Amhad v Ministry of Transport

[2007] NSWADT 177

CITATION:	Amhad v Ministry of Transport [2007] NSWADT 177
DIVISION:	General Division
PARTIES:	APPLICANT Nidal Amhad RESPONDENT Ministry of Transport
FILE NUMBER:	073020
HEARING DATES:	5 April 2007
SUBMISSIONS CLOSED:	5 April 2007
DATE OF DECISION:	3 August 2007
BEFORE:	Pearson L - Judicial Member
CATCHWORDS:	Passenger Transport Act - taxi driver - suspension of authority - Taxi driver - suspension of authority
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Passenger Transport (Taxi-Cab Services) Regulation 2001 Passenger Transport Act 1990
CASES CITED:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Farquharson v Director General, Department of Transport [1999] NSWADT 53 Hughes & Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 Kent v Ministry of Transport [2007] NSWADT 37 Mavihisathit and Registrar of Motor Vehicles [1996] AATACT 165 Naziry v Director General, Ministry of Transport [2004] NSWADT 40 Saadieh v Director General, Department of Transport [1999] NSW ADT 68
REPRESENTATION:	APPLICANT In person RESPONDENT A Wozniak, solicitor
ORDERS:	The decision to suspend the applicant’s authorisation to drive a taxi-cab is set aside and in substitution the Tribunal orders that his driver authority be suspended for a period of three months.

Background

1 The applicant held driver authority GI3141 under the Passenger Transport Act 1990 (the PT Act). By a Notice of Decision dated 11 January 2007 a delegate of the Director General of the Ministry of Transport advised the applicant that the respondent had determined to suspend his driver authority. In the letter advising the applicant of the decision, the respondent advised the applicant of his right to apply for review of that decision, and invited the applicant to make a written submission as to why his authority should not be cancelled.

2 In the statement of reasons provided to the applicant the delegate stated that the determination was made on the basis of the following facts:

-You were issued with public passenger vehicle driver’s authority number GI3141 on 11 July 2001

-You signed a Transport District Taxi Driver Authorisation Declaration on 11 July 2001 in which you declared that you would comply with all Acts, Regulations and prescribed standards relevant to taxi driving

-You have incurred six customer-related complaints as the driver of a taxi-cab since your driver’s authority was granted

-You have received one written warning from the Ministry of Transport

-You were issued with an unrestricted Class MR drivers licence on 23 February 1998

-Your unrestricted Class MR drivers licence was cancelled from 21 January 2004 to 21 April 2004 due to demerit points

-You have incurred eleven traffic infringements since 23 February 1998

3 Details of the complaints made about the applicant, his traffic history, warnings and infringements, were provided in the statement. The delegate’s reasons were expressed in the following terms:

The Ministry of Transport has a continuing obligation under the Passenger Transport Act 1990 to ensure that only fit and proper persons drive public passenger vehicles. To drive a public passenger vehicle the community must have confidence that a driver would behave appropriately towards passengers, other taxi-cab drivers or an authorised officer at all times.

You have an extensive complaint history and have received several warnings that your behaviour as the driver of a taxi-cab has been unacceptable. You have consistently denied that you have been at fault in relation to any of the complaints which have been made about you.

I have considered:

- the nature and seriousness of complaints made about you as the driver of a taxi-cab,

- the likelihood that you will again be the subject of further complaints relating to your behaviour as a taxi-cab driver, and

- the likelihood that you will again allow an unauthorised person to drive your taxi-cab.

I am not satisfied that you have sufficient responsibility and aptitude to drive a taxi-cab in accordance with the conditions under which a taxi-cab service is operated, or in accordance with law and custom.

4 The applicant requested internal review, and provided a written statement dated 19 January 2007 responding to the matters raised in the respondent’s decision. On 25 January 2007 the applicant applied to the Tribunal for review of the decision to suspend his authority, and applied for a stay of the decision under s60(2) of the Administrative Decisions Tribunal Act 1997 (the ADT Act).

5 The matter came before me on 2 February 2007. On that date I decided that the matter could proceed in the absence of internal review, under s55(2)(c) of the ADT Act, and granted a stay of the decision to suspend the applicant’s authority.

6 The matter was heard on 5 April 2007. By that time the respondent had informed the applicant, by letter dated 1 February 2007, that the internal review had been finalised and that his submission on the notice to show cause had been considered, and that a decision had been made to cancel his authority. There is no indication on the material before me as to whether the applicant has requested review of that decision.

Relevant legislation

7 Division 5 in Part 4 of the PT Act makes provision for authorisation to drive taxi-cabs. The decision to suspend the applicant’s authority was made under s33F of the PT Act, which provides as follows:

33F 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.

8 The purpose of authorisation is set out in s33 of the PT Act:

(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.

9 Section 52(1) of the PT Act confers jurisdiction on the Tribunal to review a decision to suspend an authority. In reviewing this decision, the task of the Tribunal is to determine what is the correct and preferable decision, having regard to the material before the Tribunal, including any relevant factual material and any applicable written or unwritten law: s63 ADT Act.

Evidence

10 The respondent filed and served a copy of its file. The applicant provided copies of 16 customer feedback forms; three references; and a detailed written statement. The applicant gave oral evidence at the hearing, and was cross examined.

11 The applicant disputed the evidence of complaints. The applicant stated that he has been working mixed hours, five days a week on average since he was issued with a driver authority, for eight to ten hours, although he is not necessarily on the road for all that time. He has not taken any holidays. The applicant stated that he had problems with his previous networks, however he has recently changed to a different network. The applicant provided a statement dated 2 February 2007 from the General Manager, Networks, MACT Network to confirm that he has been a driver with that network since 21 October 2006.

Evidence and submissions

12 The respondent’s decision was based on the record of complaints made about the applicant; his traffic record; and the record of infringements.

13 The complaints made against the applicant, as recorded on the respondent’s file, were in summary as follows:

17 March 2002: the applicant was alleged to have stated that he would charge the maxi taxi rate because there were five passengers from the airport to the city; when the customer stated that he could not do that, the passengers were told to get out of the taxi.

6 February 2004: the customer stated that she had booked a taxi to go from Eastlakes to Beaconsfield; the applicant told her that the booking was for Lincolnsfield; the applicant swore at the customer and drove away.

10 December 2004: a customer who suffers from cerebral palsy and is in a wheelchair booked a taxi from Ryde to Macquarie Shopping Centre; when the applicant arrived he stated he was told the booking was for Macquarie Fields; the applicant swore at the customer.

24 May 2006: the applicant was alleged to have taken passengers to Prince of Wales Hospital in Randwick instead of Royal Prince Alfred Hospital as requested.

15 July 2006: the customer complained that after his credit card was declined and he provided some cash the applicant threatened him.

24 August 2006: the complainant alleged that the applicant had taken offence at a comment and stopped the taxi as it approached the M2 from the M7 and ordered the passengers to get out.

14 The applicant disputed the allegations, both in his written statements and in his oral evidence. In summary, his case was as follows:

17 March 2002: the applicant was driving a maxi taxi and at that time no tariff 3 or 4 was available; he dropped the passengers at Mascot because they could not pay the correct fare

6 February 2004: the applicant denied abusing the customer and stated that either she or the operator had misled him about the destination

10 December 2004: the applicant denied swearing at the customer, and stated that the operator may have deliberately misled him about the booking

24 May 2006: the passenger may have misstated the destination; he had refunded the fare

15 July 2006: the applicant denied threatening the customer

24 August 2006: the passengers had been rude to him and he had eventually asked them to leave the taxi, on Windsor Rd rather than on the M7.

15 None of the complainants gave oral evidence. The respondent’s file records that the complaints concerning the alleged incidents on 15 July 2006 and 6 February 2004 were investigated and no action was recorded, on the basis of conflicting statements. The applicant was counselled in relation to the complaints of 24 May 2006 and 10 December 2004.

16 The respondent’s file contains copies of the applicant’s traffic record. Since the applicant was issued with an unrestricted drivers licence on 15 March 1995, his traffic record includes several demerit points warning letters (1 December 2006, 30 September 2006, 1 September 2005, 13 July 2005, 12 April 2005,3 December 2003, 1 November 2003, 28 August 2003, 28 January 1998), a demerits points suspension from 21 January 2004 to 21 April 2004; and several fine default suspensions (14 November 2006, 2 August 2006, 10 August 2005, 25 June 2005, 9 October 2004, 8 June 2004, 11 November 2003, 9 September 2003, 27 August 2002). In his written statement the applicant conceded that he had not notified the respondent of the recorded fines, and stated that most of the fines were incurred while the taxi was vacant.

17 In cross examination the applicant conceded that the record indicated that his licence had been suspended for fine default from 23 September 2003 to 30 October 2003, and that an infringement had been issued on 5 November 2003 in relation to the applicant’s conduct while driving a taxi on 19 October 2003. The applicant stated that he may have been driving because he had not received notification of the fine default suspension. The applicant was questioned in relation to the demerits points suspension from 21 January 2004 to 21 April 2004, and stated that during this period he had stayed at home, and had relied on Centrelink payments as he had no income and his wife was not working. When asked why a compliant was made about his behaviour while driving on 6 February 2004 the applicant stated that he may have been driving because he did not know that his licence was cancelled.

18 The respondent’s file contains copies of infringements issued on 5 November 2003 for three offences on 19 October 2003; and 18 November 2003 in relation to four offences on 15 November 2003. The applicant chose to contest the infringements. In relation to one matter the applicant was convicted ex parte and fined $200, and the six other infringement notices were eventually withdrawn as the officer who issued them was unavailable to attend court. The applicant’s response was that these infringements had all been issued by one officer, unfairly. Since that person left Wilson, he has not had an infringement.

19 In his submissions the respondent’s representative argued that the complaints against the applicant fell into a pattern of similar allegations, and involved allegations that the applicant swore at customers and the Wilson’s officer. The respondent submitted that weight should be placed on the notes made by the Wilson’s officer at the time of the incidents in 2003, and the complaints about the applicant’s behaviour on 10 December 2004 and 24 August 2006. The respondent submitted that honesty is an integral aspect of a person being fit and proper, and that the applicant has not been honest. The respondent submitted that the authority should be cancelled, or at the very least suspended while the applicant undergoes a refresher course in understanding his obligations.

20 In his submissions the applicant denied the allegations made against him in the complaints, and was critical of the respondent’s acceptance of the allegations.

Consideration

21 As noted above, the issue in this matter is whether the applicant 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.

22 President O’Connor said in Farquharson v Director General, Department of Transport [1999] NSWADT 53, that:

The concepts of “good repute” and “fit and proper character” involve different considerations. The former concept goes to the way in which a person is regarded by others in the community (fairly or unfairly), while the latter concept goes to an individual’s intrinsic characteristics, whether they are known to others or not: see, for a detailed discussion, Re T and Director of Youth & Community Services [1980] 1 NSWLR 392 (Waddell J).

23 The applicant has provided three references. The reference from the General Manager, Networks, MACT Network, states that during the applicant’s time with that network, he “has acted with complete professionalism and the Network has received no complaints”. A reference from Mr Raymond Dagher states that he has known the applicant for 4 years and that the applicant worked for him for one year. Neither of these references indicates that the writer is aware of the respondent’s decision to suspend the authority, or the circumstances in which that decision was made. A reference from Mr Anthony Haddad, another taxi operator, states that the writer is aware of the suspension, and states “…I am aware of the complain he has received in the last two years and have spoken to Mr Ahmad and was happy from his explanation”. The writer goes on to state “for all of the time I have known him I found him to be very helpful and reliable and trustworthy”. There is some evidence to attest that the applicant is considered to be of good repute.

24 The Tribunal has frequently cited the decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 as a guide to the meaning of “a fit and proper person”. In that case Toohey and Gaudron JJ stated (at 380):

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.

25 Their Honours further stated (at 388):

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.

26 The activities in which the person will be engaged are relevant to consideration of whether he is a “fit and proper person”: Hughes & Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 at 156-7. The likely perceptions of travelling members of the public are relevant in this consideration: Farquharson v Director General, Department of Transport [1999] NSWADT 53; Mavihisathit and Registrar of Motor Vehicles [1996] AATACT 165; Naziry v Director General, Ministry of Transport [2004] NSWADT 40. In Saadieh v Director General, Department of Transport [1999] NSW ADT 68 at [17] Deputy President Hennessy set out several factors which should be considered when determining a person's fitness and suitability to hold a taxi authority:

Taking into account the terms of the legislation and the case law interpreting similar provisions, there are a number of factors that need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. These factors include:

- the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted;

- the nature, seriousness and frequency of any complaints made against the applicant;

- the applicant's driving record;

- the applicant's reputation in the community; and

- the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences.

27 The starting point in consideration of whether the applicant is a fit and proper person is the record of complaints against him. The respondent relied on the statements made in the record of those complaints. The applicant disputed the allegations made in those complaints.

28 In Kent v Ministry of Transport [2007] NSWADT 37 DP Hennessy considered the approach to be adopted to documents on the Ministry file:

Relevant factual material includes the documents filed by the Ministry pursuant to s 58(1)(b) of the ADT Act. The Ministry is obliged to lodge “a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal.” The Ministry served those documents on Mr Kent. As long as the material lodged by the administrator is relevant to the determination, that material is “before” the Tribunal and the Tribunal must have regard to it when determining an application: ADT Act, s63.

That conclusion is not entirely consistent with comments made by the Appeal Panel in Taylor v Director General, Department of Transport [2001] NSWADTAP 29 (12 September 2001). In that decision, the Appeal Panel (over which I presided) said at [87] to [89], that the Tribunal could admit or reject documentary evidence of complaints from passengers. I now think that the better view is that if documentary material recording details of complaints from passengers is provided to the Tribunal in compliance with s 58 of the ADT Act, and that material is relevant factual material, then, in accordance with s 63, the Tribunal must have regard to it when determining the application. The Tribunal may decide to give little or no weight to that material, but it may not disregard it.

The Ministry did not call any witnesses and Mr Kent did not give oral evidence. Consequently, the material that is before the Tribunal are the documents filed by the Ministry under s 58 and Mr Kent’s written response to the 16 most recent complaints. Mr Kent’s potential financial hardship if he is no longer able to drive a taxi is not relevant: Lal v Director General, Department of Transport [2001] NSWADT 74 at [47]. Nevertheless, it must be borne in mind that if the Ministry’s decision is affirmed, Mr Kent will be deprived of any realistic opportunity to earn a living.

The Tribunal must be satisfied, to the civil standard of proof (on the balance of probabilities) before making a finding: McDonald v Director General of Social Security (1984) 1 FCR 354 at 357. A proper evidentiary foundation must be found for a decision based on reasonable satisfaction as to relevant circumstances. As with any occupational decision, "in such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences. ... weight is given to the presumption of innocence and exactness of proof is expected." (Briginshaw v Briginshaw (1938) 60 CLR 336 at 362-3 per Dixon J.) A state of "comfortable satisfaction on the balance of probabilities" should be achieved: Bannister v Walton (1993) 30 NSWLR 699 at 711-2, also McCarthy v Law Society of NSW (1997) 43 NSWLR 42 at 58.

29 In Kent, the documents on the Ministry file were records of complaints from members of the public. In assessing the weight to be given to the records of complaints, Deputy President Hennessy concluded:

The Tribunal is left with the details of the allegations in the summary of the complaints and Mr Kent’s denial of, or failure to recollect, those events. In most cases, there is merely a record of the complaint made by an officer, rather than a written complaint from the passenger or other road user. Records of the complaints are hearsay evidence which is generally less reliable than direct evidence from the complainants. In Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 24 ALR 247 at 256 –257 Brennan J held that the federal Administrative Appeals Tribunal’s power to depart from the rules of evidence gave it a flexibility in procedure but did not empower it to make orders without a basis in evidence having rational probative force. Brennan J said that: “the logical weakness of hearsay evidence may make it too insubstantial, in some cases, to persuade the Tribunal of the truth of serious allegations.” That is the situation in this case. No complainant gave oral evidence of the details of the complaint. Adopting the language used by the High Court in Briginshaw , the proofs are inexact and the testimony is non-existent. Mr Kent should not be deprived of his livelihood on the basis of such evidence.

30 In this matter the applicant gave oral evidence and was cross examined. His evidence was not impressive. When confronted with documentary evidence which appeared to contradict his claims, he prevaricated and attempted to deflect responsibility, in some instances to the customers, or to the networks. In particular, when confronted with documentary evidence which pointed to his having driven a taxi while his drivers licence was suspended on at least two occasions, namely 19 October 2003 and 6 February 2004, and which contradicted his evidence as to what he did during those suspensions, the applicant provided a range of explanations, and ultimately relied on an assertion that perhaps he did not receive notification of the suspensions. I place little weight on the applicant’s evidence concerning the incidents which led to the complaints. In the absence of oral evidence from the complainants, I am unable to accept the records as substantiated evidence of what took place in each of those incidents. However, the recorded complaints do indicate a pattern of conduct of the applicant which includes rudeness and inappropriate behaviour.

31 The applicant did not dispute the formal record of his traffic record, which includes several camera detected speeding offences, failure to stop at a stop sign, and disobey traffic lights. The traffic record includes several short periods of fine default suspension, including one which commenced on 23 September 2003 and was lifted on 30 October 2003. The record includes a demerits points suspension from 21 January 2004 to 21 April 2004. The applicant sought to justify his traffic record on the basis that most of the breaches were committed while vacant, and while trying to get to the pick up point in time; and that having regard to the number of hours he works he was vulnerable to being caught off guard. Even if that were so, it is a matter of significant concern that the applicant received infringement notices in relation to an incident on 19 October 2003, during the fine default suspension, and was the subject of a passenger complaint on 6 February 2004, during the demerits points suspension.

32 I have placed limited weight on the infringement notices. Six of those notices were withdrawn, and the allegations were not tested. The respondent’s file contains a copy of the notes made by the officer who issued the infringement notices. The notes dated 19 October 2003 record a conversation between the officer and the applicant, during the course of which the applicant is alleged to have sworn at the officer.

33 The applicant has a poor driving record. I am satisfied that the applicant has, whether or not deliberately, driven his taxi while his drivers licence was suspended. This disregard for the requirements of the law reflects poorly on whether he can be regarded as a fit and proper person. I am satisfied that the applicant has displayed inappropriate behaviour in his dealings with passengers on several occasions. While he has provided a statement from his current network that it has not received any complaints, that statement was provided after only three months with that network. The applicant’s attempts to justify his behaviour by shifting blame leave little room for confidence that he will not be the subject of further complaints or traffic offences. On the basis of the material before me, I am not satisfied that the applicant is a fit and proper person to be the driver of a taxi-cab. During the course of the hearing the respondent’s representative identified training modules on Customer Care and Regulations, completion of which might assist the applicant. I consider that the most appropriate outcome is that the applicant’s driver authority be suspended for a period of three months, and that he be encouraged to undertake retraining before he resumes driving.

Decision

The decision to suspend the applicant’s authorisation to drive a taxi-cab is set aside and in substitution the Tribunal orders that his driver authority be suspended for a period of three months.