Dhadlie v Director General, Department of Transport

[2000] NSWADT 104

CITATION:	Dhadlie -v- Director General, Department of Transport [2000] NSWADT 104
DIVISION:	General Division
PARTIES:	APPLICANT Jugdish Dhadlie RESPONDENT Director General, Department of Transport
FILE NUMBER:	003169
HEARING DATES:	27 July 2000
SUBMISSIONS CLOSED:	07/27/2000
DATE OF DECISION:	08/03/2000
BEFORE:	Hoeben GMM - Judicial Member
APPLICATION:	Passenger Transport Act - taxi driver - grant of authority - Taxi driver - grant of authority
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Passenger Transport Act 1990
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 336 Mulligan-v- Director -General, Department of Transport [1999] NSWADT 126 Farquharson-v-Director-General, Department of Transport [1999] NSWADT 53 B -v- Director-General, Department of Transport [2000] NSWADT 87 New South Wales Bar Association-v-Evatt (1968) 117 Ziems-v-Prothonotary of the Supreme Court of NSW (1957) 97 Maio -v- Superintendant of Licences New South Wales Police (1987) ASC
REPRESENTATION:	APPLICANT In person RESPONDENT A Wozniak, solicitor
ORDERS:	The decision of the delegate of the Director General dated 9 May 2000 refusing the applicant's application for an authority to drive public passenger vehicles is affirmed

1 On 17 April 2000 the Department of Transport refused the applicant's application for a public passenger authority on the grounds that he did not satisfy the requirements under s 11(2) of the Passenger Transport Act ( the Act).This was based on three convictions for driving under the influence of alcohol and a number of other traffic convictions. The determination concluded, inter alia, that: "taking into account all matters raised, and considering the interests and safety of the travelling public, I am not of the opinion that you are a fit and proper person to be the driver of a public passenger vehicle."

2 An internal review dated 9 May 2000 affirmed the original decision.

3 Pursuant to s52 (1) of the Act any person whose application to hold an authority has been refused may apply to the Administrative Decisions Tribunal (the Tribunal) for a review of that decision. The applicant made such an application on 18 May 2000.

Evidence

4 The applicant is 29 years of age. He married in1992 and now has a three-year-old daughter. It was explained to him that it was his responsibility to convince the Tribunal that the reviewable decision was wrong. The burden of proof, therefore lay with the applicant. The applicant must discharge the burden upon the balance of probabilities. The proof required to discharge the burden is dependent upon the nature of the allegations and their consequences. Stronger evidence is necessary in order to discharge the burden of proof depending upon the gravity of the allegations: Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 and 366.

5 The reviewable decision was based on three convictions relating to driving under the influence the earliest commencing in 1990 and the latest conviction commencing on 20/11/95 in which the applicant was, inter alia, disqualified for 30 months. This latter disqualification period ceased in May 1998.Other traffic convictions taken into account included one which recorded “drive in a manner dangerous" in which the applicant was disqualified for a year commencing on 22/2/91 and ceasing on 22/2/92. Another serious traffic conviction involving alcohol resulted in the applicant being disqualified for 3 years, commencing on 18/3/91. This disqualification period ceased on 18/3/94. Thereafter, followed a number of speeding convictions with the latest being recorded on 15/1/00.

6 The applicant relied upon his original application as well as two additional documents, one from his sister, who acknowledges her brother's bad traffic record but stated that this was not her brother's true character. She attested that he is now a stable person and is also sociable. The other document is that of the applicant in which he states that he is a reformed person. His oral evidence indicates also that as of from 1999/2000 New Year's Eve he has abstained from drinking alcohol and he intends not to drink alcohol again.

7 The applicant did not dispute the various traffic convictions and in the opinion of the Tribunal showed genuine remorse in respect of them.

8 The respondent tendered the applicant's file. The respondent submitted correctly that the applicant has never had a two-year period where the applicant has not fallen foul of traffic rules.

9 The respondent referred the Tribunal to a number of cases including Mulligan-v- Director -General, Department of Transport [1999] NSWADT 126 (1December 1999) which involved a taxi driver driving a public passenger vehicle under the influence and with a known alcohol problem; Farquharson-v-Director-General, Department of Transport [1999] NSWADT 53 (9July 1999) in which the taxi driver was facing serious charges including soliciting to commit murder and B -v- Director-General, Department of Transport [2000] NSWADT 87 (5 July 2000]involving numerous criminal convictions including kidnapping and rape. It was conceded by the respondent that these matters were at the highest level of gravity and, to that extent, in no way relevant to the circumstances of the present case. Nevertheless, they do provide an indication of the importance of the weight given to past adverse convictions, their level of seriousness, the likelihood of re-offending and whether the public would be put at risk in the event of an authority being granted.

Jurisdiction

10 Section 12 of the Act gives the Director-General a discretion to grant authorities. Section 11(2) (a) and (b) requires, inter alia, attestation as to whether:

"(a) the authorised person is considered to be of good repute and in all other respects a fit and proper person to the driver of a public passenger vehicle: and
(b) that the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates:
(i) in accordance with the conditions under which a public passenger service is operated; and
(ii) in accordance with law and custom."
The Decision

11 The Tribunal has had the opportunity of observing the applicant and is of the opinion that he is a person of credit. The Tribunal also accepts that his remorse for his past traffic offences is, indeed, genuine. The Tribunal also has noted the applicant's intention to refrain further more from consuming alcohol.

12 Nevertheless, the Tribunal is charged with a heavy responsibility to ensure that, in deference to public policy, the consumer can assume when he/she enters a taxi that there is a reasonable expectation that the driver is sufficiently responsible to ensure that their destination is reached safely.

13 Despite the applicant's honest belief that he is fully rehabilitated the Tribunal is not persuaded of this at this point of time. Consistently, and over a 10-year period the applicant has either been disqualified or otherwise under numerous penalties for a variety of traffic convictions. There has not been any extended period where it can be said that the applicant has an unblemished traffic record.

14 The line of law, which determines fitness to hold a licence or an authority, is well established. Isolated or passing departures from proper standards may not warrant the suspension of a licence but intentional or extended conduct over a period of time is viewed differently: New South Wales Bar Association-v-Evatt (1968) 117 at 183; Ziems-v-Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 at 298.

15 It is the Tribunal's opinion that the applicant falls into the latter class of cases. It follows, therefore, that time should provide the most appropriate test for rehabilitation in the present circumstances and it would not be unreasonable to expect that a two year unblemished traffic record would be an illustration of this.

16 It is the opinion of the Tribunal that sufficient time should elapse before it can be clearly indicated to the community that the applicant is entitled to hold the licence sought: Maio -v- Superintendant of Licences New South Wales Police (1987) ASC 55-551.

17 The decision of the delegate of the Director-General of Transport dated 9 May 2000 refusing the applicant's application for an authority to drive public passenger vehicles is affirmed.