FORD and DEPARTMENT FOR PLANNING AND INFRASTRUCTURE
[2009] WASAT 236
•1 DECEMBER 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: ROAD TRAFFIC ACT 1974 (WA)
CITATION: FORD and DEPARTMENT FOR PLANNING AND INFRASTRUCTURE [2009] WASAT 236
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: 25 NOVEMBER 2009
DELIVERED : 1 DECEMBER 2009
FILE NO/S: CC 1265 of 2009
BETWEEN: STEPHEN EDWARD FORD
Applicant
AND
DEPARTMENT FOR PLANNING AND INFRASTRUCTURE
Respondent
Catchwords:
Taxi licence Review of cancellation - Several traffic-related offences - Seriousness of the offences Nature and number of traffic infringements - Public interest - Can hardship be taken into account?
Legislation:
Road Traffic Act 1974 (WA)
Road Traffic (Authorisation to Drive) Regulations 2008 (WA), reg 25(d), reg 42, reg 42(4)
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(3), s 29(1), s 29(3), s 29(5)
Result:
Application dismissed and the decision of the Department affirmed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr P Busby (Representative)
Solicitors:
Applicant: Self-represented
Respondent: Department for Planning and Infrastructure
Case(s) referred to in decision(s):
Director General for Planning and Infrastructure v Nealon [2003] WASCA 161
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mr Ford sought a review of the decision of the Department for Planning and Infrastructure to cancel his taxi driver's licence.
The Department for Planning and Infrastructure contended that due to the nature and number of his traffic-related convictions, grounds exist for the licence to be cancelled. The list of offences was set out in the letter of revocation and included driving without a licence, dangerous driving, misleading police, exceeding the speed limit by 30 40 kilometres per hour, speeding in a school zone and a demerit suspension.
Mr Ford contended that the licence should not have been withdrawn since some of the offences related to the same incident; an official from the Department for Planning and Infrastructure had a vendetta against him; he was of sound character and fit and proper to be licensed; and he would suffer hardship if the decision was affirmed.
The Tribunal found that there were sufficient grounds for the licence to be revoked. The interests of the public and the taxi industry require that a high standard be maintained for persons who seek to be licensed as taxi drivers. A person with the number of transgressions that Mr Ford has, and the nature of the offences, will not engender trust and confidence of the public in general, and the users of taxis in particular.
An order was made for the decision to revoke the taxi driver's licence to be affirmed.
Background
Mr Ford seeks a review, under reg 42 of the Road Traffic (Authorisation to Drive) Regulations 2008 (WA) (RT (AD) Regulations), of a decision by the Department for Planning and Infrastructure (Department) to cancel his class 'T' extension licence. Mr Ford was cautioned, by letter dated 7 April 2008, that his licence may be cancelled if further convictions under the Act were recorded against him. The decision to cancel the licence was made on 5 June 2009 due to the nature and extent of his traffic convictions.
Mr Ford lodged an application for review of the decision on 14 August 2009 and the first directions hearing took place on 27 August 2009. The matter was set down for a hearing on 6 November 2009. At the hearing there was no representation for Mr Ford, although he said that he had arranged for legal representation. The Tribunal had to adjourn the proceedings to a later date but was informed by the law firm that purportedly was briefed by Mr Ford, that they held, in fact, no brief to represent him. Mr Ford made a written submission for the final hearing but failed to attend in person or via telephone. The Tribunal handed its decision down at the hearing but undertook to provide written reasons for the decision to the parties. These are those reasons.
The Department and Mr Ford made written submissions in support of their respective positions. Both parties also made submissions, combined with evidence, during the hearing.
Statutory framework
The Tribunal has, in accordance with s 29(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the same jurisdiction, functions and discretions as those of the delegated officer pursuant to the Regulations.
The Tribunal is not limited to the statement of reasons given by the delegated officer (s 27(3) of the SAT Act). The Tribunal may also take into account any additional or new information that was not at the disposal of the delegated officer at the time when the decision was made (s 27(1) of the SAT Act).
The review hearing is therefore 'de novo' (s 27(1) of the SAT Act) and is not confined to the matters and information that were before the decisionmaker at the time of the decision.
The powers of the Tribunal, according to s 29(3) of the SAT Act, are to:
a)affirm the decision;
b)vary the decision; or
c)set aside the decision,
and to make appropriate orders.
The decision of the Tribunal is regarded as a decision of the delegated officer (s 29(5) of the SAT Act).
Regulation 42(4) of the RT (AD) Regulations grants Mr Ford the right to seek a review of the decision.
Contentions and evidence
Mr Ford is 65 years of age and has held a 'T' extension licence since 2006. He has accumulated a large number of traffic offences since he has been licensed. Some of these offences arose from two incidents, while others were individual incidents. The list of offences was set out in the letter of revocation and includes driving without a licence, dangerous driving, misleading police, exceeding the speed limit by 30 40 kilometres per hour, speeding in a school zone and a demerit suspension.
The Department considered the information and informed Mr Ford on 5 June 2009 of its decision to cancel the licence on grounds of the number and nature of the traffic offences.
The Department contends that it has sufficient reason to revoke the licence on the basis of the large number of offences against the Act within a relatively short period of time. The offences were committed during a short period and Mr Ford was given a written warning that revocation may occur if he continued to offend. A further traffic offence occurred shortly after the warning letter and the Department decided to revoke his licence.
The Department further contends that a person who is issued with a taxi licence is held in trust by the public and there is an expectation by the community that a strict licensing regime is kept in place. Even if the offences were not committed while Mr Ford was on duty as a taxi driver, the nature and extent thereof, and his apparent disregard for the Road Traffic Act 1974 (WA) (RT Act) and regulations, can and must be taken into account to determine if he is fit to discharge the functions of a taxi driver.
The Department accepts that Mr Ford has otherwise had an unblemished criminal record; that he is elderly; and that serious financial hardship may be caused by the cancellation. The interests of the public, however, outweigh those of Mr Ford and the cancellation should be affirmed.
Mr Ford explains that he is of good character; that he was a commercial pilot for many years; that he is a highly reliable person; that he was allegedly the target of departmental bullying in Carnarvon by one of the Department's inspectors; and that the extent of his offences is exaggerated by the Department. He says that although there are 12 offences recorded, seven of those relate to two incidents where a vintage vehicle of his was involved. If those two incidents were discounted or accorded less weight, the remainder of his record is not so excessive that a cancellation is justified.
Mr Ford further contends that he is a highly respected taxi driver, and submitted letters in support of him being allowed to continue driving taxis. He contends that he would suffer serious financial hardship if the decision were not reversed.
Consideration
The starting point for the Tribunal in considering the application is reg 42(4) of the RT (AD) Regulations that clothes it with the same discretion as the Department. The Tribunal may cancel the 'T' extension licence due to the 'number and nature of convictions' against reg 25(d) of the RT (AD) Regulations under the RT Act.
The Tribunal is put in the same position as the Department to take into account the interests of Mr Ford, as well as the interests of the public. In doing so, the Tribunal must take into account the circumstances when the offences were committed and the interests of the public to be protected against drivers who offend against the Act with regularity. The Tribunal must also take into account the interests of the taxi industry at large, which has a reputation as a reliable provider of public transport to protect. The Tribunal must, therefore, take into account the interests of all parties.
From the perspective of the public, the Tribunal is of the view that Mr Ford's convictions would be regarded as serious. Although some of the convictions relate to two incidents, the trend of incidents in a short space of three years would be frowned upon by the public and the users of taxis. If Mr Ford took his profession as seriously as he says he does, the question arises why he did not act with greater caution when using the roads. It struck the Tribunal, when perusing his submissions and considering his evidence, that Mr Ford showed little remorse for what had happened. He seemed to find excuses for each incident and further blamed the behaviour of a departmental officer and the Department, but he does not exhibit the remorse that one would expect of a taxi driver at the risk of losing a licence and who realises the seriousness of his offences.
It is well known what damage, injury and destruction are caused on our roads by persons not obeying the laws of the land when it comes to driving vehicles. Offences, such as those against Mr Ford, must collectively be viewed in a serious light especially if committed by a taxi driver. Exceeding speed by 30 - 40 kilometres per hour, speeding in a school zone, and giving false information to the police, all combine to justify action on the part of the Department.
What is even more surprising is that the Department put Mr Ford on notice that his licence may be forfeited and shortly thereafter he committed another offence that of a demerit suspension.
Members of the public use public transport in good faith and in the expectation that drivers are properly screened and checked by the State authorities. It is also in the interests of other taxi drivers, and the industry at large, that the public perception of the industry be positive. If not, all drivers would suffer commercially since the public would refrain from using their services.
Mr Ford must have known when he drove his vehicle that offences under the Act may count against him. If he had any doubt, the letter of warning should have raised his concern. His apparent fixation with the behaviour of a departmental officer seems to have blunted his judgment. He feels the victim, but in the process he may have lost sight of the issue at hand serious breaches of the RT Act.
His explanation of the respective offences lacks credibility. If he was not guilty of some of the offences as he now alleges, he should have pleaded not guilty at the time, rather than to have the matter re-argued now.
The Tribunal acknowledges that Mr Ford is elderly, that he has an otherwise positive record and that he has good standing in the society. He is clearly not a habitual criminal and his colleagues have high regard for him. The Tribunal also understands that it may be difficult to find replacement taxi drivers in Carnarvon.
The Tribunal is, on balance, satisfied that the drastic action of cancellation of a licence is justified.
In regard to the plea of hardship, the Tribunal concurs with the Department that it cannot take into account personal hardship in considering the review. This was confirmed in the matter of Director General for Planning and Infrastructure v Nealon [2003] WASCA 161 in which it was found that a magistrate had erred when he took the question of hardship into account (at [17]).
Mr Ford should have taken all the risks into account when he committed repeated traffic offences.
The Tribunal therefore concludes that there is sufficient reason for the 'T' extension licence of Mr Ford to be cancelled on the basis of the number and nature of his offences.
Order
1.The application for review of the decision to revoke the taxi driver's licence is dismissed.
2.The decision of the Department of Planning and Infrastructure to cancel the licence is affirmed.
I certify that this and the preceding [34] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR B DE VILLIERS, MEMBER
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