Ebadi v Transport NSW
[2011] NSWADT 126
•15 April 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Ebadi v Transport NSW [2011] NSWADT 126 Hearing dates: 15 April 2011 Decision date: 15 April 2011 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: The decisions under review are affirmed
Catchwords: Review of decision to cancel authority to drive a hire car - an Operator Accreditation and Private Hire Car Vehicle Licence Legislation Cited: Administrative Decisions Tribunal Act 1997
Passenger Transport Act 1990
Passenger Transport Regulation 2007Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 94 ALR 11, 64 ALJR 462, 21 ALD 1
Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16
Director General, Ministry of Transport v Haider (GD) [2004] NSWADTAP 42
Kornits v Ministry of Transport (GD) [2007] NSWADTAP 48
Kumar v Ministry of Transport [2009] NSWADT 114
Loye v Director General, Department of Transport [2000] NSWADT 145
Saadieh v Director General, Department of Transport [1999] NSWADT 68Category: Principal judgment Parties: Adam Ebadi (Applicant)
Transport NSW (Respondent)Representation: R Kouchoo (Applicant)
A Wozniak (Respondent)
File Number(s): 113070
REasons for decision
Mr Ebadi held an authority to drive a public passenger vehicle (hire car), an Operator Accreditation and Private Hire Car Vehicle Licence ("the credentials") under the Passenger Transport Act 1990 ("the Act"). By a Notice of Cancellation dated 14 March 2011 a delegate of the Director-General, Transport NSW determined to cancel each of the credentials.
Mr Ebadi applied to the Tribunal for review of the determination to cancel the credentials and applied for a stay of the decision under section 60(2) of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"). The stay application came before the Tribunal's President on 22 March 2011 and the stay was not granted. The substantive matter came before me for hearing on 15 April 2011 and on that day I affirmed the determination to cancel the credentials and gave brief reasons for my decision. Mr Ebadi has sought written reasons for the decision and more detailed reasons are now provided.
Background
The relevant background matters were set out in the Statement of Reasons provided by the delegate in relation to the determination. It stated:
CRIMINAL OFFENCES HISTORY:
3/06/2004 Obtain money by deception - Fined $500, Court Costs $61 Bond S9 - 12 months supervision NSW probation - Counselling for drug or alcohol rehabilitation Burwood LC
3/06/2004 Obtain money by deception x 2 - Bond S9 -12 months supervision NSW probation Burwood LC
WARNING LETTER:
12/05/2006 A warning letter was issued to Mr Ebadi for his proven offence record i.e. obtain money by deception,
9/11/2006 A warning letter issued to Mr Ebadi in relation to his poor traffic record.
20/06/2008 A warning letter was issued to Mr Ebadi in relation to reminding him of his obligation as a hire car driver concerning plying for hire.
4/11/2008 A warning letter was issued to Mr Ebadi in relation to the suspension of his driver licence and driver's authority. He was also warned in relation to contravening the conditions of his operator accreditation.
3/06/2009 Mr Ebadi was warned by an authorised officer from TNSW in relation the suspension of his drivers licence.
INFRINGEMENT HISTORY:
29/11/2009 Mr Ebadi was issued an infringement notice for the offence driver smoke in public passenger vehicle.
PROSECUTION:
23/11/2010 TNSW prosecuted Mr Ebadi for driving hire car without an authority. He was convicted of ten offences each with multiple journeys. In respect to each matter he was convicted and fined $300 and $79 court cost, making a total fine of $3000.
Mr Ebadi was further convicted of four offences under section 25A [of the Road Transport (Driver Licensing) Act 1998] of driving a motor vehicle whilst suspended. In _relation to each matter he was convicted and disqualified from driving for a period of three months.
Mr Ebadi was ordered to pay professional costs of $4504.
The Statement of Reasons also provided a summary of Mr Ebadi's traffic record. This record shows numerous offences dating from 1997 and records that Mr Ebadi accumulated 48 demerit points over the period. The most recent entries indicating the relevant date, the offence and the penalty of Fine and/or Demerit Points are:
23-11-2010 Parramatta Court - Drive whilst suspended Disqualified 3 Months from 23 Nov 2010 $500
23-11-2010 Parramatta Court - Drive whilst suspended Disqualified 3 Months from 23 Feb 2011 $500
23-11-2010 Parramatta Court - Drive whilst suspended Disqualified 3 Months from 23 May 2011 $500
23-11-2010 Parramatta Court - Drive whilst suspended Disqualified 3 Months from 23 Aug 2011 $500
30-06-2010 . Exceed speed limit by not more than 10 Km/h $84 [1 Demerit Point]
03-06-2010 Exceed speed limit by not more than 10 Km/h $84 [1
Demerit Point]
10-09-2009 Exceed speed limit by not more than 10 Km/h $141 [2 Demerit Points]
19-01-2010 Demerit Points Suspension from 23 Feb 2010 until 22 May 2010
31-08-2009 Exceed speed limit by not more than 10 Km/h but < 20 Km/h $197 [3 Demerit Points]
07-01-2010 Demerit points warning letter sent
01-10-2009 Exceed speed limit by not more than 10 Km/h but < 20 Km/h $197 [3 Demerit Points]
17-09-2009 Exceed speed limit by not more than 10 Km/h but < 20 Km/h $253 [4 Demerit Points]
30-09-2009 Disobey traffic lights $324 [3 Demerit Points]
18-03-2009 Fine default suspension of unrestricted licence to commence on 01-04-2009. 15-09-2009 decision of 01-04-2009 lifted.
23-10-2008 Demerit Points Suspension from 27 Nov 2008 until 26 Feb 2009
Applicable Law
Part 4A of the Act provides for accreditation of private hire vehicle operators, authorisation of private hire vehicle drivers and licensing of private hire vehicles.
Section 38 of the Act provides that:
38 Accreditation
(1) The Director-General may accredit persons for the purpose of carrying on private hire vehicle services, subject to and in accordance with this Division. A person accredited under this Division is referred to in this Part as an "accredited private hire vehicle operator".
(2) The purpose of accreditation under this Division is to attest:
(a) that the accredited person is (or, in the case of an accredited person that is a corporation, the designated directors and managers of the corporation are) considered to be of good repute and in all other respects fit and proper to be responsible for the operation of a private hire vehicle service, and
(b) that the accredited person has demonstrated the capacity to meet and continue to meet the appropriate requirements with respect to:
(i) financial viability, and
(ii) safety of drivers, passengers and the public, and
(iii) vehicle maintenance,
to the degree and in the manner required in respect of services of the kind specified in the accreditation. ...
Section 38E of the Act provides that:
38E Variation, suspension or cancellation of accreditation
(1) Having regard to the purpose of accreditation under this Division, the Director-General may at any time vary, suspend or cancel any person's accreditation under this Division.
(2) The accreditation of a corporation is automatically cancelled when there is no designated director or manager.
Section 39 of the Act provides that:
39 Licence
(1) The Director-General may license motor vehicles as private hire vehicles, subject to and in accordance with this Division.
...
Section 39F of the Act provides that:
39F Conditions of licence
(1) A licence is subject to:
(a) the conditions prescribed by the regulations, and
(b) such additional conditions as the Director-General may impose on the licence.
(2) Conditions imposed by the Director-General may be varied (whether by amendment, addition, revocation or suspension of one or more conditions) by the Director-General from time to time by notice served on the licensee.
(3) A licensee who contravenes a condition of the licence is guilty of an offence. ...
Section 39G of the Act provides that:
39G Variation, suspension or cancellation of licence
(1) The Director-General may at any time vary, suspend or cancel any licence if:
(a) owing to the default of the licensee, or the agents or employees of the licensee:
(i) the provisions of this Act or the regulations, or
(ii) the terms and conditions of the licence,
have not been or are not being complied with, or
...
Section 40 of the Act provides that:
40 Authorities
(1) The Director-General may, by the issue of authorities under this Division, authorise persons to drive private hire vehicles, subject to and in accordance with this Division.
...
(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 private hire vehicle, and
(b) that the authorised person is considered to have sufficient responsibility and aptitude to drive a private hire vehicle:
(i) in accordance with the conditions under which the private hire vehicle service concerned is operated, and
(ii) in accordance with law and custom.
...
Section 40E of the Act provides that:
40E 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
The Respondent's Case
The Respondent's case is essentially as set out in the statement of reasons provided to Mr Ebadi along with the notice of cancellation. Those reasons stated:
"The reasoning process that led to the decision
To be of 'good repute and in all other aspects a fit and proper person' to operate a private hire vehicle the community must have confidence that the operator would conduct his business appropriately at all times, when operating the public passenger vehicles. Furthermore, the authorised person is considered to have sufficient responsibility and aptitude to operate a private hire vehicle.
The fact that on 23 November 2010 TNSW prosecuted you for driving a private hire car whilst unauthorised. You were convicted and fined by Parramatta Local Court in relation to. Drive a hire car without an authority. You were also convicted of driving a motor vehicle while suspended.
The fact that TNSW Authorised Officer informed you regarding the suspension of your driver licence but you continued to drive a hire car on a suspended driver's licence and driver's authority shows that you have total disregard towards the Australian Road Rules and the Passenger Transport Act 1990 and its associated Regulations. This behaviour indicates that you do not have sufficient responsibility and aptitude to operate or drive a public passenger vehicle.
The operator of public passenger vehicles.(Private Hire Vehicles) has a continuing responsibility to ensure that he is a "Fit and Proper Person". The most recent conviction recorded demonstrates a pattern of behaviour and such behaviour is likely to be repeated. This is not the type of behaviour the community expects from a driver or operator of a public passenger vehicle.
I believe that a member of the travelling public, being aware of your criminal convictions and extensive non-compliance history would object to being a passenger in a public passenger vehicle driven or operated by you.
The fact that you have has accumulated 48 demerit points in last ten years and your driver licence has been suspended on four different occasions due to excessive demerit points - shows that you are a habitual offender who has shown total disregard towards the Australian Road Rules. You have also been disqualified from driving from 23 November 2010 until 23 November 2011 by the Parramatta Local Court due to driving whilst suspended.
The fact that you have received twenty-one traffic related penalty infringement notices and paid more than $10000 in fines since your driver authority was granted.
The fact that you have been issued with five (5) warning letters from TNSW and eleven (11) warning letters from Roads and Traffic Authority regarding you proven offences, casts grave doubts on your fitness to hold a private hire car drivers authority and operate private hire car and your ability to carry out the duties and responsibilities of the position according to law and custom.
The community must have confidence that a driver of private hire vehicles would behave appropriately in relation to their service. The fact that you have committed criminal offences _ and accumulated a number of infringement notices, casts grave doubts about your fitness to hold a driver authority and of your ability to carry out the duties and responsibilities of the position according to law and custom.
The fact you have failed to inform TNSW of any traffic offences recorded against you, which is an offence under the Passenger Transport Regulation 2007 ["the Regulations"]. Additionally you failed to advise the TNSW of the suspension of your Class C drivers licence on four different occasions.
The fact that you have been operating hire car licence 103913 under Accreditation No. 24601 in contravention of your licence conditions casts grave doubts on your fitness to hold a current private hire car licence 103913 and your ability to carry out the responsibilities attached to the said licence.
On 4 November 2008 you were issued with a warning letter regarding driving a private hire car HC593 between 2 May 2008 and 16 May 2008 whilst suspended. Furthermore you operated HC593 between 2 May 2008 and 16 May 2008, that was driven by a person who did not hold a current drivers licence and driver authority indicates that you failed to comply with the condition of your accreditation 24601. However, TNSW afforded you a second opportunity and a determination was made to issue you with a warning letter.
However, you re-offended and failed to comply with the Passenger Transport Act 1990, [and the Regulations]. Therefore, it can no longer be attested that you are a fit and proper person with sufficient responsibility and aptitude to drive or operate a public passenger vehicle.
Your response to the 'Notice to Show Cause' has been carefully considered. However, the information furnished is insufficient to mitigate your extensive documented history of non compliance as the driver and operator of a private hire vehicle.
Based on the above facts and law it can no longer be attested that you are considered to meet the required standards for authorisation as a private hire car operator, licence holder and public passenger vehicle driver."
Mr Wozniak, solicitor for the Respondent, urged caution in attributing weight to the testimonials provided on behalf of Mr Ebadi. He submitted that for a reference to be of assistance to the Tribunal it needs to be apparent that the person expressing the view was aware of any relevant history of Mr Ebadi and also show the purpose for which they were expressing the view. In support of that contention he referred to the views expressed by Judicial Member Rice in Loye v Director General, Department of Transport [2000] NSWADT 145. Loye was cited with approval in the Appeal Panel in Kornits v Ministry of Transport (GD) [2007] NSWADTAP 48. At paragraph [29] the Appeal Panel stated:
29 Appeal Panel's conclusion. The Tribunal in Loye v Director General, Department of Transport [2000] NSWADT 145 gave some weight to evidence of Mr Loye's reputation but found that the evidence was insufficient, in the face of his history of convictions, to establish that he was of good repute. Applying the reasoning in this decision, the Tribunal gave limited value to the references which did not refer to the fact that Mr Kornits was at risk of having his driver authority cancelled. Mr Kornits was legally represented before the Tribunal and had a reasonable opportunity to tender character references in support of his case. The Tribunal did not make an error in limiting their value to attest to Mr Kornits' fitness to drive a taxi. ...
Mr Wozniak submits that little weight should be given to the testimonials that Mr Ebadi has provided as they do not specifically address the issue to be determined by the Tribunal.
Mr Wozniak submitted that fitness and propriety are issues for consideration in relation to determining whether the delegate has made the correct and preferable decision regarding the driver authority and accreditation. However, fitness and propriety are not relevant to the licence determination. In support of that submissions Mr Wozniak referred to the decision of Judicial Member Hanley in Kumar v Ministry of Transport [2009] NSWADT 114 and in particular to paragraph [36] where the Judicial Member stated:
36 As Mr Wozniak has pointed out, neither Mr Kumar's financial circumstances, nor whether Mr Kumar is a fit and proper person to hold a private hire car licence are relevant considerations. ... In Mr Kumar's case, it is a question of whether Mr Kumar breached the conditions of his licence. ...
Mr Wozniak submitted that the relevant test in relation to the hire car licence is that set out in section 39G of the Act. He says that the evidence shows that Mr Ebadi breached the conditions of his licence and that his licence should be cancelled. Mr Wozniak further submitted that Mr Ebadi's record clearly shows that he is a repeat offender and that a period of non-offending is necessary to show that he has changed. However, he submits that at this time Mr Ebadi is not a fit and proper person to hold a private hire car driver authority or an accreditation. Accordingly, he submitted, the decisions under review should be affirmed.
Mr Ebadi's Case
Mr Kouchoo, counsel for Mr Ebadi, provided detailed written submissions on his behalf. Mr Ebadi also relies on his own evidence and a number of references that were provided in support of his application.
Mr Ebadi does not dispute the history of offences that was outlined by the Respondent. He accepts full responsibility in relation to those offences. However, he believes that he is still a fit and proper person to hold, at the least, the authority to drive a hire vehicle, and he asserts that he has taken steps to ensure that he fulfils his responsibility toward the community.
Mr Kouchoo submitted that in resolving the issue of whether or not Mr Ebadi is 'fit and proper' person to hold the authority and/or the accreditation the Tribunal is to apply a 'two limb test'. The first limb of the test includes the test of 'good character' or 'good reputation'; the second one is the test of whether a person is a 'fit and proper' person for the purposes of the application and having the requisite responsibility and aptitude.
Mr Kouchoo submitted that Mr Ebadi is generally a person of good character and reputation. He argued that there is sufficient evidence before the Tribunal with respect to Mr Ebadi's good reputation to show that he is still highly regarded by responsible members of the community who know him well.
Mr Kouchoo submitted that the second limb of the test is an objective test: Director General, Ministry of Transport v Haider (GD) [2004] NSWADTAP 42. He argued that it entails some of the following factors that were identified by Deputy President Hennessy in Saadieh v Director General, Department of Transport [1999] NSWADT 68:
a. The nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted OR the Applicant's driving record
Mr Kouchoo stated that there is no dispute that Mr Ebadi was guilty of driving whilst suspended, and this much is obvious from Mr Ebadi pleading guilty to the offences in the Local Court. Nor is it in dispute that Mr Ebadi drove whilst on a suspended licence at the relevant times. Mr Ebadi did plead guilty to the relevant offences and made arrangements to pay the fines and court costs.
The evidence of Mr Ebadi is that that the relevant offences took place as a result of a misunderstanding on his part and because of his circumstances.
Mr Ebadi takes responsibility for his actions.
Mr Ebadi's evidence is that he drove thereafter, negligent of the fact that he had been suspended by the RTA. This effectively lead him into a situation where he drove the vehicle with a suspended licence.
Mr Ebadi accepts responsibility that he ought to have examined whether his licence was suspended, having recentty received infringement notices.
Mr Kouchoo submitted that the relevant offences were not pre-meditated.
It is not disputed that Mr Ebadi has had previous offences of the same nature. However Mr Ebadi says that the Respondent did not previously question his driving ability and the Respondent has had a good relationship with him.
That Mr Ebadi accumulated 46 points over the last 14 years which averaged about 3.5 demerits per year.
However, Mr Ebadi's evidence is that such previous offences are a direct result of his occupation as a professional driver, driving 7 days per week at times, entailing long hours. Mr Kouchoo submitted that therefore the total demerit points accumulated during this time is not unreasonable.
Mr Ebadi accepts that this does not in any way excuse his conduct of driving with a suspended licence. He committed traffic offences previously and is well aware of his actions, and takes responsibility for them.
Mr Ebadi has recently enrolled to study in a Traffic Offenders course to ensure that he gains appropriate insight into the Australian Road Rules.
Mr Kouchoo submitted that the Tribunal ought to not take into account financial stresses caused by the loss of the authority. However, he contends that at times the financial background of an applicant is relevant to some issues in question. In this case, the problems resulting from the stress and pressure of bankruptcy were such that Mr Ebadi simply did not pay attention to the letters he received from the RTA, for example, in relation to his suspension.
He contends that Mr Ebadi is trying very hard to improve his situation, and to ensure that he will not re- offend.
b. The nature, seriousness and frequency of any complaints made against the Applicant.
Mr Kouchoo submitted that there is no evidence of any client complaints made against Mr Ebadi at any time, and that he has a clean record in that regard.
c. The applicant's reputation in the community
Mr Kouchoo submitted that the starting point here is to determine as clearly as possible what the commission of the offences in question say about Mr Ebadi's reputation and there are several personal attributes which must be considered:
- the testimonial evidence before the Tribunal clearly shows that Mr Ebadi is a person of good repute and well regarded by others by reason of his nature and helpful disposition.
- some of the persons who gave the testimonials were advised of Mr Ebadi's conduct which gave rise to the current issues and Mr Ebadi discussed the events with his clients.
- it is open for the Tribunal to find that Mr Ebadi is held in high regard by his clients, particularly where there is no evidence of any complaints being made against him.
- Mr Ebadi's efforts at self-improvement show genuine contrition and remorse in relation to commission of the offences for which proper weight by the Tribunal needs to be given.
d. The likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences
Mr Kouchoo submitted that in order to determine the question of the likelihood that Mr Ebadi will be the subject of further complaints or commit further traffic offences requires consideration must be given to:
i. The length of time since the offence/s were committed or the complaint/s made:
Mr Kouchoo submitted that although Mr Ebadi was convicted of the suspension offences in November of 2010, the offences took place in about June to September of 2009.
Mr Ebadi has exceeded speed limit by more than 10 KM/H on several occasions since. However Mr Kouchoo submitted that that is again a function of professional driving and at times minor offences of this kind are unavoidable.
ii. The circumstances in which those offences or complaints occurred or are alleged to have occurred:
Mr Kouchoo reiterate that the conduct was not premeditated and the relevant offences constituted a 'single block' of offences which occurred in succession as a result of the circumstance of Mr Ebadi. the conduct is serious however, it arises out of a single set of circumstances and is isolated, and therefore little risk exists of the conduct being repeated.
iii. Whether the applicant admits responsibility for the offences or complaints and shows genuine remorse:
Mr Kouchoo submitted that Mr Ebadi has expressed remorse and insight into the offences and has taken steps to address the cause. The Applicant's responsible attitude towards his business, his family, and his compassion toward others should be taken as evidence that Mr Ebadi's conduct does not reflect adversely upon his reputation nor upon his fitness to hold an authority or an accreditation under the Act. It is submitted that it is not likely that he will breach any of his obligations as provided for by the Act in the future.
iv. The efforts the Applicant has made to rehabilitate himself during that time:
Mr Kouchoo submitted that Mr Ebadi's expression of responsibility is important, and that he has undertaken to complete a relevant course in traffic at his age, shows that an inference can be drawn that he is genuinely seeking to rehabilitate himself and is there already to a significant degree and Mr Ebadi is likely to drive with more care than he has been previously and he is much less likely to commit any further traffic offence.
v. Any change in the applicant's circumstances such as increased support from friends, family or professional service providers:
Mr Kouchoo submitted that Mr Ebadi has expressed that he is supported by his family and his situation in that regard is improving.
Mr Kouchoo submitted that if Mr Ebadi is of good repute then it must also be considered that in all respects other than his reputation, he is a fit and proper person to be responsible for the operation of the hire car service. Mr Ebadi's circumstances and the testimonials are relevant for both purposes.
He argues that there is no suggestion that Mr Ebadi has behaved improperly or dishonestly as a driver; or that his driving was inadequate or unsafe; it is not a case where Mr Ebadi tried to deliberately mislead the Respondent, and it is not a case where there have been complaints made by clients. He further says that this is not a case where Mr Ebadi has been involved in such serious criminal offences that a member of the public, knowing of his criminal record and what he has done to rehabilitate himself; would object to Mr Ebadi as the driver of the vehicle: Maythisathit and Registrar of Motor Vehicles [1996] ACTAAT 165.
e. Prospects of Rehabilitation, Conclusions and Orders
Mr Ebadi does not seek to distance himself from the mistakes that he has made. However he seeks a chance of changing his ways, conforming to the law and running a business that he has built from scratch over 14 years.
Mr Kouchoo submitted that Mr Ebadi ought to be given the opportunity to redeem himself and to continue to operate his business. He says that the recent actions of Mr Ebadi show that he has the requisite character and reputation, and is sufficiently responsible and has the aptitude, to meet the public's reasonable expectations and to drive a private hire vehicle.
In his submission, the decisions of the Respondent ought to be set aside.
Discussion
As has been noted above, there are three separate components to this matter. Mr Ebadi's fitness and propriety is relevant to the matter insofar as it relates to his authority to drive a hire car and his operator accreditation.
The meaning of the expression "fit and proper person" was the subject of consideration by the High Court in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; 94 ALR 11; 64 ALJR 462; 21 ALD 1. The Tribunal was required to refuse a licence if it was not satisfied that the applicant or the holder of a licence was a "fit and proper person". Toohey and Gaudron JJ stated (at 380) that:
The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
In the same case, Mason CJ stated at [63] that:
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.
In Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16 the Appeal Panel stated at paragraph [20]:
20 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 v Department of Transport [1999] NSWADT 53], 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 meaning of "good repute" has been canvassed in several cases. Waddell J in Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 393 said that:
"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".
Mr Ebadi relies on testimonials that suggest that the author considers him to be a person of good repute. I note Mr Wozniak's submission that none of the testimonials make reference to the matter that is before the Tribunal or what has brought us here and that therefore they are of limited assistance in determining the matter. I have nevertheless considered the testimonials and it seems to me that Mr Ebadi is well regarded by the people who have provided them. However, the testimonials are of limited value in regard to determining the question of whether he his a fit and proper person to be the holder of these credentials.
Of more relevance is Mr Ebadi's history of offences, warning letters, suspensions offences and other penalties that have led us here. I agree with the Respondent's view that this history casts grave doubts on Mr Ebadi's ability to carry out the duties and responsibilities of the position according to law and custom. Notwithstanding Mr Kouchoo submission in regard to Mr Ebadi's efforts to improve his conduct, I agree with Mr Wozniak that a longer period of non-offending is necessary before I could be satisfied that he is unlikely to re-offend.
When the material that is presented in favour of Mr Ebadi is balanced against that presented against him, it is very clear to me that Mr Ebadi is not aware of what is required of him as the holder of these credentials. He lacks an understanding of his obligations, and for that reason he cannot be said to be fit and proper for the particular role that is authorised by those credentials. In my view, for the reasons put forward by the Respondent, Mr Ebadi is not a fit and proper person to hold either the driver authority or the accreditation.
I suggest that a period of non-offending of at least twelve months from the last time that he has come to the attention of the authorities would be required before I could be satisfied that he is unlikely to re-offend and therefore could reasonably be expected to be considered suitable to hold these credentials.
However, on the basis of the material before me, it is my view that the correct and preferable decision is to affirm the decision to cancel Mr Ebadi's driver authority and his accreditation.
I agree with the submission that the question of Mr Ebadi's fitness and propriety is not a factor for consideration in regard to the decision to cancel his licence. Section 39(g)(1) of the Act provides that the Director-General may cancel a licence if there has been non-compliance with the provisions of the Act, the Regulations, or the terms and conditions of the licence.
The evidence that has been presented to me satisfy me that that provision has been breached. The evidence that has been given by Mr Ebadi suggests to me that it is likely that the same approach will be taken if he is allowed to continue with the licence in the immediate future.
That being the case, I agree that the correct and preferable decision is to cancel the licence as well. Accordingly, the decision should be affirmed.
I note that Mr Ebadi has not attempted to distance himself from his record. If he continues with the course that he has undertaken, and is able to show a period without further breaches of the conditions of his general licence, the Director-General may adopt a different view should he re-apply in the future.
Order
The decisions under review are affirmed.
**********
I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.
Registrar
Decision last updated: 30 May 2011
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