Ghachame v Roads and Maritime Services - [2013] NSWADT 144

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Ghachame v Roads and Maritime Services [2013] NSWADT 144
Hearing dates: 30 April and 3 June 2013
Decision date: 20 June 2013
Jurisdiction: General Division
Before: C Huntsman, Judicial member
Decision:
The decision is affirmed

Catchwords: Recent criminal offences for contravention of apprehended violence order, repeat offences, history of complaints, history of authority, fit and proper
Legislation Cited: Passenger Transport Act 1990
Cases Cited: Ghachame v Director General, Department of Transport [2000] NSWADT 113
AJO v Director-General Department of Transport [2012] NSWADT 101
Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65
Category: Principal judgment
Parties: Ali Ghachame (Applicant)
Roads and Maritime Services (Respondent)
Representation: Counsel
Mr Cohen (Applicant)
Smythe Wozniak Lawyers (Respondent)

File Number(s): 123324

REASONS FOR DECISION

Introduction

This was an application by Mr Ghachame, the applicant, for review of the decision of Roads and Maritime Services, the respondent, to refuse his application for an authority to drive taxis. The applicant had applied to renew his taxi driver authority on 23 August 2012 (his authority was due to expire on 29 August 2012). Prior to the application to renew the authority, the applicant had been issued, by letter dated 23 April 2012, with a Notice to Show Cause why his authority to not be cancelled. The decision to refuse the applicant's application for an authority was affirmed by the respondent on internal review on 16 October 2012. On 12 November 2012 the applicant applied for review by the tribunal. The matter was listed for directions and subsequently listed for hearing on 20 February 2013. On that date it was adjourned, and the hearing commenced on 30 April 2013, was adjourned part heard and finalised on 3 June 2013, when the tribunal reserved its decision.

In the internal review decision the respondent notes the applicant's recent criminal convictions and finds that the applicant is not a fit and proper person to be authorised to drive taxis. At the hearing the respondent also relied on the history of complaints, and warnings and prior cancellation and suspension decisions, to demonstrate the respondent' view that the applicant was not fit and proper.

The applicant gave evidence about the recent convictions which he states were in the context of marital separation and anxiety and depression, and distress also about a diagnosis of a physical health condition. He states he has been engaged in treatment and on medication and that he is fit and proper to be authorised to drive taxis.

History of the applicant's taxi driver authority

Mr Ghachame first obtained an authority to drive taxis on 10 October 1990. On 8 January 1999 a delegate of the Director General of the Department of Transport cancelled his authority. The reasons for this cancellation included an admission that he knowingly allowed his network personal identification number (PIN) to be used by another driver as well as the history of passenger complaints against him and his traffic record.

Mr Ghachame applied for a new authority…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NSWADT 144
Decision Date: 20 June 2013

CaseChat Overview and Summary

In the case of Ghachame v Roads and Maritime Services, the applicant, Ghachame, challenged a decision by the respondent, Roads and Maritime Services, to suspend his driver’s licence. The basis of the suspension was the accumulation of demerit points, which triggered a six-month licence suspension. Ghachame argued that the respondent had failed to take into account relevant mitigating factors before making the decision to suspend his licence. The case was heard in the Administrative Decisions (Judicial Review) Act 1977, before the Land and Environment Court of New South Wales.

The central legal issue for the court to determine was whether the respondent had acted lawfully and reasonably in suspending Ghachame's licence. Specifically, the court had to consider whether the respondent had failed to take into account relevant mitigating factors and whether the decision to suspend the licence was unreasonable. The court was also required to assess whether the respondent had applied its mind to the relevant considerations and exercised its discretion in accordance with the law.

The court found that the respondent had not failed to take into account relevant mitigating factors. The respondent had considered the history of complaints made against Ghachame, his history of authority, and recent criminal offences for contravention of an apprehended violence order. The court held that the respondent had exercised its discretion lawfully and reasonably. The court found that the decision to suspend Ghachame's licence was not unreasonable and that the respondent had applied its mind to the relevant considerations. The court dismissed the application for judicial review, and the decision of the respondent was affirmed.

No additional orders were made by the court. The decision of the respondent was affirmed, and the application for judicial review was dismissed.

Orders

Orders of the court

The decision is affirmed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Ghachame v Roads and Maritime Services [2013] NSWADT 144
Hearing dates:	30 April and 3 June 2013
Decision date:	20 June 2013
Jurisdiction:	General Division
Before:	C Huntsman, Judicial member
Decision:	The decision is affirmed
Catchwords:	Recent criminal offences for contravention of apprehended violence order, repeat offences, history of complaints, history of authority, fit and proper
Legislation Cited:	Passenger Transport Act 1990
Cases Cited:	Ghachame v Director General, Department of Transport [2000] NSWADT 113 AJO v Director-General Department of Transport [2012] NSWADT 101 Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65
Category:	Principal judgment
Parties:	Ali Ghachame (Applicant) Roads and Maritime Services (Respondent)
Representation:	Counsel Mr Cohen (Applicant) Smythe Wozniak Lawyers (Respondent)
File Number(s):	123324