Alam v Ministry of Transport
[2011] NSWADT 136
•08 June 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Alam v Ministry of Transport [2011] NSWADT 136 Hearing dates: 15 December 2010 Decision date: 08 June 2011 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: The decisions under review are affirmed.
Catchwords: Review of decision to cancel authority to drive a hire car, an Operator Accreditation and Private Hire Car Vehicle Licence Legislation Cited: Administrative Decisions Tribunal Act 1997
Passenger Transport Act 1990Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; 94 ALR 11; 64 ALJR 462; 21 ALD 1.
Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16
Farquharson v Director General, Department of Transport [1999] NSWADT 53
Kumar v Ministry of Transport [2009] NSWADT 114
R v Fletcher [2005] NSWCCA 338Category: Principal judgment Parties: Muhammad Mahmud Alam (Applicant)
Ministry of Transport (Respondent)Representation: S Phillips (Applicant)
A Wozniak (Respondent)
File Number(s): 093146; 093147; 093157
REASONS
There are three separate matters brought by Mr Muhammad Alam for determination by the Tribunal. Mr Alam seeks review of a determination by a delegate of the Director-General of the Ministry of Transport to cancel his Hire Car Accreditation to operate a public passenger vehicle (Hire Car) ("the Accreditation"); a determination by a delegate of the Director-General of the Ministry of Transport to cancel his Licence to operate private hire car ("the Licence"); and a determination by a delegate of the Director-General of the Ministry of Transport to cancel his Hire Car Driver Authority to drive a public passenger vehicle (Hire Car) ("the Authority").
The matters were heard together and this decision is in relation to the three matters. In these reasons I will refer to the Accreditation, Authority and Licence as "Mr Alam's credentials".
Background
Mr Alam has held a number of credentials under the Passenger Transport Act 1990 ("the Act"). Mr Alam has held hire car accreditation since July 2008 and a Hire Car Driver Authority since August 2005. He was operating vehicle registration HC 375 attached to licence 103922 until the cancellation of the licence in June 2009.
In May 2009, a Notice to Show Cause was issued to Mr Alam regarding both his Accreditation and Driver Authority. The Notice was prompted by the fact that as he was issued four infringements in a short period of time of which three of the offences were inside the Sydney Airport precinct. The Respondent asserted that the offences cast grave doubts on Mr Alam's fitness to operate a private hire car service and his ability to carry out the duties and responsibilities of the position according to law and custom.
Mr Alam provided a detailed response to the Notice to Show Cause however the Respondent determined to cancel Mr Alam's credentials.
Mr Alam applied to the Tribunal for external review of the determinations.
The relevant background in relation to the infringements was set out in the Statement of Reasons provided by the delegate in relation to each of the determinations as follows:
HISTORY
10/08/2008
At approximately 8.00 pm whilst being the operator/driver of hire car vehicle bearing registration HC375, you were observed by an authorised officer of the Ministry of Transport standing outside the Arrivals area at Virgin Terminal, Mascot. You were asked to produce your driver authority to the officer however you were unable to produce your driver authority.
You were issued a warning letter for the offence of Driver not provide driver authority card for inspection. (Sydney Airport Precinct).
12/12/2008
At approximately 1.05 am whilst being the operator/driver of hire car bearing registration HC375, you were observed by authorised officers stopping your hire car on the taxi rank at Alfred Street, Circular Quay. When questioned by the officers you indicated that hire cars are able to use taxi ranks.
You were issued a warning letter for the offence of Stopping in taxi zone.
13/12/2008
At approximately 1.05 am whilst being the operator/driver of hire car bearing registration HC375, you were observed by authorised officers stopping your hire car on the taxi rank at Bayswater Road, Kings Cross. When questioned by the officers you indicated that hire cars are able to use taxi ranks.
You were issued an infringement notice for $135 for the offence of Stopping in taxi zone.
04/01/2009
At approximately 3.15 pm whilst being the operator/driver of hire car bearing registration HC375, you were observed by an authorised officer from of the Ministry of Transport standing near hire car HC375 outside Qantas Terminal, Mascot for a period of ten minutes. The officer observed you then enter the hire car and attempt to drive off. You were stopped by the officer and spoken to. You supplied the officer with flight details and the name of a passenger named Brendan on flight QF536. The flight board showed no such flight. You then supplied details for a passenger named James on Virgin Flight DJ388. Flight details supplied by you established that this passenger was not due to arrive until I 1 January 2009.
You were issued an infringement notice for $750 for the offence of Driver of private hire vehicle ply/stand/park vehicle for hire on road.
30/04/2009
At approximately 8.38 pm whilst being the operator/driver of hire car bearing registration HC375, you were observed by an authorised officer from the Ministry of Transport standing outside the Arrivals area at the International Terminal, Mascot. You were observed by the officer approach two separate male persons and said, "Would you like a taxi". You were spoken by the officer and initially denied that you had approached the passengers. You returned to hire car HC375 and said to the officer, "Please, I have a wife and family to feed".
You were issued an infringement notice for $5,000 for the offence of Tout or Solicit for passengers (Sydney Airport Precinct)
02/05/2009
At approximately 7.20 am whilst being the operator/driver of hire car bearing registration HC375, you were observed by an authorised officer at the International Terminal, Mascot. The officer observed you move from your vehicle and enter the terminal. The officer observed you a short time later exiting the terminal and return to your vehicle. You were spoken to by the officer and advised to remain with your vehicle.
You were issued an infringement notice for $1,000 for the offence Driver of private hire vehicle move more than 3 metres from vehicle (Sydney Airport Precinct).
On 26 May 2009 the Respondent issued Mr Alam with a Notice to Show Cause in regard to his Accreditation and his Authority. The Respondent received Mr Alam's response on 26 May 2009 and on 2 June 2009 the decision was taken to cancel Mr Alam's Accreditation and his Authority. On 9 June 2009 the Respondent determined to cancel Mr Alam's Licence.
On 29 April 2010 the charge relating to the offence of Tout or Solicit for passengers were dismissed by the Parramatta Local Court. The charge relating to standing further than metres from vehicle was withdrawn.
On 14 August 2010 Mr Alam was charged relating to the offence of Tout or Solicit for passengers. Mr Alam defended that matter and it was determined by the Parramatta Local Court on 24 May 2011. Mr Alam was convicted of the offence of soliciting for passengers at Sydney airport on 14 August 2010. He was fined $1,200 and ordered to pay $79 and professional costs of $1,887. Details of the 24 May 2011 determination were provided to the Tribunal by consent but it was not the subject of further submissions.
Applicable Law
Part 4A of the Act provides for accreditation of private hire vehicle operators, authorisation of private hire vehicle drivers and licensing of private hire vehicles.
Section 38 of the Act provides that:
38 Accreditation
(1) The Director-General may accredit persons for the purpose of carrying on private hire vehicle services, subject to and in accordance with this Division. A person accredited under this Division is referred to in this Part as an "accredited private hire vehicle operator".
(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 private hire vehicle 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. ...
Section 38E of the Act provides that:
38E Variation, suspension or cancellation of accreditation
(1) Having regard to the purpose of accreditation under this Division, the Director-General may at any time vary, suspend or cancel any person's accreditation under this Division.
(2) The accreditation of a corporation is automatically cancelled when there is no designated director or manager.
Section 39 of the Act provides that:
39 Licence
(1) The Director-General may license motor vehicles as private hire vehicles, subject to and in accordance with this Division.
...
Section 39F of the Act provides that:
39F Conditions of licence
(1) A licence is subject to:
(a) the conditions prescribed by the regulations, and
(b) such additional conditions as the Director-General may impose on the licence.
(2) Conditions imposed by the Director-General may be varied (whether by amendment, addition, revocation or suspension of one or more conditions) by the Director-General from time to time by notice served on the licensee.
(3) A licensee who contravenes a condition of the licence is guilty of an offence. ...
Section 39G of the Act provides that:
39G Variation, suspension or cancellation of licence
(1) The Director-General may at any time vary, suspend or cancel any licence if:
(a) owing to the default of the licensee, or the agents or employees of the licensee:
(i) the provisions of this Act or the regulations, or
(ii) the terms and conditions of the licence,
have not been or are not being complied with, or
...
Section 40 of the Act provides that:
40 Authorities
(1) The Director-General may, by the issue of authorities under this Division, authorise persons to drive private hire vehicles, subject to and in accordance with this Division.
...
(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 private hire vehicle, and
(b) that the authorised person is considered to have sufficient responsibility and aptitude to drive a private hire vehicle:
(i) in accordance with the conditions under which the private hire vehicle service concerned is operated, and
(ii) in accordance with law and custom.
...
Section 40E of the Act provides that:
40E Variation, suspension or cancellation of authority
Having regard to the purpose of authorisation under this Division, the Director-General may at any time vary, suspend or cancel any person's authority under this Division
The Respondent's Case
The Respondent's case is essentially as set out in the statement of reasons provided to Mr Alam along with each of the notices of cancellation. The reasons provided in relation to the Authority stated:
To be of "good repute and in all other aspects a fit and proper person" to drive a public passenger vehicle the community must have confidence that the driver would behave appropriately at all times, when driving a public passenger vehicle.
Furthermore, the authorised person is considered to have sufficient responsibility and aptitude to drive a private hire vehicle. The fact that you were issued four infringements in a short period of time of which three of the offences were inside the Sydney Airport precinct, casts grave doubts on your fitness to operate a private hire car service and your ability to carry out the duties and responsibilities of the position according to law and custom.
You were issued a Notice to Show Cause on the 6 May 2009 relating to your hire car driver authority, where you were afforded the opportunity to respond and supply further documentation regarding the infringement and warning letter history
The Ministry received a response to the Notice to Show Cause on the 26 May 2009. The response did not satisfactorily address the journey issues mentioned in the show cause letter.
Your detailed responses were comprehensive however it was viewed that the original decision to cancel your authority is the correct one. You have provided information which directly conflicts with the facts provided by the Ministry of Transport.
Based on the above facts and law it can no longer be attested that you are considered to meet the required standards for authorisation as a hire car driver.
The reasons provided in relation to the Accreditation stated:
To be of "good repute and in all other aspects a fit and proper person" to operate a public passenger vehicle the community must have confidence that the operator would behave appropriately at all times, when operating a public passenger vehicle.
Furthermore, the authorised person is considered to have sufficient responsibility and aptitude to operate a private hire vehicle. The fact that you were issued four infringements and two warning letters in a short period of time of which three of the infringements were inside the Sydney Airport precinct, casts grave doubts on your fitness to operate a private hire car service and your ability to carry out the duties and responsibilities of the position according to law and custom.
You were issued a Notice to Show Cause on the 6 May 2009 relating to your hire car accreditation, where you were afforded the opportunity to respond and supply further documentation regarding the infringement and warning letter history
The Ministry received a response to the Notice to Show Cause on the 26 May 2009. The response did not satisfactorily address the journey issues mentioned in the show cause letter.
Your detailed responses were comprehensive however it was viewed that the original decision to cancel your authority is the correct one. You have provided information which directly conflicts with the facts provided by the Ministry of Transport.
Based on the above facts and law it can no longer be attested that you are considered to meet the required standards for accreditation as a hire car operator.
The reasons provided in relation to the Licence stated:
The fact that you have been detected operating license 103922 in contravention of the licence conditions on several occasions in a short period of time for offences of the same nature, casts grave doubts on your fitness to hold a private hire car license and your ability to carry out the responsibilities attached to the said license.
The fact that you were issued four infringement notices and two warning letters in a short period of time of which three of the infringements were inside the Sydney Airport precinct, casts grave doubts on your fitness to operate a private hire car service and your ability to carry out the duties and responsibilities of the position according to law and custom.
Based on the above facts the licence may be cancelled or suspended at any time if any of the licence conditions are not complied with or if the licence is operated in a way that results in the contravention of any provisions of the Passenger Transport Act , 1990 or any Regulation made under the Act.
The Respondent also relies on the evidence of a number of departmental officers who gave evidence in relation to the various incidents that were the subject of the penalty notices. Statements were provided by Tony Mansour, Scott Watson, Paul Adams, Charlie RosieIlo and Adam Bale. Mr Mansour, Mr Bale and Mr Adams attended and gave evidence at the hearing. They gave evidence and were cross-examined in relation to their observations of Mr Alam at Sydney Airport on 2 May 2009. Mr Mansour and Mr Adams gave evidence of their observations that lead to the charge of touting at Sydney Airport on 14 August 2010.
The Respondent also relies on the departmental files lodged pursuant to section 58 of the Administrative Decisions Tribunal Act 1997. Documents relating the infringement notices referred to above are contained on those files.
Mr Wozniak submitted that Mr Alam has a pattern of being at the airport without reasonable explanation for being there and a reasonable inference can be drawn that he was soliciting for passengers.
He conceded that some matters had been dismissed by the Local Court however he submitted that unproven conduct in criminal cases can be relevant to show a pattern of conduct: R v Fletcher [2005] NSWCCA 338.
Mr Wozniak further submitted that Mr Alam has not provided evidence in regard to his reputation. The evidence provided by Naresh Patel is merely explanation.
In regard to Mr Alam's licence Mr Wozniak submitted that section 39G of the Act provides that the Respondent can cancel a licence for non-compliance with the Act. Mr Wozniak submitted that fitness and propriety are issues for consideration in relation to determining whether the delegate has made the correct and preferable decision regarding the driver authority and accreditation. However, fitness and propriety are not relevant to the licence determination. In support of that submissions Mr Wozniak referred to the decision of Judicial Member Hanley in Kumar v Ministry of Transport [2009] NSWADT 114 and in particular to paragraph [36] where the Judicial Member stated:
36 As Mr Wozniak has pointed out, neither Mr Kumar's financial circumstances, nor whether Mr Kumar is a fit and proper person to hold a private hire car licence are relevant considerations. ... In Mr Kumar's case, it is a question of whether Mr Kumar breached the conditions of his licence. ...
Mr Wozniak submitted that the relevant test in relation to the hire car licence is that set out in section 39G of the Act. He says that the evidence shows that Mr Alam breached the conditions of his licence and that his licence should be cancelled.
He further submits that as an accredited operator Mr Alam is meant to be aware of the applicable regulations and that he is not aware of those regulations. He submitted that Mr Alam is not a fit and proper person to hold a private hire car driver authority or an accreditation. Accordingly, he submitted, the decisions under review should be affirmed.
Mr Alam's Case
Mr Alam relies on his own evidence. He relies on the material that he provided to the Respondent in relation to the Notice to Show Cause and explanations that he provided in relation to the penalty notices. Mr Alam disputed the version of events provided by the Respondent's witnesses and denied that he had committed any of the alleged offences.
Mr Alam gave evidence before the Tribunal and was cross-examined. He also relies on a number of references that were provided in support of his application. In particular he relies on the affidavit of Naresh Patel sworn 13 December 2010 that addresses the charge of touting at Sydney Airport on 14 August 2010 and references from Dr George Dracos, Mohammad Khan and Dr Michael Kefaloukos.
Ms Phillips conceded that Mr Alam has come to the attention of the Respondent on a number of occasions but submitted that some were a result of his misunderstanding the distinction between the regulations applicable to taxis and those applicable to hire cars.
Ms Phillips submitted that reliance should not be placed on the charges that have been withdrawn or dismissed. With respect to each of the alleged offences at Sydney Airport, she submitted that Mr Alam has provided a plausible explanation for his conduct. The Local Court accepted that he was at the airport for a reason and has dismissed the charges. It also dismissed the charge in relation to moving more than 3 metres from his vehicle on the basis that he had a reasonable explanation for moving from the vehicle.
She further submitted that a plausible explanation has been provided in regard to the incident on 14 August 2010.
She submitted that in the circumstances the decisions should be set aside.
Discussion
As has been noted above, there are three separate components to this matter. Mr Alam's fitness and propriety is relevant to the matter insofar as it relates to his authority to drive a hire car and his operator accreditation.
The meaning of the expression "fit and proper person" was the subject of consideration by the High Court in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; 94 ALR 11; 64 ALJR 462; 21 ALD 1. The Tribunal was required to refuse a licence if it was not satisfied that the applicant or the holder of a licence was a "fit and proper person". Toohey and Gaudron JJ stated (at 380) that:
The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. (our emphasis)
In the same case, Mason CJ stated at [63] that:
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 fitness and propriety are under consideration. (our emphasis)
In Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16 the Appeal Panel stated at paragraph [20]:
20 When deciding whether a person is a 'fit and proper person', the question of whether the community would have confidence that any improper conduct will not re-occur is relevant: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; 94 ALR 11. Otherwise, the determination of fitness and propriety is a question of fact for the decision maker to determine objectively on the basis of the all evidence. That question is not to be determined through the eyes of a reasonable member of the travelling public. Nor is it correct, as was suggested in [ Farquharson v Department of Transport [1999] NSWADT 53] , to take account of the likely perceptions of the travelling public as one of the relevant factors in deciding whether an applicant is a fit and proper person. ...
The meaning of "good repute" has been canvassed in several cases. Waddell J in Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 393 said that:
"A person's reputation, in fact and in law, is to be found in the estimate of his moral character entertained by some specific group of people, such as 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. ... Evidence of conviction for a criminal offence is, however, admissible as evidence, indeed, most cogent evidence of bad reputation".
Mr Alam relies on testimonials that suggest that the author considers him to be a person of good repute. None of the testimonials make specific reference to the allegations that relate to the matter that is before the Tribunal and therefore they are of limited assistance in determining the matter. I have nevertheless considered the testimonials and it seems to me that Mr Alam is well regarded by the people who have provided them.
The testimonials are of limited value in regard to determining the question of whether he his a fit and proper person to be the holder of these credentials.
Of more relevance is Mr Alam's history of offences, warning letters, suspensions offences and other penalties that have led us here. I agree with the Respondent's view that this history casts grave doubts on Mr Alam's ability to carry out the duties and responsibilities of the position according to law and custom.
While I accept that several charges brought against Mr Alam were either withdrawn or dismissed, I note the views expressed by the Tribunal's President in Farquharson v Director General, Department of Transport [1999] NSWADT 53 where he stated at paragraphs [28] - [29]:
"28 Even an acquittal may leave unresolved in an administrator's mind questions as to the reputation and integrity of a licensed individual. In a recent case involving the question of disclosure in the context of an application for admission to the legal profession, where the applicant had after receiving professional advice not disclosed a serious criminal charge of which he had been acquitted, the Supreme Court of the Australian Capital Territory (Miles CJ, Gallop and Madgwick JJ) observed:
"It is true that the bare facts that a person has been tried for a charge, even a very serious one, and acquitted do not logically tend to the detriment of the person's character nor of his or her fame. But experience shows that matters are often otherwise. The acquittal may be entirely upon unmeritorious grounds or it may occur in circumstances which nevertheless reveal untoward collateral behaviour on the part of the accused."
(Re del Castillo, [1998] ACTSC 131, 11 December 1998 at [28])
29 The administrator in this case was entitled, I consider, to have regard to the serious charges laid against the applicant. They may be properly regarded as affecting his "good repute" even though judgment may need to be reserved as to whether any negative conclusion should be formed about fitness and character, pending evidence at committal and trial, and the verdict."
In my view, the history outlined above supports the Respondent's submission that Mr Alam lacks understanding of the regulations that apply to the various roles he plays in the industry. I maintain this view notwithstanding the dismissal of some of the charges brought against him.
I have noted the fact that Mr Alam has recently been convicted of the offence of soliciting for passengers at Sydney airport on 14 August 2010. Mr Alam disputed all the allegations brought against him and showed no indication of any intention to change the approach that he has taken to working in the hire car industry. In my view, a period of non-offending is necessary before I could be satisfied that he is unlikely to re-offend.
When the material that is presented in favour of Mr Alam is balanced against that presented against him, it is very clear to me that Mr Alam is not aware of what is required of him as the holder of these credentials. He lacks an understanding of his obligations, and for that reason he cannot be said to be fit and proper for the particular role that is authorised by those credentials. In my view, for the reasons put forward by the Respondent, Mr Alam is not a fit and proper person to hold either the driver authority or the accreditation.
On the basis of the material before me, it is my view that the correct and preferable decision is to affirm the decision to cancel Mr Alam's driver authority and his accreditation.
I agree with the submission that the question of Mr Alam's fitness and propriety is not a factor for consideration in regard to the decision to cancel his licence. Section 39(g)(1) of the Act provides that the Director-General may cancel a licence if there has been non-compliance with the provisions of the Act, the Regulations, or the terms and conditions of the licence.
The evidence that has been presented to me satisfy me that that provision has been breached. The evidence that has been given by Mr Alam suggests to me that it is likely that the same approach will be taken if he is allowed to continue with the licence in the immediate future.
That being the case, I agree that the correct and preferable decision is to cancel the licence as well. Accordingly, the decision should be affirmed.
Order
The decisions under review are affirmed.
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Decision last updated: 08 June 2011
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