Assi v Department of Transport and Infrastructure

[2011] NSWADT 192

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Assi v Department of Transport and Infrastructure [2011] NSWADT 192
Hearing dates:	1 March 2011
Decision date:	11 August 2011
Jurisdiction:	General Division
Before:	S Montgomery, Judicial Member
Decision:	The decision under review is set aside.
Catchwords:	Passenger Transport Act - taxi-cab authority - suspension
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990
Cases Cited:	Department of Transport and Infrastructure v Murray (GD) [2011] NSWADTAP 16 Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 Farquharson -v- Director General, Department of Transport [1999] NSWADT 53 Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 Ware v Director General, Transport NSW [2011] NSWADT 189
Category:	Principal judgment
Parties:	Joubran Assi (Applicant) Department of Transport and Infrastructure (Respondent)
Representation:	Counsel: G Jauncey, (Applicant) Barakat Lawyers (Applicant) Smythe Wozniak, (Respondent)
File Number(s):	103256

REasons for decision

1. GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): Mr Assi is the holder of an authority to drive a taxi-cab issued under the Passenger Transport Act 1990 ("the Act") by the Department of Transport and Infrastructure ("the respondent").

Background

1. Mr Assi has been driving taxis since 1990. On 7 October 2010 the respondent took the decision to suspend Mr Assi's authority. The reason given for the suspension was that Mr Assi had been charged with three counts of sexual assault on a person under the age of 10.

1. Mr Assi applied to the Tribunal to review the suspension decision. He also made an urgent application for a stay of the decision. A stay was ordered until further order of the Tribunal and remains in place.

The hearing

1. Mr Assi's application was listed for hearing before me on 1 March 2011. He was represented by Mr Jauncey, and the respondent was represented by Mr Wozniak. The evidence before the Tribunal consisted of:

• A number of affidavits provided in support of Mr Assi's case. Each of the affidavits provides an reference in which the referee asserts that they have known Mr Assi for a significant period of time and are aware of the allegation and charges brought against him. Each nevertheless has provided a positive reference in support of Mr Assi.
• The respondent's documents filed pursuant to section 58 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act")
• The court attendance notice, police facts sheet and a statement related to the charges brought against Mr Assi.

1. Both parties made submissions, following which I reserved my decision.

Consideration

1. The decision to suspend Mr Assi's authority was made under s 33F of the Act which provides that having regard to the purposes of an authority, an authority may be suspended or cancelled. The purposes of an authority are set out in section 33(3) of the Act which states:

(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.

1. 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 it, including any relevant factual material and any applicable written or unwritten law: section 63 of ADT Act.

1. There is no dispute that -

• The charges brought against Mr Assi are serious criminal charges.
• The charges relate to events alleged to have occurred at unspecified times between 1992 and 1994.
• Mr Assi denies the charges, intends to plead not guilty, and to contest the allegations made against him.
• If convicted, Mr Assi is likely to be imprisoned.
• Mr Assi does not have a criminal record.
• Mr Assi has been driving a taxi since 1990.

1. The decision to suspend Mr Assi's taxi authority was made as a result of him being charged with serious criminal offences. The suspension is stated to remain in place pending the outcome of the criminal proceedings or until Mr Assi's authority expires.

1. There is no evidence before me as to when the charges will be heard.

1. In a recent decision in the matter of Ware v Director General, Transport NSW [2011] NSWADT 189, Judicial Member Molony considered a decision by the respondent to suspend a driver authority in circumstances where Mr Ware had been charged with two counts of indecent assault where the victim was under the age of 10. In that matter the alleged events are said to have occurred at an unspecified time in 1999.

1. The Judicial Member considered a number of authorities which address the approach to be taken by the Tribunal in regard to matters of this kind. In particular he considered views expressed by the Tribunal's President in Farquharson -v- Director General, Department of Transport [1999] NSWADT 53 and the more recent Appeal Panel decision in Department of Transport and Infrastructure v Murray (GD) [2011] NSWADTAP 16. I agree with Judicial Member Molony's assessment of those authorities and I adopt his reasoning in this matter.

1. In Mr Ware's case the respondent formed the view that, as a result of the criminal charges, he was not a fit and proper person to drive a taxi-cab. Judicial Member Molony determined that, without more, the fact that Mr Ware had been charged with a serious offence does not justify the drawing of an adverse conclusion as to his character. The Judicial Member adopted views expressed by the President in Farquharson that it is preferable to reserve judgment on intrinsic character until more is known. Rather, he considered that the issue was whether the fact of the criminal charge alone so impacted on Mr Ware's repute, or his aptitude and responsibility, so as the justify an adverse finding with respect to those matters meriting the suspension of his taxi authority. I agree with that view.

1. I also agree with the Judicial Member's view that an assessment of whether a person is of good repute requires the assessor to consider how "reasonably-minded people assess an individual's current reputation, with reasonably precise knowledge of those matters that put the person's reputation in doubt" ( Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37). The fact of criminal convictions is not determinative of the issue, although they are an important consideration: Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 per Waddell J at 402. A simple assertion that a person is not of good repute, without more, is therefore of little assistance.

1. Reputation is to be found in the estimate of a person's moral character entertained by some specific group of people, such as by 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. The importance of a person's reputation is that it is an estimate of his character, or some aspect of his character, upon which the persons in such a group are generally, although not necessarily unanimously, agreed. It is this essential nature of reputation which makes it a reliable guide to a person's character: Re T and the Director of Youth and Community Services at 389 .

1. Reputation is to be proved by evidence from those who know the person well, and who know how the person is generally regarded in the community in which he lives.

1. In this case there are a number of references before the Tribunal which attest to the good repute in which Mr Assi is held by those with whom he associates. These references expressly address the nature of the charges against Mr Assi and the referee's knowledge of the allegations. In spite of that knowledge the referees have each stated that they maintain their positive view of Mr Assi's reputation.

1. In this matter, there is no doubt that the charges laid against Mr Assi are objectively serious. However, they are not recent and did not occur in the regulated environment of the taxi industry. There is no suggestion of any allegations of misbehaviour or impropriety by him in the 17 years since those events are alleged to have occurred. Mr Assi intends to fight the charges against him but it is likely to be a considerable time before they are heard.

1. The direct evidence I have concerning Mr Assi's repute, shows that despite the charges levelled against him, he is well regarded by those with whom he associates. There is nothing in the evidence before me which points to a likelihood of Mr Assi misbehaving, committing improper acts or offences, now or in the period leading up to his trial, either generally or in the context of the taxi industry.

1. In those circumstances I do not accept that the perceptions of a reasonably minded member of the public would be such that they would necessarily or obviously object to Mr Assi as a taxi driver, although I do accept that some might.

1. I am not persuaded that the likely perceptions of some members of the public outweigh the other factors to which I have had regard. The charges against Mr Assi in these circumstances are, in my opinion, insufficient to justify a finding that he is not of good repute, or that he no longer has the 'aptitude and responsibility' to continue driving a taxi-cab.

1. In my view, the correct and preferable decision is to set aside the decision under review and thereby lift the suspension of Mr Assi's authority with immediate effect.

Order

The decision under review is set aside.

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Decision last updated: 11 August 2011