for this reason the Tribunal is of the opinion that the complaint should be disregarded.

77 Complaint number 4 is the most serious in that Mr Abawi readily admits that he failed to turn on the meter as he was required to do. His explanation is that he forgot to turn it on. This the Tribunal finds difficult to accept as Mr Abawi had been driving for 10 years at that time. The turning on of the meter one would imagine would be automatic after that time. The essence of the complaint is overcharging and it is not for Mr Abawi to guess what that fare is, when he fails to turn on the meter.

78 When these complaints are taken into consideration with the other inappropriate or unlawful conduct engaged in by Mr Abawi, in the opinion of the Tribunal, it demonstrates his inability to meet his responsibilities as taxi driver. Not only does he not accept those responsibilities, when challenged he is evasive and puts forward excuses that are unsupportable. That is, the evidence before the Tribunal demonstrates that he is a person who cannot be fully trusted in his capacity as an authorised taxi driver or taxi operator.

79 Accordingly, on the material before the Tribunal, and in applying the test in Maythisathit, the Tribunal finds that in this case a member of the public who might travel in a taxi driven by the Mr Abawi, would object to Mr Abawi as a driver of a taxi knowing of his inappropriate and unlawful conduct. The Tribunal makes a similar finding in respect of Mr Abawi’s capacity as a taxi operator.

80 For the reasons stated above the Tribunal finds that the decision of the Director General is the correct and preferred decision and orders:

(a) the decision of the Director General to cancel Mr Abawi’s taxi driver authority is affirmed; and
(b) the decision of the Director General to cancel Mr Abawi’s taxi operator accreditation is affirmed.