Auelua v Department of Transport and Infrastructure
[2011] NSWADT 268
•16 November 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Auelua v Department of Transport and Infrastructure [2011] NSWADT 268 Hearing dates: 23 August 2011 Decision date: 16 November 2011 Jurisdiction: General Division Before: Carolyn Huntsman, Judicial Member Decision: The decision is affirmed
Legislation Cited: Sections 33, 33F Passenger Transport Act 1990, and clause 35 Passenger Transport Regulation 2007 Cases Cited: 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 37
Caska v The Director General of the New South Wales Department of Transport [2001] NSWSC 205
Department of Transport and Infrastructure v Murray (GD) 2011 NSWADTAP 16Category: Principal judgment Parties: Tauese Auelua (Applicant)
Transport for NSW (Respondent)Representation: Bondi Law, (Applicant)
Smythe Wozniak Legal, (Respondent)
File Number(s): 103312
reasons for decision
Background
This was an application by Mr Auelua, the applicant, seeking a review of a decision by the Director-General, Transport New South Wales, of 7 September 2010, to cancel the applicant's authority to drive a taxi. The applicant sought internal review of the decision and on internal review on 12 November 2010 the respondent affirmed the decision. On 10 December 2010 the applicant sought review by the tribunal. The tribunal on 25 January 2011 granted a stay of the decision pending hearing of the matter. The matter was listed for hearing on 10 June 2011 and on that date the applicant gave some evidence and the matter was adjourned, part heard, for further hearing. The matter was next listed for hearing on 23 August 2011, and on that date the tribunal heard further evidence and the decision was reserved.
The respondent indicates in the reasons for decision for the internal review decision that the applicant was issued a taxi authority in February 2007 and on 7 September 2010 a decision was made to cancel the applicant's authorisation to drive a taxi. The internal review decisions states that the cancellation of the authority was a result of the following: the complaints history relating to aggressive or violent behaviour towards passengers and/or other road users; the infringement notice history including convictions for same; criminal convictions of 3 June 2003, 30 January 2001, 9 March 1999, 15 December 1998, and recent charges of 5 March 2010. In particular the respondent took into account a complaint of incivility/inproprietary/assault of 9 June 2010 in relation to a bus driver at St Leonards. The respondent states that the complaint of 9 June 2010 is supported by the records obtained under CCTV footage (this is detailed in the statement of reasons to the initial decision) and a notice to show cause was issued. The respondent was not satisfied with the applicant's response to the notice to show cause, as detailed in the statement of reasons. The respondent states that the complaints history indicates aggressive or violent behaviour towards passengers or other road users which casts doubt about the applicant's fitness to hold an authority to drive a taxi cab, and his ability to carry out the duties and responsibilities according to law and custom.
The applicant states in the application for review that he believes he is a fit and proper person to hold an authority and is a person of good repute. The applicant provided further evidence at the hearing as detailed below.
The evidence at the hearing
The applicant gave oral evidence to the tribunal at the hearing dates of 10 June 2011 and 23 August 2011. The applicant also provided a written statement of 30 June 2011, a statement by his wife of 30 June 2011, and a number of written references (by Dr Phan, I.Herron, Rebecca Tan, Luigi Ciaglia, CaptStarrett).
The respondent provided evidence in the form of the respondent's files relating to the applicant; a written statement by the witness (bus driver) Mr Russell; a Police Facts sheet for criminal charges alleged to have occurred on 5 March 2010; a transcript of proceedings in the Burwood Local Court of 25 May 2011; a DVD of a CCTV recording; a printout of an e-mail communication with the customer service manager of the taxi network;and a transcript of proceedings in the tribunal in this matter on 10 June 2011. The respondent also provided oral testimony from a witness, being a bus driver, Mr Russell.
In his oral evidence the applicant gave his version of what occurred at the bus stop/zone in St Leonards on 9 June 2010. The applicant states that he picked up an elderly lady at St Leonards, she showed him a $100 bill, he said he did not have change for that amount of money as it was early in the morning. The applicant states that the elderly lady walked up to a coffee shop that was open and he was waiting for the elderly lady to come back. At this time he was parked in the bus stop/zone. He said he heard a bus driver, behind him, bip his horn and after that he heard a bang on the boot of his taxi and noticed the bus driver. First he heard the bip of the horn, looked in his side mirrors, noticed a bus behind him. Then the bus driver got out of his bus, walked up to his taxi, banged his hand on the boot, and his hand on the roof, opened up the back door of the taxi and said "Mate, move your taxi - move your bloody arse from here or I'll come around and kick your teeth in, this is a bus stop." The applicant states that after that he saw that the bus driver had slammed the taxi door and walked back to his bus. The applicant stated that he remained seated in the taxi, waiting for the elderly lady. The applicant states that when he did not see any sign of the elderly lady he got out of the taxi and walked up to the bus driver's window to explain the situation. He says the bus driver's window was closed, he knocked on the window, and the bus driver opened the window and the applicant started to tell his story. He says the bus driver said "fuck off" and then closed his hand in the window causing an injury to his hand. The applicant states he then walked back to his taxi and after a while the bus drove around his taxi to the front-end of the bus stop/zone. Eventually, the elderly lady returned, and the applicant dropped her at the private hospital (the Mater hospital). He was later contacted by police and provided a statement. The applicant states he has not heard from the police since providing his side of the story.
The applicant gave evidence that before working as a taxi driver, he worked in the security industry. Under cross examination by the respondent's representative the applicant did not agree with the account given by the bus driver. He denied punching the bus driver. It was put to the applicant that there was no elderly lady passenger and no fare at that time to the Mater hospital. It was put to the applicant that records from the taxi network, Taxis Combined, record when a taxi has a fare and the meter records, and the applicant agreed this was so. It was put to the applicant that those records at the relevant time on 9 June 2010 show that the applicant was not logged into the system, and there is no record of the pickup of the elderly lady and the fare to the Mater hospital. The applicant stated that he did have this fare and he did drive an elderly lady to the hospital.
The applicant was cross examined about his court appearance on 25 May 2011 at Burwood Local Court where he pleaded not guilty. He agreed that the Magistrate found him guilty of the charges and stated that he disagreed with the Magistrate's finding. It was put to him that the Magistrate found he conducted himself in the manner as alleged by the police and the applicant agreed that this was the finding but stated he was appealing that decision. He agreed he is currently on a good behaviour bond in relation to those offences.
It was put to the applicant that he had previously been to the Administrative Decisions Tribunal and the respondent had required him to complete retraining. He agrees he did complete the retraining. He agreed that he did not consider that he needed retraining, and that was one of the reasons why the previous case had gone to the tribunal. He agreed he had previously been interviewed by the Department of Transport and he agreed that he knew of his obligations as a taxi driver and that he knew a number of complaints had been made about him. The applicant said the complaints had "already been dealt with".
It was put to the applicant that when he had abused police in 2005, the police wrote to the respondent stating their concerns about the applicant being a taxi driver. The applicant stated he was not aware of this, and further stated that he has not read the files provided by the respondent in these proceedings. He does however recall the incident in 2005 with the police but disagrees with what the police said occurred.
The applicant agreed during cross-examination that he was aware of his obligation to report any charge or conviction to the respondent. He was asked to indicate when he had notified the respondent of the offences for which he appeared at the Burwood Local Court on 25 May 2011. The applicant responded that he did not write a letter to advise the respondent of the charges, as he was represented by a solicitor at that time and was told to remain silent. It was put to him that he attended retraining and he was aware of his obligations to advise the respondent of the charges and he agreed, but stated that he had to obey his solicitor's advice. Upon further questioning he agreed that he was not given specific advice by the solicitor not to comply with taxi driver regulations. Under cross examination the applicant agreed that he contested a number of traffic infringement notices and had been convicted of those.
The contents of a document on the respondent's file (page 507 of the file) were put to the applicant - being an e-mail from Mr Valdas of the taxi network to an officer of the respondent, dated 29 July 2009, wherin it is stated:
I have interviewed Mr Auela on several occasions in relation to customer complaints and difficulties he has encountered with operational aspects of CCN. During those interviews he has never displayed animosity toward me. However, I feel that there is a seething resentment and underlying hostility in his nature which surfaces when he is confronted with the situation challenging his self-esteem. This opinion is not a psychological assessment but an observation based on 30 years experience in the taxi industry. Having counselled drivers with the same disposition my concern is that he will place himself in a situation where he will be physically attacked as a result of being unable to resolve a problem involving confrontational passengers and/or road users and that he will physically or verbally assault these people. I have no confidence that he would change his behaviour in the short term and strongly suggest that his fitness to hold taxi drivers authority be reviewed and subsequently cancelled.
When this document was put to the applicant he noted that he had always found Mr Valdas to be good to communicate with. He does not recall what date he was interviewed because it was last year. He said Mr Valdas understands taxi drivers and the frustrations that occur out in the community and he also understands that rules and regulations need to be enforced. After a discussion with Mr Valdas the applicant felt relieved and felt understood. He does not recall Mr Valdas finding fault with him, or discussing that he had seething resentment.
The statement from the applicant's wife refers to the financial difficulty which would be occasioned by the applicant losing his employment as a taxi driver. The character references provided by the applicant detail the referees' views about the applicant. The reference from Captain Sterrett does not refer to the allegations before the tribunal. It says the referee has known the applicant for many years and found him to be respectful, honest and reliable, and to be a gentle person. The reference by Mr Caglia, a solicitor, states that he has known the applicant for five years and understands the purpose of the testimonial is to assist the applicant in renewing his taxi authority. The referee understands the applicant has been driving taxis for 18 years. The reference states the applicant is of a gentle nature. The reference does not refer to the allegations before the tribunal. A reference from the managing director of Legion cabs says the applicant has been working for the Company since 2001 as a taxi driver and describes the applicant as motivated, reliable, with a sense of humour and willing to help. The referee acknowledges the applicant has a dispute with the Ministry of Transport which will be dealt by the tribunal sometime later on, but does not state an awareness of the allegations before the tribunal. The reference by Mr Herron states that the reference is provided for the applicant's hearing with regards to a traffic incident. The referee does not appear to have particular knowledge of the allegations before the tribunal. Mr Herron states that he has known the applicant for several years in both business and social standing to be a man of high principle and great charm. The reference by Dr Phan states that the doctor has been a friend and physician for over 18 months, and has found the applicant to be honest and trustworthy with the utmost in integrity. The reference does not state that it is a character reference for these tribunal proceedings.
The respondent provided oral testimony from a witness, being the bus driver in the incident of 9 June 2010, who gave sworn evidence to the tribunal - Mr John Russell. Mr Russell told the tribunal what he recalls occurring on 9 June 2010. He was also shown a written statement which was made on the day of the incident, being a statement made to police by Mr Russell on 9 June 2010. In the statement Mr Russell details what he recalls about the incident.
The bus driver, Mr Russell, describes approaching the St Leonards bus stop/zone as the third of three buses attempting to pull into the bus zone (it is a lengthy bus zone in the pedestrian lane of the highway). The two buses in front of him were able to pull into the bus zone but he was unable to do so because there was a taxi in the northern end of the zone/bay. As he got closer he sounded his horn to indicate to the taxi driver to move out of the bus bay. When the buses in front of the taxi moved out of the bus bay, he again sounded his horn, hoping the taxi driver would move forward so he could get his bus off the Pacific Highway and into the bus bay, but the taxi did not move.
Mr Russell states that he then hopped out of the front door of the bus, tapped on the back left-hand corner of the taxi and said "move it along". He went up to the passenger side door, opened the door and said "mate, you are parked in a bus zone can you please move. I have cars behind me, I can't move, or I will call the police." The bus driver states that he received no verbal response from the taxi driver and so he walked back to the bus and sat in the driver's seat. He then saw the taxi driver get out of the taxi and walk towards the bus. The taxi driver came up to the bus driver's window, and tapped on the window and Mr Russell, bus driver, says he opened the window. The bus driver says that the applicant then swung his fist at him, through the window, which connected with his right cheek. He closed the window straightaway, catching the hand of the taxi driver in the window as he shut it. He then openned the window to let the taxi driver get his hand free. Mr Russell states that when the taxi driver got his hand free, he walked around the front of the bus and attempted to get in the front door of the bus. The front door of the bus was closed. He says the applicant then stood in front of the closed door looking in the bus and Mr Russell was concerned that he would try to get on the bus. After a short period of so standing the applicant returned to his taxi. Mr Russell states that he was then able to drive around the taxi and drive to the top of the bus zone. While parked there he called the bus depot to report what had happened. While making this call he could see the taxi driver was still in the bus bay behind his bus. Mr Russell also spoke to police. In his oral evidence, the bus driver, Mr Russell, gave evidence consistent with what was in his written statement. When the applicant's version was put to Mr Russell, he disagreed with the applicant's version and specifically denied using verbal abuse to the applicant. Mr Russell records that a male passenger was standing beside him when the taxi driver came to his window. He says this was one of his regular passengers, and that this person yelled at the applicant the passenger stated "hey you can't do that". When questioned in the hearing Mr Russell statedthat he had not seen the bus CCTV footage and does not know what it shows.
The tribunal was shown CCTV footage of the incident. The CCTV footage was from cameras located in the bus driven by Mr Russell. There were three cameras in different locations: one was at the front of the bus pointing towards the back of the bus, with a view of the driver in the seat; another camera pointed towards the front passenger side door of the bus; and the third camera pointed towards the front of the bus from the rear. The tribunal viewed all the recordings of all three cameras in relation to the incident of 9 June 2010. Whilst viewing the camera footage, the tribunal member described what was being seen for the purpose of the transcript of the hearing. What is clear from the recording is that as Mr Russell approached the St Leonards bus zone, other buses pulled into the zone in front of him and Mr Russell was unable to enter the bus zone because of the taxi parked in the bus zone. The CCTV footage shows Mr Russell's bus waiting for some time behind the taxi, with Mr Russel sitting in the driver's seat waiting. It then records Mr Russell stepping out of his bus and the rear passenger door of the taxi can be seen open. The CCTV record then shows that after a very brief period of time Mr Russell returns to the bus and sits in the driver's seat. In a very brief period of time thereafter Mr Russell is seen opening his window. He is then seen to recoil backwards in his seat, and to close his window. Something can be seen coming in the window but the footage does not show the applicant's hand connecting with Mr Russell's face (as is alleged by Mr Russell) but neither does it exclude that this occurred. After some time Mr Russell is then able to drive his bus around the taxi to the front of the bus zone. After the incident at the driver's window the applicant is seen standing at the front door of the bus which is closed. A bus passenger is seen to be standing near the driver. What is noticeable about the CCTV footage is the very short periods of time involved - namely the very short period of time that Mr Russell is out of his bus seat and the very short period of time between Mr Russell's return to his seat in the bus and the applicant's appearance at Mr Russell's window.
The respondent provided evidence, in the respondent's files submitted to the tribunal, and as to the history of complaints received in relation to the applicant's conduct as a taxi driver. In a "Show Cause" letter from the respondent to the applicant of August 2010, the complaints history was set out, including the incident with the bus driver of 9 June 2010. In particular there were complaints in 2008 for verbal abuse or threat /incivility (20 June 2008 and April 2008, and during an interview with a customer service officer of the respondent it was alleged that profane language was used). Other complaints in 2009, 2008, 2007, related to driving in an unsafe manner, demanding more than prescribed fare, and not arriving for a booking. Of concern to the respondent was the incivility, particularly during the interview with the customer service officer, he was interviewed in relation to this matter and directed to undergo retraining. He failed to attend the training, his driver authority was suspended, he appealed the suspension at the Administrative Decisions Tribunal in March 2009 and he was directed to attend retraining, his driver authority was suspended until such time as the retraining was completed. He completed the retraining in April 2009 and the driver authority was reinstated. He was then forwarded a warning letter. The respondent, in the "Show Cause" letter also detailed the criminal history. There was a charge in June 2003 of behaving in an offensive manner and the applicant was convicted and fined. On 11 December 2000 the applicant was convicted and fined in relation to driving with a prescribed concentration of alcohol and his licence was disqualified for three years, on appeal the period of Disqualification was varied to 15 months. In November 1998 he was before the local court for assault occasioning actual bodily harm, heard on 9 March 1999, where he was convicted and sentenced to a bond for two years and a fine. On appeal to the Sydney District Court the sentence was varied to a section 556A good behaviour bond for three years (that is, a good behaviour bond, offence proved but without proceeding to a criminal conviction). In April 1998 there was a charge of refuse to submit to breath analysis as directed, heard in December 1998, whereby the applicant was convicted and fined and drivers license was disqualified, he appealed the conviction and in April 1999 the conviction was confirmed, and the license disqualification was to commence on 8 April 1999. The respondent states in the "Show Cause" letter that the complaints history since 2007, a number of which relate to aggressive or violent behaviour towards passengers or other road users, cast doubts about his fitness to hold an authority to drive a public passenger vehicle, and his ability to carry out the duties and responsibilities of the position according to law and custom. The incident of 9 June 2010 records illegal parking, leaving of his taxi to assist to attempt to assault the bus driver, according to the respondent.
The respondent also provided evidence, by way of a New South Wales Police Service COPS entry which stated, for an incident in 2005: "police have concerns that this driver is not fit for his employer duties as this person demonstrates a violent/irrational and confrontational behaviour when involved in incidents ." When this incident was put to the applicant during cross-examination he denied the Police version, denied swearing at police, but stated that police swore at him.
The respondent also referred to evidence submitted into evidence at the tribunal hearing, as to criminal proceedings before the Burwood Local Court. The evidence included a transcript of the hearing in the local court of 25 May 2011, the police Facts Sheet relating to the offences before the court, being offences of resist or hinder police, fail to leave licensed premises, use offensive language. The offences are said to have been committed on Friday, 5 March 2010 when police were conducting a drug dog operation and attended the Gladesville hotel. The Local Court transcript indicates that the Magistrate found the offences proved and convicted the applicant of all three offences, and on two offences fined the applicant, and on the offence of hindering police the applicant was required to enter a good behaviour bond for a period of nine months. The applicant gave evidence in the tribunal hearing that he has appealed these convictions and sentences. In the Magistrate's reasons and findings, as recorded in the Local Court transcript, the Magistrate noted "the court would also find that the police were entitled to turn him out of the premises due to his quarrelsome nature, which is clearly shown in my view in the taser recording.....On the evidence the accused escalated the situation". The magistrate also stated that "the court finds beyond reasonable doubt that the accused said words in an aggressive way... (The court detailed swear words used by the applicant). The court found the words used, in the context and place they were used, to be offensive. The Magistrate also stated "he was verbally aggressive and threatening in a situation towards the officers, not listening to what was said to him." During the hearing at the tribunal the applicant made clear that he disagreed with the court findings and had lodged an appeal.
The applicant's lawyer made submissions in relation to the complaints history and the criminal history. In relation to the criminal offences it was submitted that these were not the most serious offences, and in relation to the most recent criminal offences, these occurred in a hotel where people had been drinking and police could have anticipated a some difficult behaviour by patrons. In relation to the nature and frequency of complaints against the applicant for his conduct as a taxi driver, the last complaint was in June 2008, in the applicant's submission. The infringements all ended in 2008. It was submitted that the applicant is making efforts to show he accepts the need for better behaviour. It was submitted that there had only been two incidents in 2010 so there was improvement. He had attended retraining and he had been trying to change his ways since that time .It was submitted that in relation to the recent criminal offences the applicant was obviously intoxicated, and the tribunal was requested to consider the offences are not the most serious of offences. In relation to the allegation of the assault on the bus driver it was submitted that there was nothing in the CCTV footage to substantiate the account of the bus driver that he was assaulted.
The respondent also relied on the findings of the tribunal in previous proceedings (Auelua v Ministry of Transport [2009] NSWADT 134) a decision of the tribunal (differently constituted to the current tribunal) of March 2009. The tribunal then found that all of the evidence suggested that the applicant:
"lacks sufficient understanding of what is required of a taxi driver. I think that it is this lack of understanding that has led to conduct that has brought him to the attentions of officers at the Ministry...... Mr Auelua's failure to notify the Ministry of the charges against him and any convictions at the time he renewed his authority also suggests that he does not understand the requirements of clause 44 of the Regulation. On the available evidence I am unable to test that Mr Auelua has sufficient responsibility and aptitude to drive a taxicab in accordance with the conditions under which the taxicab service is operated and in accordance with law and custom. For these reasons, it is my opinion that Mr Auelua should undertake some retraining and I'm satisfied that it is reasonable to require him to undertake the retraining that the Ministry directed. The retraining will focus his mind on what is actually required by the legislation by the scheme that is in operation."
The then tribunal found that the applicant should undertake the retraining and should not drive until he had completed the retraining, thereby affirming the decision under review in that matter.
It was submitted on behalf of the applicant that the retraining had caused improvement as seen by a lesser rate of infringements since the training was undertaken.
Findings of fact
In this matter there is a conflict in the evidence of Mr Russell and the applicant. In essence the applicant states that Mr Russell spoke aggressively to him and then returned to his bus, and that the applicant spoke reasonably to Mr Russell, through the bus window, explaining why he was parked in the bus zone. The applicant states that while talking to the driver through the window, the driver closed the window on his hand and then re-opened the window. The applicant states he then went back to his taxi and waited for the elderly lady. The bus driver, Mr Russell, states that he waited for a while in his seat, he bipped his horn, he still waited for the taxi to move, he hopped out to ask the taxi to move, he returned to his bus and sat in his seat, the taxi driver came to his window, he opened his window and the applicant punched him through the window, he closed his window on the applicant's hand and then reopened the window. The applicant walked around the front of the bus to the front door and remained standing near the front door looking in, and then returned to his taxi. The taxi remained in the bus zone, and even though there was clear unoccupied space in front of the taxi, the taxi did not move forward, and eventually the driver of the bus, Mr Russell, was able to go around the taxi and park at the front of the bus zone. Mr Russell's evidence is that he immediately contacted the bus depot, spoke to police and he made a statement. The applicant's evidence is that he drove his passenger to the hospital, and later in the day spoke with police. Both Mr Russell and the applicant agree that there have been no further proceedings by the police in relation to the alleged assault.
The CCTV footage supports Mr Russell's account as it accurately reflects the timing detailed by Mr Russell. It shows Mr Russell opening his bus window and then recoiling backwards. It does not show a fist hitting Mr Russell's cheek but also does not exclude that possibility. It supports some of the detail provided in Mr Russell's account, for example it does show a male passenger does standing nearby to the driver as detailed by Mr Russell. Mr Russell's demeanour as viewed on the video camera does not appear agitated although he is clearly waiting for the taxi to move. It also captures the applicant waiting near the front door of the bus after the incident at the driver's window.
The tribunal prefers the account of Mr Russell over the account of the applicant as to what occurred on 9 June 2010. The account provided by Mr Russell to police, and in his oral evidence to the tribunal, is consistent with what is recorded in the CCTV footage. In his oral evidence he was consistent and the tribunal had no basis on which to reject his testimony. The Tribunal finds that Mr Russell's evidence is to be preferred over the applicant's evidence as the evidence of Mr Russell was consistent with other evidence before the tribunal, in particular the CCTV footage, whereas the applicant's evidence was inconsistent with other evidence.
In particular, the detail provided by Mr Russell around the incident, such as the presence of the male passenger, the other buses pulling in front of him into the bus zone, the period that he waited for the taxi to move before he got out of his bus to talk with the taxi driver, the brief period that he was out of the bus, and the actions of the applicant after Mr Russell returned to the bus, are all consistent with the CCTV footage. By contrast the applicant's version is not consistent. He states that after the bus driver spoke to him when he was sitting in the taxi, he remained sitting in his taxi waiting for the elderly woman to return and when she did not return he decided to get out to tell the driver why he was in the bus zone. The CCTV footage shows a very short period of time between when the bus driver returned to his seat and when the applicant appeared at the bus driver's window. This short period of time is not consistent with the applicant's account of remaining seated in his taxi and waiting. Also the applicant states that after the incident at the window he returned to his taxi - this is not consistent with the CCTV footage which shows the applicant walking around the front of the bus to the front door of the bus and standing there looking in. He also states that the bus driver told him to "fuck off" and closed his hand in the window - the footage shows Mr Russell opening the window, recoiling and shutting the window, before opening the window again, this is not consistent with the applicant's version - of the applicant trying to tell his story and being told to "fuck off" - this story does not explain why the driver recoiled, or explain why the applicant's hand was inside the bus window so that his hand was closed in the window. Mr Russell's account is one which reasonably accords with and explains what is seen in the CCTV footage, and this cannot be said for the applicant's account. The applicant's account also does not explain what is seen on the CCTV footage of the applicant going around and standing at the front door of the bus and looking in. It also does not explain why the passenger appears to be standing protectively near the bus driver.
Given that Mr Russell's explanation of what occurred is consistent with other evidence such as the CCTV footage, and the applicant's version is not consistent with the footage, then the tribunal prefers Mr Russell's account. In so finding the tribunal has also taken into account that Mr Russell gave his oral evidence consistently with his prior written evidence, and Mr Russell's written statement was also made proximately to the incident - on the day of the incident - and as such is more likely to be reliable. The tribunal has no basis for rejecting his evidence, and the tribunal found Mr Russell's evidence, for the above described reasons, to be reliable and credible evidence. Further, Mr Russell did impress the tribunal as a bus driver who takes pride in his professional role: he told the tribunal of the years that he has acted as a professional heavy vehicle driver and a bus driver, and that he also drives for the rural fire service. He expressed some pride in his years of experience and some dedication to performing the role well. He explained to the tribunal his relationship with his regular passengers, the fact that he has been doing the St Leonards bus route for some years, the fact that he often sees taxi drivers in that bus zone and he appeared to accept that as one of the issues he needs to cope with as a bus driver. His pride in doing his job well came through in his evidence to the tribunal, and was not contrived in the tribunal's view. The tribunal did find Mr Russell to be an impressive witness. The same cannot be said for the applicant given the inconsistencies between the applicant's evidence and other evidence before the tribunal. Given that the tribunal prefers the evidence of Mr Russell over the applicant, then the tribunal finds that Mr Russell's account of what occurred on 9 June 2010 is to be accepted. That being so then the tribunal finds that the applicant acted without courtesy, and further acted with aggression, to the bus driver on 9 June 2010.
The lack of courtesy included a lack of consideration for another public passenger vehicle, being the bus, and the need for the bus to get out of the traffic on the Pacific Highway and enter the bus zone. Whilst the applicant's taxi could have moved forward to allow Mr Russell's bus to pull into the bus zone behind the taxi, he failed to do so when the space in the bus zone in front of the taxi became vacant. Further, it was a considerable period of time that Mr Russell's bus was waiting behind the taxi, before Mr Russell got out of the bus to speak to the applicant, and during this period of time the taxi appeared to have no concern for the position of the bus. Beyond this lack of courtesy, the applicant's actions in aggressively addressing the bus driver through the bus window and by standing at the door looking in, is, in the tribunal's view, unacceptable and aggressive behaviour towards the driver of another public passenger vehicle.
The tribunal needs also to consider, in deciding this matter, the history of criminal convictions. As was submitted by the applicant's lawyer, a number of these convictions occurred some time ago. However, the applicant was convicted in 2011 of criminal offences. The applicant states that he has appealed these convictions, however, the tribunal is entitled to have regard to the findings of the Magistrate, and the transcript recording those findings which was part of the evidence in the proceedings. The Magistrate was satisfied that the offences were proved beyond reasonable doubt and convicted the applicant. As detailed above, the Magistrate made findings that the behaviour of the applicant was aggressive, and that offensive language was used. The tribunal therefore finds that the applicant has recently been convicted of offences which involved aggressive and offensive behaviour. As noted above it was submitted on behalf of the applicant that the tribunal should consider the offences as minor and take into account the applicant's intoxication at the time.
The tribunal must also consider the references as to the applicant's good character submitted by the applicant, this evidence is further discussed below.
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.
Passenger Transport Act 1990 -
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.
Passenger Transport Regulation 2007
35 Dress and conduct of drivers
The driver of a public passenger vehicle must:
(a) be clean and tidy and wear clean and tidy clothes (including enclosed shoes) when driving the vehicle for the purpose of providing a public passenger service, and
(b) behave in an orderly manner and with civility and propriety towards any passenger, intending passenger, driver of another public passenger vehicle or authorised officer, and
(c) comply with every reasonable requirement of an authorised officer or passenger.
Maximum penalty: 10 penalty units.
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, therefore, regard must be had to the purpose of the authority in s33 of the Act (set out above).
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):
"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."
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.'...
...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."'
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 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 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. The purpose of an authority is to attest 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.
The references submitted by the applicant, are not conclusive of good repute. The references do not refer to the allegations currently before the Tribunal and so for this reason also attract less weight; nor do the references refer to the criminal history of the applicant or the complaint history recorded by the respondent. The Tribunal must consider all the evidence and finds for the above reasons that the references provided by the applicant are not conclusive evidence that he is of good repute and otherwise a fit and proper person to be a taxi driver.
The conduct of the applicant on 9 June 2010 is of particular concern to the Tribunal. As discussed in paragraph 30 above, the applicant acted without courtesy and with aggression to the bus driver. The level of aggression displayed by the applicant is unacceptable in the tribunal's view. The legislative scheme regulating those who drive taxis clearly requires taxi drivers to treat members of the public, and drivers of other public passenger vehicles, with courtesy. It is submitted on behalf the applicant that he is trying to improve and has improved since undertaking training, such training being a requirement of a tribunal order made on March 2009. It is of concern to the tribunal that shortly after being ordered to undertake retraining, and completing retraining, the applicant behaved with lack of courtesy, and with aggression, to the bus driver, on 9 June 2010. Given recent retraining the applicant should have been aware of his responsibilities. When the tribunal also considers the offences which occurred in March 2010, which were before the Burwood Local Court in May 2011, and of which the applicant was convicted (although he is appealing the convictions) it is clear that a court found that the applicant behaved with aggression and in an offensive manner, using offensive languagein March 2010. The incident with the bus driver in June 2010 also involved aggression and allegations of offensive language. The complaint history provided by the respondent, up until 2008, shows complaints in relation to aggression/lack of courtesy. The tribunal cannot be satisfied that recent retraining has addressed these issues, given the incident of 9 June 2010, and the tribunal's findings about this incident, and given the criminal convictions of 2011 for similarly aggressive behaviour in March 2010. The tribunal has carefully considered the submissions made by the applicant's legal representative that the tribunal should consider the recent convictions as being not serious offences, and that intoxication played a part. The tribunal has taken into account that the offences did not occur in the course of the applicant's duties as a taxi driver but occurred during recreational time. The tribunal sees the relevance of the recent criminal convictions as showing further incidents of behaviour where the applicant behaved aggressively. The tribunal has focused more, in the current proceedings, on the incident of 9 June 2010 which occurred in the course of the applicant's employment as a taxi driver, and the complaints history of incidents of aggression/incivility occurring whilst taxidriver, and on the fact that recent retraining does not seem to have addressed the incivility/aggressive behaviour. Given the ongoing incidents of incivility/aggressive behaviour whilst in the course of performing his role in as taxidriver, the tribunal cannot be satisfied that the applicant is able to perform the duties of the taxidriver in accordance with law and custom. On this point the tribunal also notes the applicant did not advise the respondent of the criminal charges of March 2010 (now convictions) despite recent retraining as to his obligation to do so. The tribunal cannot be satisfied that the applicant has sufficient responsibility and aptitude to drive a taxi-cab in accordance with the conditions under which the taxi-cab service concerned is operated, and in accordance with law and custom, and cannot attest to these matters.
Further, the applicant's continuing incidents of demonstrating aggressive behaviour mean that the tribunal cannot find that the applicant is a fit and proper person to be the driver of a taxicab. In the tribunal's view, a person who behaves with aggression towards other drivers of public passenger vehicles, and/or members of the public - which is indicated by the applicant's behaviour during the incident of 9 June 2010, and is also indicated by the complaints history, and the criminal history - is not a fit and proper person to be authorised to drive a taxicab. The tribunal is unable to attest, for these reasons, that the applicant is a fit and proper person to be authorised to drive a taxi.
Accordingly, for the reasons detailed above, the tribunal finds that the correct and preferable decision, according to the law and the evidence, is that the applicant's authority to drive a taxicab be cancelled. Therefore, the tribunal affirms the decision under review.
**********
Decision last updated: 16 November 2011
0
5
1