Anwar v Director General, Department of Transport

[2000] NSWADT 103

CITATION:	Anwar -v- Director General, Department of Transport [2000] NSWADT 103
DIVISION:	General Division
PARTIES:	APPLICANT Shakil Anwar RESPONDENT Director General, Department of Transport
FILE NUMBER:	003143
HEARING DATES:	26 July 2000
SUBMISSIONS CLOSED:	07/26/2000
DATE OF DECISION:	08/03/2000
BEFORE:	Hoeben GMM - Judicial Member
APPLICATION:	Passenger Transport Act - taxi driver - suspension of authority - Taxi driver - suspension of authority
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Passenger Transport Act 1990
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 336 New South Wales Bar Association v Evatt (1968) 117 Ziems v Prothonotary of the Supreme Court Of New South Wales (1957) 97 CLR 279 Clearihan v The Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25 Saadieh v Director - General Department of Transport [1999] NSWADT 68 Maio v Superintendent of Licences New South Wales Police (1987) ASC 55- 551 Re Naumovski v Minister for Immigration and Ethnic Affairs (1994) 20 AAR 388
REPRESENTATION:	APPLICANT In person RESPONDENT A Wozniak, solicitor
ORDERS:	The decision of the delagate of the Director General dated 7 April 2000 to suspend the applicant's authority is affirmed.

1 On 7 March 2000 the Department of Transport suspended the applicant's authority to drive a taxi on the grounds that:

• "you drove a taxi whilst your NSW driver's licence was disqualified;
• your NSW's driver's licence has been disqualified since
• 13 January 2000 for a period of two months;
• your driving history may indicate you have insufficient responsibility or aptitude to drive a taxi-cab in accordance with law and custom;
• your driving history may indicate that you would put the safety of future passengers at risk; and
• the behaviour that led to the complaints shows that you do not have sufficient responsibility to drive a taxi cab in accordance with law and custom."

2 An internal review dated 7 April 2000 affirmed the original decision.

3 Under the Passenger Transport Act 1990 (the Act), pursuant to s 52 (1), any person whose application to hold an authority has been refused may apply to the Administrative Decisions Tribunal for a review of that decision. The applicant made such an application on 3 May 2000.

Evidence

4 The applicant is 30 years of age and was unrepresented. It was clearly explained to him the procedure to be followed before the Tribunal. The applicant was informed that he would be given every opportunity to present his case, and, subject to that presented by the respondent it would be the decision of the Tribunal to decide "what the correct and preferable decision is having regard to the material then before it..": s63 of the Act.

5 The reviewable decision contained adverse findings relating to 9 separate complaints the first commencing some 2 days after he received his taxi authority, 8 incidents of driving while disqualified, 1 warning letter which related to one complaint, mandatory undertaking of a further taxi training course in Customer Care in November 1999 and finally some 10 traffic convictions commencing within 1 month of the applicant obtaining his driver's licence in1995 with the latest conviction occurring in May 1999.

6 The applicant in his evidence to the Tribunal sought to rely upon substantially the same written evidence, which he submitted, for the internal review.

7 The seminal issues for the applicant related to an administrative mistake made at Burwood Local Court in which he had been mistakenly informed that a hearing, relating to a speeding offence, was to be held on 31/3/00 instead of 13/3/00 which was the correct date. On 13/3/00 the Magistrate, in the absence of the applicant, imposed a $300 penalty with a disqualification period of 2 month. On 15/3/00 the courthouse informed the applicant by way of letter of, inter alia, the mistake and suggested he make a 100D application under the Justices Act to annul the court conviction and have the matter reheard. The matter has now been set down for rehearing.

8 The applicant's evidence is that he appeared, coincidentally, at the courthouse on 14/2/00 the day after he thought his disqualification period had concluded but several weeks after he received the courthouse letter. The applicant submitted that he mistakenly believed his disqualification was for only a month, that is, from 13/1/00 to 13/2/00. Yet the letter of 15/3/00 is clear and unequivocal in that it specifically states the 2 month disqualification period. Thereafter, the applicant gave convoluted evidence which he believed adequately explained why he did not lodge a 100D application, all stemming from alleged inadequate information provided to him by a courthouse staffer on 14/2/00. The substance of the information revolved around his belief that as there had been a mistake made on 13/1/00 then he concluded he was not really disqualified from driving. In any event, he argued the 8 instances which then followed of driving a taxi whilst disqualified (after 31/3/00) was undertaken by someone else. The applicant could not provide an answer how another taxi driver had access to the applicant's pin number on the 8 separate occasions the subject of the disqualification periods.

9 Another significant submission of the applicant's related to an incident, which occurred on 18/6/97 in which he refused to transport 4 wheel-chaired disabled people at the Opera House. His explanation was that there were 5 wheel- chaired disabled people and he could not legally transport this number. In cross - examination he did not resile from this version of events. The complainant in this matter was an Opera House employee who was assisting the 4 disabled persons. Her complaint was that there were only 4 disabled people and the applicant would not drive them because he complained it was only a 4 minute journey.

10 Finally in relation to the general credit of the applicant and in answer to a series of questions from the respondent regarding the applicant's mandatory two yearly medical review the applicant stated that he had left Australia in the latter half of1997 and returned on 15th September 1998. His version of events is that he had left his original address in Belmore when he left Australia in 1997.The applicant stated that the letter of notice dated 25/5/98 informing him of the medical review and mailed to the Belmore address was never received by him. The applicant initially stated he began to live in Yagoona in September 1998 but later changed this to Lakemba. As a result he stated that he did not receive two further notices of medical reviews nor various notices of suspension of his taxi authority on 24/7/98 ( mailed to the Belmore address) or 3/11/98 (mailed to the Lakemba address).The Tribunal had the opportunity of observing the applicant and while it is prepared to accept the first change of address it does not accept the applicant's version of events which then followed.

11 In further support of his application the applicant gave various and differing versions of events. Initially he stated he had not been informed of the complaints but this clearly is at odds with his written response to the internal review and upon which he also relied in the current application. He then stated that he only was aware of 8 of the complaints. This figure then changed to 5 complaints when he was invited to make his final submissions.

12 The applicant requested a further chance. It is important to note at this point that the applicant had been given various oral warnings regarding his behaviour as well as the written letter of warning already referred to in [5] above. He stated that he had a Commerce Degree and that he was currently completing a post graduate degree in Information Technology and Communications from Woolongong University. No documents were tendered to support this submission. He tendered 4 references, all of which attested to positive personal qualities.

13 The respondent tendered the applicant's file. The respondent's evidence in reply and in contrast to the applicant's was consistent and showed that the applicant engaged in a continuing pattern of negative behaviour. Essentially this was confined to complaints refusing fares because they were too short, incivility ranging from swearing, arguing with customers through to one incident of poor temper reflected by his throwing luggage out of his taxi's boot and onto the road. In reply the applicant stated variously that he had been booked somewhere else, he was not on a taxi rank, he was not working and having a break or he had no recollection.

Jurisdiction

14 Section 12 of the Act gives the Director- General a discretion to grant authorities. Section 11(2) (a) and (b) requires, inter alia, attestation as to whether:

"(a) 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 public transport vehicle: and
(b) that the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates:
(i) in accordance with the conditions under which a public passenger service is operated; and
(ii) in accordance with law and custom."
The Decision

15 The consideration of whether the applicant is a fit and proper person and is otherwise sufficiently responsible, to drive a taxi cab is closely connected to the applicant's reaction to the original allegations contained in the various documents on his file, the later findings in respect of them and his submissions and oral presentations made before this Tribunal.

16 There are numerous cases evaluating the fitness of an applicant to hold a licence. This Tribunal itself has an established line of law on the subject and I do not now intend to revisit those authorities except insofar as they specifically relate to the present case. Isolated or passing departures from proper standards may not warrant the suspension of a licence but intentional or extended conduct over a period of time is viewed differently: New South Wales Bar Association v Evatt (1968) 117 at 183; Ziems v Prothonotary of the Supreme Court Of New SouthWales (1957) 97 CLR 279 at 298.

17 Although the respondent did not present any oral evidence to substantiate its claims on the balance I am of the opinion that, at least, the applicant was not frank or, alternatively, he was dishonest. I find on the evidence presently before me that the applicant falls into the latter category. Coupled with this is the fact that the applicant has shown absolutely no remorse and has failed to appreciate the level of responsibility required, in the public interest, to hold an authority to drive public passenger vehicle.

18 I have taken into account the references submitted on the applicant's behalf. None of the authors were aware of the current proceedings, his past traffic offences or the numerous complaints. The weight, which I can give to this evidence, is, therefore, greatly reduced.

19 In Clearihan v The Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25, at 30 Miles CJ stated that each case must be assessed on its merits. In assessing the impact of past adverse determinations on certain licence applications, he believed this might not always be relevant. On the other hand, adverse determinations may point to a lack of what is demanded by the licence and that consideration of them then becomes important. I concur with this view. The applicant has an extended history of traffic convictions commencing when he was still on learners' plates. Together with this is the consistent pattern of behaviour of rudeness and refusal to accept short journeys.

20 In assessing the overall criteria of fit and proper person this Tribunal has already determined principles to be followed in relation to taxi authorities. Deputy President Hennessy in Saadieh v Director - General Department of Transport [1999] NSWADT 68 (25 August 1999) at [17] adequately listed the factors relevant in such cases. In particular the Deputy President singled out one particular factor relevant to the present case:

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

21 In applying this factor to the present case the Tribunal is not satisfied that the applicant has modified his behaviour for the better in matters of honesty, civility or short journeys. Indeed, it is one of the applicant's submissions that the Tribunal in reviewing his case should take into account the coming Olympics which he sees as a fruitful source of income. This is not a relevant factor for consideration. The applicant does not appreciate that the hire of a taxi is a two way agreement involving not only a source of income for the driver but delivery of a satisfactory and safe service in a courteous manner even in the event of short periods of hire.

22 While the Tribunal intends to find against the applicant on this occasion this does not mean that the applicant will never satisfy the relevant tests to hold a taxi authority. However, sufficient time must elapse before it can be clearly indicated to the community that the appellant is entitled to hold the licence sought: Maio v Superintendent of Licences New South Wales Police (1987) ASC 55- 551 at 57,177 and Re Naumovski v Minister for Immigrationand Ethnic Affairs (1994) 20 AAR 388 at 392.

23 The decision of the delegate of the Director- General of Transport dated 7 April 2000 to suspend the applicant's authority is affirmed.