Attar v Roads and Maritime Services
[2013] NSWADT 135
•12 June 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Attar v Roads and Maritime Services [2013] NSWADT 135 Hearing dates: 24 May 2013 Decision date: 12 June 2013 Jurisdiction: General Division Before: C Huntsman, Judicial member Decision: The decision is affirmed
Catchwords: History of complaints, prior cancellation decision, application for driver authority after a lapse of time since cancellation; alleged credit card fraud by driver Legislation Cited: Passenger Transport Act 1990 Cases Cited: Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65; AJO v Director-General Department of Transport [2012] NSWADT 101 Category: Principal judgment Parties: Syed Awais Athar (Applicant)
Roads and Maritime Services (Respondent)Representation: S Athar (Applicant in person)
Smythe Wozniak Legal (Respondent)
File Number(s): 133058
REASONS FOR DECISION
Background
This was an application by Mr Attar, the applicant, for review of a decision by Roads and Maritime Services, the respondent, to refuse his application for a taxi driver authority.
The applicant was initially authorised as a driver of taxicabs in June 2002. He first applied in November 2001, his application was deferred because there was an outstanding offence before a Local Court. A letter on the respondent's file from the applicant's then solicitor indicates that the offence was in relation to a domestic assault (neighbour) and the respondent decided, after receiving the letter, to allow the applicant to continue to complete training in support of his application for a taxi driver authority. His taxi driver authority was subsequently authorised in June 2002.
There were a series of complaints by customers, which were investigated by taxi network operators (and some complaints were notified to the respondent, this is further detailed below). In 2007, due to allegations of credit card fraud, or ticket/docket fraud, the applicant was requested to undertake training. The applicant requested further time to undertake the training and after expiration of the extended period, by letter of 9 August 2007, the respondent notified the applicant that he as had not undertaken the required training his authority was suspended. Subsequently the applicant confirmed that he had completed the training within the extended period and the authority reinstated.
Further complaints were received, as detailed below, and the applicant was issued with a Notice to Show Cause dated 4 December 2009. A file note indicates that an officer of the respondent discussed the Show cause letter with the applicant by telephone on 10 December 2009. The applicant also provided a letter in response to the Notice to Show Cause, which was received by the respondent on 22 December 2009. A decision was made, dated 21 January 2010, by the respondent, to cancel the applicant's taxi driver authority. The authority card was not returned by the applicant, and a letter was sent by the respondent, dated 1 March 2010, referring to the fact that his authority and been cancelled in January and requesting return of the authority immediately. On 26 March 2010 a penalty notice was posted to the applicant for an offence of 1 March 2010 - not returning the authority card.
On 29 November 2010 a penalty notice was issued to the applicant. In that notice it was recorded that at 9.43am in Mascot the applicant drove the taxi vehicle without being authorised to drive a taxi. The penalty notice states: driver was pulled over and asked to produce authority, produced authority G02793, check indicated authority cancelled. Checked on database which confirmed authority cancelled 15 January 2010. The penalty notice was posted to the applicant on 1 December 2010.
The applicant applied for a taxi driver authority on 30 November 2011, and on 8 February 2011, the respondent decided to refuse that application.
On 5 February 2013 the applicant lodged a new application for a taxi driver authority and the respondent made a decision to refuse the application on 13 February 2013. The applicant lodged an application for review of this decision by the tribunal on 7 March 2013. The applicant annexed documents in support of his review application to the tribunal application form. These documents will be further discussed below. At a directions hearing at the tribunal on 2 April 2013, an order was made pursuant to section 55(3)(b) of the Administrative Decisions Tribunal Act (ADT Act) that the application for review proceed despite no internal review decision.
It is the applicant's application for review of the decision of the respondent, of 13 February 2013, to refuse the applicant's application for a taxi driver authority, which is the subject of the current review by the tribunal.
The evidence
The respondent provided evidence in the form of the section 58 documents, being two folders of departmental records relating to the applicant and the decision under review, and the respondent also made oral submissions at the hearing.
The applicant provided the documents annexed to his tribunal application form, and also made oral submissions at the hearing. The documents annexed by the applicant included three written submissions prepared for the current proceedings; movement records supplied by the Department of Immigration in relation to periods when the applicant was overseas; and copies of correspondence previously sent by the applicant to the respondent - dated 4 November 2009, 14 August 2007, 26 June 2007, and an undated letter, received by the respondent on 22 December 2009, being the applicant's response to the Show Cause Notice of 4 December 2009. Also attached was the statement of attainment for completion of taxi driver training dated 17 July 2007, and a letter to confirm the same of the same date.
The respondent provided evidence in the section 58 documents in relation to various complaints by customers against the applicant. A complaint was received on 5 February 2003 for incivility and it was alleged that the driver had called the passenger "fucking bitch, I'm not your servant." .A series of tickets were issued in the period to 2005 for offences against the Regulations such as not complete worksheet, not wearing proper uniform and taxi smelling of smoke.
Of more concern to the respondent were the complaints which occurred relating to matters of honesty. A complaint of 24 July 2005 (folio 47 section 58 documents) was for overcharging a fare, the allegation is that the driver tried to charge a "fixed fare" which was for an excessive amount. The respondent submits that this is in breach of the regulations which require the meter to be engaged.
A complaint was received on 11 April 2006 of credit card fraud. The passenger states that she paid with her credit card, had to use the manual machine, the fare came to $16 which the passenger wrote on the voucher, she believes the driver changed the "1" to "9", as $96 was charged to her card, $80 in excess of the fare. The passenger supplied the driver's ID number which was the ID number of the applicant (folio 255 s58 documents).
Records relating to a complaint of overcharging are contained at folios 73-75 and copies of the credit card voucher, both the voucher for payment claim by the driver, and the one retained by the customer, are provided. The one retained by the customer records a fare of $7.60 from North Sydney to St Leonards on 14 August 2006; the credit card voucher by the driver records the name of the applicant, with the applicant's driver authority, and is in the amount of $117.60 for a trip from North Sydney to St Leonards. The customer complains that the amount has been altered by the driver.
At folio 84 are copies of CabCharge receipts which the respondent found were altered in the amount of $90. The CabCharge receipt is in the name of the applicant, with his driver authority, for a fare of June 2006 and the amount of "nine" appears to be changed to "ninety". A note on this page states "this is the fifth docket that this driver has altered the amount of the docket. The driver has paid back the money from the previous dockets". At folio 76 is a copy of a CabCharge receipt where the receipt provided by the customer was for a fare of $20.30 on 8 June 2006, but the voucher by the taxi driver was for $120.30. On the page, folio 86, it is written by an officer of the respondent "more fraud from this guy. Amex sent me back this charge see attached customer receipt".
A complaint investigation record, at folio 139, indicates that the applicant did not attend for an interview about the complaints. The outcome of the investigation is recorded - for various complaints against the applicant such as incivility, demanding more than the prescribed fare, the recommendation was that the applicant attend training. In relation to fraudulent involvement with CabCharge dockets, the recommendation was to refer this to CabCharge for their immediate attention. Because the applicant had not completed the retraining within the required time frame (after he had been given an extension) his authority was suspended on 9 August 2007. Subsequently the applicant demonstrated that he had in fact completed the training by the last date of 17 July 2007 and the suspension was lifted.
Customer lodged a complaint (folio 263) for a fare on 15 August 2007 alleging credit card fraud. The customer complains about being charged $77.70 from Bridge Street to Dymock's bookstore on George Street. At the time the meter read $7 which the customer paid on his credit card, and he swiped his card in a manual swipe, not the usual machine. A printout of the transaction showed the customer that his credit card was subsequently charged $77.70. The customer believes that the driver had altered the fare amount, as the docket shows trip details were written for Bridge Street to Liverpool. The customer states he made a phone call at a certain time from his home which would not have been possible if he really did travel to Liverpool. The investigation record indicates that the operator advised that the applicant was driving at the time "the operator also presented me with numerous CabCharge altered dockets that were presented by this driver that have been rejected."
A further complaint is that on 10 November 2007 a customer pays a fare by company credit card and reports a discrepancy between the amount charged to the credit card and the amount on the written receipt. The driver identified is the applicant.
Two customers who were travelling together on 22 September 2009 both provided detailed written statements in relation to what occurred. These are contained at folios 217 and 220 of the section 58 documents. Both state that the taxi driver, after taking off from the taxi rank at the domestic terminal at the airport, told them there was a fixed charge of $25 to get from one airport terminal to the other. They wished to travel to the international terminal and were told by the driver that if they wouldn't pay the fixed rate they could get out of his taxi. They needed to get to the international terminal and so paid. The customers state that they requested a receipt and the driver completed a receipt which included that the taxi number was 3761. However one of the passengers had made a note of the taxi number and saved this on his mobile phone- as 3762. Both passengers provided written statements and one passenger made a formal complaint.
When contacted about this complaint on 5 November 2009 the applicant is recorded as denying the allegations and saying he was not driving, someone else was driving. He is recorded as stating that he was not willing to be formally interviewed and advised he would send in a written submission (folio 223). Taxi driver daily worksheets were subsequently provided which show that the recorded driver was the applicant's driver authorisation, as the driver of taxi 3762 on that date, 22 September 2009. The applicant's written submission about this complaint is contained at folio 227 and he denies being the driver and claims the allegation is baseless against him. He also noted that it had been raised in a telephone conversation with the compliance officer that he was involved in credit card fraud, he states in his written submission that this is a serious allegation which needed resolving. He noted that the compliance officer told him that he may go to his previous file records and that this was serious. The applicant states "what has happened within a short span of time, the writer understands the powers and the influence of the operators. " The applicant goes on to state that the Department of Transport has issued him with a taxi authority in the month of June 2009 for three years.
A complaint registered on 18 October 2006, for an incident occurring on 22 July 2006, is detailed at folio 259 of the section 58 documents. The passenger complained about credit card fraud, identifying the applicant's driver authority number, on 22 July 2006 in the afternoon. The passenger said he paid with his credit card which was processed manually by the driver. On his credit card statement the fare he was charged was $138.70 he recalls the fare was not that much and stated that he would fax the dockets. In the investigation section the comment is "this driver is overseas and we are unable to interview him. From the documents on file he has a MO of altering dockets adding a 1 to the original amount or a 0 to the rear of a single number. On file there are seven examples of dockets which he has altered and more dockets are being sent from other cashing agents".
In response to this particular allegation the applicant provided Movement Records from the Department of Immigration indicating that he was overseas in October 2006. The respondent submitted that the date of the incident was July 2006, the date of the complaint was October 2006. The Movement Records indicate that the applicant departed on 30 August 2006 returning 11 January 2007. It is clear that he was not in Australia in October 2006 but he was in Australia at the time of the incident in July 2006. In his oral submissions at the hearing the applicant noted that now the respondent is claiming July 2007 and said "this is a documentation argument". He noted he went to some trouble to collect the evidence about being overseas in October 2006.
In his written material the applicant submits that there is no evidence that the credit card fraud was done by him, he was never the driver at the time and there is insufficient evidence. In relation to the Show Cause Notice of 2009 the applicant submits he replied and answered all the issues. In relation to the cancellation of his driver authority he states he was never informed about the cancellation of his authority; and he would never have driven a taxi if he had been so informed. He states he is being made a scapegoat by the taxi operator. He suggests someone else has been using his driver authority.
In his written submissions, and also in his oral submissions at hearing, the applicant maintains that because his authority was renewed by the respondent, this means the allegations are baseless. In this regard he notes that had written a number of letters to the respondent prior to 2009, addressing various issues, and in 2009 the respondent made a decision to renew his driver authority and this indicates that the prior allegations were baseless.
The applicant states in his written submissions that he is a very responsible person, an educated person, knows human values and dealings with customers. It is very strange that the allegations made state credit card fraud or voucher fraud, they are not clear-cut.
In oral submissions the applicant noted that his correspondence to the Department, copies of which was annexed to his application for review, were not answered by the respondent.
The applicant made detailed oral submissions which were to the following effect. He stated that there is a bureaucratic structure at the Department of Transport, and the Department of Transport and operators work together. The taxi driver is like a football. The Department of Transport has officials who are under the control of Taxis Combined Services (TCS). The applicant states that TCS use resources and send false statements. He states he never drove for Premier Cabs and one of the allegations is that he drove for Premier Cabs at the time. He queries that there is any proof of the fraud allegations or other allegations against him.
The applicant states that there are "check points". In 2003 his authority was renewed for three years, this meant everything was fine, this was the first checking point. In 2005 there was a further checking point when his authority was renewed, this is an internal checking system. In 2007 there were complaints and he states that this was the third checking point, his letters to them, he always responded. He states that in 2007 he was told to undertake a training course, for no reason, but he had no option as the Department had to give him a punishment, and so it was a training course on ethics, and costing $400, which was difficult for him to afford at the time. He noted that the respondent's officers had not responded to a number of his letters, which was their duty to do so. He said the most important thing was that his authority had been re-issued in 2009 which indicated that there was no basis to the allegations.
The applicant states "I am the victim". He states there is a strong mafia, a bureaucratic system, the driver is nothing, like a sheep, like a football.
He notes that he was contacted by someone from compliance, Mr Webster, and states that he asked Mr Webster why he was harassing him. A further checking point was that he applied for renewal of his authority in 2009 and his authority was reissued for a period up until 2012.
The applicant states that he has received the punishment, being cancelled, and he has had an 18 month period of serving the punishment since his authority was cancelled. After this period of time he should now be given his authority. He states that it is his work, his livelihood, he needs to be able to work as authorised taxi driver.
The respondent's representative submitted that the applicant had been a driver from 2002 until 2010 when there were seven or more fraud matters which occurred, and a number of the fraud matters had been subject to repayment by the applicant. There was a short period since cancellation in which the applicant has not been driving, and the applicant has not provided any material to the tribunal to show he is of changed behaviour. There is nothing before the tribunal to suggest that behaviour which led to the cancellation of his authority, has been addressed. On investigation, a number of the complaints were found to be justified, leading to the cancellation decision in 2010. Given the lack of evidence to indicate that the applicant would be of changed behaviour if he was granted his authority then the respondent submits that the application should be refused.
The law
The Passenger Transport Act 1990 (the Act) provides:
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 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 AJO v Director-General Department of Transport [2012] NSWADT 101 (25 May 2012) at paragraphs 24 to 35:
24.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 character.
25.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."
26.A person's fitness is to be gauged in the light of 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."
27.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."
28.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. Thus in Obradovic -v- Commissioner for Fair Trading, Office of Fair Trading (GD) [2006] NSWADTAP 18 the Appeal Panel agreed that a formerly licenced building contractor should have his application for a new licence refused, 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 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).
29.In Saadieh v Director General, Department of Transport [1999] NSWADT 68, Hennessey DP set out the factors to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. They are:
the nature, seriousness and frequency of any criminal offences for which the Applicant has been arrested or convicted;
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.
30.In Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 the Appeal Panel, at [37] the Appeal Panel drew attention to the role public interest considerations play in the assessment of fitness and propriety.
The courts have emphasised the connection that assessment of repute, fitness and propriety have in a regulated context with public interest considerations. Repute, fitness and propriety involve concepts that should not be 'narrowly construed or confined' and may extend to 'any aspect of fitness and propriety that is relevant to the public interest' (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (26 July 1990) at [64] per Mason CJ. ....
The comments of Kirby P in Pillai v Messiter [No.2], quoted above, are an example of this.
31.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."
32.As was made clear by Toohey and Gaudron JJ in Bond, issues of character and reputation may play a determinative role in deciding whether a person is fit and proper. Their Honours also clearly highlighted that there is a difference between the two. They explained that an assessment of character is relevant because it is an indicator of a person's likely future conduct when considering how a person might act in the context of the role they are seeking to undertake. Reputation on the other hand, provides an indication of the public perception of future conduct in that role. In Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392, Waddell J explained, at 393:
A distinction must be drawn between "repute" or "reputation" and
"character" or "disposition". The word "character" is sometimes used as meaning a person's reputation, but "reputation" is not ordinarily used to mean character. The distinction has been referred to in many decisions of the courts."
In Melbourne v The Queen [1999] HCA 32; [1999] 198 CLR 1 at 15 McHugh J explained:
"... character refers to the inherent moral qualities of a person or what the New Zealand Law Commission has called "disposition - which is something more intrinsic to the individual in question". It is to be contrasted with reputation, which refers to the public estimation or repute of a person, irrespective of the inherent moral qualities of that person."
33.In Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 Walsh JA, at 450, said that in determining questions of character:
"... the court is required to consider matters affecting the moral standards, attitudes and qualities of the Applicant and not merely to consider what is his general reputation."
That case was concerned with an application for registration of a medical practitioner. His Honour went onto explain that the Court was entitled to inquire into personal misconduct, as well as professional misconduct, in considering whether the Applicant was a man of good character:
"... whilst recognizing that there may be some kinds of conduct deserving of disapproval which have little or no bearing on whether or not it shows the Applicant for registration as a medical practitioner is a person of good character. In this respect, I think, that some assistance can properly be obtained as to the mode of approach to be made from the observations made in cases where the was whether or not that a person was fit and proper to be a barrister, such as those in Ziems v Prothonatory of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279."
Thus, as with fitness and propriety, assessment of character is to be made in the context of the nature and purpose of the activities that the person is seeking to undertake. In Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 the Appeal Panel explained:
'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 cannot 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.
34.In the present case the regulated activity is that of a country school bus driver who regularly transports high school age children for long distances, for up to three hours each school day. When doing so, drivers are entrusted with ensuring the safety of the students and are responsible for regulating their behaviour in accordance with established policy.
35With respect to requirement that an authority holder have sufficient responsibility to drive the vehicle concerned in accordance with law and custom, the Tribunal's task is assess the authority holder's likely future conduct. Evidence of past failures to comply with relevant law and custom is relevant to and informs that assessment. I agree with the Agency that law and custom means more that simply the rules of the road applicable to bus drivers, but the lawful requirements and directions that must be observed by them. Custom includes industry standards, including applicable policies of the Agency relevant to the to an authority holder.
The Appeal Panel of the Tribunal in Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 at [37] noted the role public interest considerations play in the assessment of fitness and propriety:
The courts have emphasised the connection that assessment of repute, fitness and propriety have in a regulated context with public interest considerations. Repute, fitness and propriety involve concepts that should not be 'narrowly construed or confined' and may extend to 'any aspect of fitness and propriety that is relevant to the public interest' (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (26 July 1990) at [64] per Mason CJ. ....
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, and that the tribunal would not be satisfied that the applicant had sufficient aptitude to drive the taxi in accordance with law and custom.
The legislative provisions, and case law set out above, indicates that in deciding this matter I must have regard to the purpose of the authority, namely I must be able to attest to the Applicant's repute and fitness and propriety, and that he is considered to have sufficient aptitude and responsibility to drive a taxi cab in accordance with law and custom. I agree with the authorities set out above, that in considering the requirement that an authority holder have sufficient responsibility to drive the vehicle concerned in accordance with law and custom, the Tribunal's task is assess the authority holder's likely future conduct. Evidence of past failures to comply with relevant law and custom is relevant to and informs that assessment. I also note that in deciding whether I can attest that the applicant is of good repute and a fit and proper person to perform the regulated activity (taxi driver) I must be able to attest to his honesty, responsibility and aptitude, and where there is past misconduct I need to consider whether the public can have confidence that the conduct will not reoccur.
Findings
In this matter it is the respondent's contention that the applicant is not a fit and proper person to be authorised to drive a taxi cab. The respondent relies on the complaints history leading up to the cancellation of the applicant's taxi driver authority in 2010. In particular the respondent states that the complaints history includes significant acts of dishonesty, being credit card/CabCharge voucher fraud, against customers, when the applicant is acting in the course of his licensed occupation as a taxi driver, charging/collecting fares from passengers.
The applicant states that there is insufficient evidence that he committed such fraud and further states that he is the victim of, in effect, a conspiracy between the respondent, officers of the respondent, and operators of taxicabs. The applicant also submits that it is highly relevant that the respondent has internal checking processes and that, subsequent to such processes, the applicant was on several occasions reissued with his driver authority. Most importantly he was reissued with his driver authority in 2009 for a three-year period. He states that this indicates that the issues are resolved or baseless, noting that he had been in correspondence with the respondent about various issues prior to his authority being reissued in 2009.
In deciding whether the applicant is a fit and proper person to be authorised to drive a taxi the authorities clearly indicate that the tribunal must consider the applicant's honesty in performing the regulated activity. The tribunal is to consider the history of complaints, the length of time since any misbehaviour and the attempts to rehabilitate which the applicant has undertaken since any such misbehaviour, the applicant's expressed remorse for any misconduct, and any other evidence indicative of the applicant's good repute and fitness. In the current matter the applicant has provided no character references and no evidence that he is of good repute. In relation to his fitness the applicant has provided no real explanation in response to the complaints history, other than to say that he was not the driver and/or there was a conspiracy between the respondent, or officers of the respondent, and the operators. The applicant presents no evidence in support of this allegation of conspiracy, and the tribunal finds it implausible in the context of the evidence overall in this matter. The tribunal also finds, in the absence of any clear supporting evidence to this effect from the applicant, that the applicant's evidence that he was not the driver, is not plausible. The respondent provides evidence of records which indicate the applicant was the driver, and the applicant provides no clear evidence which would allow the tribunal to conclude that he was not the driver. The tribunal notes the respondent's evidence relates to several occasions when complaints arose when the applicant was the recorded driver, there is not just one isolated account.
In contrast to the applicant's assertions that the claims are baseless, the respondent provides evidence supporting the complaints and allegations, including written statements by two of the customers, complaint records of complaints by customers and records of investigations into the complaints, and copies of credit card vouchers and CabCharge vouchers, including the customers' own record of the accurate fares, and copies of the customer receipt voucher for the fare. Copies of the credit card and CabCharge vouchers, referred to above in these Reasons for Decision, are in the name and driver authorisation number of the applicant. In relation to the complaint made by the two customers who provided detailed written statements, being the complaint of September 2009, the applicant stated that he was not the driver yet taxi daily worksheets indicate he was the driver. The two customers indicate a further matter of concern, that the taxi driver gave a false taxi number on the receipt issued to the customers. The tribunal is satisfied on the records provided by the respondent that the applicant was the driver on that day.
The complaints as detailed in the section 58 documents, made initially by customers, are supported in many cases by documentary evidence such as the customer's receipt and the voucher for the credit card or CabCharge voucher completed by the driver. Those documents clearly indicate alterations of the amount of the fare in favour of the driver. The tribunal is satisfied on the evidence of the complaints made by customers, which is supported in relation to various complaints by primary documentation, that the respondent has established fraud/alteration of fares on credit card or cab charge vouchers, by the applicant. This caused the credit card accounts or cab charge accounts of customers to be overcharged - being significant acts of dishonesty which go to the trust relationship between the driver and passenger, a core element of the regulated activity. The objects of the Act include the provision of safe public passenger services and dishonesty in charging/collecting of fares does not further this object.
In relation to the complaint of September 2009 where the two passengers gave detailed statements, the tribunal has significant concern that the evidence of those two passengers clearly indicates the driver provided a false taxi number on a receipt written for the passengers. The tribunal has no reason to reject the evidence of the two passengers that they recorded the correct taxi number and saved that number in their mobile phone. The tribunal has accepted that the respondent's records establish that the applicant was the driver. Therefore the tribunal finds that the applicant gave a false identification number to passengers who had travelled in his taxi. The tribunal considers that the giving of a false taxi number strikes at the heart of the trust relationship between the driver and passengers. Not only is it dishonest, but it undermines the accountability of a driver, which taxi numbers and driver authorisation numbers are designed to provide, and it is this accountability that assists in the regulation of safe passenger transport services for the public.
The applicant submitted that he has waited a period of time since he was cancelled and should now be able to reapply for his authority and be eligible to be granted an authority on this basis. The applicant has provided no evidence to indicate rehabilitation since the cancellation of his authority so that the tribunal could have confidence that the misconduct and dishonest conduct would not reoccur. He has taken no responsibility for what occurred, nor expressed remorse.
For all the above reasons the tribunal is not satisfied that the applicant is a fit and proper person to be authorised to drive a taxi cab. Nor is the tribunal satisfied that the applicant has sufficient responsibility to drive the vehicle concerned in accordance with law and custom, given the matters of dishonesty in charging customers, and in providing incorrect identification numbers to passengers, as detailed above. Accordingly the tribunal finds that the correct and preferable decision, on the law and the evidence, is that the decision of the respondent, to refuse the application for a taxi cab authority, be affirmed.
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Decision last updated: 12 June 2013
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