Colefax v Department of Education and Communities

[2013] NSWADT 72

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Brown v Roads and Maritime Services [2013] NSWADT 72
Hearing dates:	6 February 2013
Decision date:	06 February 2013
Jurisdiction:	General Division
Before:	S Montgomery, Judicial Member
Decision:	The decision under review is affirmed.
Catchwords:	Authority to drive a taxi cab - suspension - fit and proper person
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990
Cases Cited:	Assi v Director General Transport NSW [2012] NSWADT 7 Caska v The Director General of the New South Wales Department of Transport [2001] NSWSC 205 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 Saadieh v Director General, Department of Transport [1999] NSWADT 68
Category:	Principal judgment
Parties:	Nicholas Charles Brown (Applicant) Roads and Maritime Services (Respondent)
Representation:	Friend & Co Lawyers (Applicant) Smythe Wozniak Legal (Respondent)
File Number(s):	123346

reasons for decision

1. GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): Mr Nicholas Charles Brown ("the Applicant") has applied to the Tribunal for external review of a determination by a delegate of the Respondent. The determination was to suspend the Applicant's authority to drive taxi-cabs and was taken under section 33F of the Passenger Transport Act 1990 ("the Act").

1. The matter came before me for hearing on 6 February 2013. At that time I determined to affirm the decision under review and gave brief reasons for my decision. The Applicant has sought written reasons for my decision and these reasons are provided in response to that request.

The reason for decision

1. In the reason for decision the delegate referred to a history of complaints against the Applicant and stated:

1. Facts, Evidence and Material

The Delegated officer relies on the following facts, evidence and material to make the decision to Suspend and Show Cause your Driver Authority GA7425.

1.1Complaint CFI 77439 was received at Roads and Maritime Services (RMS) alleging that on 21 October 2012, you being the driver of taxi T1717 were observed consuming alcohol and driving recklessly whilst conveying passengers. TCS has identified that you were the driver of T1717 at the time of the alleged incident. You were interviewed by Authorised Officers from RMS in relation to the allegation and the allegation was found to be justified.

Complaints history

1.2Complaint CFI 77349 received stated that on 18/10/12 the complainant took a taxi from Chullora to Strathfield then to Kirribilli. The driver took him through Ryde then went over the Anzac Bridge. When the complainant questioned the driver about the route taken and to why he had not taken Parramatta Road, the driver replied that he hadn't been told. The complainant stated that he should not have to tell him as he was obliged to take the shortest route. The complainant paid $134 and believes that he has been overcharged.

Taxi Combined Services (TCS) has identified Nicholas Brown (driver's authority GA 7425) as the driver of the taxi T4685 at the time of incident.

TCS investigated the matter and complaint found to be justified. TCS has requested the driver to refund the overcharged amount.

1.3Complaint CFI 71156 (duplicate CFI 71138) received concerning the conduct of a taxi driver on 9/04/2012 on a journey conducted from the International Airport to Mosman. The complainant stated the taxi driver was rude and failed to provide assistance to his pregnant wife. When his wife requested the driver to help with the bags and the driver replied no you can do it. It is also alleged that the driver was driving well under the speed limit and when his questioned if something was wrong with the car the driver went off at her. The complainant further stated the driver refused to put down the wheelchair ramp in the taxi so they had to climb over the seats to get their bags out of the taxi. The passenger wanted to pay with credit card, but the driver did not have an EFTPOS machine in working order. As a result he had to pay cash and handed the driver $80, and received $5 change. When the complainant questioned the driver about the short change, he replied it was for waiting and then drove off.

Taxi Combined Services (TCS) has identified Nicholas Brown (driver's authority GA 7425) as the driver of the taxi T048 at the time of incident.

TCS investigated the matter and the complaint was found to be justified.

1.4Complaint CFI 96082 was received concerning the allegation of demanding more than the prescribed fare on 8/2/12, It is alleged the complainant's son caught a taxi at 10:00 pm from Sydney Airport to Artarmon and the driver was driving "about 20km/hr under the speed limit" for the duration of the journey. The complainant alleged that the fare charged $70 by the driver appears to be excessive. The Complainant alleges that the driver was wearing sunglasses (at 10:00pm) which she believed to be inappropriate.

Taxi Combined Services (TCS) has identified Nicholas Brown (driver's authority GA 7425) as the driver of the taxi T4685 at the time of incident.

TCS investigated the matter. Even though no further action was taken regarding this matter, the above complaint is of concern to RMS.

1.5Complaint CFI 66839 was received concerning the conduct of taxi driver, and demanding more than the prescribed fare. The caller stated she hailed T236 from George Street, Sydney to go to Kirribilli on 1/12/11 at around 1650. The driver took her on a trip around the City, and spoke aggressively to her when she questioned him about the route taken. She stated she takes this trip every Thursday and usually pay around $18. The driver charged her $33 and she believes she has been overcharged.

Taxi Combined Services (TCS) has identified Nicholas Brown (driver's authority GA 7425) as the driver of the taxi T236 at the time of incident.

TCS investigated the matter. Even though no further action was taken regarding this matter, the above complaint is of concern to RMS.

1.6Complaint CFI 43974 was received concerning the conduct of a taxi driver on 4 May 2009. It is alleged that the driver of T4685 was rude towards the passenger and did not assist with the luggage.

Taxi Combined Services (TCS) has identified Nicholas Brown (driver's authority GA 7425) as the driver of the taxi T4685 at the time of incident.

TCS investigated the matter. Even though no further action was taken regarding this matter, the above complaint is of concern to RMS.

1.7Complaint CFI 42651 was received concerning the driver of taxi fail to carry out punctual hiring. It is alleged that the complainant booked a taxi for 3:10pm and it failed to arrive. The complainant waited till 3:50pm. Caller stated two taxi drivers accepted the trip but didn't turn up.

Taxi Combined Services (TCS) has identified Nicholas Brown (driver's authority GA 7425) as the driver of the taxi who accepted the radio job at the time of incident.

TCS investigated the matter. Even though no further action was taken regarding this matter, the above complaint is of concern to RMS.

1.8Complaint CFI 37109 was received concerning an allegation that the driver of taxi T1962 failed to complete hire and demanded more than prescribed fare. The female passenger complained about a journey conducted on Tuesday 11th March 2008 from Cope Street, Redfern, to Abercrombie Street, Chippendale.

She booked a taxi for 9:45pm pick up however; the taxi arrived at 10:15pm. She got into the taxi and gave the driver directions. During the journey, as the driver was turning into Cleveland Street he received a radio job from the airport. The driver asked her if he could drop her on Cleveland Street so that he didn't have to turn into Abercrombie Street and could get to the other job faster. The complainant stated she was disappointed with the fact that the driver just dropped her off on the side of the road, 2 blocks from her house and she was concerned about her safety. She further complained about being overcharged where the driver added $1.60 for booking fee.

Taxi Combined Services (TCS) has identified Nicholas Brown (driver's authority GA 7425) as the driver of the taxi T1962 at the time of incident.

TCS investigated the matter and the complaint was found to be justified.

1.9Complaint CFI 33384 received concerning the conduct of a taxi driver on 1 October 2007. It is alleged that driver of T4401 failed to comply with passenger's request to turn the air-conditioning on and replied he has a cold. The complainant complained about the smell inside and the overall poor condition of the taxi. Upon arriving at the destination the driver demanded a $31.75 fare. The complainant handed the driver a $50 note and requested a receipt. The driver issued a receipt for $32 and then handed him change of a ten dollar note, a five dollar note, a one dollar note, 5 twenty cent pieces, 8 ten cent pieces and one five cent piece and said that was all he had (and then some of this he dropped and it rolled under the taxi). The complainant stated he was short changed.

Taxi Combined Services (TCS) has identified Nicholas Brown (driver's authority GA 7425) as the driver of the taxi T4401 at the time of incident.

TCS investigated the matter and the complaint concerning failed to provide reasonable assistance was found to be justified.

1.10 Complaint CFI 19805 received concerning the conduct of a taxi driver on 15 November 2005. It is alleged that during the journey, the driver start talking about the religion and his demeanour was aggressive. He told her that she should believe in Jesus and continued to talk about his religion after being told by the passenger to stop discussing the subject. The driver kept talking about his religion and then made inappropriate comments about her religion.

Taxi Combined Services (TCS) has identified Nicholas Brown (driver's authority GA7425) as the driver of the taxi T7113 at the time of incident.

TCS investigated the matter. Even though no further action was taken regarding this matter, the above complaint is of concern to RMS.

1.11 Complaint CFI 16333 received concerning an allegation of fail to carry punctual hiring by the driver of T5003 on 4 July 2005. The driver accepted a radio booking and failed to arrive on time.

Taxi Combined Services (TCS) has identified Nicholas Brown (driver's authority GA7425) as the driver of the taxi T7113 at the time of incident.

TCS investigated the matter and the complaint was found to be justified.

1.12 Complaint CFI 7566 received concerning the conduct of a taxi driver on 15 June 2006. It is alleged by the complainant that the driver of the taxi he had booked came to the door and put his hand in and twisted the door handle and damaged it.

Taxi Combined Services (TCS) has identified Nicholas Brown (driver's authority GA7425) as the driver of the taxi T311 at the time of incident.

TCS investigated the matter. Even though no further action was taken regarding this matter, the above complaint is of concern to RMS.

1.13 Complaint CFI 3861 received concerning the conduct of a taxi driver on 8 December 2003. It is alleged that the driver of taxi T2450 was observed urinating in a public place beside the Newport public school.

Taxi Combined Services (TCS) has identified Nicholas Brown (driver's authority GA 7425) as the driver of the taxi T2450 at the time of incident.

TCS investigated the matter. Even though no further action was taken regarding this matter, the above complaint is of concern to RMS.

1.14 CFI 2429 was received concerning the allegation that the taxi arrived late for booking and the driver lacked street knowledge. It is alleged that the complainant made a booking on 17/10/2003 from Leichhardt to Airport and the taxi failed to arrive. She made another booking and the driver who picked her up didn't know how to get to the Airport. The passenger had to direct him all the way and she was late for work.

Taxi Combined Services (TCS) has identified Nicholas Brown (driver's authority GA 7425) as the driver of the taxi T2450 at the time of incident.

TCS investigated the matter. Even though no further action was taken regarding this matter, the above complaint is of concern to RMS.

1.15 CFI 1775 received concerning the conduct of a taxi driver on 2 September 2003. It is alleged that the complainant caught T2450 outside the Kings Cross Station on Darlinghurst Road and observed the taxi driver was smoking inside the taxi. The complainant told the driver to take him to the Oxford Hotel in Taylor Square and the driver replied "the job is not worth my while and you should get in the taxi at the end of the line". The complainant stated the driver finally gave in as he was "obliged to" and took him to the front of the Oxford Hotel instead of the rear. The fare on the meter was $5.60 and the caller gave the driver $10 and only received $3 change. The complainant felt intimidated by the driver's demeanour and left the cab upset and angry.

Taxi Combined Services (TCS) has identified Nicholas Brown (driver's authority GA7425) as the driver of the taxi T2450 at the time of incident.

TCS investigated the matter. Even though no further action was taken regarding this matter, the above complaint is of concern to RMS.

1.16 CFI 1333 received concerning the allegations of demanding more than prescribed fare and fail to drive by shortest practicable route. The complainant alleges on 1 July 2003 she caught a taxi from Central Station and gave destination as Circular Quay.

Driver drove in a circular direction, ending back at Central and then continued on to Circular Quay. She paid $14.00 fare and believes she is been overcharged.

Taxi Combined Services (TCS) has identified Nicholas Brown (driver's authority GA7425) as the driver of the taxi T2450 at the time of incident.

TCS investigated the matter and the complaint was found to be justified.

...

3. Reasons for the decision

3.1 Transport for NSW has a continuing obligation under the Passenger Transport Act 1990 (NSW) to ensure that public passenger services meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services including the requirement that persons authorised to drive public passenger vehicles are of good repute and in all other respects fit and proper.

3.2 The fact that you appeared to be drinking alcohol whilst driving public passenger vehicle is of concern to RMS. Your actions have placed your passengers and general public in grave danger.

3.3 The fact you failed to provide any explanation or any other additional information to indicate that the recent allegation of consuming alcohol whilst conveying public passenger on 21 October 2012 whilst being the driver of T1717 was false.

3.4 The fact your conduct on 21 October 2012 shows that you have failed to meet basic expectations of the travelling public and you are not a fit and proper person with sufficient responsibility and aptitude to drive a taxi-cab in accordance with the conditions under which the taxi-cab service is operated and in accordance with law and custom.

3.5 The fact that since first obtaining your driver authority you have been the subject of seventeen (17) complaints and the majority of these complaints are of a similar nature. This is of concern to RMS as it shows a continuing pattern of inappropriate behaviour towards the passengers.

3.6 The fact a majority of these complaints are in relation to demanding more than prescribed fare, fail to provide reasonable assistance and incivility indicates that you have total disregard in complying with your legal obligations as the driver of a public passenger vehicle under the Passenger Transport Act 1990 and its associated Regulation.

3.7 The fact you continue to attract complaints of a similar nature indicates that you are unable or unwilling to change your behaviour and therefore, do not have sufficient responsibility and aptitude to a driver of public passenger vehicle.

3.8 The community must have confidence that a taxi-cab driver will behave appropriately at all times and comply with the relevant rules and regulations applicable while driving a public passenger vehicle. Passengers are entitled to expect that taxi drivers will act with civility and propriety towards any passenger, intending passenger, driver of another taxi-cab or an authorised officer.

3.9 I believe that a member of the travelling public, being aware of these matters would object to being a passenger in a taxi-cab driven by you.

The Applicant's response

1. The Applicant provided a written response in relation to the items referred to in the determination. He wrote:

Complaint CFI 77439

I denied I even drink and I have given up alcohol as to be drunk is abhorrent to me. I had a can in my lap from the KFC I had got earlier, a Max can which looks similar to that JD can another passenger had left in the car. I do not drive recklessly and have not had a ticket of any kind for a few years now. I am very observant of this and drive very carefully.

Complaint CFI 77349

On that day we dropped off another passenger in Strathfield and the traffic was very bad. We took that route because there was no traffic until we came to Rhodes where it became bad traffic again, at Concord Road and Homebush Bay Drive.

He was complaining from the moment he got into the taxi about no one offering him coffee or even a water at the meeting he was in.

We discussed the fare when we arrived at his destination, but I had done nothing wrong.

Complaint CFI 71156

The pregnant woman in question asked me to drive faster but I told her I was already doing the speed limit. The 11 seaters always seem to go slower to the passengers and I told her this and that it was for her own safety. Her husband did not say anything.

I took 20 minutes to unload the bags at Mosman, which I helped her husband with, the meter being turned off.

I then drove her husband to an ATM in Military Road Mosman as the one in the MaxiCab was not working.

The wheelchair ramp was down alright; they had a lot of luggage.

They were not overcharged at all and I went through this at CNN and they checked the route I took. She was pregnant, right down the back of the Maxi, and had no chance of seeing the speedometer.

Complaint CFI 69082

I was on the freeway or South Dowling Street and sometimes the traffic is slow, what could I do

My glasses are cancer Council approved, the $10 included $3.50 airport, $5.50 ED and $2.50 Bridge tolls and I went through that route with CNN and it was what they said it would be.

Complaint CFI 66839

I drove her the way she told me but the traffic was bad on the bridge

Complaint CFI 43974

I think I had the flu that day and should not have driven; I always help with luggage so I am not sure [what] happened here. I am not a rude person.

Complaint CFI 42651

I took the job after two other taxis did not turn up and I do not blame her for being angry as a lot of people do not wait for the taxis and just take the first one; some people do though

Complaint CFI 37109

I have never left anyone two blocks from their destination and would not take a radio job from the airport, as I would be too far away. It happens a lot when people are not picked up on time that another taxi did not turn up, and they are angry.

Complaint CFI 33384

Yes, I think I only just had enough change. I try to keep a sizeable amount on me but sometimes run out. The change probably did drop as it happens a lot both ways.

Complaint CFI 19805

I think she was a witch and I told her I was a Christian and not into covens. I was just replying, or Hare Krishna trying to convert me if she lived in Vaucluse, I am not sure which one this is, but I am a Christian.

Complaint CFI 7566

Yes I was knocking on his door but it was a real old doorknob, it was loose already but probably antique, that was in Paddington.

Complaint CFI 3861

The school was closed and was two paddocks away, it was about 5:30 PM and I was behind a tree

Complaint CFI 2429

I must have asked her preferred way as from Leichhardt everyone seems to have their preferred route.

1. He also provided general submissions in support of his application. He wrote:

I am very worried about losing my job as a taxi driver as I am 55 and have no other prospect of work at my age, and do not want to be a dole bludger. I am paying for my son's education and have been severely scalded at home.

I will never ever again question a passenger about the fare and will do as they say.

I am honest and have handed in about five laptops, 20 phones and other things as well as baggage left in my taxi.

I also only charge old-age pensioners half the fare.

I do pray you have clemency with me as it will never happen again.

I'm finished without a job, and pray to be given another chance

I hold my authority in the highest regard

Applicable Law

1. Section 33 of the Act states:

33 Authorities

...

(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.

1. Section 33F of the Act states:

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.

1. Section 4 of the Act states:

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

...

1. Section 63 of the Administrative Decision Tribunal Act 1997 ("the ADT Act") provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the Respondent, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.

1. 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.

1. 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.

1. The Tribunal has considered these legislative provisions in numerous decisions. A useful review of the authorities was provided in the case of Assi v Director General Transport NSW [2012] NSWADT 7.

1. The assessment of whether an 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 ... 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.

1. In the case of Saadieh v Director General, Department of Transport [1999] NSWADT 68 Deputy President Hennessy offered guidance as to assessing a person's fitness to be authorised to drive a taxi-cab. The Deputy President 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 Respondent's case

1. The Respondent relies on a bundle of material filed pursuant to section 58 of the ADT Act. Included in this bundle is material relating to the complaints lodged against the Applicant and statements in regard to the allegations made about the Applicant's conduct on 21 October 2012 ("the 21 October incident"). The Respondent's case is essentially that set out in the reasons for decision referred to above.

1. Mr Wozniak, solicitor for the Respondent, points to the Applicant's history of complaints. In particular he referred to and the 21 October incident, the evidence of the passengers who travelled in the taxi driven by the Applicant on that occasions and the inconsistency in the Applicant's evidence concerning that incident. Mr Wozniak asserted that the Applicant's recollection of the 21 October incident was initially poor but that it appears to have improved with time. Mr Wozniak also noted inconsistencies in the evidence that the Applicant gave to the Tribunal about his drinking habits.

1. The Respondent relies on the evidence of those passengers. Each provided statements and appeared at the hearing and was cross-examined.

1. The first witness, Michelle, stated:

My name is Michelle ... I am 34 years of age.

On 21 October 2012 at approximately 10pm, [Nass] and I were waiting on Macleay St, Potts Point NSW for the first available taxi that would take us south to our homes in Redfern and Camperdown, respectively.

Nass got into the backseat of the first available taxi and I followed behind her. When I first got into the taxi, I noticed that the driver did not appear to be wearing the normal 'uniform' that I've come to associate with taxi drivers - his shirt sleeves were rolled up near his shoulders.

After we had been in the taxi for a couple of minutes, the driver put on sunglasses, turned the music up and began to sing loudly. His driving was erratic and I noticed that he would frequently swig out of can that appeared to have an alcohol company logo on it.

My concern grew to the point where I memorised the following information - GA 7425 and T 1717 - as I was concerned about getting home safely.

It is my strong belief that the driver did not conduct himself in a professional manner and that he unnecessarily endangered himself, my friend and myself, and members of the public with his recklessness.

1. Michelle appeared at the hearing by telephone. I found Michelle to be a credible witness. Her evidence on this issue was not shaken under cross-examination and she was supported by the evidence of Nass. In her statement Nass stated:

My name is Nass... I am 33 years of age.

On 21 October 2012 at around 10:05pm, my friend Michelle and I got into a-taxi near the corner of Orwell Street and Macleay Street, in Potts Point, NSW. We gave the taxi driver instructions to go to Redfern first and then to Camperdown.

A few minutes into the journey, it came to my attention that the taxi driver was taking several sips from a can of Jack Daniels, which (as per my photo) was placed in his centre console. He was driving recklessly by turning too quickly at corners. He was wearing dark sunglasses despite the fact it was nighttime. He was also not wearing his seatbelt. My friend and I were concerned.

I took some photos inside the taxi to use as evidence of the situation.

I feel very strongly that his behaviour was completely inappropriate and that he could put people's lives at risk should he continue to behave in this manner. I don't believe he should be driving a taxi or any other vehicle for that matter given the behaviour I witnessed.

1. Nass also appeared at the hearing by telephone and I found her to be a credible witness. The photos that she referred to in her statement were in evidence. The photos clearly show a Jack Daniels can, placed in what appears to be the centre console of a vehicle.

The Applicant's case

1. The Applicant's case is essentially that set out above.

1. His evidence varied in regard to how often he drinks alcohol - he is either totally abstinent or drinks only on special occasions. He denies drinking ever alcohol whilst driving a taxi. He concedes that he was drinking from a can whilst driving but denies that it was from a Jack Daniels can. His evidence is that the Jack Daniels can was left in the taxi by a previous passenger.

1. He denied the allegations regarding inappropriate conduct in the 21 October incident and denies that he was driving recklessly. He gave evidence that he has cancer council approved glasses that he wears to protect his eyes from the glare of bright lights.

Findings

1. As noted above, the majority of these complaints against the Applicant are in relation to demanding more than prescribed fare, failure to provide reasonable assistance and incivility. While it is of concern that the Applicant has attracted those complaints, the evidence and hearing concentrated on the 21 October incident.

1. The allegations regarding the 21 October incident are much more serious than the other complaints.

1. I have some difficulty in making a definite finding that the Applicant was drinking alcohol, however I am satisfied that he was drinking something whilst driving the taxi. The Applicant asserted that he was drinking Pepsi Max but there is no evidence of any Max can - there is photographic evidence of a Jack Daniels can in the centre console of the vehicle.

1. I found both Michelle and Nass to be credible witnesses and I am satisfied that they believe that the Applicant was drinking alcohol. It is implausible, I think, that they would have taken the steps of taking the photos and lodging a complaint shortly afterwards and lodging their statements if they did not believe that there was a cause for concern. Their evidence before the Tribunal was consistent with that position.

1. I do not put any weight on the fact that the Applicant was wearing dark glasses. I think it is understandable that he might take some steps to protect his eyes in the circumstances that he described.

1. I accept that the Jack Daniels can was in the console beside the driver's seat. There is no logical explanation of how it got there and I think that it is probable that the Applicant either put it there or was at least aware that it was there.

1. There is no doubt that the Applicant was drinking something and I think that it is probable that he was drinking alcohol. However, I accept that it is not beyond any doubt that he was doing so.

1. The decision taken by the Respondent is to suspend the Applicant's authority. In determining whether that is the correct and preferable decision I have taken account of the factors outlined by Deputy President Hennessy in Saadieh v Director General, Department of Transport.

1. I have concerns in regard to the Applicant's use of alcohol. In my view some steps need to be taken against the Applicant's authority in order to reduce the likelihood that he will be the subject of further complaints or commit further offences. I cannot assert that he is a fit and proper person to be driving at taxi at this stage.

1. In my view the appropriate outcome is that he remains suspended until such times as he undertakes a drug and alcohol related counselling program. In order to be permitted to drive a taxi again he will need to satisfy the Respondent that he has engaged in a reasonable course of action to address this issue.

Order

The decision under review is affirmed.

**********

Decision last updated: 04 April 2013