Alghunmeen v Department of Transport and Infrastructure

[2009] NSWADT 328

CITATION:	Alghunmeen v Department of Transport and Infrastructure [2009] NSWADT 328
DIVISION:	General Division
PARTIES:	APPLICANT Mohammed Alghunmeen RESPONDENT Department of Transport and Infrastructure (formerly Ministry of Transport)
FILE NUMBER:	093201
HEARING DATES:	27 August 2009
SUBMISSIONS CLOSED:	27 August 2009
EXTEMPORE DECISION DATE:	27 August 2009
BEFORE:	Grant Y - Judicial Member
CATCHWORDS:	Passenger Transport Act – private hire vehicle – cancellation of authority
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990 Passenger Transport Regulations 2007
CASES CITED:	Lamb v Ministry of Transport [2005] NSWADT 82 Akram Mikhail v Ministry of Transport, Ex tempore Decision of Judicial Member Handley, 28 October 2005
REPRESENTATION:	APPLICANT In person RESPONDENT A Wozniak, solicitor
ORDERS:	The Decision under review is affirmed

1 The Applicant held an authority to drive a Private Hire Vehicle under the Passenger Transport Act 1990 (“the Act”).

2 On 6 June 2007, Mr Alghunmeen was convicted by the local court at Gosford of speeding more than 30km/hour over the limit. His driver’s license was cancelled and he was disqualified from driving for three months. On the 23 July 2007, Mr Alghunmeen was observed driving a private hire vehicle during the period of disqualification. He was charged for this offence and on 8 May 2008, the Local Court convicted Mr Alghunmeen and disqualified him from driving for a period of 12 months from that date. Mr Alghunmeen did not report the outcome of either court hearing to the Ministry of Transport as required by the relevant legislation.

3 By Notice of Decision a delegate of the Director General of the Department of Transport and Infrastructure (“the Respondent”) advised the Applicant that the Respondent had determined to cancel his Driver Authority.

4 The Applicant applied for an Internal Review of the decision to cancel his Private Driver Authority.

5 On 29 June 2009, a delegate of the Respondent affirmed the original decision to cancel the authority to drive a private hire vehicle. The Statement of Reasons included the following:

“Inherently, a public passenger vehicle driver must display an ability to drive in accordance with the laws of the road. Mr. Alghunmeen was disqualified for three months by the court and during that disqualification continued to drive a private hire vehicle. Mr. Alghunmeen’s explanation offered for this review seems to ignore the court hearing and states he did not know he was disqualified. I also note that Mr.Alghunmeen has not been licensed for nearly 2 years and will need to demonstrate a period of satisfactory driving behaviours before the ministry could be satisfied that he has rehabilitated his driving conduct.”

6 On 4 August 2009, the Applicant sought a stay of the Respondent’s decision to cancel his private hire vehicle licence. The ADT granted the stay until the date of today’s hearing.

7 On 6 June 2007, Gosford Local Court disqualified the Applicant for 3 months from 6 June 2007 until 6 September 2007, for exceeding the speed limit by more than 30kph but not more than 45kph whilst driving a motor vehicle. Mr Alghunmeen did not report the outcome of this court hearing to the Ministry of Transport as required by the relevant legislation.

8 On 10 September 2007, an Excess Speed Demerit Point resulted in a further disqualification from 10 September 2007 until 11 April 2008. Mr Alghunmeen did not report this outcome to the Ministry of Transport as required by the relevant legislation.

9 Although there were 3 days in between those two periods of disqualification, no licence was issued during that period, so that the period without a licence continued to run from 6 June 2007 through to 11 April 2008.

10 On the 23 July 2007, Mr Alghunmeen was observed driving a private hire vehicle during the period of disqualification. He was charged for this offence and on 8 May 2008, the Local Court convicted Mr Alghunmeen and disqualified him from driving for a period of 12 months from that date. On 8 May 2008, the Applicant was again disqualified for 12 months until 7 May 2009.

11 While the Applicant held no driver’s licence from 6 June 2007 until 7 May 2009, he did get his licence back on 8 May 2009.

12 This history of disqualification resulted, as a matter of fact, in the Applicant only holding a valid New South Wales driver’s licence for some 110 days; that is, since 8 May 2009 until the date of the hearing on 27 August 2009.

13 Division 5 of Part 4A of the Passenger Transport Act 1990(‘the Act’), makes provision for authorisation to drive private hire vehicles. The purpose of the authorisation is set out in s.40 of the Act:

“ 40 Authorities
…

…

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.

…”
3) Division 5 of Part 4A of the Passenger Transport Act 1990, makes provision for the grant or refusal of applications for authority to drive a private hire vehicle. The grounds for grant of refusal of such an application are set out in s.40B of the Act:
“ 40B Grant or refusal of application

(1) Having regard to the purpose of authorisation under this Division, the Director-General may grant an application and authorise the applicant to drive a private hire vehicle, or may refuse the application.

(2) Before an application is granted, the applicant must meet any criteria set forth in the regulations and must satisfy the Director-General as to any matter the Director-General considers relevant. …”

14 Division 5 of Part 4A of the Passenger Transport Act 1990, makes provision for the variation, suspension or cancellation of a licence to drive a private hire vehicle. The grounds for variation, suspension or cancellation of such a licence are set out in s.39G of the Act:

“ 39G Variation, suspension or cancellation of license

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 ....”

15 Clause 29 of the Passenger Transport Regulations 2007 sets out the criteria for authorisation to drive public passenger vehicles.

29 Criteria for authorisation to drive public passenger vehicles
(1) For the purposes of sections 12(2), 33B(2) and 40B(2) of the Act, the criteria that an applicant for an authorisation to drive a public passenger vehicle must meet before the application is granted are the criteria set out in subclauses (2)-(4).
(2) The applicant:
(a) must be at least 20 years of age, and
(b) must hold a driver’s licence that is not a learner licence, probationary licence, provisional licence, restricted licence, driver licence receipt or conditional licence (other than a conditional licence the sole condition of which is that the holder must wear corrective lenses at all times while driving), and
(c) must have held an Australian driver’s licence for a total of at least 12 months in the 2 years immediately preceding the date of the application, …”

16 The decision to cancel the Applicant’s authority was made under s.40E of the Act, which provides as follows:

“ 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

17 Mr Wozniak, for the Respondent, submitted that the application must fail, for the mandatory ground that the Applicant has not met the criteria set forth in the Passenger Transport Regulations 2007 (‘the Regulations’) and, in particular, clause 29(2)(c). That is to say it was the Respondent’s contention that as the Applicant had not held an Australian driver’s licence for a total of at least 12 months in the two years immediately preceding the date of the application, he did not meet the criteria for authorisation to drive a public passenger vehicle which, in this instance, was a private hire vehicle, subject to the provisions of s40B of the Act.

18 The Respondent raised a further issue, which had arisen in the consideration of clause 29 of the Regulations. The issue being whether clause 29 of the Regulations applied to new drivers only and did not include existing drivers. In this context, the Respondent drew the Tribunal’s attention to previous decisions of this Tribunal that had more specifically considered the issue of clause 29(2)(b), which requires the Applicant to demonstrate that he/she holds an unconditional driver’s licence, as a pre-condition for authorisation to drive a public passenger vehicle. The decisions referred to were that of Akram Mikhail v Ministry of Transport (unreported decision of Judicial Member Handley of 28 October 2005) and Lamb v Ministry of Transport [2005] NSW ADT 82.

The Applicant’s Case

19 The Applicant was concerned to make submissions with respect to the circumstances which gave rise to the commission of the offence of driving whilst disqualified, which had given rise to one of the suspension periods to which he had been subject.

20 The Applicant was unable to appreciate the distinction between the circumstances giving rise to the cancellation of his licence on the various occasions between 29 June 2005, through to May 2009; rather than the consequence of the cancellations, being that he was unable to attest that he had held an unconditional Australian driver’s licence for a total of at least 12 months in the two years immediately preceding the date of the application.

21 The Applicant referred, in particular, to circumstances in which Officer Rosiello had observed him driving a private hire vehicle when his licence had been disqualified. The Applicant acknowledged that his driving beyond the speed limit was wrong, and deserving of punishment, but was unable to make the connection between the penalties for traffic offences giving rise to suspension of his licence, thereby precluding him from meeting the authorisation criteria of holding an Australian Driver’s Licence for a total of at least 12 months, in the 2 years immediately preceding the date of the application.

22 The Applicant further submitted that he had suffered as a consequence of a disparity between the training programs available to taxi and bus drivers, as contrasted to the training program for drivers of private hire vehicles.

23 The Applicant felt he should not be penalised with the loss of his authority to drive a Private Hire vehicle simply because of his ignorance of the consequences of suspension of his driver’s licence for traffic offences.

24 The purpose of an authority under Section 40 of Division 5 of the Act is to attest 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 have sufficient responsibility and aptitude to drive a private hire vehicle :- (i) in accordance with the conditions under which the private hire vehicle concerned is operated, and (ii) in accordance with law and custom.

25 Pursuant to s.40B of the Act, the Director-General may grant an application and authorise an applicant to drive a Private Hire vehicle, or may refuse the application.

26 Section 40B, subsection (2), states that before an application is granted, the Applicant must meet any criteria set forth in the Regulations, and must satisfy the Director-General, as to any matter that the Director-General considers relevant.

27 Clause 29(2)(c) of the Regulations requires that an Applicant must have held an Australian driver’s licence for a total of at least 12 months in the 2 years immediately preceding the date of the application.

28 As a result of a number of traffic offences, the Applicant has been subject to a series of disqualifications, resulting in the effective suspension of his licence, from 6 June 2007 through to 7 May 2009.

29 Although there was a short period between 6 and 10 September 2007, during which the Applicant’s licence was not disqualified, during this period a licence was not re-issued, so that the Applicant has not held a driver’s licence from 6 June 2007 until 7 May 2009; having re-acquired his licence on 8 May 2009.

30 The consequence of these periods of disqualification, resulting in suspension of his licence, is that in the two years preceding his application, he has only held a driver’s licence for some 110 days. That is, since 8 May 2009. The consequence of this is that he does not meet the criteria set out in clause 29(2)(c), that an applicant must have held an Australian driver’s licence for a total of at least 12 months in the two years immediately preceding the date of the application.

31 I accept the Respondent’s submissions that clause 29(2)(c) applies to both new drivers and existing drivers.

32 I am supported in this view by the observations of Judicial Member Moloney in the decision of Lamb v Ministry of Transport [2005] NSW ADT 82, when ruling on an application to review a decision of the Ministry of Transport to cancel Mr Lamb’s taxi driver authority. Mr Lamb was 79 years old and had been driving taxis for many years when the Director-General of the Ministry of Transport decided to cancel his taxi authority because the Administrator was satisfied that Mr Lamb had been driving taxis while his driver’s licence was suspended and had failed to notify the Ministry of a series of penalty notices he had received for driving offences.

33 In finding that Mr Lamb did not hold a driver’s licence, within the meaning of what was then clause 33 of the Passenger Transport (Taxi – Cab Service) Regulation 2001, because his licence is conditional, and accordingly would operate to make his authority ineffective (clause 79(5) of the Passenger Transport (Taxi –Cab Service) Regulation 2001), Judicial Member Maloney made the following observations:

“I would add that even if that were not the case, Mr Lamb would also now be ineligible to apply for a licence under clause 33 of the Regulation, both because he does not now hold an unconditional driver’s licence, and because he has not now, as a result of the suspensions, held a licence for a total of at least 12 months in the 2 years.”

34 Mr Lamb could not be said to be a “new driver” having driven for a number of years, demonstrating the application of that provision to all drivers and not confined to new applicants.

35 I note that the section numbers differ in Lamb’s case, as a consequence of the consolidation of individual regulations governing drivers of private hire vehicles, bus drivers and taxi drivers, under the auspices of the Passenger Transport Regulation 2007.

36 Further support for the view that clause 29(2)(c) applies to both existing and new drivers is found in the case of Akram Mikhail v Ministry of Transport, where Judicial Member Handley stated:

“Mr Mikhail has a conditional licence for the period of 29 June 2005 to 28 June 2006. Thus, he is not qualified to hold either a taxi cab driver’s authority or a private hire vehicle authority.”

37 I note that Mr Mikhail was granted a driver authority to drive taxi cabs in 1991, and he was granted an authority to drive a Private Hire Vehicle in March 2005. While driving a motor vehicle from 29 June 2005 to 28 June 2006, Mr Mikhail’s driver’s licence was subject to “good behaviour conditions”. The consequence of this was that Mr Mikhail was unable to meet the criteria set out in clause 29(2)(b), which requires that an applicant must hold an unconditional licence. Mr Mikhail was an existing driver and this proved no impediment to the application of clause 29 to his application as a criterion for authorisation to drive a Public Passenger Vehicle.

38 I do not accept the Applicant’s submissions that the fault lies with the inadequacies, or the relative inadequacies of the Private Hire Vehicle Training Program, or absence thereof. Independently of any training program undertaken by Bus or Taxi Authorities, there remains an obligation on the Applicant to notify the Ministry of Transport, as required by relevant legislation, of his disqualifications in June and September 2007, obey the Rules of the Road and not drive whilst disqualified, thereby ensuring he can meet the criteria of clause 29(2)(b) and (c), namely, being the holder of an unconditional driver’s licence, and having held such a licence for a total of at least 12 months in the 2 years immediately preceding the date of the application.

39 The evidence before this Tribunal demonstrates that, without having regard to the merits of the applicant’s case with respect to the circumstances in which the applicant was not aware of the fact that his licence has been disqualified, or the other circumstances giving rise to suspension of his licence, the fact remains that the Applicant has not held a licence for a period of at least 12 months in the 2 years immediately preceding the date of the application, and accordingly, he does not meet the criteria for authorisation to drive Public Passenger Vehicles, as set out in clause 29(2)(c) of the Regulations.

40 As a result, the Tribunal affirms the decision of the delegate of the Director –General of the Department of Transport and Infrastructure to cancel the Applicant’s authority to drive a Private Hire Vehicle.