Farquharson v Director General, Department of Transport

[1999] NSWADT 53

CITATION:	Farquharson -v- Director General, Department of Transport [1999] NSWADT 53
DIVISION:	General
APPLICANT:	Neil Farquharson
RESPONDENT:	Director General, Department of Transport
FILE NUMBER:	993080
HEARING DATES:	05/28/1999
SUBMISSIONS CLOSED:	05/28/1999
DATE OF DECISION:	9 July 1999
BEFORE:	Judge K P O'Connor - President
PRIMARY LEGISLATION:	Passenger Transport Act 1990
APPLICATION:	Review of decision to suspend taxi-cab authority -
MATTER FOR DECISION:	Principal matter
REPRESENTATION:	Applicant: I Duane of Counsel instructed by N Dann of Bilbie Dan Hickey Respondent: P Culbert,Solicitor, Department of Transport
ORDERS:	1. Decision under review affirmed

1 The history of this matter has been reviewed in an earlier decision involving the same parties: Farquharson v Director-General, Department of Transport [1999] NSWADT 36 (Gen Div 17 May 1999). In that decision the Tribunal refused the applicant’s application for a stay of the suspension pending hearing of this application.

2 Neil David Farquharson (‘the applicant’) has applied pursuant to s.55 of the Administrative Decisions Tribunal Act 1997 (‘the Tribunal Act’) for review of a decision by the Director-General, Department of Transport (‘the administrator’) made pursuant to the Passenger Transport Act 1990 (‘the Act’) suspending his authority to drive taxi-cabs, while he is free on bail pending trial on the charge of soliciting to murder.

3 The applicant holds authority no. BE6586 issued pursuant to Div 2 of Part 2 of the Act. By letter dated 22 April 1999 a delegate of the administrator notified the applicant that it had decided to suspend the authority and attached a statement of reasons. No opportunity was given to the applicant to show cause as to why he should not be suspended. The letter attached a statement of reasons that referred to the administrator’s discretion to suspend an authority “having regard to the purpose of the authority” (Act, s.14). It noted that the purpose of an authority is “to attest that an authorised person is considered to be of good repute and in all other respects a fit and proper person to drive a public passenger vehicle” and that the authorised person “is considered to have sufficient responsibility to drive a public passenger vehicle in accordance with law and custom” (Act, s.11).

4 The applicant also holds an authority to operate a taxi-cab. That has not been the subject of any action. The net effect is that he is still able to keep the taxi on the road, but he is not permitted to drive it. As a result he is not able to operate as an owner-driver, with consequent impact on the profitability of his taxi business.

5 The facts on which the administrator relied in reaching its decision were: the fact that the applicant had been charged with two counts of soliciting a person to commit murder; the fact that he appeared in Maitland Court on 19 April 1999 to answer these charges; the fact that he was remanded in custody to re-appear at Cessnock Court on 27 April 1999. The administrator considered that based on these matters it was no longer in a position to attest to the applicant’s character, as required when providing an authority under the Act. The applicant sought internal review of the decision after the hearing at Cessnock. The Court released him on bail subject to several conditions.

6 He referred to the following matters in his application for internal review, matters reiterated by him personally before me at the urgent hearing in respect of the stay application, and through counsel at the main hearing. These were: his entitlement to be presumed innocent until determined otherwise; his clean record, not ever having been charged with any other criminal offence; the grant of bail, which he saw as indicative of the strength of his defence; that his sole source of income is that derived from the operation of a taxi; that he needs to retain his taxi-driver authority in order keep the operation of the taxi financially viable and to assist in meeting the costs of his defence; his unblemished record as a taxi driver and taxi operator; and that the withdrawal of the authority is an unfair punishment.

7 The internal review decision was advised to the applicant on 5 May 1999 and the reasons are recorded in an internal memorandum dated 10 May 1999 from Mr Phil Sullivan, Northern Region Operations and Compliance Manager to Mr Allan Wise. The statement is as follows:

“Purpose

To conduct an internal review of the decision to suspend [the applicant’s] taxi driver authority.

Current Position

[The applicant] was recently charged with 2 counts of “Soliciting a person to commit murder” at Maitland Court.

In accordance with current policy action was taken to suspend [the applicant’s] driver authority. He has now sought the decision to be reviewed internally.

Review Action

I have considered all that [the applicant] and his solicitors have to say. The fact that [the applicant] has been granted bail does not alter the fact that he has been charged with a very serious offence of violence.

Result of Review

To alter the decision would clearly contradict existing policy. In my view the decision should stand.”

The advice was endorsed by Mr Wise.

8 Mr Sullivan gave evidence. He was questioned in relation to the references to existing policy in his statement of reasons. It transpired that there is no policy in existence, in the sense of a written set of guidelines indicating how the administrator’s discretion might be exercised if it is informed that a serious criminal charge has been laid against a driver. Counsel for the administrator and Mr Sullivan explained that the use of the expression “policy” simply referred to customary practice followed over many years.

9 It is clear that the administrator’s reasons for refusal depend on one consideration alone, the criminal charges. The administrator acknowledged, through counsel, that it did not query the statements that the applicant had made about his general history.

10 In relying on the charge as sufficient to justify interference with the driver’s authority, the administrator referred to Commissioner for Motor Transport v Darcy Francis Leo, NSW Supreme Court (McInerney J), 10 September 1986, unreported.

11 The administrator then responsible for taxi driver licensing, the Commissioner of Motor Transport (‘the Commissioner’) appealed against a decision of a magistrate, Mr Leo, who had disallowed a decision to suspend a driver’s licence. The administrator had suspended the licence following receipt of information from police, confirming a newspaper report, that the driver had been charged with a serious driving offence. The police alleged that the driver had been involved in an accident following a race along a public street between the taxi and another vehicle, that the taxi had been driven at speeds well in excess of the speed limit, and that the driver did not stop and give his particulars to a member of the police force.

12 The relevant power was contained in reg 19(5) of the Transport (Public Vehicles) Regulations 1930 made under the Transport Act which provided:

“The Commissioner may suspend for such period as he thinks fit any licence held by any person … if, having regard to any matters referred to in cl.(1), the Commissioner considers such action desirable in the public interest.”

13 The clause referred to is reg 19(1) which provided materially as follows:

“19(1) …

(a) having regard to such person’s record as a driver of motor vehicles or his conduct or habits, it would not be in the interests of public safety for him to hold a license;

(b) …

(c) …; or

(d) such person is not a fit and proper person to be the holder of the license.”

14 The Commissioner’s decision to suspend was made on 29 November 1985. An appeal to the Local Court was filed on 10 December 1985. On 29 January 1986 the driver was committed for trial on five charges of wanton driving. On 20 March 1986 the Local Court disallowed the Commissioner’s decision. At the hearing the depositions and exhibits from the committal proceeding were admitted, over the Commissioner’s objections, as well as the departmental file relating to the driver.

15 McInerney J noted:

“It is quite clear that the decision to suspend was based on the alleged activities that night of [the driver] because nothing adverse to [the driver] was revealed when his file was tendered.”

16 The magistrate had regard to the material from the committal proceedings, looked at the circumstances of the accident, and referred to the proposition that a person was innocent until proven guilty. He also noted that the Commissioner had certain statutory duties.

17 McInerney J was critical of the approach adopted by the magistrate. His Honour said:

“ … I have difficulty in understanding precisely why it was he allowed the appeal. It is probable that what he has done is to decide the facts although he has stated the Court could not determine the facts. He has purported to make findings on what he says are the discrepancies he found disclosed in the evidence and came to the conclusion that those discrepancies were of such a nature that it would be unlikely he would be convicted and therefore the Commissioner in these circumstances should not have suspended the licence.

It is my view that what the magistrate had to determine was not the guilt or innocence of the [driver] of the charges of wanton driving against him but whether having regard to the charges preferred against [the driver] the Commissioner was justified in suspending his licence on the grounds he purported to act.”

18 McInerney J concluded:

“[The driver] was operating his taxi cab at the time, conveying paying passengers and serious allegations have arisen out of his driving. His vehicle is said to have been at least partly responsible for a serious road accident in which three persons were killed. It was then for the magistrate to determine whether in those circumstances the charges themselves being of such a serious nature whether the Commissioner was entitled to suspend the licence on the grounds he purported to act.

It is my opinion, doing the best I can, the magistrate has not addressed himself to that particular matter and has attempted to determine the issues of fact to be determined by a Judge and jury. In my view that was not a matter that the magistrate was asked to determine. The matter he was asked to determine was whether having regard to the charges preferred against [the driver] and the circumstances in which those arose having regard to his utilisation of a taxi driver’s licence, whether the Commissioner in the circumstances was entitled to suspend his licence.”

19 The matter was remitted to the magistrate to be heard and determined according to law.

20 The Tribunal agrees with the broad thrust of McInerney J’s observations. Regulatory schemes which provide for the issuance of licences on the basis of satisfaction as to a licensee’s fitness and character usually include, as part of their continuing oversight powers, a power to suspend the licence for public interest reasons. While it is the case that a person charged with a criminal offence must be presumed innocent until proven guilty, it does not follow that consequences that lie outside the criminal law may be avoided. Civil consequences typically attach to the laying of criminal charges in various categories of public sector employment. Commonly a public sector employee may be stood down with or without pay, depending on the statutory provisions.

21 An administrator of a licensing scheme would be expected to respond to advice that a regulated person had been charged with a serious criminal offence, especially one arising out of circumstances that directly bear on the activity in relation to which the licence has been issued. That was the situation in Leo’s case.

22 In considering whether to exercise any discretion to suspend or otherwise interfere with the licence, an administrator can not reasonably be expected to enquire into the strength or weakness of the case against the licensee. That was the error into which the magistrate in Leo’s case fell. Similarly a review tribunal can not be expected to go behind the information on which the administrator has relied to the extent of examining the strength and weaknesses of the prosecution case.

23 During the earlier proceedings in this matter - the stay application - there was some suggestion by the applicant who appeared in person on that occasion that there should be an examination of the prosecution case. Consequently the administrator issued a summons for documents addressed to the relevant police officer at Maitland for copies of statements, records of interview and exhibits, as well as any brief of evidence served or proposed to be served on the applicant. The documents were produced to the Tribunal. At hearing the applicant was represented by counsel. There was discussion of the appropriateness or otherwise of examining the prosecution material, and counsel for the applicant did not oppose the course ultimately adopted by the Tribunal, in line with the views expressed above, of not seeking to enter on such an inquiry. The Tribunal has not had any regard to the material produced under summons.

24 It was also agreed that it was not necessary for the applicant to call various witnesses as to character. It was accepted that the applicant had in the past been a person of unblemished good character. The Tribunal has proceeded to deal with the application on that basis.

25 The administrator submitted that the single reason for taking action against the applicant’s driver authority was the objective seriousness of the charge. The evidence indicated that it was also aware of the terms of the bail order including the stringent conditions imposed as to residence, as to reporting to police and which limited travel to within the Hunter Region. It also had knowledge of the general circumstances alleged to found the charges. Those alleged circumstances were that the applicant was separated from his wife who had custody of their children, that she was now living with a new partner and that the applicant was said to have approached another man with a view to paying for them to be killed.

26 The main distinction between these circumstances and those in Leo’s case is that the criminal charges in that case were connected with the performance of the licensed occupation. That is not sufficient in my view to deprive the general observations made in that case of force in these proceedings.

27 A taxi driver has a continuing responsibility to ensure that he is of “good repute” and a “fit and proper person”. Clearly the laying of serious criminal charges bears on the reputation of an individual and may raise questions as to the person’s character. The concepts of “good repute” and “fit and proper character” involve different considerations. The former concept goes to the way in which a person is regarded by others in the community (fairly or unfairly), while the latter concept goes to an individual’s intrinsic characteristics, whether they are known to others or not: see, for a detailed discussion, Re T and Director of Youth & Community Services [1980] 1 NSWLR 392 (Waddell J).

28 Even an acquittal may leave unresolved in an administrator’s mind questions as to the reputation and integrity of a licensed individual. In a recent case involving the question of disclosure in the context of an application for admission to the legal profession, where the applicant had after receiving professional advice not disclosed a serious criminal charge of which he had been acquitted, the Supreme Court of the Australian Capital Territory (Miles CJ, Gallop and Madgwick JJ) observed:

“It is true that the bare facts that a person has been tried for a charge, even a very serious one, and acquitted do not logically tend to the detriment of the person’s character nor of his or her fame. But experience shows that matters are often otherwise. The acquittal may be entirely upon unmeritorious grounds or it may occur in circumstances which nevertheless reveal untoward collateral behaviour on the part of the accused.”

( Re del Castillo , [1998] ACTSC 131, 11 December 1998 at [28])

29 The administrator in this case was entitled, I consider, to have regard to the serious charges laid against the applicant. They may be properly regarded as affecting his “good repute” even though judgment may need to be reserved as to whether any negative conclusion should be formed about fitness and character, pending evidence at committal and trial, and the verdict.

30 The administrator is entitled to take account of the general circumstances giving rise to the charges, without being called on to examine the strengths and weaknesses of the prosecution case or the nature of any defences. Powers of suspension are, by their nature, designed to provide a temporary form of intervention pending further developments or further consideration or action by the administrator. A power of suspension, as compared to outright cancellation, does carry the (marginal) benefit for the licensee in not placing at risk the licence itself.

31 The administrator is obliged to provide a system for the accreditation of operators and drivers involved in public passenger services (Act, s.4(a)). The criteria for granting authorities to drive public passenger vehicles (s.11 to s.14) focus on qualities and attributes personal to an applicant. The continued possession of those qualities and attributes is necessary. In the application form issued by the administrator a specific question is directed to whether there are any criminal charges pending against an applicant for any criminal offence. The administrator has developed Taxi Driver Authorisation Standards in consultation with the NSW Taxi Council. They are dated 1 August 1996. Under that protocol, it stated that:

“The driver must immediately report any conviction or charge in relation to criminal, traffic or any other kind of offence (other than parking offences) in NSW or elsewhere to [the administrator].”

32 A declaration acknowledging that an applicant has read and understood these standards is required to be signed as part of the application process.

33 These procedures, adopted in consultation with the Taxi Council, point to the significance which the industry gives to being kept informed of both charges and convictions.

34 The factors which favour the applicant in this case are the following: his previously unblemished criminal history; his unblemished taxi driving and taxi operating history; the lack of connection of the charges to the use of a taxi; and the restrictions placed on his bail which require him not to travel outside the Hunter Region, thereby avoiding the South Coast area where his wife and children now live. As noted earlier, the applicant also faces the real practical difficulty of conducting his taxi business; and that to be financially viable as an authorised operator he needs to be able to drive the cab.

35 The administrator did not deny these considerations, but argued that the sole fact of the charges was sufficient in its own right to justify suspension. Ordinarily it would not be acceptable for an administrator charged with looking into questions of good repute and character not to look at the broad picture and simply to rely on a single negative factor as conclusive (see, e.g. Haining v Commissioner of Police [1999] NSWADT 7). This case raises the difficult question of whether situations can arise where an administrator is permitted to form a conclusive negative view as to issues of repute and character based on a single factor.

36 In exercising its responsibilities for passenger transport regulation, the administrator must take account of likely perceptions of the travelling public. A member of the travelling public is likely to be concerned to know that the driver of their taxi is facing trial on a murder charge, albeit one involving soliciting rather than the act itself. One object of the power of suspension is to provide assurance to the travelling public that they will not unknowingly find themselves travelling with a person suspected of and charged with a serious criminal offence of violence.

37 A broadly similar approach was adopted by the ACT Administrative Appeals Tribunal in Maythisathit and Registrar of Motor Vehicles [1996] ACT 165. The applicant sought review of a refusal to grant a taxi driver’s licence, the refusal being based on a criminal record revealing a number of convictions for offences involving dishonesty. The application was successful. The Tribunal was satisfied that the context that had given rise to the convictions, a gambling addiction, had been successfully addressed. It was satisfied as to the genuineness of the applicant’s desire to rehabilitate himself. In the course of its decision the Tribunal (Professor LJ Curtis, President) put the test to be applied in relation to “fit and proper character” in the case of taxi driver licensing in this way, at [12]:

“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 of 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.”

38 Counsel for the applicant submitted that the grant of bail is a fact that could be considered positively in relation to the extent of any risk to the public that the accused presents. For present purposes I accept that the ‘reasonable member of the travelling public’ should be regarded as being apprised of that fact. I also acknowledge the force of counsel’s point that one should not act out of the fear that reference in the charge to the word ‘murder’ might cause.

39 I also note counsel’s submission that the offence fell into the neutral category of the Bail Act 1978, not being affected either by the presumption against bail or the normal presumption in favour of bail. Equally, and counsel for the applicant acknowledged this point, the fact of the grant of bail does not provide any indication as to the strength or otherwise of a prosecution case. It involves a broad assessment of the appropriateness of permitting an individual to remain free and part of the community pending trial rather than being incarcerated.

40 A licence confers a right on an individual to pursue a regulated occupation. The considerations relevant to the exercise of an administrator’s discretion in that context will be affected by the nature of the statutory scheme, the legislative objectives and the specific terms of statutory powers.

41 While the statement of reasons should, I consider, have addressed more fully the additional factors that I have mentioned (in particular the protective function likely to be performed in the present circumstances by strict adherence to the restrictions on travel outside the Hunter Region), I am satisfied that the ultimate decision made was the “correct and preferable” one in the circumstances (see Tribunal Act, s.63(1)).

42 This is a case, I consider, where a reasonable member of the travelling public, informed of the outcome of the bail hearing and the conditions imposed, would nevertheless be inclined to the view that the objective seriousness of the charge is sufficient in its own right to permit the administrator to suspend the licence.

Determination and Order

43 Decision under review affirmed.