Assi v Director General, Transport NSW - [2012] NSWADT 7

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Assi v Director General, Transport NSW [2012] NSWADT 7
Hearing dates: 15 November 2011
Decision date: 19 January 2012
Jurisdiction: General Division
Before: C Huntsman, Judicial member
Decision:
The decision is affirmed

Catchwords: Good repute, fit and proper person, responsibility and aptitude, criminal charges, complaints history, allegations of dishonesty
Legislation Cited: Sections 4, 14, 33, 33F Passenger Transport Act 1990
Cases Cited: Commissioner for Motor Transport v Darcy Francis Leo (New South Wales Supreme Court, McInerney J, 10 September 1986 unreported)
Farquharson v Director-General Department of Transport [1999] NSWADT 53
Pobjie v Commissioner for Fair Trading, NSW Office of Fair Trading (No 2) [2008] NSWADT 39
Chowdhury v Department of Transport and Infrastructure [2010] NSWADT 199
Saadieh v Director General, Department of Transport [1999] NSWADT 68
Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP
Caska v The Director General of the New South Wales Department of Transport [2001] NSWSC 205
Lo -v- Director-General, Department of Transport [2002] NSWADTAP 39
Category: Principal judgment
Parties: Joubran Assi (Applicant)
Transport NSW (Respondent)
Representation: Counsel
Gary Jauncey (Applicant)
Mark Robinson SC (Respondent)
Barakat Lawyers (Applicant)
Smythe Wozniak Legal (Respondent)

File Number(s): 113217

reasons for decision

Background

This was an application by Mr Assi, the applicant, for review of the decision of the respondent, Transport New South Wales, to cancel the applicant's authority to drive a taxicab, pursuant to s33F of the Passenger Transport Act 1990 (the Act). The applicant has been a taxi driver since 1990. The application for review was dated 2 August 2011 and was filed with the tribunal on 8 August 2011. The application states that the applicant seeks review of a decision of the respondent of 13 July 2011. The applicant also applied (with the application for review) for a stay of the decision and on 15 August 2011 the tribunal made an order granting a stay of the decision until final determination of the application for review.

The statement of reasons issued by the respondent for the decision of 13 July 2011 details a complaints history from 2003 to 2011 of 34 complaints, 21 of which relate to overcharging. The respondent states that this shows a pattern of behaviour and casts grave doubts on the applicant's fitness to be the driver of a public passenger vehicle and his ability to carry out the duties and responsibilities of the position according to law and custom. The respondent states that the high number of complaints recorded against the applicant, specifically relating to overcharging, shows a betrayal of the confidence the community instils in the driver of the public passenger vehicle and demonstrates that he is not fit to hold a public passenger vehicle driver authority.

On 10 August 2011 the respondent made a decision, on internal review of the decision of 13 July 2011, to affirm the decision to cancel Mr Assi's authority to drive a public passenger vehicle (whilst the letter of 10 August 2011 refers to affirming…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NSWADT 7
Decision Date: 19 January 2012

CaseChat Overview and Summary

The case of Assi v Director General, Transport NSW involved an application for judicial review by the appellant, Assi, against the decision of the respondent to revoke his driver instructor's licence. The appellant had his licence revoked after he was charged with various criminal offences, including charges of fraud, theft, and dishonesty. The appellant's licence was revoked based on his criminal charges and a history of complaints against him. The Court of Appeal was tasked with determining whether the decision to revoke the appellant's licence was lawful and whether the Director General was correct in considering the appellant unfit and improper to hold a driver instructor's licence.

The legal issues before the court included whether the Director General's decision to revoke the appellant's licence was based on proper considerations, whether the Director General was correct in finding that the appellant was not of good repute, and whether the appellant's criminal charges and history of complaints were sufficient grounds to revoke his licence. The court was also required to determine whether the appellant's right to procedural fairness was breached during the licence revocation process.

The court found that the Director General's decision to revoke the appellant's licence was based on proper considerations and was not unlawful. The court held that the Director General was correct in finding that the appellant was not of good repute, given his criminal charges and history of complaints. The court found that the appellant's criminal charges and history of complaints were sufficient grounds to revoke his licence, as they demonstrated a lack of responsibility and aptitude to hold a driver instructor's licence. The court also held that the appellant's right to procedural fairness was not breached during the licence revocation process, as he was given an opportunity to respond to the allegations against him.

The decision of the Director General to revoke the appellant's driver instructor's licence was affirmed. The appellant's application for judicial review was dismissed, and the decision of the Director General was upheld.

Orders

Orders of the court

The decision is affirmed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Assi v Director General, Transport NSW [2012] NSWADT 7
Hearing dates:	15 November 2011
Decision date:	19 January 2012
Jurisdiction:	General Division
Before:	C Huntsman, Judicial member
Decision:	The decision is affirmed
Catchwords:	Good repute, fit and proper person, responsibility and aptitude, criminal charges, complaints history, allegations of dishonesty
Legislation Cited:	Sections 4, 14, 33, 33F Passenger Transport Act 1990
Cases Cited:	Commissioner for Motor Transport v Darcy Francis Leo (New South Wales Supreme Court, McInerney J, 10 September 1986 unreported) Farquharson v Director-General Department of Transport [1999] NSWADT 53 Pobjie v Commissioner for Fair Trading, NSW Office of Fair Trading (No 2) [2008] NSWADT 39 Chowdhury v Department of Transport and Infrastructure [2010] NSWADT 199 Saadieh v Director General, Department of Transport [1999] NSWADT 68 Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP Caska v The Director General of the New South Wales Department of Transport [2001] NSWSC 205 Lo -v- Director-General, Department of Transport [2002] NSWADTAP 39
Category:	Principal judgment
Parties:	Joubran Assi (Applicant) Transport NSW (Respondent)
Representation:	Counsel Gary Jauncey (Applicant) Mark Robinson SC (Respondent) Barakat Lawyers (Applicant) Smythe Wozniak Legal (Respondent)
File Number(s):	113217