Director General, Transport for NSW v Assi (GD)

[2011] NSWADTAP 68

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Director General, Transport for NSW v Assi (GD) [2011] NSWADTAP 68

Hearing dates:

14 December 2011

Decision date:

14 December 2011

Before:

Judge K P O'Connor, President
S Higgins, Deputy President
Z Antonios, Non-judicial Member

Decision:

1. Decision under appeal set aside.

2. Decision of administrator affirmed.

Catchwords:

PASSENGER TRANSPORT - Taxi Driver Authority - Suspension - Set Aside - Appeal by administrator - Nature of Power - Interpretation - Public Protection - Passenger Safety - Suspension Restored - Passenger Transport Act 1990, s 33, s 33F

Legislation Cited:

Passenger Transport Act 1990

Cases Cited:

AIC v Director General, Transport NSW [2011] NSWADT 189
Assi v Department of Transport and Infrastructure [2011] NSWADT 192
Assi v Director General, Transport NSW [2012] NSWADT 7
Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65

Category:

Principal judgment

Parties:

Director General, Transport for NSW (Appellant)
Joubran Assi (Respondent)

Representation:

Counsel
M Robinson SC (Appellant)
A Clachers, Smythe Wozniak Legal (Appellant)
J Barakat, Barakat Lawyers (Respondent)

File Number(s):

119040

 Decision under appeal 

Citation:

Assi v Department of Transport and Infrastructure [2011] NSWADT 192

Date of Decision:

2011-08-11 00:00:00

Before:

General Division

File Number(s):

103256

REASONS FOR DECISION

1. This is an appeal against a decision of the General Division of the Tribunal brought by the Director General, Transport for NSW (the administrator). The Tribunal set aside the administrator's decision to suspend the taxi driver authority then held by Mr Assi. See Assi v Department of Transport and Infrastructure [2011] NSWADT 192 (11 August 2011). The Appeal Panel heard the administrator's appeal on 14 December 2011, extended to the merits, restored the administrator's decision, with the effect that the decision to suspend was affirmed.

1. At the time, the Appeal Panel gave short oral reasons, and undertook to provide written reasons as soon as possible. The commitment has been inadvertently overlooked, and these reasons are now provided.

Background

1. Mr Assi has held an authority for over 20 years, for virtually all of his adult working life. The original suspension issued on 7 October 2010. It followed the charging of Mr Assi with three counts of sexual intercourse with a person under the age of 10 said to have occurred in 1992 when she was about nine years old. Mr Assi immediately applied to the Tribunal for a stay of the decision which was granted until further order.

1. As noted above, the Tribunal's decision was released on 11 August 2011. As it happened, the day before - on 10 August 2011 - the administrator issued a notice of cancellation to Mr Assi based on other grounds, primarily his adverse complaints history.

1. Mr Assi applied to the Tribunal for review of that decision, and again obtained a stay of the order. The Tribunal affirmed the cancellation by decision delivered 19 January 2012: see Assi v Director General, Transport NSW [2012] NSWADT 7 (19 January 2012) (not appealed) (the Assi Cancellation case). The cancellation took effect, and, thus, as a practical matter, superseded the suspension that flowed from our decision made on 14 December 2011.

The Tribunal decision under appeal

1. In the present case, the Tribunal relied substantially on an approach to the relevant law adopted in another decision of the General Division of the Tribunal in a similar case: AIC v Director General, Transport NSW [2011] NSWADT 189 (AIC). There the administrator had suspended the authority of a driver after he had been charged with two counts of sexual assault on a girl under ten, said to have occurred in 1999. The Tribunal set aside the decision. This decision also gave rise to an appeal by the administrator to the Appeal Panel (constituted similarly to the present Appeal Panel). That appeal was heard on 28 November 2011. The Appeal Panel upheld the appeal on the day, extended to the merits and affirmed the suspension order. The Appeal Panel delivered summary oral reasons, and published its written reasons on 23 December 2011: see Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 (the Transport appeal).

1. The reasoning in that decision was seen as also applicable to this case, with the result that there was only a short hearing on 14 December 2011.

Legislation

1. The power to suspend is given by s 33F of the Passenger Transport Act 1990 (the Act) which provided, as at 7 October 2010:

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. The primary provision in relation to the grant of authorities is s 33, which read, as then in force:

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.

(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.

(The references to the Director-General are now replaced in the present Act with references to 'Transport for NSW'.)

1. The administrator suspended the respondent's authority on the basis that he could not be regarded as a person of good repute and in all other respects a fit and proper person to be the driver of a taxi-cab (s 33(3)(a)).

1. In the reasons in the Transport appeal, the Appeal Panel dealt with the role and purpose of the power of suspension in a licensing scheme. The Panel noted that disciplinary powers had as their ultimate purpose public protection: at [17]. The Panel noted that the power of suspension is used in two ways, as a final order and as an interim order.

1. There can be no doubt that the allegations in this case are of great seriousness. Further details are set out in the decision under appeal.

1. If proven and convictions are entered, there is a real likelihood that a term of imprisonment would result. If not disbarred by that factor from driving, an administrator would be likely to regard the convictions as sufficient to warrant cancellation of the authority.

1. In the Police material provided to the Tribunal (the facts sheet, some witness statements), there is the further grave allegation that, in two of the incidents giving rise to charges, the modus operandi involved taking the girl for a ride in the taxi to a distant location where the offence was perpetrated. He was a close friend of the girl's family, and had the family's trust.

1. A regulator would, obviously, be concerned at any suggestion that a serious crime was said to have been facilitated by abuse of the privilege conferred by the licence. This is a matter that, in our view, can properly be taken into account in the exercise of a power of suspension, with its protective function.

1. We will refer briefly to other issues canvassed in the Transport appeal. The Appeal Panel referred there to superior court and other Appeal Panel case-law which suggests that the enquiry into whether a person is of good repute and fit and proper is limited to matters personal to the applicant's character and reputation, and it is not open to traverse issues of public perception as to safety and confidence in the taxi driving system. The Appeal Panel noted that this case-law did not have as its context the exercise of powers of suspension.

1. In the Appeal Panel's opinion, the power of suspension when used as an interim disciplinary measure has as its primary object public protection. A suspension may be imposed when there is a serious doubt raised by allegations as to a person's repute and fitness. It is a form of public protection, and it is not irrelevant when considering whether the imposition of a suspension in the circumstances was the 'correct and preferable' decision to have regard to the objectives of the regulatory scheme. In the present context that includes such matters as 'to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services' (see the Act, s 4(e)).

1. As explained, the Tribunal below in this case largely adopted and applied the approach to the law seen in AIC.

1. Accordingly for similar reasons to those given by the Appeal Panel in the Transport appeal, the Tribunal's decision was, in our opinion, affected by error. See generally the Transport appeal at [38]-[40]; [44]-[45].

1. Until the criminal charges are heard and determined, no final view can be entered as to the gravity or otherwise of the conduct. In our experience when serious charges are dismissed an administrator normally restores the licence or authority, though sometimes serious admissions or findings may be made which continue to bear negatively on the licence or authority. If an administrator is of that view, ordinarily an order of revocation or cancellation is issued, and that can be tested in the Tribunal.

1. These reasons are short, and need, as we have noted, to be read alongside the decision in the Transport appeal.

Comments on Grounds of Appeal as Formulated

1. We will turn briefly to the grounds of appeal as formulated.

1. The first ground of appeal (amended notice of appeal filed 23 November 2011) was that 'In the Tribunal's reasons ... the Tribunal fell into error in applying the decision in [AIC]'. It will be seen that we have upheld that ground.

1. The second ground is that 'the Tribunal fell into error in impermissibly purporting to 'reserve judgment' about the licence-holder's character until 'more is known'. We agree. In an interim order suspension case the gravity of the allegations needs to be taken into account. We have outlined our views more fully earlier in these reasons.

1. The third ground states that 'the Tribunal fell into error in failing to have proper regard to the views of reasonably-minded members of the travelling public in NSW'. This ground refers to the debate in the Tribunal and in disciplinary case-law more widely about the extent to which this is a relevant consideration in an assessment of repute and fitness. We have dealt with this issue more fully in the Transport appeal at [22]-[37].

1. The amended notice of appeal had additional grounds 4 and 5. Ground 4 was that the Tribunal failed to have regard to the other matters put against the applicant that included his general driving record, and more importantly his complaint history. The Tribunal should have addressed these matters. They have now been addressed in the Assi Cancellation case. Ground 5 claimed that the administrator had been denied natural justice in not being informed by the Tribunal that his complaints-history grounds for suspension would not be addressed. We accept the general proposition that a tribunal should address all the matters of significance raised by an administrator in support of the administrator's decision. There is no need on this occasion to undertake a developed consideration of this ground of appeal.

Order

1. Decision under appeal set aside.

2. Decision of administrator affirmed.

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Decision last updated: 04 July 2012