Ghachame v Roads and Maritime Services
[2013] NSWADT 144
•20 June 2013
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 65Category: 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 on 30 December 1999. That application was refused, a decision which was affirmed on internal review on 16 February 2000. In summary, while it was conceded that his traffic offences were not "extremely serious," Mr Ghachame's complaints history and infringement history persuaded the Director General's delegate to come to the view that he could not "attest" that the applicant was a fit and proper person to hold a public passenger authority. Mr Guachame applied for review of that decision by the Tribunal, and by decision dated 17 August 2000, the tribunal affirmed the decision (refer Ghachame v Director General, Department of Transport [2000] NSWADT 113 (17 August 2000)). In affirming the decision the tribunal found a complaint by a passenger that Mr Ghachame continually touched the legs of two female passengers to be established.
In 2002 the respondent considered character references and material submitted by the applicant and indicated no objection to the applicant making a fresh application for an authority to drive a taxi cab, after completion of accredited taxi driver training. He undertook training in 2002 and was subsequently granted an authority. In 2006 the authority was renewed.
In March 2009 the respondent invited the applicant to attend an interview to discuss a customer complaint. By letter dated 30 March 2009 the applicant was invited to respond to a Notice to Show Cause. This Notice was issued subsequent to a record of interview, in relation to customer complaints, which was conducted on 24 March 2009. Submissions were made by the applicant's legal representatives on 20 April 2009 and on 22 April 2009 a decision was made to cancel the applicant's taxi driver authority. That decision was varied on internal review to a decision that his authority be suspended until it is expiration 29 August 2009. The applicant's authority was renewed on 3 September 2009.
The respondent conducted data matching with the New South Wales Police Service and it was identified that on 20 July 2010 the applicant was convicted at Burwood Local Court of common assault and placed on a section 10 good behaviour bond for 12 months. It was noted that he had failed to notify the respondent of the offence and it was determined that he be issued with a Notice To Show Cause as to why his authority should not be cancelled. A response to the Notice to Show Cause was received and the respondent advised the applicant, by letter dated 29 November 2010, of the respondent's decision to issue a warning that a failure to show improved behaviour may lead to cancellation of his authority.
Almost eighteen months after receiving the warning in relation to the 2010 assault offence, on 23 April 2012, the applicant was issued with a Notice to Show Cause why his authority should not be cancelled. The attached reasons to the Notice stated that data matching conducted by the respondent with the Police revealed that the applicant had been charged on 24 November 2011 with breaching an apprehended violence order, and he had been convicted for a similar offence on 15 September 2011. The reasons attached to the Notice referred to his previous assault matter of 2010 (dealt with by a s10 bond) and the suspension of his authority in 2009.
On 23 August 2012 the applicant applied to renew his authority (which was due to expire on 29 August 2012). After consideration of submissions from the applicant's lawyers the respondent decided on 14 September 2012 to refuse the applicant's application to renew his authority. 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 applicant's history of offences include: common assault for which he received a s10 bond (no conviction) requiring him to be of good behaviour for 12 months; a conviction on 15 September 2011 for contravening an apprehended violence order for which he received a s9 bond for 12 months; and a conviction on 29 March 2012 for contravening an apprehended violence order for which he received a section 9 bond for 15 months. He is currently still subject to the good behaviour bond, although at the time of preparing these Reasons for Decision the good behaviour bond is close to expiry.
The tribunal observes that in November 2011 the respondent issued the applicant with a warning in relation to the offence of 2010 (the common assault offence).
The evidence
The respondent relied on the records contained in the section 58 documents including the Police Facts Sheets for the various convictions, the prior decisions of the respondent in relation to suspension and cancellation of the applicant's licence, and warning letters issued, and his criminal record and the record of complaints. The respondent provided an additional document, being a report of Dr Garven of 8 May 2013, in relation to the applicant's visual acuity.
The applicant provided oral evidence to the tribunal at the hearing, and also provided written evidence. The written evidence included a report by Consultant Forensic Psychologist, Tim Watson-Munro, dated 28 March 2012 prepared for the purpose of court proceedings in relation to breaching an AVO; various character references, a written statement by the applicant dated 15 February 2013; and a psychological report by Kasim Abai, Psychologist of 12 March 2013.
The history of the issue of notices to show cause, warning letters, prior periods of suspension and cancellation, prior proceedings at the Administrative Decisions Tribunal in 2000, as recorded in the s58 documents, are detailed above.
The applicant gave detailed evidence about the recent offences, his psychological treatment, and the complaints history recorded by the respondent. When questioned in the current proceedings about whether he had been to proceedings or given evidence at the tribunal previously, in relation to his taxi driver authority, the applicant stated that he did not recall ever doing so. He gave clear evidence that he did not recall having been to the tribunal previously.
The section 58 documents contain the Police Fact Sheets in relation to the common assault charge, and the Police Facts Sheets in relation to the offences of contravention of apprehended violence order. It was noted that on 28 October 2010 the apprehended violence order had been granted by the Kogarah Local Court and the protected person was the applicant's wife.
The Police Facts sheet states that on 22 July 2011 the applicant's wife and her sister were at McDonald's when they were approached by the applicant. After some discussion, the applicant accused his wife of leaving the children home alone, and that they may be watching pornography. The applicant's wife said that she would call the police, and police were called and the applicant was charged. He attended court and was convicted as detailed above. The second offence of contravention of the AVO occurred after the applicant had been to court, been convicted of the criminal offence of contravention of the terms of the AVO, had been placed on a good behaviour bond. The Police Facts allege that the applicant was driving his vehicle in the city and the applicant saw his wife's car. The applicant drove his vehicle near his wife's vehicle, and when both vehicles were stopped at traffic lights, in the city, the applicant got out of his vehicle and approached his wife's vehicle looking into her car. It was alleged that he followed the vehicle after his wife drove off for a short period of time, and that later he visited the home of his wife's parents. As noted above he again attended court, was convicted and placed on a good behaviour bond which was current at the time of the hearing.
In relation to the common assault charge in 2010 police attended the applicant's apartment due to a report that a knife had been pulled by a person at that address. On attending the applicant's home police saw him seated in the lounge room and observed the kitchen cutlery drawer to be open with a number of knives disturbed. The applicant was charged with common assault.
The applicant, in oral evidence, provided as explanation about the offences. In relation to breaching the apprehended violence orders he stated that the AVO was granted because his wife told the judge she saw him sitting outside the house, and when she saw him near she felt sick in the stomach, so the court gave her an AVO.
It was put to the applicant that he didn't abide by the apprehended violence order. The applicant responded that he did not do so "one hundred percent" because he saw his wife and her sister at MacDonald's and he did not believe the children should be home alone, so he approached her. He said he did not threaten her, he did not hit her, although he conceded that he did not follow the law one hundred percent, he said he approached her only for the sake of the children. He denied thinking it was okay to break the court order. He said whilst he respected the law and Court orders, because of his concern for his children it was appropriate for him to approach his ex-wife on that occasion.
He states that after that first breach of the AVO he then abided by the apprehended violence order until he saw his wife in the city in her vehicle with another man. He was driving his taxi at the time and he wasn't expecting to see her. He told the tribunal :
"she's my wife, still my wife, I didn't divorce her yet, next to her was a man. I got very jealous, he was sitting with her in her own car. I love her a lot, I didn't think."
He agreed he approached her car and he looked at her. He agreed that by law he did something wrong, but he was very stressed, he loved her, and she was with another man, and he didn't think about the law. He states that he was remanded in custody for seven days and then the court proceedings commenced. The court proceedings are finished now, he is on a good behaviour bond, and he has now approached his preacher and divorced his wife in the religious way. He indicated that having to spend a week in gaol had made him realise he had to move on, to accept the marriage was over.
In relation to the common assault charge in 2010 he stated that it was a neighbourhood matter, not involving any family members, just a neighbour. He was trying to go to sleep because he had to wake up at 3am for his taxi shift. The neighbour was playing music very loudly and he asked for the neighbour to keep it down. The neighbour's brother came downstairs to his apartment, entered his apartment, threatening him. The applicant stated that the brother was young, of a strong build, and he was afraid. He told the tribunal that at the time that the neighbour's brother entered his apartment, he was seated in a chair peeling an apple with a fruit knife. The neighbour's brother telephoned the police and told them that he, the applicant, was threatening him with a knife. However the applicant states he did not do this.
The applicant told the tribunal that he stood up and because he was peeling his apple and had the fruit knife in the other hand, he was accused of having a knife. He went up from his seat to walk towards his door and the neighbour's brother left before the applicant reached him. He recalls pleading guilty to the common assault offence and being placed on a 12 month good behaviour bond without a conviction being recorded (a section 10 bond).
The tribunal asked the applicant to clarify the difference between the account given in the hearing, and the account given by his lawyers in the letter of submission to the respondent contained on the respondent's file. The tribunal read out the lawyer's letter to the applicant and he stated that what was said in the letter was true, it was what he had told his lawyers. It was put that it was a different version and he indicated that what he told his lawyers was correctly reflected in their letter.
The solicitors in their submission to the respondent stated that the offence was a dispute between the applicant and his neighbour about a complaint that the television noise was loud, and when the neighbour complaint about this, there was an argument which resulted in the applicant obtaining a fruit knife from the kitchen and producing it to the victim. The solicitors state:
"In fairness to Mr Ghachame, his version of events, which were heard at the Burwood Court House, was that the victim was playing very loud music in his unit.... Our client has shouted through his unit to the victim "please put the music down I have to work at 3 am". The victim has not complied... So our client has put his television on loud and left the door ajar so that the victim could hear it and may turn down the music, however the victim has instead has attended the unit of Mr Ghachame where a verbal argument ensued. He asked the victim to leave several times without any avail, and the victim then entered Mr Ghachame's unit via taking several steps. Our client has then proceeded to the kitchen to obtain a kitchen knife to ward off the victim and get him to leave his unit. He instructs us that he did this only to get the victim to leave the premises not for any other reason and he had no intention of using the knife in any other manner."
The solicitors submitted that a section 10 bond to be of good behaviour (no conviction recorded) was imposed by the court and that the offence was trivial in nature.
In his written statement of February 2013 the applicant states that he has had a taxi licence since 1992. He briefly worked in security, and as a labourer, but taxi driving is his main occupation. He has substantial health issues, being diagnosed with non-Hodgkin's lymphoma on 13 April 2011, leading to chemotherapy treatment, and the cancer is now in remission although he needs to be tested from time to time.
The applicant states in his written statement that he was suspended from driving a taxi in about 1998 for touching a passenger's leg inappropriately, he feels this is well and truly in the past, and he has already been punished that this. He says he was also reprimanded in 2009 for touching a woman's leg "I have learnt from my errors, feel remorseful and I'm confident this will never happen again".
The applicant states that he regrets breaching the apprehended violence order and realises he has done wrong. He notes on the first occasion he was concerned about the children and that there were no physical altercation or threats, although he does regret his behaviour and realises it was wrong. The second time when he saw his wife in the vehicle,
"
we were still married under Islamic law and I saw her in the vehicle with another man. I became very distraught upon seeing this. As we were still married under Islamic law I wrongly believed at the time it was within my right to approach her and show my disapproval for her being alone with another man. My former wife is also a religious Muslim. However at no point did I threaten her, say anything to her nor was I violent in anyway. I now accept and know this is wrong and against the law and is not an excuse to break the law."
The applicant states that the offences happened in a period of stress due to the breakdown of his marriage, and he was also diagnosed with cancer at the time. He is confident that there will be no repeat of such offences.
In relation to the complaints history the applicant was asked by the respondent's representative about the complaint by the female passenger in 2009. He said he remembered picking up a Thai lady in Oxford Street and taking her to the Oaks Hotel in Neutral Bay. Before she got into the taxi she was hugging and kissing a man however, during the journey, she mentioned her husband might be worried about her being late. He says he asked her about the other man and she said that was her boss. The applicant observed to the tribunal that it was her business, but she's kissing her boss. He said the passenger sat in the front seat and normally women get in the back seat. He was asked whether he touched her on the leg and he said it was by accident. He told the tribunal words to the effect of "She was saying something, I'd like to be with someone, and I said I'll take you to the hotel. She said she wanted to sleep with someone, in a sexual way", so the applicant says he then tapped her on the leg, in the upper area of the leg. He was asked whether it was appropriate to touch a passenger and he said maybe it was not appropriate, but she was offering herself to him, making herself available. He was trying to be nice.
The respondent's representative put to the applicant in the hearing that when he was interviewed, in 2009, he had denied touching the woman passenger on the leg. He stated that maybe he did deny it. He said they did not punish him for that, they gave him a warning. It was put to him that his licence was in fact cancelled for this incident, he was not given a warning. The tribunal notes that his authority was cancelled on 22 April 2009, and this decision was varied on internal review to a decision that his authority be suspended until it is expiration on 29 August 2009.
The record of interview of 24 March 2009 included questioning the applicant about the complaint by a female passenger. The complaint alleged that the passenger was seated in the front seat, the driver was asking her about her background and why her partner was not with her, and while asking her these questions, he was touching her on the leg. He asked her if she wanted to go back to St George with him. In the record of interview the applicant is recorded as saying:
"completely incorrect. She asked me, I still remember, she asked me for a free fare to the Hills area, maybe Castle Hill, around this area. I said no, and she was offering herself, you know. I said no. I'm a married man, I'm a family man." [The applicant goes on to say that she wanted to go to the Hills area] "I said no, then she said she wanted to go to the Oaks Hotel in Neutral Bay.... "She was saying in very, you know, feminine way, you know 'I need to go to the Hills area, I need to go home, I don't have enough money' you know, something like that. And she start to offer herself" [The applicant was asked about this and said:] "Like what I said to you 'if you give me a ride to Castle Hill I give you, you know, what you wish or something"
He was asked in the interview about the passenger's allegation that he touched her on the leg and the applicant stated:
"I did not touch this passenger at all"
He was asked during the interview whether he recalled a previous complaint about touching two female passengers on the legs and he said, why would he put himself in the same situation, he would be crazy to do the same thing, he would not jeopardise his job.
The respondent's representative questioned the applicant about the number of records and complaints on the file including the alleged incivility at the Quest Apartments. The applicant agreed that he was upset at losing time and money, and did behave with anger and incivility.
The s58 documents indicate that the complaint of incivility and improper behaviour at Quest Apartments, involved the driver being alleged to have come into reception swearing and abusing people, because he couldn't find the customer, and prior to entering reception he was constantly sounding his horn outside the premises. He was asked to leave reception and is alleged to have punched the sign on the way out. At a record of interview on 24 March 2009, with officers of the respondent, the applicant was asked about the Quest Hotel complaint and he agreed he was angry because he had been waiting on the taxi rank for two hours before taking this booking, and when he arrived he was told the passenger had already left. He said he was frustrated, however conceded he should not have raised his voice. In the hearing he denied punching the sign on the way out.
The respondent's representative asked the applicant about a number of complaints which occurred several years ago, as well as more recent complaints. A number of the earlier complaints were dealt with by the tribunal at the hearing in 2000, and the evidence in the current proceedings was not significantly different to the evidence as recorded by the tribunal in its Reasons for Decision in the previous matter. In relation to the alleged sexual conduct towards passengers, which was one of the matters considered in the earlier hearing, the applicant gave a similar account of that incident to his account in the previous proceedings. The tribunal considers the findings of the tribunal in the previous proceedings to be relevant, given the proximity in time of those tribunal proceedings to the earlier complaints, and the findings of the tribunal in the earlier matter are consistent with the evidence which was before the tribunal in these proceedings. The tribunal issued Reasons for Decision in the earlier matter: Ghachame v Director General, Department of Transport [2000] NSWADT 113 (17 August 2000). The tribunal then found:
"Findings of fact
44 On the basis of the file and the oral evidence, 12 alleged incidents were identified. I need to make findings in relation to these incidents before proceeding to determine whether the Department was right to have lost confidence in Mr Ghachame's fitness to drive a taxi. .....
.....55 The incident alleging that Mr Ghachame continually touched the legs of two female passengers is based on a letter from one of the women. Initially Mr Ghachame denied the allegation but said that he may have brushed one of the women's legs while reaching for a street directory. This is the same explanation that Mr Ghachame offered in oral evidence. I am not inclined to accept that this is a truthful account because Mr Ghachame signed a letter written by a taxi company official, which gave a different impression of the incident. If the version about the street directory is true, then Mr Ghachame would not have signed a letter indicating a different explanation with no mention of the street directory. Consequently I am prepared to accept that this incident occurred as outlined by the woman in her letter of complaint.
56 I have come to a similar conclusion in relation to the unauthorised use of Mr Ghachame's PIN. The Department's records show that the PIN was used by another driver on a least one occasion. Mr Ghachame wrote a letter saying "I do admit that I gave my pin number to a friend who worked one shift using it." This is not consistent with his oral evidence which was that he put his PIN into the taxi because he was curious as to how busy it was. This is an extremely unlikely scenario as Mr Ghachame did not have a driver's licence at the time and was not driving taxis. Consequently I accept that Mr Ghachame knowingly allowed another driver to use his PIN on at least one occasion. ".....
"The real question is whether Mr Ghachame has the requisite character, reputation, responsibility and aptitude to meet the public's reasonable expectations of taxi drivers. ......
...69 The incident involving touching the legs of two passengers is the most serious. The public does not expect to have to tolerate this kind of behaviour. The incident with the PIN suggests that Mr Ghachame is not entirely honest in his conduct as a taxi driver.
70 The final consideration is Mr Ghachame's inability to change his ways after a clear warning in 1994. He understood that he may lose his authority if he breached Regulations or behaved or drove in an inappropriate manner.
71 There are several factors which, in combination, lead me to conclude that the Director General's decision to refuse Mr G's application for an authority should be affirmed. These factors are:
a history of complaints and infringements;
a less than satisfactory traffic record;
a finding of sexual harassment;
Mr G's inability to accept responsibility for his conduct or show remorse; and
his proven inability to change his ways "
As well as relying on his own evidence the applicant relied on evidence of Psychologists, about the impact of various life events on the applicant, and to demonstrate that he has taken steps to address his behaviour. The psychological report by the current treating psychologist, Mr Abaie, noted that he commenced seeing the applicant on 27 May 2011 on referral from the applicant's general practitioner, who identified a need for support with management of anxiety and anger control, due to marriage issues and lack of support. Mr Abaie details that the breakdown of the marital relationship, and inability to regularly see his children, brought, in addition to physical health conditions, a period of isolation and stress. Mr Abaie states that there was a breach of apprehended violence order conditions, which resulted in him losing his taxi licence and his job, leaving him unemployed. The stress also resulted in a major health crisis, he was diagnosed with cancer which is now in remission, but described not being able to deal with the stress that came from being diagnosed with cancer. He went through a period of receiving chemotherapy and had no support at that time feeling alone and isolated.
Mr Abaie describes the applicant as being determined to return to work to become financially independent. He expresses the wish to move on with his life as his wife has done. Mr Abaie notes that the applicant is currently taking antidepressant medication to reduce general anxiety. He demonstrates symptoms of general anxiety disorder. His depression, anxiety and stress are evaluated by Mr Abaie as moderate. There have been regular interval sessions to address depressed mood and anxiety by the psychologist, there has been a combination of medication and psychotherapy, problem-solving and monitoring, to assist him to overcome his fears of being inadequate, so that his ability to become independent again is strengthened. Mr Abaie states it is also very clear that the symptoms have been improving since the applicant has attended the sessions, and the psychologist advises the applicant to seek further legal advice on how he can obtain his taxi licence.
The report of Mr Watson-Munro, Consultant Forensic Psychologist, dated 28 March 2012, was prepared for court proceedings in relation to the breach of the apprehended violence order. Mr Watson-Munro also diagnosed major depression, and anxiety, and said there was a nexus between his mental health and his behaviour at the time of the offences.
Dr Ismail, general practitioner, provided a report addressed to the respondent. He says the applicant has been his patient since July 2008. He is aware of the cancellation of the taxi licence as a result of the apprehended violence order breach. He states that following his divorce, the applicant saw him on a regular basis as he began to suffer from anxiety and depression and was also being treated for various medical problems, including his most recent diagnosis for non-Hodgkin's lymphoma, for which he successfully underwent chemotherapy. He has observed progress with regards to the applicant's mental and emotional health. Dr Ismail referred the applicant for counselling by Mr Abaie, psychologist. He supports the applicant again being allowed to drive a taxi.
The applicant gave evidence, on the first hearing date (this matter was heard over two hearing dates) that he was attending his psychologist for treatment. He said he first saw the psychologist on 27 May 2011 and the report is dated 12 March 2013. He said on the first hearing date that he has an appointment every two weeks but he sometimes he does not attend the appointment, and that he is now taking antidepressant medication which makes him sleep better and makes him calmer.
On the second hearing date the applicant gave evidence that he was seeing a psychologist every second Friday and they are doing an anger management course, and he's being taught how to look after himself and how not to get involved in anything. He finds that the treatment is helpful and he's not thinking of the matter of his ex-wife anymore.
References provided by the applicant are to the effect that the offences of breaching the apprehended violence order are out of character and the referees are supportive of the applicant being a good driver and being allowed to drive his taxi.
The applicant was cross examined by the respondent's representative about his letter to the local court wherein he stated that he suffered from multiple sclerosis as well as non-Hodgkin's lymphoma. It was suggested that this was a false account given to the court designed to cause sympathy so as to obtain a more lenient result. The applicant maintained the neurologist had told him at the time that he might have this condition and that is why he had said so in his letter to the court. Subsequently he found that he did not have this condition. There is no reference to suspected multiple sclerosis in any other material before the tribunal.
The law
The Passenger Transport Act 1990 (the Act) provides:
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.
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.
4 Objects
The objects of this Act are:
(a) to require the accreditation or authorisation, by TfNSW, [Transport for NSW] of the operators of and drivers involved in public passenger services (other than ferry services), and .............
(e) to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services, and...
The decision under review in the current proceedings is a decision to cancel the Applicant's taxi driver authority. Section 33F clearly provides that in making a cancellation decision regard is to be had to the purpose of the authority. The purpose of an authority is to attest to the matters set out in s33(3)(a)(b) of the Act, namely, to attest that the authorised person is:
of good repute; and, a fit and proper person (to be so authorised); and considered to have sufficient aptitude and responsibility to drive a taxi cab in accordance with law and custom; and in accordance with the conditions under which the taxi service is operated.
Section 63 of the Administrative Decision Tribunal Act 1997 (the ADT Act) provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable law. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the respondent, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.
A frequently used phrase is that, when conducting a review, the Tribunal 'stands in the shoes of the decision maker' and exercises the same functions and powers. The Tribunal is therefore constrained in its powers to those held by the decision maker.
Section 63(3) of the ADT Act provides that in determining an application for the review of a reviewable decision, the Tribunal may decide:
(a) to affirm the reviewable decision, or
(b) to vary the reviewable decision, or
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or
(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
In deciding this matter the Tribunal has also had regard to prior decisions of the Tribunal discussing the legislative requirements. A useful review of the authorities was provided in the case of AJO v Director-General Department of Transport [2012] NSWADT 101 (25 May 2012) at paragraphs 24 to 35:
24.Assessment of whether a person is fit and proper to be the holder of a licence is different from, but related to, an assessment of whether a person is of good character.
25.In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321,Chief Justice Mason explained that, at 380:
'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.'
Toohey and Gaudron JJ said at 380:
"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."
26.A person's fitness is to be gauged in the light of the nature and purpose of the activities that the person will undertake. In Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 the High Court said (at 156-7):
"The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."
27.In Sobey v Commercial and Private Agents Board 20 SASR 70 Walters J said:
"In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails."
28.Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability in the context of the role they are seeking to undertake. Thus in Obradovic -v- Commissioner for Fair Trading, Office of Fair Trading (GD) [2006] NSWADTAP 18 the Appeal Panel agreed that a formerly licenced building contractor should have his application for a new licence refused, despite there being no evidence that he was dishonest or of bad repute. Evidence that he had been extremely tardy and intransigent in dealing with customer complaints, and the regulator, when he held a licence, was sufficient to conclude that he was not fit and proper for the role. In that case the licensing scheme was among other things, designed to protect consumers and to provide them with adequate means of redress against licensed contractors. In Bond the assessment occurred in the context of whether the Applicant was a fit and proper person to hold a licence under the Broadcasting Act 1942 (Cth).
29.In Saadieh v Director General, Department of Transport [1999] NSWADT 68, Hennessey DP set out the factors to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. They are:
the nature, seriousness and frequency of any criminal offences for which the Applicant has been arrested or convicted;
the Applicant's reputation in the community; and
the likelihood that the Applicant will re-offend, be the subject of further complaints or commit further traffic offences.
30.In Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 the Appeal Panel, at [37] the Appeal Panel drew attention to the role public interest considerations play in the assessment of fitness and propriety.
The courts have emphasised the connection that assessment of repute, fitness and propriety have in a regulated context with public interest considerations. Repute, fitness and propriety involve concepts that should not be 'narrowly construed or confined' and may extend to 'any aspect of fitness and propriety that is relevant to the public interest' (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (26 July 1990) at [64] per Mason CJ. ....
The comments of Kirby P in Pillai v Messiter [No.2], quoted above, are an example of this.
31.The discretion vested in a decision maker in determining whether a person is fit and proper, in any given context, was said by the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389, per Northrop, Miles and French JJ, to "give wide scope for judgement and allow broad bases for rejection."
32.As was made clear by Toohey and Gaudron JJ in Bond, issues of character and reputation may play a determinative role in deciding whether a person is fit and proper. Their Honours also clearly highlighted that there is a difference between the two. They explained that an assessment of character is relevant because it is an indicator of a person's likely future conduct when considering how a person might act in the context of the role they are seeking to undertake. Reputation on the other hand, provides an indication of the public perception of future conduct in that role. In Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392, Waddell J explained, at 393:
A distinction must be drawn between "repute" or "reputation" and
"character" or "disposition". The word "character" is sometimes used as meaning a person's reputation, but "reputation" is not ordinarily used to mean character. The distinction has been referred to in many decisions of the courts."
In Melbourne v The Queen [1999] HCA 32; [1999] 198 CLR 1 at 15 McHugh J explained:
"... character refers to the inherent moral qualities of a person or what the New Zealand Law Commission has called "disposition - which is something more intrinsic to the individual in question". It is to be contrasted with reputation, which refers to the public estimation or repute of a person, irrespective of the inherent moral qualities of that person."
33.In Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 Walsh JA, at 450, said that in determining questions of character:
"... the court is required to consider matters affecting the moral standards, attitudes and qualities of the Applicant and not merely to consider what is his general reputation."
That case was concerned with an application for registration of a medical practitioner. His Honour went onto explain that the Court was entitled to inquire into personal misconduct, as well as professional misconduct, in considering whether the Applicant was a man of good character:
"... whilst recognizing that there may be some kinds of conduct deserving of disapproval which have little or no bearing on whether or not it shows the Applicant for registration as a medical practitioner is a person of good character. In this respect, I think, that some assistance can properly be obtained as to the mode of approach to be made from the observations made in cases where the was whether or not that a person was fit and proper to be a barrister, such as those in Ziems v Prothonatory of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279."
Thus, as with fitness and propriety, assessment of character is to be made in the context of the nature and purpose of the activities that the person is seeking to undertake. In Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 the Appeal Panel explained:
'Good repute' refers to the way reasonably-minded people assess an individual's current reputation, with reasonably precise knowledge of those matters that put the person's reputation in doubt. The fact that the person produces evidence from witnesses who vouch in general terms for the person's reputation cannot be conclusive. Equally, care must be taken, as we see it, not to use the 'good repute' requirement as a way of bringing into consideration stereotypes or assumptions which offend, for example, against human rights or anti-discrimination standards.
34.In the present case the regulated activity is that of a country school bus driver who regularly transports high school age children for long distances, for up to three hours each school day. When doing so, drivers are entrusted with ensuring the safety of the students and are responsible for regulating their behaviour in accordance with established policy.
35With respect to requirement that an authority holder have sufficient responsibility to drive the vehicle concerned in accordance with law and custom, the Tribunal's task is assess the authority holder's likely future conduct. Evidence of past failures to comply with relevant law and custom is relevant to and informs that assessment. I agree with the Agency that law and custom means more that simply the rules of the road applicable to bus drivers, but the lawful requirements and directions that must be observed by them. Custom includes industry standards, including applicable policies of the Agency relevant to the to an authority holder.
The Appeal Panel of the Tribunal in Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 at [37] noted the role public interest considerations play in the assessment of fitness and propriety:
The courts have emphasised the connection that assessment of repute, fitness and propriety have in a regulated context with public interest considerations. Repute, fitness and propriety involve concepts that should not be 'narrowly construed or confined' and may extend to 'any aspect of fitness and propriety that is relevant to the public interest' (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (26 July 1990) at [64] per Mason CJ. ....
Discussion of evidence and findings
The tribunal is satisfied, on the material before the tribunal, as to the applicant's recent criminal convictions for contravention of an apprehended violence order, and the recent s10 bond for a common assault charge. It appears on the evidence that these charges and court results became known to the respondent on data matching being conducted, that is, the applicant failed to notify the respondent as required by the conditions of his taxi driver authority.
The tribunal is also satisfied on the records before the tribunal as to the history of the applicant's authority and prior warnings and suspensions and cancellations, as detailed above. The tribunal received detailed evidence from the applicant in this matter, and in making findings has considered the weight to be given to the applicant's account.
The Tribunal finds that the applicant's evidence was inconsistent about various matters. For example, during the hearing he told the tribunal, in respect of the common assault charge, that he had been sitting peeling fruit when the victim entered his unit, and this is why it had been reported that he had a knife. This contradicts the account provided by his solicitors contained on the respondent's file, as set out above in these Reasons for Decision. When the contradiction was put to the applicant in the hearing he agreed that the account he gave the solicitors was accurately recorded by the solicitors. The tribunal finds that the applicant, in the hearing, gave an account inconsistent with his prior account, and provided no real explanation for the inconsistency.
When the applicant gave evidence in the hearing about the alleged sexual harassment of 2009, he stated that he touched the woman on the leg because she was offering herself to him. This was different to the account given by the applicant in the record of interview in 2009 - at that time he stated that the woman offered herself to him in payment of the fare, and that he refused that offer. He denied touching her leg, or touching her at all.
Given the inconsistencies in the applicant's account, the tribunal finds the applicant's evidence to be unreliable; this conclusion is furthered by the tribunal's finding that some of the applicant's evidence was implausible. For example, the applicant gave clear evidence that he did not recall ever attending the tribunal for proceedings in relation to his taxi driver authority. The tribunal considers it implausible that a person would not recall previously attending a legal hearing, where he had made an application to review a decision where his livelihood (taxi driver authority) was in issue.
Given the unreliability of the applicant's evidence, and given the contradictions in his account of the alleged sexual harassment of 2009, the tribunal does not accept the applicant's version of what occurred with the woman passenger in 2009. The tribunal accepts the passenger's account as detailed in the s58 documents, and as put to the applicant in the record of interview. The tribunal therefore finds that the sexual harassment of the woman passenger, while in the applicant's taxi, in 2009, occurred.
The tribunal has considered the applicant's evidence about the criminal convictions for contravention of the apprehended violence orders. The applicant maintains that the explanation for the second offence of contravening the apprehended violence order, was that he was still married to his wife and believed, wrongly, that he could therefore approach her. The tribunal considers this is not an acceptable explanation for the criminal offence because the tribunal considers that at this time the applicant was on notice of the legal requirements imposed by the AVO upon his conduct, and the strict requirement to observe its conditions, because he had recently been to court, and been sentenced to a bond to be of good behaviour, for a breach of the apprehended violence order. Whilst the applicant also explains that he was jealous and did not think, he also refers to still being married as part of the reason for his actions. Even considering his evidence that he did not think, the tribunal considers that the consequence of contravening the AVO was known to him at the time (criminal conviction, court attendance) but this was insufficient deterrent to the applicant again acting in contravention of AVO. As such he committed the criminal offence, of contravening the apprehended violence order, while on a good behaviour bond for a recent conviction for the same offence.
The applicant would have known that it was an offence to approach his wife in contravention of the apprehended violence order, as he had recently attended court for contravening the order, and would have had that explained to him at that time. He was clearly on notice of the requirement not to approach his wife, and the consequences if he did so, yet he chose to again approach his wife in breach of the order.
The tribunal finds that the history of the applicant's taxi driver authority includes a history of complaints, of warning letters, suspension and cancellation of his authority. There is a history of the applicant continuing to conduct himself in a way which is improper, and inconsistent with proper performance of the regulated activity of an authorised taxi driver. In particular, the applicant's authority was cancelled in 1999, and in 2009, for similar improper conduct, being sexual harassment of female passengers. (Whilst the 2009 cancellation was varied on internal review to suspension, it was initially a cancellation decision, and the penalty of suspension, which also removed the applicant from being a driver, was imposed).
The tribunal on review of the 1999 decision, in 2000, did not believe the applicant's account, and found the sexual harassment substantiated. In the current matter, as detailed above, the tribunal has found the 2009 complaint of sexual harassment substantiated. Whilst this complaint is not the subject of the current decision, the 2009 cancellation/suspension decision was referred to in the Notice to Show Cause issued to the applicant prior to the current decision being made. The Notice to Show Cause was issued because data matching had disclosed the outstanding charge (at that time) for the second contravention of the AVO.
The authorities referred to above indicate that the history of complaints is a relevant matter for the tribunal to consider when determining whether the tribunal can attest to the applicant being of good repute and a fit and proper person to be authorised to drive a taxi. The complaints history is also relevant to a determination of whether the tribunal can attest that the applicant has sufficient responsibility and aptitude to drive a taxi-cab in in accordance with the conditions under which the taxi-cab service concerned is operated, and in accordance with law and custom.
In relation to the complaints history, and the history of the applicant's authority, it is notable that in 2011 the applicant was issued with a warning, in November 2010, in relation to the 2010 offence, that his authority may be cancelled for further misconduct, and the applicant subsequent to this warning was convicted of two further criminal offences. The first offence occurred in July 2011, within 8 months of the respondent's warning.
The tribunal considers that the complaints history has particular relevance in the present matter, to the determination which the tribunal is required to make: Its particular relevance is that the history indicates that the applicant fails to learn from his mistakes and fails to modify his behaviour, and this was a finding also made by the tribunal in 2000.
The complaints history indicates the failure of the applicant to change his behaviour, and, the second offence of contravening the apprehended violence order similarly indicates an inability/failure of the applicant to amend his behaviour. A more serious interpretation open to the tribunal on the evidence is that the applicant acted in disregard of the law when he again breached the apprehended violence order. The tribunal finds that the evidence indicates that there is a probability that the applicant will continue to act in contravention of law, and in breach of the proper behaviour of a taxi-driver. In so finding the tribunal has considered the evidence that the applicant was convicted of a further criminal offence, of breaching the apprehended violence order, soon after attending court for a similar offence, and that he was on a bond at the time of the second offence to be of good behaviour.
In making this finding, the tribunal has also considered and given weight to the evidence that the recent offences, of contravening an apprehended violence order, occurred during a stressful time with the breakdown of the applicant's marriage and diagnosis of a serious health condition. The tribunal has given weight to these background circumstances and to the report of the psychologist. It is clear that psychological reports were put before the court at the time of sentencing, and the applicant was placed on a good behaviour bond.
The applicant gives evidence that he is continuing therapy with his psychologist and provides a report. The tribunal has given weight to this report, however, notes the applicant's different evidence about his attendance at appointments with the psychologist between the first and second hearing. In the first hearing he stated that he had an appointment booked every second week but did not always attend. At the second hearing he said he attended every second week and is engaged in active therapy. The tribunal found these two accounts slightly different which could give some concern as to his commitment to the therapy. The tribunal does however find that the applicant has decided to accept the separation from his wife and has now divorced her according to his religion. The tribunal considers that this lessens the possibility of further offences of contravening the apprehended violence order.
However, on the evidence the tribunal finds that the applicant fails to learn from his mistakes and modify his behaviour - noting the repeated offences for contravening the apprehended violence order and noting the repeated incidents of sexual harassment of female passengers, in incidents ten years apart
The tribunal further finds, on the applicant's evidence at the hearing, that the applicant has not acknowledged his responsibility for the improper conduct, or criminal offending, nor expressed genuine remorse. While his written statement made some statement of remorse his oral evidence at the hearing was not to this effect, and the tribunal was not satisfied that the applicant does take responsibility for these matters.
The repetition of a criminal offence soon after the applicant has been convicted of a similar offence and whilst on a good behaviour bond, causes the tribunal to have concern as to the applicant's ability to comply with laws and court orders. Given such non-compliance, the tribunal cannot attest to the applicant having sufficient responsibility to drive a taxi in accordance with law and custom. On this basis the tribunal finds that the correct and preferable decision on the evidence and according to law, is that the applicant's application for authority to drive a taxi be refused and the decision of the respondent affirmed.
The tribunal is also unable to attest that the applicant is a fit and proper person to be authorised. The tribunal is not satisfied that the improper conduct which has been detailed in these Reasons for Decision will not reoccur.
The legislative provisions, and case law set out above, indicates that in deciding this matter I must have regard to the purpose of the authority, namely I must be able to attest to the Applicant's repute and fitness and propriety, and that he is considered to have sufficient aptitude and responsibility to drive a taxi cab in accordance with law and custom. I agree with the authorities set out above, that in considering the requirement that an authority holder have sufficient responsibility to drive the vehicle concerned in accordance with law and custom, the Tribunal's task is to assess the authority holder's likely future conduct. Evidence of past failures to comply with relevant law and custom is relevant to and informs that assessment. I also note that in deciding whether I can attest that the applicant is of good repute and a fit and proper person to perform the regulated activity (taxi driver) I must be able to attest to his honesty, responsibility and aptitude, and where there is past improper conduct, I need to consider whether the public can have confidence that the improper conduct will not reoccur.
For reasons detailed above I am not satisfied that the past improper conduct will not recur and given the improper conduct to passengers, including sexual harassment of female passengers, and the recent criminal offences, including committing a further offence while on a good behaviour bond for a similar offence, I cannot attest that the applicant is a fit and proper person to be authorised to drive a taxi cab.
Accordingly I find that the correct and preferable decision, on the material before the tribunal and according to law, is that the decision of the respondent be affirmed.
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Decision last updated: 20 June 2013
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