Bondar v Ministry of Transport

[2008] NSWADT 318

CITATION:

Bondar v Ministry of Transport [2008] NSWADT 318

DIVISION:

General Division

PARTIES:

APPLICANT
Alexander Bondar

RESPONDENT
Ministry of Transport

FILE NUMBER:

083114

HEARING DATES:

29 July 2008

SUBMISSIONS CLOSED:

29 July 2008

 
DATE OF DECISION: 

28 November 2008

BEFORE:

Grotte E - Judicial Member

CATCHWORDS:

Passenger Transport Act - taxi driver - cancellation of authority

LEGISLATION CITED:

Passenger Transport Act 1990
Passenger Transport Regulations 2007
Administrative Decisions Tribunal Act 1997

CASES CITED:

Saadieh –v- Director General, Department of Transport (1999) NSWADT 68
Kaikaty v Ministry of Transport [2005] NSWADT 135
Maythisathit and Registrar of Motor Vehicles [1996] ACTAAT 165
Lal –v- Director-General of Transport (2001) NSWADT 74

REPRESENTATION:

APPLICANT REPRESENTATIVE

In Person

RESPONDENT REPRESENTATIVE

A Wozniak

ORDERS:

The decision of the delegate of the Director–General of the Ministry of Transport to refuse Mr Bondar’s application for authorisation to drive a taxi cab is affirmed.

REASONS FOR DECISION

Background

1 On 24 January 2007 a delegate of the Director-General of the Ministry of Transport determined to refuse Mr Bondar’s application for authorisation to drive a taxi cab.

2 Mr Bondar applied for an internal review of the decision to refuse Mr Bondar’s application for authorisation to drive a taxi. On 3 March 2008 a delegate of the Director-General of the Ministry of Transport affirmed the decision to refuse Mr Bondar an authority to drive a taxi-cab. The statement of reasons was as follows:

Since 1989 Mr Bondar has been fined for committing nineteen traffic offences, many of which are of a serious nature. For instance he has been convicted in the courts of drink driving on two occasions, failing/refusing to submit to a breath test, negligent driving and not giving particulars after a crash. It is noted that after the first drink driving conviction Mr Bondar wrote to the Ministry of Transport declaring his drink driving “never will happen again”. After his second drink driving conviction he again wrote to the Ministry describing himself “as a person who never drink and drive”. Six of his traffic infringements were for exceeding the speed limit. As a result of his poor driving record, Mr Bondar has been disqualified from driving on three occasions (for a total of twenty-two months), had his driving licence cancelled and had it suspended eight times.
Mr Bondar is a former unsatisfactory taxi-driver and in that capacity had his driver authority suspended and cancelled twice. Whilst a taxi driver, Mr Bondar was convicted in 1999 on three counts of assault with indecency against a female taxi passenger, after soliciting her custom at a bus stop.
…
Not only does Mr Bondar have a poor driving record, which indicates a disregard for the traffic laws, but two convictions for drink driving is considered a serious matter. Of much more concern though is Mr Bondar’s conviction for the sexual assault of a female taxi passenger. With this background I cannot positively attest to Mr Bondar being a fit and proper person to be authorised to drive a taxi-cab.
Whilst it is not necessary for me to consider whether Mr Bondar is a person of “good repute” I am entitled to”
take into account any material provided by Mr Bondar that supports his character, such as testimonials from neighbours or work colleagues; and
form a view as to what the community’s estimate would be of a person if they were aware of the material facts as available to me. I note that I merely have a testimonial from his mother which, due to natural bias, I have declined to accept as evidence of Mr Bondar’s reputation in the community, and I am therefore unable also to attest that Mr Bondar is a person of “good repute”. It is unnecessary for me to deal further with the other matters set out in s.33 (3) of the Act.
On balance, it is my view that members of the wider community, being aware of all the material available to me, would continue to hold Mr Bondar in low repute having regard to the nature of the crime has being (sic) convicted of against a female passenger.

3 On 8 April 2008 Mr Bondar applied to the Tribunal for review of the delegate’s decision. The matter was heard by me on 29 July 2008 and I reserved my decision.

Relevant Legislation

4 Section 33 of the Passenger Transport Act 1990 (the Act) provides as follows:

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.
(4) The regulations may create categories or grades of authorities.
(5) Without limitation, the regulations may provide that subsection (2) does not apply in specified circumstances, including, for example, when a taxi-cab is being driven to a place to have it repaired or serviced.

5 Section 33B of the Act provides as follows:

Grant or refusal of application
(1) Having regard to the purpose of authorisation under this Division, the Director-General may grant an application and authorise the applicant to drive a taxi-cab, or may refuse the application.
(2) Before an application is granted, the applicant must meet any criteria set forth in the regulations and must satisfy the Director-General as to any matter the Director-General considers relevant.
(3) An applicant is required to pay any fee fixed by the regulations for the authority when first issued.
(4) An authority is to be given in writing by the Director-General to the authorised person.
(5) The authority may specify the category or grade of the authority, and (without limitation) may specify the kind or kinds of vehicles for which the authority is granted.

6 Section 52(1) of the Act confers jurisdiction on the Tribunal to review a refusal of an application for an authority. Section 63 of the Administrative Decisions Tribunal Act 1997 (the ADT Act) provides that in reviewing the decision the task of the Tribunal is to determine what is the correct and preferable decision, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law. Section 63(2) of the ADT Act provides that for this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.

7 The holder of an authority is also subject to the provisions of the Passenger Transport Regulation 2007 (the Regulations). Relevantly Clause 29 of the Regulation provides:

(1) For the purposes of sections 12 (2), 33B (2) and 40B (2) of the Act, the criteria that an applicant for an authorisation to drive a public passenger vehicle must meet before the application is granted are the criteria set out in subclauses (2)–(4).
(2) The applicant:
…
(e) must satisfy the Director-General that he or she:
(i) may lawfully work in Australia, and
(ii) is of good repute and in all other respects a fit and proper person to be the driver of the vehicle concerned, and
(iii) has sufficient responsibility to drive the vehicle concerned in accordance with law and custom.

8 The Respondent filed and served a copy of its file in relation to the applicant’s application for an authority to drive a taxi-cab. This file comprised 221 pages. This file contains information about Mr Bondar’s driving record history. It is instructive to set out this history, which has been extracted from the file.

Mr Bondar’s Driving Record

9 On 23 November 1988 when Mr Bondar was 18 years of age he was issued with a learner licence. He gained his provisional licence on 12 December 1988. This provisional licence was cancelled on 24 November 1989 because on 14 August 1989 he disobeyed traffic lights and did not display his “P” signs. Additionally he was fined for not wearing a seat belt and exceeding the speed limit by more than 15 kilometres per hour but not more than 30 kilometres per hour. The file indicated that an application for a further provisional licence would be considered on or after 25 February 1990. He was issued with an unrestricted licence on 26 February 1990 despite being fined for disobeying traffic lights on 14 February 1990.

10 Mr Bondar was fined on 9 February 1991 for not wearing a seat belt, on 9 November 1991 for exceeding the speed limit by more than 30 kilometres but not more than 45 kilometres per hour and on 3 August 1992 he was convicted of driving with middle range concentration of alcohol and disqualified from driving for four months from 3 August 1992. Mr Bondar was issued a further provisional licence on 15 January 1993 and an unrestricted licence on 15 January 1994.

11 On 14 June 1994 Mr Bondar was disqualified from driving for 6 months because he was found guilty of driving with middle range concentration of alcohol on 12 February 1994. He was issued with a further probationary licence on 15 December 1994. Mr Bondar was issued with an unrestricted licence on 15 December 1995 (Class1A) and eventually an unrestricted (Class C) licence on 15 December 1997 and 24 December 1998. His unrestricted Class C licence was suspended on 30 July 1999 for fine defaulting and again on 25 August 2000.

12 On 27 April 2001 Mr Bondar was issued with an unrestricted (Class C) licence but it was suspended for fine defaulting on 11 July 2001. On 6 November 2001 he appeared in Hornsby Court for refusing or failing to submit to a breath analysis test and he was disqualified from driving for 12 months from 25 October 2001. On 25 November 2002 he was issued an unrestricted (Class C) licence. On 24 December 2003 Mr Bondar was fined for exceeding the speed limit by not more than 15 kilometres. On 24 October 2004 he appeared in North Sydney Court for not giving particulars after a crash and for negligent driving. He was fined for both these offences. On 15 February 2005 his licence was suspended but the suspension was not implemented. He was placed on good behaviour conditions instead. He was issued with an unrestricted (Class C) licence on 27 October 2005. In November 2005 he was charged with the offence of driving using a handheld mobile phone, for which his licence was suspended with good behaviour. On 2 July 2007 Mr Bondar was fined for exceeding the speed limit by not more than 15 kilometres per hour.

13 In February 1993 Mr Bondar (at the time known as Mr Bondarenko) applied for an authority to drive a taxi-cab. In his application he admitted to being convicted for driving under the influence of alcohol. His application was refused on the basis that he was not considered to be a fit and proper person to drive a public passenger vehicle because of the recorded conviction. He was provided with an opportunity to give reasons why his application should not be refused.

14 Mr Bondar wrote to the then NSW Department of Transport stating that “I’m driving for almost four years and only had one accident. I never drink and drive and I’m not a drinking person. It happened by chance and never will happen again…I promise I’ll never will (sic) drink and drive and always will follow the rules and conditions as a public passenger vehicle driver”. He also provided testimonials in support of his submissions.

15 Mr Bondar was granted a taxi driver’s authority.

16 On 28 July 1994 Mr Bondar was notified by the then NSW Department of Transport that his taxi driver’s authority would be cancelled because he had been convicted on 14 June 1994 of mid range prescribed concentration of alcohol and he had been disqualified from driving a motor vehicle for six months.

17 On 4 November 1994 he reapplied for a taxi driver’s authority. Mr Bondar wrote to the then NSW Department of Transport stating “From my behave (sic) I want to say that in my case it was an accident. I consider myself as a person who never drink and drive. I feel sorry for what was (sic) happened and I am sure it will never happen again”. Again Mr Bondar provided testimonials. His application was refused and he appealed the decision of the Commissioner for Motor Transport to the Local Court.

18 Magistrate Cleary noted that the incident on 14 June 1994 had been a minor one and had extenuating circumstances surrounding it. It was noted from the transcript that the charge may well have been dismissed but the magistrate on the day felt compelled to impose a conviction and disqualify Mr Bondar from driving because of the earlier conviction. Magistrate Cleary concluded that Mr Bondar was of good character and had a good driving record and that he could be considered to be a fit and proper person to hold a taxi driver authority.

19 Mr Bondar was granted a taxi driver authority for a period of 12 months.

20 On 3 March 1998 Mr Bondar’s taxi driver’s authority was suspended because Mr Bondar had been charged with indecent assault while driving a taxi and on 21 January 1999 he was convicted for “assault with act of indecency” and fined $400 and placed on a good behaviour bond for two years”. The facts of the incident as recorded by the New South Wales Police Service are that on 20 February 1998 Mr Bondar offered to convey a person to her home in his taxi free of charge after she told him that she did not have money to pay for the fare. Mr Bondar had stopped his taxi at the bus stop where the person was waiting for a bus and solicited her business. The person accepted the lift. On arrival at the person’s home Mr Bondar followed her into her room where he attempted to kiss her. He exposed his penis to her and proceeded to masturbate in front of her. She forced him out of her room and called a friend. Later that same day she contacted the police.

21 On 15 August 2001 Mr Bondar applied for reinstatement of his authority. He submitted that he needed his authority for financial reasons as he was suffering financial hardship. He stated “My driving records are very good. Since 1992 no fines at all.”

22 On 5 September 2001 his application was refused on the basis that he was not considered to be a fit and proper person to hold an authority to drive a taxi-cab because of the conviction of assault with an act of indecency. It was considered that Mr Bondar misused the trust of being a taxi cab driver to entice a female into his taxi whom he later assaulted by way of an act of indecency.

This Application

23 On 17 December 2007 Mr Bondar applied for an authority to drive a taxi-cab or private hire vehicle. In a letter to the Ministry of Transport dated 20 December 2007 he stated “”It is very important for me to get a licence, so I can start driving again to earn my living. I’ll always remember what happened to me 12 years ago and make sure it never happenes (sic) again. My financial position is very bad and the only way to fix it is to get into the taxi industry.” He also attached to his application a letter from his mother who attested that that she was fully aware of what had happened in the past but that he had given up smoking and drinking which indicated that he was serious about his life. She attested that he was a very honest and reliable person who could be trusted.

24 This application was refused.

Tribunal Hearing

25 Mr Bondar appeared on his own behalf and gave oral evidence at the Tribunal hearing. He also submitted that the conviction regarding the indecent assault occurred 12 years ago and the last drink driving charge was 7 years ago. He stated that in any event he was advised to plead guilty to the offence but he denied that it happened. He said that he is willing to do a taxi driving course to prove his worthiness. Mr Bondar said he is now 38 years of age and he has matured. Mr Bondar said that he wants to be given a chance to prove himself.

26 Mr Wozniak submitted to the Tribunal that if Mr Bondar were successful in his application he would be treated as a new driver and would be required to undertake the taxi driving course in any event. He also submitted that financial hardship was not a relevant factor to be taken into account. Mr Wozniak submitted that Mr Bondar has been convicted of a serious offence, which occurred within the regulated activity and he is not showing any remorse because he is denying that it occurred.

Findings

27 The Respondent’s decision was made primarily on the basis of the conviction of Mr Bondar of assault with an act of indecency on a background of a poor driving record and two drink driving convictions, all of which was set out in the material lodged in the Tribunal by the Respondent. Mr Bondar did not dispute the contents of that file and I am satisfied that the material accurately records his driving, traffic and taxi authority record.

28 Deputy President Hennessy in Saadieh v Director General, Department of Transport [1999] NSW ADT 68 at [17] set out several factors which should be considered when determining a person's fitness and suitability to hold a taxi authority as follows:

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.

29 Mr Bondar has been convicted of a serious offence. Although he told the Tribunal that he was innocent of the charge and he only pleaded guilty on advice, the undisputed fact remains that he has been convicted of assault with an act of indecency. This offence is all the more serious because it occurred within the regulated activity of taxi driving. The Tribunal agrees with Mr Wozniak’s submission that there has been no remorse shown by Mr Bondar because he denies that it occurred.

30 As stated by the Tribunal in Kaikaty v Ministry of Transport [2005] NSWADT 135:

In Maythisathit [ Maythisathit and Registrar of Motor Vehicles [1996] ACTAAT 165] the President of the ACT Administrative Appeals Tribunal put the test to be applied in relation to "fit and proper character" in the case of taxi driver licensing this way:
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 the applicant's criminal record and what he has done in the past year to rehabilitate himself, would object to the applicant as the driver of the taxi.

31 The Tribunal notes that Mr Bondar claims that he has been punished enough because the offence occurred 12 years ago and he should be given another chance. This is not the issue to be determined. The issue is whether Mr Bondar is a “fit and proper person” to hold an authority to drive taxi-cabs. Applying the test set out in Maythisathit’s case and Kaikaty’s case to the present circumstances, it is the Tribunal’s view that a member of the public, knowing Mr Bondar’s criminal record and the offence of which he has been convicted, would still object to Mr Bondar as a driver of a taxi-cab, because of the serious breach of trust between the taxi driver the member of the public, which the offence demonstrates.

32 The Tribunal notes Mr Bondar’s claim of financial hardship. As stated by the Tribunal in Lal –v- Director-General of Transport (2001) NSWADT 74:

Hardship … is not a factor which the Tribunal can take into account in determining whether or not the Director General has made the correct and preferable decision.

33 It is not disputed that Mr Bondar is suffering financial hardship but that fact is not a relevant consideration when determining whether Mr Bondar is a fit and proper person to hold taxi-cab authority. This circumstance does not alter the fact that Mr Bondar has been convicted of a serious offence of assault with an act of indecency, which was committed in the course of his activities as a taxi driver.

34 Mr Bondar’s driving record is also poor. He has been convicted of two drink driving offences, although it is noted that the second charge may well have been dismissed because of extenuating circumstances. Additionally, however, Mr Bondar has many other traffic offences, some serious and some not so serious but they all suggest a repeated disregard for the law. On two occasions previously Mr Bondar has stated that he will not reoffend but he has not kept this promise. His previous behaviour does not inspire confidence that he would not commit further traffic offences.

35 Mr Bondar has only relied on a testimonial from his mother to show that he is of good repute in the community. The Tribunal agrees with the delegate that his mother could not be regarded as being free from bias and any statement as to his good repute from his mother must be given very little weight.

36 The Tribunal finds Mr Bondar is not a fit and proper person to hold a taxi-cab authority because of the seriousness of the prior criminal conviction and his poor driving record and the likelihood that he may reoffend.

37 The decision of the delegate of the Director–General of the Ministry of Transport to refuse Mr Bondar’s application for authorisation to drive a taxi-cab is affirmed.