Abdou -v- Director General, Department of Transport

[1999] NSWADT 98

CITATION:	Abdou -v- Director General, Department of Transport [1999] NSWADT 98
DIVISION:	General
APPLICANT:	Tayee Mohamed Abdou
RESPONDENT:	Director General, Department of Transport
FILE NUMBER:	993138
HEARING DATES:	09/15/1999
SUBMISSIONS CLOSED:	09/15/1999
DATE OF DECISION:	20 October 1999
BEFORE:	K Wilson - Judicial Member
PRIMARY LEGISLATION:	Passenger Transport Act 1990
APPLICATION:	Review of decision to refuse to issue taxi-cab authority -
MATTER FOR DECISION:	Principal matter
REPRESENTATION:	Applicant: J Hadley of counsel instructed by D Weston, E Fredericks & Co Respondent: A Wozniak. Smythe & Mallam
ORDERS:	1. The Respondent's decision not to grant the Applicant a taxi authority is affirmed.

History of Application

1 On 29 June 1999 the applicant, Mr Abdou applied to the Tribunal for a review of the respondent’s decision not to issue him an authority to drive a taxi.

2 The applicant applied for an internal review of this decision and on the 18 June 1999 was advised that the decision would stand on the basis that the applicant had not provided any relevant information which would convince the Department to re-issue the taxi authority and that the main reason for the previous cancellation was the applicant’s conviction on a charge of assault with act of indecency.

3 The substantive issue which lies behind the actions of the Department relate to this conviction. The applicant was found guilty of the charge mentioned above following an incident that occurred on 10 April 1997 when he was driving a female passenger home from South Sydney Leagues Club. The result of his conviction is that he was placed on a two year bond which has now expired.

4 The allegation involved in the criminal conviction which was subsequently accepted as proved by the Magistrate was that the applicant had begun making suggestions to the female passenger that they might engage in sexual conduct and had placed his hand on the leg and breast of the passenger. It seems that the applicant both in his evidence before the Magistrate and in his statement of evidence to this Tribunal has difficulty in accepting that he was responsible for an act as described and seems to want to pass a substantial amount of the responsibility to the female passenger.

5 The applicant gave evidence before the Tribunal of his desire to return to taxi driving. In effect his evidence was that he felt that he knew how to accept responsibility that was implicit in driving a taxi and that he was aware of the high standards that are required. He said that the effect of the conviction is that it turned his life upside down and that even now people close to him look at him suspiciously because of the conviction.

6 The applicant gave evidence that he had been driving a taxi for some twelve months and as it turns out the basis of this was that he leased the taxi from an associate and he then ran the taxi business.

7 Mr Abdou presented a number of written character references and called two persons to provide evidence in support of his character. The first was Mohamed Ashik who gave evidence that he considered the applicant to be an appropriate person to drive taxis. He said he gave this evidence on the basis of knowing that there charges against Mr Abdou. In cross examination he was asked what explanation Mr Abdou had given him of the circumstances and it was clear from his evidence that he had not been given the detail of the matters found against Mr Abdou. The Tribunal placed little reliance of Mr Ashik’s reference.

8 The second reference came from Mr Hahib Benrachid. Mr Benrachid gave evidence that he had been a taxi manager for nine years and had known the applicant for some three years. He had only known him in the course of the taxi business and he said that he had given the reference on the basis of Mr Abdou’s explanation of the affair. He did know that Mr Abdou had been convicted. When the circumstances were put to Mr Benrachid about the applicant’s actions in suggesting sexual contact and placing his hand on the leg of a female passenger which was attested to by Mr Abdou in the Magistrates Court, Mr Benrachid said he would find such behaviour unacceptable and not such that one could accept from a person seeking a taxi authority.

9 It is clear that this second character witness would not support the actions of the applicant and came forward to given character evidence in a misguided view that such evidence would be helpful to the applicant.

Issues and Legislation

10 The Passenger Transport Act 1990 (NSW) gives the Director General power to cancel a licence and such action was taken against the applicant. He subsequently applied for another licence which was refused on the basis that he was not a person of good repute and not fit and proper to be the driver of a public passenger vehicle.

11 The issue in this matter is the effect of the conviction by the local court of Mr Abdou for an offence of indecent assault which was one that took inside a taxi that he was controlling. The conviction was entered after a contested hearing and Mr Abdou is stuck with the findings which were made against him. There was no appeal.

12 Mr Abdou seems to have a sense of grievance and a sense of non-acceptance that this behaviour has in fact involved in a conviction for an offence of a sexual kind.

13 The Tribunal considers it quite clear that persons who engage in such actions inside a taxi cab cannot expect to satisfy the very clear character requirements for persons holding taxi authorities.

14 There may be some cases where people express contrition and demonstrate evidence of their remorse and the steps they have taken to address changes in their lives from circumstances that have affected them in the past and in such cases on their particular facts, the Tribunal may come to a decision that despite an activity of the type mentioned, it may be appropriate to consider that the person involved at some later time meets the character requirements. This is not the case in this matter. The applicant still seems to be in some sort of denial about his responsibility for these actions and seems intent on not being prepared to accept full responsibility and then address what is required to change the balance in his favour. The character references that he brought were not helpful.

15 The Tribunal has considered the approach of the Deputy President in the matter of Haideri and the Director General, Department of Transport. A decision made on 13 August 1999 and is in agreement with the Tribunal’s approach in that matter. In particular, the Tribunal concurs that the sentiments set out in paragraph 24 of that Decision where the previous Tribunal indicated that where an applicant’s conduct constitutes a serious case of sexual harassment the public would be justifiably outraged if they knew a taxi was being driven by a person found to have behaved in such a manner. In that case the sexual harassment consisted only of verbal indications of sexual activities that the driver desired to engage in. The more so in this case where the actions went past the verbal and to the physical and resulted in a criminal conviction.

16 I am satisfied that the respondent has made the correct and preferable decision in refusing to grant the applicant an authority. Accordingly, pursuant to s.63 of the Administrative Decisions Tribunal Act I order that the respondent’s decision not to grant the applicant a taxi authority is affirmed.