Assi v Director General, Transport NSW
[2012] NSWADT 7
•19 January 2012
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 39Category: 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 a suspension decision, the attached statement of reasons makes clear that the decision affirmed on internal review is the decision to cancel Mr Assi's authority to drive a public passenger vehicle).
In the statement of reasons issued by the respondent for the internal review decision, it is noted that the reasons for cancelling the applicant's authority to drive a public passenger vehicle include his extensive customer complaints history, his alleged failure to amend behaviour following a period of retraining, and notes that these matters were set out in the statement of reasons for the original decision of 13 July 2011. The statement of reasons for the internal review decision details that the complaints history bears on the applicant's reputation and raises questions as to whether he is a fit and proper person to drive a taxicab. It is stated that the applicant was provided with the opportunity to redress his behaviour following the completion of retraining in March 2010, yet since that time he has been the subject of five further passenger complaints, three of which alleged overcharging, and two of the complaints were considered to be justified. The statement of reasons for the internal review decision states that taking into account the number of complaints made against the applicant, a number of which allege dishonesty, it was considered there had been a pattern of behaviour established, and the respondent is not satisfied that the applicant is a fit and proper person to be authorised to drive a public passenger vehicle.
Prior recent suspension decision and tribunal review of that prior decision
By way of further background, it is noted that the applicant's authority to drive a taxicab was suspended by the respondent on 7 October 2010, and the applicant applied for review of that decision by the tribunal. Pending the review the applicant continued to drive his taxi as there was a stay granted by the tribunal of the suspension decision. On review of the suspension decision the tribunal, differently constituted to the current tribunal, set aside the respondent's decision (decision date 11 August 2011). The respondent has since appealed the tribunal's decision in that matter to the Appeal Panel of the Tribunal, and at the time of the hearing of the current matter the Appeal Panel had not heard the appeal.
The tribunal's reasons for setting aside the suspension decision, are detailed in the reasons the decision for that matter - refer file number 103256: Assi v Department of Transport and Infrastructure [2011] NSWADT 192. The Tribunal's reasons for decision, of 11 August 2011, indicate that the reason that the respondent had suspended the applicant's authority, was that he had been charged with three counts of sexual assault on a person under the age of 10. The tribunal in deciding to set aside the suspension decision considered the seriousness of the charges, the fact that the alleged offences were said to have occurred several years ago, the lack of any evidence of allegations of misbehaviour or impropriety by the applicant in the 17 years since the sexual assaults are alleged to have occurred, the fact that Mr Assi intends to defend the charges against him, the fact that it is likely to be considerable time before the charges are heard, and the tribunal also considered other evidence before the tribunal as to Mr Assi's repute. The tribunal considered that the charges against Mr Assi were 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 taxicab, on the evidence before the tribunal in that matter. Accordingly the tribunal in that matter decided to set aside the decision under review and lifted the suspension of Mr Assi's authority.
It was submitted by the applicant's representative that given this background, I should not hear the current proceedings. The applicant submitted that the decision under review was an attempt by the respondent to revisit the suspension decision, and that the matter should properly be left to the Appeal Panel. The applicant's representative submitted that in hearing the matter the respondent sought to have the tribunal overturn a decision made at an earlier hearing by a fellow member of the tribunal. It was submitted that to proceed would allow two different decisions concerning the same factual material to be made by two different tribunal members and that this was impermissible, and the matter should be left to the Appeal Panel.
I determined this issue early in the proceedings, giving oral reasons for my determination. In summary, I noted that the decision under review in the current proceedings is a decision to cancel the applicant's authority to drive a taxicab, which is a different decision to a decision to suspend the authority. Further, the facts relied upon by the respondent in making the decision in the current matter were different to those relied upon in the previous matter - the suspension decision focussed only on the sexual assault charges, whereas the current decision to cancel Mr Assi's authority relied on a number of matters. It was conceded by the respondent that there was some common ground in the suspension decision and the cancellation decision (primarily the existence of the criminal charges). However, in making the current decision the respondent also relied on the complaints history, and testimony from a witness who had made a recent complaint, and the history of a warning being given by the respondent to the applicant in 2010, and retraining being undertaken yet complaints continuing. Accordingly I determined that the decision under review was not the subject of a previous decision by the tribunal but was a new decision made on different facts, and as such I determined that the hearing of the application for review should proceed.
It is noted also that at the time of the making of the current decision ( on 13 July 2011) which focuses on the complaints history, no decision had been made by the tribunal on the suspension decision, the outcome of that review was not known (no decision was made by the tribunal until 11 August 2011). Further, the complaints history relied upon by the respondent in making the current decision included a complaint which had arisen subsequent in time to the making of the suspension decision, and was thereby a new matter, being the complaint of February 2011,an incident subject of detailed evidence in the current hearing. I note also that the decision of 13 July 2011 was a decision which the respondent was empowered to make under the Act and which the tribunal has jurisdiction to review.
Evidentiary issue
The applicant sought to tender a statement which had been obtained by the applicant in relation to the criminal proceedings for the alleged sexual assault charges. This was a statement said to have been made some years ago to the Department of Community Services by the alleged victim. It was submitted by the applicant that this statement should be in evidence given that some inconsistent statements were made by the alleged victim and it was submitted that it was relevant for the tribunal to have regard to the former statement by the alleged victim, especially given that the police facts sheet and interview with the complainant were in evidence before the tribunal in the respondent's documents. The respondent submitted that the tribunal should not admit the statement into evidence and submitted that there was authority for the tribunal adopting this course being a decision of the Supreme Court - Commissioner for Motor Transport v Darcy Francis Leo (New South Wales Supreme Court, McInerney J, 10 September 1986 unreported) . Reference was also made to the decision of the President of the tribunal, Judge K.P. O'Connor, in Farquharson v Director-General Department of Transport [1999] NSWADT 53. Some submissions were made as to the purpose and relevance of the evidence.
I gave a determination, and oral reasons for the determination, that the statement not be admitted into evidence in the current proceedings. In summary, my reasons for the determination were that the purpose of admitting the statement appeared to be to have the tribunal engage in a process of weighing and assessing the reliability of the evidence of the alleged victim who is to give evidence in upcoming criminal proceedings. The criminal proceedings are to be determined in a criminal court at a future date, and in my view this tribunal engaging in a process of assessing or weighing the evidence, prior to the hearing of the criminal proceedings, is not appropriate in the current proceedings which are examining whether the applicant's taxi driver authority should be cancelled. I consider the reasoning of the Supreme Court's in Leo's case to be applicable. The decision in Leo's case indicates that in reviewing the respondent's decision to cancel the applicant's taxi driver authority the existence of the criminal charges is a matter which may be considered, however, in making the decision in relation to the cancellation of the applicant's authority, it is not the tribunal's function to weigh and assess criminal evidence which has yet to go before a judge and jury. The decision in Leo's case was a decision of the Supreme Court where the Commissioner of Motor Transport had sought relief from the decision of a magistrate, disallowing the Commissioner's decision to suspend a taxi driver's license. The Supreme Court notes that the magistrate examined evidence in the criminal committal proceedings, referring to depositions and alleged discrepancies in the evidence of various witnesses and various other matters. The Court makes reference to the magistrate weighing the evidence and making findings and going on to allow the taxi driver's appeal. Justice McInerney stated:
"With respect to the learned magistrate I have difficulty in understanding precisely why it was he allowed the appeal. It is probable that what he has done is to decide the facts although he has stated the court could not determine the facts. He has purported to make findings on what he says are the discrepancies he found disclosed in the evidence and came to the conclusion that those discrepancies were of such a nature that it would be unlikely he would be convicted and therefore the Commissioner in these circumstances should not have suspended the licence.
It is my view that what the magistrate had to determine was not the guilt or innocence of the second defendant of the charges of wanton driving against him but whether having regard to the charges preferred against the second defendant whether the Commissioner was justified in suspending his licence on the ground he purported to act. The magistrate it is to be noted, conceded that if the second defendant had been charged with some other serious offences which involved in him operating his taxicab or utilising his drivers license, notwithstanding the presumption of innocence of an accused person it would be appropriate to either cancel or suspend his licence before the matter was determined because the public safety would, in his opinion, require that action........ It is in my opinion, doing the best I can, the magistrate has not addressed himself to that particular matter and has attempted to determine the issues of fact to be determined by a judge and jury. In my view that was not the matter that the magistrate was asked to determine. The matter he was asked to determine was whether having regard to the charges preferred against the second defendant and the circumstances in which those arose having regard to his utilisation of taxi drivers license, whether the Commissioner in the circumstances was entitled to suspend his licence." (The Supreme Court went on to set aside the magistrate's decision ordering it be reheard and determined according to law)
A decision of the President of the Tribunal, Farquharson v Director General, Department of Transport [1999] NSWADT 53 agreed with the approach set out in Leo's case:
The Tribunal agrees with the broad thrust of McInerney J's observations. Regulatory schemes which provide for the issuance of licences on the basis of satisfaction as to a licensee's fitness and character usually include, as part of their continuing oversight powers, a power to suspend the licence for public interest reasons. While it is the case that a person charged with a criminal offence must be presumed innocent until proven guilty, it does not follow that consequences that lie outside the criminal law may be avoided. Civil consequences typically attach to the laying of criminal charges in various categories of public sector employment. Commonly a public sector employee may be stood down with or without pay, depending on the statutory provisions.
21 An administrator of a licensing scheme would be expected to respond to advice that a regulated person had been charged with a serious criminal offence, especially one arising out of circumstances that directly bear on the activity in relation to which the licence has been issued. That was the situation in Leo's case.
22 In considering whether to exercise any discretion to suspend or otherwise interfere with the licence, an administrator can not reasonably be expected to enquire into the strength or weakness of the case against the licensee. That was the error into which the magistrate in Leo's case fell. Similarly a review tribunal can not be expected to go behind the information on which the administrator has relied to the extent of examining the strength and weaknesses of the prosecution case.'
The Appeal Panel of the Tribunal considered this issue also in the case of, Lo v Director General, Department of Transport (GD) [2002] NSWADTAP 39 (27 November 2002) before O'Connor K - DCJ (President) Goode P - Judicial Member and Bolt M - the Appeal Panel of the tribunal agreed with the approach of the President of the Tribunal in Farquharson. The Appeal Panel stated:
12 The appellant contended that it was appropriate for the Tribunal to inquire behind the material comprised by the charges and the police statements, and to give the appellant the benefit of the presumption of innocence until presumed guilty. For the reasons given by McInerney J in Leo and by the President in Farquharson, we reject that submission. See also, Sterjovski v Director-General, Department of Transport [2002] NSWADT 10 esp [46].
The Director-General has, as we see it, a duty to the community not to place passengers in contact with drivers against whom serious allegations of violence have been made, and over which independent and responsible police officers have decided to lay charges. A case could conceivably arise where a licensed person was able to bring forward prima facie evidence that the charges themselves were laid corruptly. In such an instance it may well be appropriate, and necessary, for the administrator and the Tribunal to enquire into the circumstances of the laying of the charges. But this is not such a case.
I note that the cases cited above were dealing with reviews of administrator's decisions where a licence had been suspended, and in the present case the tribunal is reviewing a decision to cancel a licence; however I find that the reasoning in Leo's case and Farquharson applies also to a review of a cancellation decision - the issue for the tribunal is not to weigh the strength and weaknesses of the prosecution case but to decide whether on the evidence presented the licence should be cancelled, or, as stated by the President of the Tribunal in Farquharson " In considering whether to exercise any discretion to suspend or otherwise interfere with the licence , (my italics) an administrator cannot reasonably be expected to enquire into the strength or weakness of the case against the licensee".
The evidence at the hearing
The applicant provided evidence to the tribunal at the hearing: an affidavit by the applicant; affidavits by way of character references; and taxi network login records. The applicant was not required for cross-examination by the respondent and the applicant's testimony thereby consisted of a written affidavit. The character references are provided in affidavit form by Farida Daher, friend of 20 years; Souad Taoum, sister of the applicant; Reverand Sayeh, Parish Priest who has known the applicant 9 years; Paulette Halloun, friend for over 20 years; Dr Youssef, who has known the applicant for 16 years as family medical practitioner.
In his affidavit that the applicant notes that he has been working as a taxi driver since 1990. He states he has read most of the respondent's file which was served on his lawyers, and has also read the complaints history alleged against him in the notice of reasons attached to the cancellation notice. He states that after the complaint of 24 January 2010, which to his knowledge was found to be not justified, he agreed to undertake a driver educational course as was directed by the Ministry of Transport. He successfully completed this course and was provided with a certificate upon completion on 1 March 2010. The applicant notes that since completing the driver educational course he has seen in the statement of reasons that there appears to have been three complaints in relation to overcharging passengers - CFI51944, CFI 53963, CFI 58966.
The applicant states that in relation to alleged complaints CFI49800 and CFI61534 he does not recall these complaints. The applicant states that he has read the documents on the respondent's file dealing with complaints CFI58966(for the complaint of Mr Yakimov of February 2011) as well as the record of interview which he did with officers of the respondent on 14 June 2011. In relation to the interview he states that at the time he did not fully recall the alleged incident the officers were referring to (being the incident with Mr Yakimov) and he told the officers that he did not specifically recall the incident. After reading the report from the two officers and his record of interview with them, he adopts what he said in the record of interview of June 2011 and seeks to clarify some matters. He says he agreed to refund the passenger the sum of $20 but his reason for so doing was not because he felt he had done anything wrong, rather he did the refund on the advice of the respondent's officers who asked him to do it to keep the customer happy. He says that after the interview the officers explained to him his rights and obligations in relation to charging tariff 3 (as a maxicab driver) and gives details of his previous understanding of how tariff 3 should be charges. He says that he explained to the passenger during his interview on 14 June 2011 that the higher rate would be charged and he recalls the fare coming to around $43, and just accepted the $40 from the passenger because that was what he had. He says he never charged the passenger the maxi rate, he only charged him a tariff 1 rate, but because of heavy traffic at the time the fare came to approximately $43 including the airport toll.
In relation to complaint CFI 51944, to the best of his recollection he recalls he was interviewed by a customer service representative from Taxis Combined and explained to them that he was directed the way to travel home by the passenger and complied with the passenger's directions. When they arrived at the passenger's premises he informed the passenger that the fare was $66, this was because the passenger had directed him to go the longer way. The respondent's record for this complaint, at folio 460, indicates the passenger queried the trip from Sydney airport to her home, stating that they were directed at the airport to a maxi style taxi, the fare was $66 and is usually no more than $40. The passenger requested that the situation be looked into. In relation to CFI53963 the applicant states he has no independent recollection about this matter and the particulars in the statement of reasons do not assist his memory. The respondent's complaint record is that the caller to the call centre complained that they had an argument with taxidriver AG4036 about the fare, the taxidriver insisted he would charge a maxi fare and the caller did not understand what that meant, saw he was being charged tariff 3, asked the driver what it was, he and the driver had an argument.
Since completing the educational course in March 2010 the applicant states he has done his very best to make sure he complies with his requirements as a taxi driver. He says that since the two officers explained about the way to charge tariff 3 after the interview of 14 June 2011, there have been no complaints against him for overcharging. When he has been questioned about matters he has done his best to explain the situation. He states "I understand that many of the alleged complaints were not actually complaints but the customer was instead enquiring about the correct fare. Since I started driving a taxi in 1990 I would estimate that I've driven at least six days per week collecting over at least 50 passengers each shift over the course of over 20 years. I have always tried to do my job in an honest manner." The applicant details his recollection of finding a wallet in the back of his taxi some 13 years ago and returning the wallet, which had credit cards and cash, and receiving a thank you note to the taxi base and to the taxi driver for his honesty.
The respondent provided the respondent's files relating to the applicant; a number of relevant documents were contained on the respondent's files and will be detailed below, and witness testimony, by way of written statement and oral evidence at the hearing, was given by Mr Yakimov, a passenger who had made a complaint about taxi driver behaviour. The respondent under cover letter dated 11 November 2011 also provided further written material being a copy of the complaints made against the applicant in 2010 and 2011.
Mr Yakimov gave sworn oral evidence to the tribunal. He described arriving at Sydney airport from an international flight, and clearing customs and moving to the taxi rank to obtain a taxi to travel to the domestic airport. He described arriving at the taxi rank, having the official in charge of the taxi rank wave a vehicle over to him, and placing his luggage in a back seat of the vehicle and taking a seat in the vehicle. He described the taxi driver as very friendly and very chatty. He stated that his luggage consisted of a carry on luggage bag and a surfboard. He said there was no traffic or delay on the way from the international airport to the domestic airport. Mr Yakimov states that when he arrived at the domestic airport terminus he got out of the taxi and the driver quickly got out and stood between Mr Yakimov and the taxi door through which he could recover his luggage. Mr Yakimov states that the taxi driver said "that will be $60". Mr Yakimov said he questioned the fare amount. Mr Yakimov refused to pay the $60 fare and described walking up and down the road looking for a policeman or other figure of authority. He then, being unsuccessful in finding a police person, returned to the taxi. The taxi driver then offered that he could pay $40. Mr Yakimov stated that he was unlikely to have $40, having just got off an international flight, and opened his wallet to see. The taxi driver saw that there were in fact two $20 notes in Mr Yakimov's wallet and said "you have enough that will do".
Mr Yakimovstated that after he paid the driver the $40 the taxi driver opened the taxi van door and Mr Yakimov was able to retrieve his belongings from inside the taxi . Mr Yakimov requested a receipt and states that the taxi driver provided a handwritten receipt, on a card. A photocopy of this hand written receipt was in evidence before the tribunal. MrYakimov says that he could still see the driver identification card details, visible to him from the curbside, and so he quickly wrote down the details on the receipt card. He states he noted that the details were not the same as the ones provided by the taxi driver. Mr Yakimov says that he does not think that the taxi driver saw him recording the details. Mr Yakimov states his belief that the taxi driver knew he was charging an inappropriate fare and says for this reason he decided to complain. He was travelling to the domestic airport to catch a connecting flight to Brisbane and was concerned not to miss the flight. The receipt has a taxi number written on it by the taxi driver which does not match the one recorded by Mr Yakimov. This fare quoted on the receipt appears to the tribunal to be $60, although the writing is not very clear and it is conceded that it could be $40, although to the tribunal it does appear to be $60. The driver authority is left blank, and the taxi number is not the correct taxi number. The applicant, in his affidavit, provided this explanation about receipt card: "On page 407 there appears to be a receipt that the passenger is saying that I issued to him. I still don't remember giving this passenger the receipt and I don't recognise the handwriting."
The respondent's file (folio number 465) records a telephone call, to the call centre, on 20 February 2011 "caller states at 16. 30 he caught a taxi from international airport to domestic airport and the taxi driver wanted to charge him $60. Caller states he refused and taxi driver then told him "okay I'll charge $40 for the trip". Caller states he paid $40 for the trip but he is quite positive he has been overcharged. Caller states the taxi number on the receipt indicated T4378 but the actual taxi number on the vehicle was T3677. Caller states the drivers ID is AG4036.
The statement of reasons for the decision of July 2011, and the respondent's file, detail the complaints received about the applicant in the period 2003 to 2011 - 34 complaints 21 of which relate to overcharging (12 "justified").
Legal provisions and discussion of evidence
The Passenger Transport Act 1990, and the Passenger Transport Regulation 2007 provide:
Section 33, Passenger Transport Act 1990
33 Authorities
(1)The Director-General may, by the issue of authorities under this Division, authorise persons to drive taxi-cabs, subject to and in accordance with this Division. A person authorised under this Division is referred to in this Part as an "authorised taxi-cab driver".
(2) A person who drives a taxi-cab is guilty of an offence unless the person is an authorised taxi-cab driver. Maximum penalty: 100 penalty units.
(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.
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.
4 Objects
The objects of this Act are:
(a) to require the accreditation or authorisation, by TfNSW, [Transport for NSW] of the operators of and drivers involved in public passenger services (other than ferry services), and .............
(e) to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services, and
(f) to encourage co-ordination of public transport services.
The decision under review in the current proceedings is a decision to cancel the applicant's taxi driver authority. Section 33F clearly provides that in making a cancellation decision regard is to be had to the purpose of the authority. The purpose of an authority is to attest to the matters set out in s33(3)(a)(b) of the Act, namely, to attest that the authorised person is:
- Of good repute; and
- A fit and proper person (to be so authorised); and
- Considered to have sufficient aptitude and responsibility to drive a taxi cab in accordance with -law and custom; and in accordance with the conditions under which the taxi service is operated.
Section 63 of the Administrative Decision Tribunal Act 1997 ("the ADT Act") provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the respondent, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.
A frequently used phrase is that, when conducting a review, the Tribunal 'stands in the shoes of the decision maker' and exercises the same functions and powers. The Tribunal is therefore constrained in its powers to those held by the decision maker.
Section 63(3) of the ADT Act provides that in determining an application for the review of a reviewable decision, the Tribunal may decide:
(a) to affirm the reviewable decision, or
(b) to vary the reviewable decision, or
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or
(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
In deciding this matter the tribunal has also had regard to prior decisions of the Tribunal discussing the legislative requirements. A useful review of the authorities was provided in the case of Chowdhury v Department of Transport and Infrastructure [2010] NSWADT 199:
7........The purposes of a taxi drivers authority are set out is s 33(3).....
8.The meaning of "fit and proper" is dependent on the nature and purpose of the activities which the person will undertake. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321,Chief Justice Mason explained that, at 380:
'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.'
9. The Tribunal and the Appeal Panel have frequently cited with approval the test posed by the equivalent ACT Tribunal dealing with an equivalent legislative scheme in Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 per Curtis P:
'One must put oneself, so far as possible, in the position of a member of the public who might travel in a taxi driven by the Applicant and ask whether that member of the public, knowing of the Applicant's criminal record and what he has done ... to rehabilitate himself, would object to the Applicant as the driver of the taxi.' .......
12..In contrast to character, reputation as Waddell J explained in Re T and Anor and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 389:
"...is to be found in the estimate of his 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. See, generally, Wigmore on Evidence, 3rd ed., vol 5, p 486 et seq, pars 1615, 1616; p 479 et seq, par 1610. As is pointed out by Wigmore, a person might not have a general reputation in the neighbourhood where he lives, but may have established a reputation in another group of persons: p 472 etseq, par 1606. It is, I suppose, possible that a person might not have any reputation at all, simply because he does not participate in the activities of any group of people who have any necessity to form an estimate of his character.
.....
14.In Re T Waddell J (at 399) discussed how 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. At 401, his Honour said that:
...evidence of particular acts of conduct on the part of the person whose reputation is in issue is not admissible to prove the nature of that reputation."
In the case of Saadieh v Director General, Department of Transport [1999] NSWADT 68 the Tribunal cited Waddell J in Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 393:
A person's reputation, in fact and in law, is to be found in the estimate of his moral character entertained by some specific group of people, such as 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. . . Evidence of conviction for a criminal offence is, however, admissible as evidence, indeed, most cogent evidence of bad reputation.
A decision of the Appeal Panel of the Tribunal: Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 also provides useful guidance:
38 Good Repute:The approach to be adopted in considering 'good repute' is well explained by Waddell J in Re T. The Appeal Panel also considers it in a forthcoming decision, Lo -v- Director-General, Department of Transport [2002] NSWADTAP 39. 'Good repute' refers to the way reasonably-minded people assess an individual's current reputation, with reasonably precise knowledge of those matters that put the person's reputation in doubt. The fact that the person produces evidence from witnesses who vouch in general terms for the person's reputation can not be conclusive. Equally, care must be taken, as we see it, not to use the 'good repute' requirement as a way of bringing into consideration stereotypes or assumptions which offend, for example, against human rights or anti-discrimination standards....
42 The question which the Director-General must ask, as we see it, is whether the travelling public would be prepared to place their trust in a driver with Z's background, and past and recent offence history, even if satisfied that there is no longer a significant risk of sexual reoffence?
43 In the past, the Tribunal and the Appeal Panel has cited with approval the test posed by the equivalent ACT Tribunal dealing with an equivalent legislative scheme in Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 per Curtis P:
"One must put oneself, so far as possible, in the position of a member of the public who might travel in a taxi driven by the applicant and ask whether that member of the public, knowing of the applicant's criminal record and what he has done ... to rehabilitate himself, would object to the applicant as the driver of the taxi."'
The Appeal Panel of the Tribunal in a recent case considered the role of the "perception of the public" in decisions about whether an applicant is a "fit and proper person". The Appeal Panel of the Tribunal in the case of Department of Transport and Infrastructure v Murray (GD) 2011 NSWADTAP 16 reviewed relevant authorities and concluded:
When deciding whether a person is a 'fit and proper person', the question of whether the community would have confidence that any improper conduct will not re-occur is relevant: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; 94 ALR 11. Otherwise, the determination of fitness and propriety is a question of fact for the decision maker to determine objectively on the basis of the all evidence. That question is not to be determined through the eyes of a reasonable member of the travelling public. Nor is it correct, as was suggested in Farquharson, to take account of the likely perceptions of the travelling public as one of the relevant factors in deciding whether an applicant is a fit and proper person. The Tribunal decided that Mr Murray is a fit and proper person to be the driver of a hire car taking into account relevant factors. It did not err by failing to determine Mr Murray's fitness and propriety through the eyes of a reasonable member of the travelling public
The Appeal Panel's decision in Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16 (8 April 2011) was subject of comment by the President of the Tribunal, Judge K P O'Connor, in the case of Nasour v Director-General, Transport NSW [2011] NSWADT 91 (4 May 2011):
In that case [Farquarssen] I went on to look at the question of how then might the administrator go about forming a view as to 'repute and character'. The reasons referred to taking into account the views that might be formed by a reasonable member of the travelling public; and have been read as allowing the views of the travelling public to be used in the assessment of character. The Appeal Panel recently held in Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16 (8 April 2011) that the views of the travelling public are not a relevant consideration when assessing character. What is involved in the assessment of character is an objective evaluation of the person's fitness to continue to undertake the regulated occupation having regard to the relevant material.
The Appeal Panel's approach is similar to the one I expressed at para [29] of Farquharson , as extracted above. The preferable approach in dealing with the character question (often expressed in statutes as whether the person is a 'fit and proper' person to undertake the regulated activity), therefore, where one event is substantially relied upon - the laying of serious criminal charges - is to reserve judgment on intrinsic character until more is known.
However, 'repute' is a concept very much about what members of the public, and importantly the passenger community, might think (fairly or unfairly). The Act itself, not surprisingly, gives weight to passenger thinking. One of the objects of the Act is to 'encourage public passenger services that meet the reasonable expectations of the community for safe ... passenger transport services' (s 4(e)).
A person's reputation is a function of public perception. See for example Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 at [36] per Toohey and Gaudron JJ. The full passage appears in Murray at [16]. The same point is made in the Supreme Court and ACT Supreme Court decisions to which the Appeal Panel refers at [13].
A judgement as to the perception of reasonably-minded members of the travelling public remains, in my view, a relevant consideration for an administrator, when considering the 'repute' of a driver, or the driver's 'aptitude and responsibility'.
Further guidance was offered by the Tribunal in the case Saadieh v Director General, Department of Transport [1999] NSWADT 68 as to assessing a person's fitness to be authorised to drive a taxi-cab. The Tribunal then observed:
17 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.
18. In assessing the last factor, several considerations are relevant. These include: the length of time since the offence/s were committed or the complaint/s made; the circumstances in which those offences or complaints occurred or are alleged to have occurred; whether the Applicant admits responsibility for the offences or complaints and shows genuine remorse; the efforts the Applicant has made to rehabilitate himself or herself during that time and; any change in the Applicant's circumstances such as increased support from friends, family or professional service providers.
The assessment of whether the applicant is a "fit and proper person" was also considered in the case of Caska v The Director General of the New South Wales Department of Transport [2001] NSWSC 205 (Simpson J):
42 By s 11(2)(a) the holder of an authority is required to have two attributes: he/she is to be considered "to be of good repute" and "in all other respects a fit and proper person to be the driver of a public passenger vehicle". The magistrate was conscious of the concession that Mr Caska's "good repute" was not challenged and was not in issue. The question he correctly identified for himself was whether he was "in all other respects a fit and proper person to be the driver of a public passenger vehicle". He in fact enunciated this test explicitly.
The respondent submits that the tribunal would not be satisfied that the applicant is a fit and proper person to be the driver of a taxi.
Findings of fact and discussion of law and evidence
I make the following findings of fact on the evidence in this matter. I find that the applicant has been charged with serious criminal offences, being 3 counts of sexual assault on a girl under 10 years of age. These offences are alleged to have occurred several years ago, in 1992/93. There is no evidence that the applicant has been charged with similar offences since that date, nor any evidence that there has been any complaint made against the applicant, in performing his functions as a taxi driver, for behaviour of a similar nature. The complaints history does not disclose a complaint of improper sexual behaviour, or improper behaviour towards children or women. The criminal charges are most serious however, involving abuse of trust, in that the facts alleged are that the applicant sexually assaulted a female child of family friends and that he was known, because of his close relationship with the family, to that child as "uncle". The charges involve allegations of more than one incident of sexual assault on the child. One of the allegations includes an allegation that the applicant locked the child in his taxi and took her to a place while so detained in the taxicab, and at that place committed the alleged sexual assault. Whilst it is conceded by the respondent that the charges did not arise from alleged conduct by the applicant in the course of his occupation as a taxi driver, he was not on duty and performing the role of the taxi driver at the time of the alleged offences, it is of concern that the use of his taxi was involved. I find the charges are very serious criminal charges, not withstanding that they are alleged to have occurred several years ago. The evidence before me was not limited to the criminal charges, the evidence included the complaints history against the applicant for his conduct whilst a taxi driver, and in particular detailed evidence in relation to Mr Yakimov's complaint. The focus of the respondent in the statement of reasons for the original decision was on the complaints history, at the hearing submissions were also made by the respondent in relation to repute and the criminal charges.
In relation to the complaints history of some 32 complaints, 21 are for overcharging, or charging a passenger an excessive fare. Some time was spent in the hearing by the applicant's legal representative in going through the individual complaints history, as documented on the respondent's file, and noting whether the complaints were recorded as "justified" or "unjustified" and also critiquing the way in which these conclusions had been arrived at on the face of the paperwork in the respondent's file. Some evidence was given by the applicant in relation to the complaints history, in his affidavit, and is referred to above in these Reasons for Decision. I have carefully considered the evidence the applicant did present in relation to the complaints history.
Detailed evidence was presented in relation to the complaint of Mr Yakimov of February 2011: both Mr Yakimov, and the applicant, gave evidence about the incident. Mr Yakimov gave clear and consistent evidence. The applicant's evidence in his affidavit is that he does not clearly recall the incident, however he does also present a version of the incident. He does not recall giving the receipt to Mr Yakimov nor recognise the handwriting. His evidence due to his stated lack of recall was not clear. Mr Yakimov's evidence was clear and was consistent with statements which he made earlier and contemporaneously (the record of his call to the call centre on the day of the incident, and his earlier written statement). Mr Yakimov was subjected to quite detailed cross-examination by the applicant's representative and under cross-examination his evidence was not impugned in any substantial way. The applicant's evidence contained in his affidavit was not supported by any contemporaneous record (although he refers to his earlier record of interview with the respondent's officers this did not occur until June 2011 and in the record of interview he states that he does not recall the incident). As Mr Yakimov's evidence is consistent with earlier contemporaneous statements, and as he appeared to have clear recall of the incident, I am satisfied that the evidence of Mr Yakimov is reliable and should be accepted by the tribunal. I am not satisfied as to the reliability of the applicant's evidence given that it was not based on clear recall of the incident. Further given the consistency of Mr Yakimov's evidence with his prior statements, and given that the lack of any such contemporaneous record made by the applicant, then the tribunal prefers the evidence of Mr Yakimov over the applicants as the tribunal finds it to be more reliable and consistent for the reasons given. Further, the tribunal found Mr Yakimov to be a forthright witness and accepts his evidence, given its consistency, as reliable. Mr Yakimov had nothing to gain from making a complaint, or from giving evidence to the tribunal at the hearing. It was clear to the tribunal that Mr Yakimov's motivation in so doing was that he honestly believed that the taxi driver had behaved improperly.
I am therefore satisfied that the incident occurred in the manner described by Mr Yakimov. That being so then l find that the applicant requested that Mr Yakimov pay an excessive fare, and stood over Mr Yakimov in a way which made Mr Yakimov feel that he had no choice but to pay the excessive fare. I do not accept the applicant's evidence that the fare was $43, I find that the applicant did require Mr Yakimov to pay $60, and after a dispute, reduced it $40. Under cross-examination it was put to Mr Yakimov that there was considerable heavy traffic at the time and that there were discussions with the taxi driver about the appropriate route. Mr Yakimov was clear in his response that there was no heavy traffic and no discussion about the route which would be taken, and the tribunal accepts his evidence as reliable. Further, the records put into evidence by the applicant, said to be records of the taxi driver login held by the taxi network, do not indicate substantial delay- the trip is recorded as having taken 10 or 14 minutes (the applicant's representative during the hearing referred to the relevant login entries for the trip- "16.47 meter engaged, 16.51 login approach, 17.01 login vacant"). The respondent's file, at folio 464, indicates the estimated fare, from airport to airport, as $14 plus tolls.
In relation to the provision of the receipt I find that the applicant did provide this receipt to Mr Yakimov. The receipt is in evidence and clearly shows that an incorrect taxi number was written on the receipt, and the driver identification details were left blank. I accept the evidence of Mr Yakimov that he did record the driver identification number and the taxi number on the receipt, from the curbside, while he was standing next to the taxi on the day of the incident. The details written by Mr Yakimov are clearly recorded on the receipt. I accept that the details recorded by Mr Yakimov are correct - they were in fact the correct driver identification number and taxi number for the applicant on the day of the incident. The tribunal is satisfied that the receipt was provided by the applicant to Mr Yakimov. In so finding the tribunal has taken into account that the evidence of Mr Yakimov is consistent with his contemporaneous statement to the call centre on the day of the incident, where he referred to the incorrect identification details being provided to him (the call centre complaint record is set out above in these written reasons for decision). I have considered the explanation given by the applicant about the receipt - in his affidavit he states he does not recall giving the receipt and states he does not recognise the handwriting and in the record of interview of June 2011 stated he did not think he wrote it. This evidence of having no recall, or not recognising the receipt as his handwriting, is not as clear as the evidence of Mr Yakimov who gave clear evidence that the receipt was given to him by the applicant. Given the clarity, consistency and reliability of Mr Yakimov's evidence I prefer Mr Yakimov's evidence to the applicant's, and find that the applicant did give a receipt with incorrect identification details to Mr Yakimov.
In the tribunal's view this action of providing a receipt with incorrect identification details is dishonest. The result of providing an incorrect taxi number could only be that the passenger would be unable to identify the driver if indeed the passenger did make a complaint about the disputed fare. The providing of an incorrect taxi cab number by the applicant causes the tribunal to view the applicant's evidence about this incident adversley. The tribunal has no confidence in the applicant providing an honest account of the incident when he has dishonestly provided an incorrect taxicab number to Mr Yakimov, thereby minimising his potential accountability for his actions.
In relation to the complaints history, prior decisions of the tribunal (discussed above) have indicated that the complaints history is a relevant matter for the tribunal to consider. Whilst the tribunal only had direct evidence from one of the complainants during the hearing, being the sworn evidence of Mr Yakimov discussed above, the tribunal had the respondent's file in relation to the complaints history. A number of those complaints relate to demanding excessive fares, over a period of several years. In February 2010 the respondent sent correspondence to the applicant requiring him to undergo retraining. The correspondence refers to the recent interview held with an officer of the respondent on 8 February 2010. It was noted that the interview was in response to a complaint received about a journey conducted on 24 January 2010. The respondent's file has a record of the interview (see folio 309). A reading of the record of interview indicates that the respondent's officers discussed a complaint with the applicant which included an allegation that he was initially charging tariff 3 and after passenger scrutiny changed it to tariff 1. The applicant denied this stating that if he charged tariff 3 the fare would be much greater. It was put to the applicant during the interview of 8 February 2010 that a review of his file indicated a large number of complaints including further complaints recorded since the warning given to the applicant in April 2008. The respondent referred to the complaints history in the letter to the applicant of 15 February 2010 directing him to attend training in "Regulations". The tribunal places some weight on the fact that in 2010 the applicant was required to attend retraining to address his complaints history, and in particular the allegations/complaints that he has overcharged passengers. An aim of the retraining was to address the complaints history, this is clear from the context (the interview and the decision for retraining. Given the complaints about overcharging which were discussed with the applicant during the interview, the tribunal considers that the retraining was to address such issues, and to make sure that the charges and tariffs were completely understood by the applicant. However, despite attending retraining, complaints have continued. The applicant maintains that since his interview in June 2011 he has understood the tariff 3 fare, and there have been no further complaints. However, it appears the issue of charging tariff 3/tariff 1 was part of the complaint discussed at the record of interview in February 2010 and after that he attended further training. I find it difficult to accept the applicant's explanation of not understanding tariff3 fares (until the interview in June 2011) given this history. In my view is highly relevant that after attending retraining in March 2010, complaints continued. Also complaints continued in the period when the applicant had applied for review of the decision suspending his licence, a period when one would expect him to exercise great caution in regard to his licence requirements.
Whilst the applicant's legal representative made submissions as to the reliability of the complaints and the respondent's findings in relation to the complaints, when considering the complaints records before the tribunal, the tribunal finds that there is a similarity between a number of the complaints, and there are a number of allegations by passengers about the applicant demanding excessive fares. Further, a reading of the complaints on the respondent's file indicates that for some complaints, when the applicant gave a different account to the complaint he was given the benefit of a finding of "Conflicting statements' warranting no further action in relation to the complaint. Whilst unfair complaints can be made by members of the public, the tribunal considers that it is relevant that so many complaints have been made against the applicant, over a lengthy period, for similar behaviour. The passengers that made such complaints would generally not stand to benefit from the making of the complaint. The tribunal considers that some weight should be given to the frequency and nature of the complaints. The decision of Saadieh v Director General, Department of Transport [1999] NSWADT 68, referred to above, is also authority for this approach and indicates that the tribunal should have regard to the complaints history in determining a review application of this nature. I am satisfied that the complaints history indicates a course of conduct, of disputes with passengers about the amount of the fare, and complaints by passengers of the applicant requiring them to pay an excessive fare.
The tribunal must have regard to the purpose of the authority in deciding whether the correct and preferable decision, according to the law and evidence, is that the applicant's driver authority be cancelled. The tribunal must consider in this matter whether the applicant is of good repute and whether he is a fit and proper person to be authorised to drive a taxi cab. The Tribunal must also be satisfied that the applicant has sufficient aptitude and responsibility to drive a taxi cab in accordance with -law and custom; and in accordance with the conditions under which the taxi service is operated.
When I consider the evidence about the complaint by Mr Yakimov and my findings in relation to that complaint, namely that the applicant demanded an excessive fare and dishonestly attempted to obscure his driver identity by providing incorrect details on the receipt to Mr Yakimov, I am not satisfied that the applicant has sufficient aptitude and responsibility to drive a taxicab in accordance with law and custom. I make this finding in the context of the evidence about the complaints history relating to the applicant, being a history over several years of complaints by customers about the applicant charging an excessive fare. I have also considered the evidence of Mr Yakimov in the context of the history of warnings and interviews: the applicant was issued a warning by the respondent in April 2008, subsequent to a file review undertaken by the respondent which noted the extensive complaints history; and a record of interview was conducted in February 2010 between officers of the respondent and the applicant, to investigate a customer complaint of overcharging. During the interview the customer's allegation that the applicant charged him tariff 3 instead of tariff 1 was discussed with the applicant. Subsequent to the interview the applicant was directed to attend training to address his compliance with driver regulations. Despite a previous warning, and despite completing the retraining, complaints continued. The complaints have continued even while the applicant was subject of a decision to suspend his licence and had applied to the tribunal for review of the suspension decision and was awaiting an outcome of that review (and was continuing to drive pending review). In the context of this history, the details of the incident with Mr Yakimov, and the applicant's dishonesty in providing a receipt which obscured his driver identity, thereby lessening the potential for him to be accountable for his behaviour to the passenger, cause me to be satisfied that the applicant does not have sufficient aptitude and responsibility to drive a taxicab in accordance with law and custom. Section 33(3) of the Act requires me to be satisfied of this aptitude and responsibility, and as I am not so satisfied, then I find that the applicant should not be authorised to drive a taxicab. For these reasons I find that the correct and preferable decision according to law, and the evidence before me, is that the applicant's driver authority the cancelled. Accordingly, I find that the decision of the respondent should be affirmed.
I note that the respondent also relied on other grounds, namely that the applicant is not of good repute and is not a fit and proper person. Because I am satisfied that the applicant does not have sufficient aptitude and responsibility to drive a taxicab in accordance with law and custom, and that his authority should be cancelled for this reason, then I do not need to decide whether the applicant is of good repute and a fit and proper person to be authorised to drive a taxi. I will make the following observations on those issues, but my decision, as set out above, is based on the fact that I am not satisfied that the applicant has sufficient aptitude and responsibility to drive a taxicab in accordance with law and custom.
In relation to the applicant's repute, I am satisfied that a previous tribunal found in reviewing the suspension decision that the applicant was of good repute. The reasons for decision in that matter indicate that the only issue going to repute before the tribunal was the criminal charges. In the current matter additional evidence as to the complaints history and the dishonest actions of the applicant in dealing with Mr Yakimov were also before the tribunal. The applicant's character references do not deal with those matters of dishonesty which are in issue before the tribunal, the character references only deal with the issue of the criminal charges. In the current proceedings the tribunal is satisfied that the applicant is charged with serious criminal offences. The criminal charges are most serious. The tribunal notes that the allegations are denied and that the applicant intends to defend the charges and at the time of the current tribunal hearing he has not been convicted. The tribunal notes that the charges are for offences alleged to have occurred some 30 years ago, there have been no similar allegations in the ensuing period, and the charges are subject to a plea of not guilty and are denied by the applicant.
The tribunal notes the guidance provided by the Appeal Panel of the tribunal in relation to an assessment of repute and the weight to be given to references by friends and family: Lo -v- Director-General, Department of Transport [2002] NSWADTAP 39. In the current matter the applicant has provided references primarily from friends and family. There is also a reference from a doctor who has known the applicant in the role of general medical practitioner, but this referee does not refer to the applicant as he is known as in the wider community. There is also a reference from a parish priest and this reference does attract some weight being as being written by a person of standing who can provide evidence as to how the applicant is perceived in the wider community. However none of the references referred to the allegations of dishonesty in relation to charging passengers excessive fares, or giving an incorrect receipt to Mr Yakimov. As was stated by the Appeal Panel of the tribunal in Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 (22 November 2002):
We should observe at this point that the question of reputation is one that must always be assessed in an objective way by an administrator and the Tribunal, no doubt informed by information which is often quite subjective. The opinions of friends and co-workers are important but in our view would not be conclusive as to the way in which the objective task is carried out.
38 Good Repute: The approach to be adopted in considering `good repute' is well explained by Waddell J in Re T. The Appeal Panel also considers it in a forthcoming decision, Lo -v- Director-General, Department of Transport [2002] NSWADTAP 39. `Good repute' refers to the way reasonably-minded people assess an individual's current reputation, with reasonably precise knowledge of those matters that put the person's reputation in doubt. The fact that the person produces evidence from witnesses who vouch in general terms for the person's reputation can not be conclusive. Equally, care must be taken, as we see it, not to use the `good repute' requirement as a way of bringing into consideration stereotypes or assumptions which offend, for example, against human rights or anti-discrimination standards. Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 (22 November 2002)
Consistently with the principles set out by the Appeal Panel I am not satisfied on the evidence overall in this matter that the applicant's references are conclusive as to his good repute. The fact of the criminal charges is also before me (although these are not convictions), as is evidence of dishonesty, and a complaints from passengers about the applicant's dealings with them over fares. There is not a lot of evidence before me as to the repute of the applicant in the wider community and the references before me are not conclusive. However, I note that the tribunal has been previously satisfied as to the applicant's good repute, although as noted above the evidence before me differs from the evidence before the prior tribunal. I am also aware that the decision of the prior tribunal is to subject of an appeal to the Appeal Panel of the Tribunal. As discussed above, given my finding that the authority should be cancelled because of the applicant's lack of sufficient responsibility and aptitude then I do not have to finally determine the issue of the applicant's repute, and I also accept that a prior tribunal has recently found that the applicant is of good repute. It is my decision that even if I was satisfied that the applicant is of good repute, I would not satisfied that the applicant is a fit and proper person to be authorised to drive a taxi cab. Nor, as I have stated above, am I satisfied of the applicant's responsibility and aptitude.
In considering whether the applicant is a fit and proper person to be the holder of a licence I have considered the cases set out above in these written reasons for decision and have also considered the summary of authorities set out by the tribunal in the decision of Pobjie v Commissioner for Fair Trading, NSW Office of Fair Trading (No 2) [2008] NSWADT 39 (1 February 2008. It is useful to set out the guidance provided by that review:
Fitness and Propriety
113 The Law - Assessment of whether a person is fit and proper to be the holder of a licence is different from, but related to, an assessment of whether a person is of good repute.
114 In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, Chief Justice Mason explained that, at 380:
"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."
Toohey and Gaudron JJ said 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."
115 A person's fitness is to be gauged in the light the nature and purpose of the activities that the person will undertake. In Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127 the High Court said (at 156-7):
"The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty , knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."
116 In Sobey v Commercial and Private Agents Board 20 SASR 70 Walters J said:
"In my opinion what is meant by that expression is that the applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails."
117 Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability in the context of the role they are seeking to undertake. What fit and proper means must be viewed in the light of, "... the activities in which the person is or will be engaged": Re Percival and Australian Securities Commission [1993] AATA 196; (1993) 30 ALD 280, at 290. What is fit and proper will depend on the legislative context and the nature of the particular profession, trade or occupation in question: Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALD 794, at 796 paragraph [41]. Thus in Obradovic -v- Commissioner for Fair Trading, Office of Fair Trading (GD) [2006] NSWADTAP 18 the Appeal Panel agreed that a formerly licensed building contractor should have his application for a new licence refused because, despite there being no evidence that he was dishonest or of bad repute, evidence that he had been extremely tardy and intransigent in dealing with customer complaints, and the regulator, when he held a licence, was sufficient to conclude that he was not fit and proper for the role. In that case, as here, the licensing scheme was among other things, designed to protect consumers and to provide them with adequate means of redress against licensed contractors. In Bond the assessment occurred in the context of whether the applicant was a fit and proper person to hold a licence under the Broadcasting Act 1942 (Cth).
118 The discretion vested in a decision maker in determining whether a person is fit and proper, in any given context, was said by the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389, per Northrop, Miles and French JJ, to "give wide scope for judgement and allow broad bases for rejection."
After consideration of the evidence in this matter and the guidance provided by the authorities set out above in these Reasons for Decision, the tribunal finds that the evidence of Mr Yakimov, viewed in the context of the history of complaints (and the nature and frequency of those complaints),supports a conclusion that the applicant engaged in a course of behaviour, of charging excessive fares of passengers, and that this behaviour has continued despite warnings, interviews, and retraining. Further, the evidence about the incident with Mr Yakimov indicates dishonest actions by the applicant, in providing incorrect identification details to Mr Yakimov, thereby seeking to be unaccountable in relation to the dispute with the passenger. It is central to the relationship between a taxi driver and passenger that the passenger can be satisfied that the legal fare is charged by the driver - set fares/tariffs and taxi cab metres provide for this. Taxi driver identification numbers, and taxi identification numbers, provide further accountability in relation to the driver's behaviour. When I consider the objects of the Act (in section 4 of the Act, set out above in these reasons) to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services, then I consider that such expectations are met by requiring taxi drivers to charge the legal fare and to be accountable to passengers for any breaches of legal requirements. I find that the applicant's actions in relation to Mr Yakimov breached the relationship between a taxi driver and passenger which involves passenger reliance on the driver charging the legal fare. Further, I consider that the applicant's actions, in providing incorrect driver details to Mr Yakimov, thereby avoiding accountability for his behaviour to the passenger, is a significant breach of proper practice and of his obligations as a taxidriver. Further the act involved dishonesty. When I consider this dishonest action, in the context of the complaints history, I am not satisfied that Mr Yakimov is a fit and proper person to be authorised to drive a taxi cab. I do not consider that he has requisite knowledge of the duties and responsibilities owed by him as the holder of a taxi driver authority, nor do I consider that he is possessed of sufficient honesty as to permit him to be safely accredited to the public, as a person authorised to drive a taxi. However, as noted above in these reasons for decision, I am not satisfied that the applicant has sufficient responsibility and aptitude to drive a taxicab in accordance with law and custom, and on that basis I am satisfied that his driver authority should be cancelled.
For reasons detailed above I find that the correct and preferable decision is that the applicant's driver authority be cancelled and that the decision of the respondent be affirmed.
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Decision last updated: 19 January 2012
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