Abouhassoun v Director General, Department of Transport (GD)

[2002] NSWADTAP 12

Appeal Panel

CITATION:	Abouhassoun -v- Director General, Department of Transport (GD) [2002] NSWADTAP 12
PARTIES:	APPELLANT Ramzi Abouhassoun RESPONDENT Director General, Department of Transport
FILE NUMBER:	019055
HEARING DATES:	11/02/2002
SUBMISSIONS CLOSED:	02/11/2002
DATE OF DECISION:	02/11/2002
DECISION UNDER APPEAL:	Abouhassoun -v- Director General, Department of Transport [2001] NSWADT 193
BEFORE:	O'Connor K - DCJ (President); Lees M - Judicial Member; Bolt M - Member
CATCHWORDS:
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	013123
DATE OF DECISION UNDER APPEAL:	11/20/2001
LEGISLATION CITED:	Passenger Transport Act 1990
CASES CITED:	Abouhassoun -v- Director General, Department of Transport [2001] NSWADT 193 Woodside and anor v Director General, Department of Community Services (CSD) [2000] NSWADTAP 8 Director General, Department of Transport -v- Rasheed (GD) [2000] NSWADTAP 16
REPRESENTATION:	APPELLANT In person RESPONDENT A Wozniak, solicitor
ORDERS:	Appeal dismissed.

1 Mr Abouhassoun is appealing a decision made 20 November 2001 following a hearing on 25 July 2001. That decision rejected his application seeking review of a decision of the respondent to the appeal to cancel his taxi driver authority.

2 This appeal was filed 23 November 2001. Directions were made on 4 December 2001, the first direction being to Mr Abouhassoun to give particulars of the grounds of appeal. That did not occur. Accordingly, there is no material before the Appeal Panel other than the original notice of appeal and the short reply put in by the Department dated 25 January 2002.

3 The Department, in its original administrative decision which was issued in April 2001, moved to cancel Mr Abouhassoun's taxi driver licence on three grounds: firstly, concerns over the nature of his driving records; secondly, concerns as to whether he conducted himself in a safe and courteous way and thirdly, concerns in relation to incivility to passengers. He sought review of that decision and the hearing occurred on 25 July, followed by a decision on 20 November 2001: Abouhassoun -v- Director General, Department of Transport [2001] NSWADT 193. In the decision the Tribunal (Hennessy DP) made five findings negative to Mr Abouhassoun:

1. The first was that he had made 900 phone calls to an escort agency over a period of a few weeks which the Tribunal found to be menacing and offensive and noted that that matter had also been the subject of criminal proceedings which, we understand today, gave rise to Mr Abouhassoun being placed on a bond.
2. The Tribunal also found that Mr Abouhassoun failed to advise the Department of his conviction.
3-5. The Tribunal then dealt with five complaints from passengers. The Tribunal found the first two not proven for the purpose of the present proceedings. Then, as to the remaining three complaints, the Tribunal found them proven.

4 The Tribunal concluded, having regard to the three complaints found proven and the earlier convictions for harassing and offensive phone calls, that the appellant was not a fit and proper person to drive a taxi.

5 Now, it is clear that there is no misunderstanding of the relevant law in the decision as it relates to what criteria are to be applied as to whether a person is a ‘fit and proper’ person and a person of ‘good repute’. As best we understand the point of law that Mr Abouhassoun seeks to make, it really goes to the question of what is sufficient proof for the purpose of proceeding in the Tribunal where an administrative decision is being reviewed.

6 What is the standard of proof sufficient to satisfy the Tribunal that the administrator's basis for making the administrative decision is established? In his notice of appeal, Mr Abouhassoun says: ‘the Court relies on claims by the Department of Transport without any evidence, especially with the complaints from passengers’ and then he says: ‘during the hearing I asked the Judge to call the people who complained about me and question them because these complaints are false and now I have proof about these ..... witness.’

7 Now, the fact that he had some countervailing fresh evidence was mentioned by Mr Abouhassoun at the directions hearing on 4 December but no further action has been taken by him since in relation to that matter. Nevertheless, Mr Abouhassoun raises the point in his hand-written statement of his grievance and again, in his submissions today, as to what is the standard of proof that is required in proceedings in the Tribunal.

8 Now, that does raise a question of law. We have not had the benefit of any detailed references to case-law from Mr Abouhassoun (which is not surprising); but, nevertheless, we felt that we should seek to explain in these oral reasons what we understand to be acceptable by way of proof of matters before the Tribunal hearing an application for review.

9 It is the case that the only oral evidence that was given at the proceedings before Deputy President Hennessy was that of Mr Abouhassoun. It is open to the Tribunal to reach a conclusion as to what is the correct and preferable decision on the part of the administrator simply by having regard to the documentary material that is put before the Tribunal. In this case, the Tribunal made its decision relying substantially on the documentary records that the Department put forward. It did also hear from Mr Abouhassoun in relation to the administrative records disclosed but, clearly, at the end of the day, it still regarded those administrative records as more reliable at least as to three of the five complaints.

10 In the case of two of the complaints, it took the view that there was not sufficient material before it, having regard to what Mr Abouhassoun said to it in evidence, for it to reach any conclusions on the balance of probabilities. Clearly, the Department (this Department or any other Department) runs the risk that where it relies entirely on a documentary record and then the person that it is actually put against (in this instance, the taxi driver) comes along and gives an oral account that is different to the documentary record, that oral account may be preferred; or it may raise sufficient doubts in the mind of the Tribunal that it is no longer able to satisfy itself on the balance of probabilities that the administrative records are reliable.

11 Now, as we have interpreted the decision, that is the approach that the Tribunal took and it led to it not accepting the first and second complaints.

12 The fundamental principle of the law, as we understand it, when applied to the receipt of evidence by a Tribunal not bound strictly by the rules of evidence, is that it must nevertheless, rely on logically probative evidence: see generally Woodside and anor v Director General, Department of Community Services (CSD) [2000] NSWADTAP 8, [43]-[52]. That evidence can, as we have indicated earlier, clearly include documentary records such as statements from people who have made complaints about a licensed person; transcripts of evidence that may have been given in other proceedings such as criminal proceedings; and it may be appropriate then to draw conclusions from patterns of complaint as well.

13 In this case, as we interpret the Tribunal’s decision, it was satisfied that there were sufficient contemporary records that were compiled in or about the time of the third, fourth and fifth complaints, to leave it satisfied on the balance of probabilities that the misconduct that was alleged against Mr Abouhassoun did occur. The Deputy President noted that the contemporaneous material was detailed and that Mr Abouhassoun’s statements, at least in one of the cases, were themselves inconsistent. The Deputy President also had evidence before her, which connected Mr Abouhassoun with two of those three complaints.

14 We note that the decision did not look closely at Mr Abouhassoun’s driving record. We simply note that that was another ground upon which the Department relied but in the decision, it is clear that the Tribunal mainly focused on the "harassing and offensive phone calls" and the five passenger complaints. In our view, the appropriate guiding principle was adopted by the Tribunal, that is to have regard to logically probative evidence. Therefore, there was no error of law in the approach that was taken; though it may leave Mr Abouhassoun with some discontent in that he presented himself here and gave his story and these other people have not come to the hearing. In our view, it is not essential that that occur.

15 The Department, I think, is well aware that it runs a risk when it does not run its case on the basis of not producing the people on whose statements it relies. It is open to the Department and, more importantly, the Tribunal to have regard to evidence that is found in professionally obtained statements such as the statements obtained by the Police and the Department and look to the detail that is in those statements, compare the statements, one with the other, and look at what was said in reply. In our view there is no error of law revealed and the injunctions that Mr Wozniak drew our attention to in Rasheed's case (Director General, Department of Transport -v- Rasheed (GD) [2000] NSWADTAP 16) are important ones.

16 The Appeal Panel should not lightly engage in a process that might lead to the reopening of findings in fact; and in this instance, we are satisfied that the principles that are relevant to the making of findings of fact were observed by the Tribunal.

17 Accordingly, the appeal is dismissed.