Assi v Roads and Maritime Services
[2013] NSWADT 159
•12 July 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Assi v Roads & Maritime Services [2013] NSWADT 159 Hearing dates: 19 February 2013 Decision date: 12 July 2013 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: The decision under review is affirmed
Catchwords: Taxi driver authority, refusal of application, fit and proper person Legislation Cited: Administrative Decisions Tribunal Act 1997
Passenger Transport Act 1990Cases Cited: Assi v Director General, Transport NSW [2012] NSWADT
Commissioner of Police, New South Wales Police v Mercer (GD) [2005] NSWADTAP 55
Director General Transport for NSW v Assi (GD) [2011] NSWADTAP 68
Ex Parte Tziniolis (1966) 67 SR (NSW) 448
Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630
Loye v Director General, Department of Transport [2000] NSWADT 145
Reddy v NSW Department of Transport and Infrastructure [2010] NSWADT 200Category: Principal judgment Parties: Joubran Assi (Applicant)
Roads & Maritime Services (Respondent)Representation: Counsel
M Robinson, SC (Respondent)
Barakat Lawyers (Applicant)
Smythe Wozniak Legal (Respondent)
File Number(s): 123157
reasons for decision
GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): This is an application by Mr Assi, the Applicant, for review of the decision of the Respondent, Roads & Maritime Services. A Delegate of the Director General of the Respondent refused the Applicant's application for a taxi-driver authority. That decision was made pursuant to 33 of the Passenger Transport Act 1990 ("the Act").
The Applicant sought an internal review of that refusal and the refusal was affirmed. The Applicant then applied to the Tribunal seeking external review of the refusal decision.
Background
The Applicant has previously held a taxi-driver authority. The Respondent determined to cancel that authority In July 2011. The Applicant sought review of that determination in this Tribunal. On 19 January 2012 Judicial Member Huntsman affirmed the determination and her reasons are recorded as Assi v Director General, Transport NSW [2012] NSWADT 7 ("the cancellation matter").
In her reasons, Judicial Member Huntsman set out the background that lead to the cancellation. This background included numerous complaints about his conduct as a taxi-driver. Many of those complaints were for demanding more/other than the prescribed fare.
The Judicial Member also noted that the Respondent had previously suspended the Applicant's authority after he had been charged with three counts of sexual assault on a person under the age of 10. The Local Court dismissed those charges on 8 February 2012.
The evidence before the Judicial Member included an incident concerning a Mr Yakimov - a passenger in a taxi driven by the Applicant. Mr Yakimov had made a complaint about the Applicant's behaviour. The details of the complaint are set out in the Judicial Member's reasons at paragraphs [21] - [23] as follows:
21 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".
22 Mr Yakimov stated 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."
23 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.
In her reasons, Judicial Member Huntsman concluded at paragraph [53] of her reasons:
53 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 (sic) 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.
As noted, Judicial Member Huntsman affirmed the cancellation determination on 19 January 2012. On 15 February 2012 the Applicant applied to the Respondent for issue of a new authority to drive a taxi. The application referred to the dismissal of the sexual assault charges on 8 February 2012 and the previous cancellation.
Evidence presented in the Local Court proceedings
The Respondent sought to rely on evidence presented in the Local Court hearing of the sexual assault charges. The Applicant opposed that approach. Mr Barakat argued that it is for the Respondent to establish why that material should be considered.
The Respondent contends that the Tribunal is able to take that evidence into account notwithstanding that the charges were dismissed. In Director General Transport for NSW v Assi (GD) [2011] NSWADTAP 68 the Appeal Panel stated at paragraph [20]:
... In our experience when serious charges are dismissed an administrator normally restores the licence or authority, though sometimes serious admissions or findings may be made which continue to bear negatively on the licence or authority. If an administrator is of that view, ordinarily an order of revocation or cancellation is issued, and that can be tested in the Tribunal.
In Commissioner of Police, New South Wales Police v Mercer (GD) [2005] NSWADTAP 55 the Appeal Panel stated at paragraph [20]:
20 We make the following short observations. It is quite possible that material considered in a criminal proceeding will be relevant to the exercise of a licensing discretion even though the particular offences charged have not been proven. The Tribunal is entitled, and duty bound, to take into account any relevant material going to the question of what is the correct and preferable decision in connection with the particular administrative discretion. The mere fact that a court has dismissed charges is of no great moment. It is the reasons why the charges were dismissed that matter. If an offence has failed on a technical point ... the statements of prosecution witnesses may retain high probative value for the purposes of the exercise of the licensing discretion. Obviously, if they were not subject to cross-examination at the local court proceeding, then care would need to be exercised at the point of any inquiry by the Tribunal that a process of that kind be allowed.
In Reddy v NSW Department of Transport and Infrastructure [2010] NSWADT 200 Judicial member Grant observed at paragraph [8]:
8 On 13 June 2008, the matter was heard at Parramatta Local Court before Magistrate Miszalski. The Magistrate could not be satisfied, beyond a reasonable doubt that the Applicant was guilty of the offences with which he was charged and accordingly, the charges were dismissed; however, he made comments in his judgment to the following effect:
1.The conversation between the accused and his passenger was inappropriate, and
2.If the matter was to be determined on a different standard of proof, then a different result would have occurred.
It is common ground that the civil standard applies in matters before the Tribunal and the charges before the Local Court were dismissed on the criminal standard.
Mr Barakat argued that the charges before the Local Court were heard to finality and because of the committal nature of the proceedings they differed from those in Mercer and Reddy. He submitted that it is apparent from the transcript that the evidence of the complainant was so lacking that it should not be considered in these proceedings. He submitted that the Tribunal is unable to observe the witness and from the transcript it is unable to form a view in regard to the manner in which evidence was given. For example the Tribunal is unable to observe long pauses in giving evidence that might reflect on how the evidence was perceived. Mr Barakat further argued that the evidence in regard to the allegation that the Applicant used a taxi in an alleged kidnapping should not be accepted because it is evidence from the same witness who was not found to be credible.
Mr Barakat sought to rely on material relating to the complainant that was obtained from the Department of Community Services. That material was not before the Local Court. The Respondent does not object to that material.
Mr Robinson argued that the Respondent was entitled to consider the Local Court material, even a duty to consider it, and it did consider it. He submitted that in the circumstances the Tribunal has the same duty. He further submits that the charges related to the Applicant's work as a taxi driver in that it was alleged that he used a taxi when engaged in the alleged conduct. He contends that the transcript is sufficient and that it is not necessary for the Tribunal to observe the witness. He submitted that it is a matter for the Tribunal what weight is given to the Local Court material and the Department of Community Services material. However, he submits that in the absence of any contradictory evidence before the Tribunal it is open to the Tribunal to find that there were incidents of child sexual assault in the early 1990s.
At the hearing on 19 February 2013 I accepted the Respondent's argument in relation to the Local Court material. I gave a determination, and oral reasons for the determination, that that the material be admitted into evidence in the current proceedings. I also admitted the Department of Community Services material.
I have read that material and I have determined that it should be given no weight. In my view, the complainant cannot be regarded as a credible witness. It is also my view that the material would not support the finding against the Applicant that is urged by the Respondent at either the criminal or civil standard. As the complainant's evidence is not accepted, there is no need for the Applicant to rebut it.
In the circumstances I agree with Mr Barakat that the evidence that the Applicant used a taxi when engaged in the alleged conduct cannot be given weight.
The Respondent's case
The Respondent argues that the Applicant should not be granted an authority at this stage and that the decision under review should be affirmed for the following reasons:
- It is too soon for the Applicant to be granted a fresh authority, given the gravity of the matters considered and found by the Tribunal in the cancellation matter. That decision was handed down on 19 January 2012. In particular, the Respondent relies on the fact that the Tribunal found that the Applicant was dishonest;
- The Applicant's poor customer service record, particularly in regard to over-charging, and even when he was sent for retraining further complaints were lodged against his behaviour as a taxi-driver. Of the 34 recorded complaints from members of the public between June 2003 and June 2011, 12 were investigated and formally found to be 'justified'. A formal reprimand or other action was taken in regard to the Applicant's authority.
- Some of those complaints occurred after the Applicant was formally required to undertake retraining in March 2010.
- A firmly established pattern of behaviour has been identified.
In regard to the 'justified' complaints the Respondent relies on material that was before Judicial Member Huntsman in the cancellation matter. In her reasons the Judicial Member observed in regard to that material:
2 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.
3 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).
4 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.
In regard to the complaint history the Judicial Member also observed:
44 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.
45 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 Respondent has adopted a similar stance in the present matter. It contends that the Applicant has not done enough since the cancellation matter for the Tribunal to be satisfied that he is reputable, that he has sufficient aptitude, or that he is a fit and proper person to be authorised to drive a public passenger vehicle.
Mr Robinson referred to the NSW Court of Appeal decision in Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 as authority for the principle that the Tribunal should not assume that the Applicant has become a reformed person. It has to be proven. In Litchfield the Court of Appeal noted:
As Walsh JA said in Ex Parte Tziniolis (1966) 67 SR (NSW) 448 at 461:
"Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man".
Mr Robinson also opposed the suggestion that the Tribunal should impose conditions that would allow the Applicant to hold an authority. In this regard he also relies on Litchfield. In that matter the Court held that the necessity for imposing a condition on the appellant's registration (that the doctor only saw female patients with a chaperone) demonstrated he was unfit to practice medicine and in those circumstances the only appropriate orders was one dismissing the appeal. If the Tribunal were to impose a condition that the Applicant held an authority only on the basis of a condition it would demonstrate that the Tribunal had concerns.
He further argued that the Applicant's evidence is insufficient, as it doesn't address the concerns expressed in the cancellation matter decision. He submits that on the evidence before the Tribunal the correct and preferable decision is to refuse the application.
That being the case, the authority should not be granted.
The Applicant's case
The Applicant relies on his own affidavit and character references in affidavit form by Reverend Paul Sayegh, Parish Priest at St. John's Melkite Catholic Church at Greenacre who has known the Applicant and his family for over 10 years; and Wasseim Eid, a Taxi Driver who has known the Applicant for a period of approximately 16 year.
Character references were also provided by: Robert Chehaid who owns and operate a hairdressing salon and has known the Applicant for a period of ten years; Dr. N. Raad of Central Eyecare who stated that the Applicant has been a patient with the practice for five years; Ariz Alam, the Executive Officer of the Charles Perkins Centre at the University of Sydney, who has known the Applicant for around 20 years; David Alessi, an I.T. Solutions Consultant who has known the Applicant for a period of approximately 15 years and Mervat Fanous of Lane & Petherbridge Pharmacy Punchbowl who has known the Applicant for over 15 years.
Each of the authors of the character references apparently holds the Applicant in high regard.
The Applicant's character references refer to the complaints history but do not address the findings by Judicial Member Huntsman in the cancellation matter. This Tribunal has often referred to the need for caution in attributing weight to testimonials that do not specifically address the issues with which the Tribunal is concerned. See for example the views expressed by Judicial Member Rice in Loye v Director General, Department of Transport [2000] NSWADT 145 at paragraph [42].
The Applicant was not required for cross-examination by the Respondent and the Applicant's testimony thereby consisted of a written affidavit. In his affidavit the Applicant's provided an outline of the history leading to these proceedings. He worked as a taxi driver since 1990 and continued to do so until the Respondent took action in relation to his driver authority.
In relation to the current matter he stated that he has read parts of the Respondent's file and he has seen some of the complaints history contained in that file. He stated:
13. I recall that in or around January 2012 there was another allegation of overcharging made against me. I understand that this complaint was investigated and found not to be justified. Despite this the Ministry of Transport requested that I undertake another education program because of the number of complaints on my file.
14. I agreed to undertake a driver educational course as was directed by the Ministry of Transport. I successfully completed this course and was provided with certificates confirming the completion on 1 March 2010.
15. Since completing the driver educational course I have seen on the statement of reasons that there appears three complaints in relation to overcharging passengers. They are CFI 51944, CFI 53963 and CFI 58966.
16. I have previously tried to address these complaints, to the best of my ability, in my affidavit dated 17 October 2011 and filed in General Division File No. 113217. A Copy of this affidavit appears at page 594 of the Ministry of Transport department file.
17. For approximately the last 8 years prior to the cancellation of my Taxi Authority, I owned and operated a Maxi Taxi with wheel chair access. I believe that this period is when the large majority of the complaints against me were recorded and a large majority being for overcharging, despite whether it was found to be justified or not. Prior to that I only ever drove a normal sedan or station wagon taxi vehicle.
18. I can truly say that I have learnt from my recent experiences with the Ministry of Transport, the Administrative Decisions Tribunal and in having my taxi authority permanently cancelled. It has caused me significant stress and expense and has taken away my livelihood.
19. I have gained a lot of insight and knowledge from being able to go through my department file and in being present at the Administrative Tribunal during the hearing of my cases. I understand how I must always aim to properly conduct myself when operating a taxi cab and that because I am providing a service to members of the public, I have a big responsibility and need to make sure that I always conduct myself in an honest and respectful way.
20. I am willing to undergo any further training and education programs that the Administrative Decisions Tribunal or the Ministry of Transport feels is necessary to alleviate any concern about how I may conduct myself as a taxi driver and when operating a taxi. Being a Taxi Driver is the only job I know how to do in this country.
21. Since the decision of the Administrative Decisions Tribunal to cancel my taxi authority, I have again attempted to personally educate myself about the correct way of charging passengers using a Maxi Taxi. I have done this because I genuinely want to be able to do this job in an honest manner and to the best of my abilities. My understanding of the rates and charges is as follows:
A tariff 3 rate (Maxi Taxi Rate) is allowed to be charged if there are 5 or more passengers entering the Maxi Taxi; or
If the passenger has specifically requested that they be provided with a Maxi Taxi and if so, both the taxi base taking the booking and/or I will explain to them that they will be charged a tariff 3, giving them the chance to accept or reject the Maxi taxi;
If the customer has not specifically requested a Maxi Taxi and I respond to a booking job then I am not allowed to charge them a tariff 3 rate unless there are 5 or more passengers to be taken;
I must give priority to a customer in need of a wheel chair accessible taxi because my Maxi Taxi with plate T4318 was fitted with wheel chair access;
A wheel chair passenger always gets charged the standard tariff 1 rate even if other passengers accompany them and even if the number of passengers exceeds 5 people.
22. Since I started driving a taxi in 1990 I would estimate that I have driven at least 6 days per week collecting over at least 50 passengers each shift over the course of over 20 years.
23. During that time as a taxi driver I have been subject to serious verbal abuse and threats of physical violence, I have had to deal with passengers that are drunk and aggressive and that have vomited in the taxi or urinated on themselves and caused the taxi to be unusable until cleaned. I have had to deal with passengers that run away from the cab and don't pay for the fare.
24. I would like to add that in my time as a taxi driver there have been many occasions when I have been praised for good things that I have done when conducting a taxicab. Unfortunately these are not things that are documented at the time or that I felt I needed to document at the time, because I had never thought I would be in the position I am now. These occasions include:
Approximately 13 years ago when I was driving a Premier taxi, I found a wallet in the back of my taxi, which had cash and credit cards. I voluntarily took it upon myself to return the wallet to the person at Surry Hills as I remembered the customer. He sent a thank you note to both the taxi base at Granville NSW and to me personally for my honesty.
There was an occasion about 10 years ago when I was driving the taxi in Chatswood CBD and I saw a lady sitting on the footpath on the side of the road alone and at night. I stopped the cab and told her it was dangerous for her to be out alone like that in the late night. I recall she told me something about having a fight with her boyfriend and he took all her things and she couldn't get home. She told me she lived in Hornsby. After hearing this I gave a free ride to Hornsby.
There have been many occasions when passengers have tried to run away from the cab to avoid paying the fare. The times when I have been able to catch them and questioned them about why they ran, a lot of them have said they don't have the money and cannot pay. I have simply let them go without paying causing a financial loss to me.
As I explained earlier, I previously operated a wheel chair accessible Maxi Taxi for 8 years. I undertook a course and training program that teaches how to properly deal with and cater for people with wheel chair needs. A lot of these customers are both physically and intellectually disabled and it requires the driver to give extra assistance to the passenger when entering and exiting and also assisting them even after they have exited the taxi to the final destination like entrances to buildings or with their belongings. I have always been more than willing to help and assist people with these needs.
25 I used to have many regular customers that would take my mobile telephone number and contact me personally when they needed a taxicab. I especially had regular customers with wheel chair access needs that would specifically contact me if they needed a taxi. I felt this was because they were all happy with the service that I provided.
The Applicant did not address the findings made by Judicial Member Huntsman in the cancellation matter.
Findings of fact and discussion of law and evidence
Judicial Member Huntsman provided a detailed discussion in relation to the applicable law in her reasons for decision in the cancellation matter. I do not propose to repeat that here except to note that 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 application for a driver authority be refused.
The Tribunal must consider 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.
The Respondent has placed considerable weight on the criminal charges that were brought against the Applicant. As I have noted above, I do not agree with that approach.
The Respondent has also placed considerable weight on the history of complaints against the Applicant. The Applicant has specifically addressed this history and as can be seen from the passages quoted from his affidavit, he has attempted to demonstrate that he has gained insight into the issues that lead to the complaints and knowledge of the requirements imposed on those authorised to drive a taxi-cab. He has also offered to undertake further training and education programs that the Tribunal or the Ministry considers necessary to alleviate any concern about how he might conduct himself as a taxi driver.
That evidence has not been challenged and is accepted.
Given the history I do not consider that there would be any utility in requiring the Applicant to undertake further training at this stage or to grant an authority subject to conditions.
However, in my view, great significance is to be placed on the findings of dishonesty in the cancellation matter. The Applicant has not addressed that issue adequately in his evidence. I note that his application followed soon after the dismissal of the criminal charges and less than a month after Judicial Member Huntsman made her findings in the cancellation matter.
In my view, in determining the Applicant's suitability and fitness to obtain an authority it is appropriate to weigh the factors identified by the Deputy President in Saadieh v Director General, Department of Transport as referred to above. The Deputy President stated:
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.
Judicial Member Huntsman made findings in relation to the history of complaints. As I have noted, the Applicant has shown some insight and remorse in regard to the proven complaints. There is insufficient evidence in regard to what efforts the Applicant has made to rehabilitate himself.
In my view, the finding of dishonesty is to be weight in the same manner.
That finding is relatively recent and cast doubt on the Applicant's ability to satisfy the standard of honesty required of a taxi driver. The Applicant has not shown any significant insight or remorse in regard to that finding. In the circumstances it is my view that insufficient time has passed to be satisfied that the Applicant can be held out to the public as a person to be entrusted with the sort of work that the authority entails.
While the Applicant has given evidence that shows some insight into, and contrition for, his conduct, there isn't evidence that shows any reformation of character. In light of the findings in the cancellation matter the Applicant must establish that he has now reformed. The mere passage of time since the conduct is not sufficient to indicate a change of character. In Ex Parte Tzinliolis: Re The Medical Practitioners' Act. The references provided on his behalf are of some assistance in regard to his reputation but they do not assist to any significant extent in regard to his fitness and propriety.
I note that since the cancellation of his authority the Applicant has had no opportunity to re-offend because he is not been authorised to drive a taxi. Given the short time that has passed since the conduct and the limited material before me, I am unable to form the view that he is unlikely to re-offend.
At this stage, I do not have the confidence that the Applicant would discharge the responsibilities of a taxi driver appropriately, to the extent that I can hold him out to the public as a person who is fit and proper to undertake that work. Put simply, insufficient time has past for me to be able to be confident that the Applicant has reformed and is now a fit and proper person to hold the authority.
In the circumstances, it is my view that the Respondent has made the correct and preferable decisions. It follows that they should be affirmed.
Order
The decision under review is affirmed
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Decision last updated: 12 July 2013
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