Gofur v Ministry of Transport

[2006] NSWADT 151

CITATION:	Gofur v Ministry of Transport [2006] NSWADT 151
DIVISION:	General Division
PARTIES:	APPLICANT Mohammad Abdul Gofur RESPONDENT Ministry of Transport
FILE NUMBER:	053156
HEARING DATES:	20/12/2005 & 17/01/2006
SUBMISSIONS CLOSED:	01/18/2006
DATE OF DECISION:	05/23/2006
BEFORE:	Molony P - Judicial Member
CATCHWORDS:	Passenger Transport Act - taxi driver - grant of authority - Taxi driver - grant of authority
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Passenger Transport (Taxi-Cab Services) Regulation 2001 Passenger Transport Act 1990 Road Transport (General) Act 2005
CASES CITED:	Abouhassoun -v- Director General, Department of Transport [2001] NSWADT 193 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Briginshaw v Briginshaw (1938) 60 CLR 336 Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 Farquharson -v- Director General, Department of Transport [1999] NSWADT 53 Jones v Dunkel (1950) 101 CLR 298 Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 Re T and Anor and the Director of Youth and Community Services [1980] 1 NSWLR 392
REPRESENTATION:	APPLICANT In person RESPONDENT A Wozniak, solicitor
ORDERS:	1.The decision of the Director-General to refuse Mr. Gofur’s application for a renewal of his authority to drive a taxi-cab is affirmed

Introduction

1 Mr. Gofur has held an authority to drive a taxi-cab under the Passenger Transport Act 1990 since October 1992. He also holds a taxi operator accreditation which is not the subject of consideration in this proceeding.

2 On 4 October 2004 the Director-General determined to vary Mr. Gofur’s authority so that it would expire on 30 March 2005, rather than the original expiry date of 29 October 2005. In doing so, the Director-General had regard to records of complaints made against Mr. Gofur in the course of his career, which include a convictions and fines of $500 each for offences of incivility and failing to carry out a hire punctually recorded on 4 August 1999. The decision was also based on Mr. Gofur’s driving record as disclosed by records produced by the RTA, and a series of episodes in 1993 when Mr. Gofur had logged that he was on a rank when that was not the case. In the letter advising him of this decision Mr. Gofur was asked to return his authority card, so that a new one showing the varied expiry date could be issued.

3 Mr. Gofur sought an internal review of that decision. On 6 December 2004 an internal review officer affirmed the decision. Mr. Gofur then applied to this Tribunal to review that decision. His application for a stay of the decision was refused on 15 February 2005, and the hearing of the appeal was fixed for 31 March 2005. That hearing proceeded, but was adjourned part-heard to 4 May 2005.

4 Due to the passing of time the utility of the appeal was subsumed by subsequent events. Because his authority was due to expire on 30 March 2005, he applied for a renewal of the authority. On 29 April 2005 the Director-General determined to refuse Mr. Gofur’s application for a renewal of his authority to drive a taxi-cab.

5 On 4 May 2005 Mr Gofur withdrew his application to have the Tribunal review the decision to vary his authority, because the subsequent refusal was now the matter of contention. He lodged an application with the Tribunal to review that decision. On 5 May 2005 he sought an internal review of the decision to refuse his application for a renewal of his authority to drive a taxi-cab. On 11 May 2005 that decision was affirmed on internal review.

6 In reaching that conclusion the internal review officer adopted the findings of fact in relation to the initial decision to vary the term of Mr. Gofur’s authority. Additionally, the review officer found that Mr. Gofur’s driver’s licence had been suspended from 18 May 2004 to 9 August 2004 for fine default, during which time he had driven and incurred two infringements for exceeding the speed limit in doing so. His licence had also been suspended from 24 September 2004 to 24 December 2004 because of accumulated demerits. The review officer found that Mr. Gofur had continued to drive a taxi-cab up to and after his licence was seized by Police on 24 November 2004. As a consequence the review officer found that Mr. Gofur is not of good repute and is a fit and proper person to drive a taxi-cab. As a result, his application for a renewal of his authority was refused.

7 The hearing of the appeal to review that decision was first listed for hearing on 20 December 2005. Mr. Gofur appeared in person. He relied on a statement he had filed in the earlier proceedings before the Tribunal with respect to the matters which were he subject of the decision to vary the term of his authority. With respect to the finding of the review officer that he had been driving a taxi-cab while his licence to drive was suspended, Mr. Gofur said that he had not been notified that his licence had been suspended. He did not dispute that Police has seized his licence on 24 November 2004, but said he had not driven again while the licence was suspended. He said that other drivers had driven his taxi and that he had driver work sheets to prove it.

Legislation

8 Section 33 of the Passenger Transport Act 1990 empowers the Director-General to issue authorities to drive taxi-cabs. Sub-section (3) sets out the purpose of such an authority:

“(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.”

Section 33F empowers the Director-General, having regard to the purpose of authorities, to vary, suspend or cancel an authority. Section 33B empowers the Director-General, having regard to the purpose of authorities, to grant or refuse an application for an authority.

9 The Tribunal’s jurisdiction to review a decision made under these provisions is found in s.52 of the Passenger Transport Act 1990.

Outline of the Evidence

10 Mr. Gofur had produced to the Director-General driver worksheets and rosters for a number of taxis which he operates: all of which relate to the use of taxis during 2004, and only some of which applied to the periods when his drivers licence was suspended. For T1697 there were 15 driver worksheets covering the period 18 May 2004 to 24 November 2004 inclusive: for T3252 there were eight driver worksheets covering the period 31 May 2004 to 3 November 2004 inclusive, and for T7320 there were 23 worksheets covering the period 21 May 2005 to 14 December 2004 inclusive. The fact that the worksheet records do not cover all shifts worked in these periods is obvious.

11 With respect to T1697, the worksheets show Mr. Gofur driving two of the 15 shifts for which there are worksheets, on 6 and 8 June 2004. For T3252, the worksheets show Mr. Gofur driving two of the eight shifts for which there are worksheets, on 5 August 2004 and 6 August 2004. For T7320, the worksheets show Mr. Gofur driving four of the 23 shifts for which there are worksheets, on 16 June 2004, 7, 10 and 12 October 2004. Logged activity records for T7320 show that a driver using Mr. Gofur’s driver identity number (18547) was logged on as operating the taxi on the following dates: 5, 7, 8, 10, 12 to early 13, and 21 to early 22 October 2004, 4, 16 to early 17, 18 and 24 November 2004. For many of these dates there are logged GPS reports which demonstrate that the taxis were moving around the city while driver identity number 18547 was logged on. Driver sign on and off data for driver identity number 18547 shows that during the licence suspension period from 18 May 2004 to 9 August 2004 Mr. Gofur’s driver identity number was used to sign on and off for 41 shifts. For the second licence suspension period, from 24 September 2004 to 24 December 2005 Mr. Gofur’s driver identity number was used to sign on and off for 15 shifts, including two very short sign on/sign offs after 24 November 2004 of not more than a minute.

12 The driver sign on and off data for 24 November 2004 show two log on/offs for that day for driver identity number 18547 in T1697: from 0055 to 0251, and from 1639 to 1703. Records produced by the RTA show that at 1551 on that day Mr. Gofur was intercepted by Senior Constable Snowden and issued with a traffic infringement notice while driving Taxi T1697. RTA records reveal that at this time Mr. Gofur’s licence was seized and he was advised, “not to drive due to demerit point suspension.”

13 RTA records show that Mr. Gofur has an accumulated an extensive record of traffic offences. From the date he first obtained his licence in 1991 up to August 2005 there are 21 traffic offences recorded, the majority for speeding. These have resulted in an accumulation of 46 demerit points, and five periods of suspension for both fine defaults and accumulated demerits. Since Mr. Gofur’s driver authority was varied on 4 October 2004, the RTA records show four further speeding offences resulting in fines, and one offence of driving an unregistered vehicle (on 6 August 2004). This was found proved by the Local Court at Burwood on 1 February 2005, but dismissed pursuant to s.10 of the Crimes (Sentencing Procedure) Act 1999.

14 The Director-General also relied on a series of certified documents produced by the RTA, all of which were the subject of a certificate certifying that they were correct, issued under section 230 of the Road Transport (General) Act 2005. Among the documents were letters to Mr. Gofur (at the same address as that shown on his application to the Tribunal) advising him of the two 2004 licence suspensions. There is also a notice of a demerits point suspension for three months commencing on 20 September 2005, dated 16 August 2004.

15 In his statement Mr. Gofur explained that he also holds an accreditation as a taxi operator, and presently operates seven taxis. He estimates that he has had more than 100 employees. With respect to his traffic record he said:

As all of the taxis have been under my accreditation and I have had the registration plates in my name all of the fines that have been made against me, have mainly been from employee drivers have committed those traffic offences. The result of these fines has given me a bad traffic history for things which are not my fault from after 2000.

…

During my professional driving history I have driven personally an average of driving 300 kilometres per day over a six day week which is 1,800 kilometres per week since 1992. My other drivers drove the taxis about the same average that I did. I found very difficult to keep a perfect driving record when I drive this much, however if I am granted the return my driver authority then I will do all I can to minimize further fines.

16 In his application for renewal of his authority Mr. Gofur answered no to a question directed to whether he had any driving offences recorded against him. Unfortunately, the materials before the Tribunal do not include a copy of that application. With respect to his failure to disclose in the application for renewal of his authority that that the Local Court at Burwood had found the charge of driving an unregistered vehicle proved, but dismissed it under s.10, Mr. Gofur said:

I ticked on the application that I had not been convicted or found guilty of any recent offence. I have ticked "no" because the matter which came before the Burwood Court was dismissed by way of Section 10. I did not understand that a section 10 implies that legally the offence was proven. I just understood it was dismissed. I represented myself on that occasion. I did not understand that even though the charge was dismissed I should have ticked "yes".
In written submissions to the review officer Mr. Gofur explained that when he was apprehended in August 2004 the taxi he was driving was not for hire.

17 In regard to the finding by the review officer that he had driven while his drivers licence was suspended Mr. Gofur said:

I was not aware that I had been suspended from driving during October and November 2004. I never received the fine from the RTA. I was informed by the police of that matter on 14 November 2004. I did not drive after that time. I deny that I had logged into the system to drive, I understand that I have been alleged to have keyed in my pin number in the taxis whilst suspended from my driving authority. In relation to those matters I can say as follows; My taxi 7320 was over six and a half years old. I bought new Ford and I was changing the TCS from old T7320 to the new T7320. The car was off the road for one month from mid October to 14 December 2004. This car was registered on 14 December 2004. After registration I informed TCS that my car is registered. I attended the office of Geoff, compliance and regulations officer for TCS at the Alexandria office. I showed him the new registration papers. I did not drive the car. The only time I am aware that this car was driven was by Abdul Hadi my employee driver. I have provided all my driver work sheets to the Department since this incident.

18 During the course of the hearing on 20 December 2005 Mr. Gofur insisted that many of the fines were not his, and that he had not driven as often as the sign on/sign off data indicate. He said that he had driver worksheets to prove that other drivers were driving at the relevant times. In response to a comment from Mr Wozniak for the Director-General that Mr. Gofur had not produced those records, Mr. Gofur told me that they were at home. I spent some time with Mr. Gofur confirming that he had relevant records at home, which he had not given to the Director-General. Because Mr. Gofur was unrepresented and unfamiliar with Tribunal processes, fairness required that I give him the opportunity to produce those records. I therefore adjourned the hearing to 17 January 2005.

19 At that adjourned hearing Mr. Gofur told me that he had no records at home. He said that he had provided all relevant worksheets to the Director-General.

Findings of Fact

20 Mr. Gofur claims not to have received either of the two notices of suspension of his licence which the RTA sent him in 2004. While I accept that mail can and does go astray, it strikes me as highly improbable that two notices advising of suspension of a licence should go astray in a period of six months. One notice going astray may be explicable: two within six months stretches credulity. This is especially so in the present context where there is ample evidence that Mr. Gofur drove during both periods of suspension, and the only excuse readily available to him is to deny knowledge of the suspensions. I do not accept that he did not receive the notices of suspension, and am comfortably satisfied that he did. I reach that conclusion on the standard of proof discussed in Briginshaw v Briginshaw (1938) 60 CLR 336.

21 Mr. Gofur maintained that that the driver worksheets demonstrated that he was not driving the vehicle as alleged by the Director-General, both during periods of suspension and when various traffic offences were attributed to him. Clause 38 of the Passenger Transport (Taxi-cab Services) Regulation 2001 requires each driver of a taxi-cab to complete a worksheet each shift. Clause 31 requires taxi operators such as Mr. Gofur to keep those records for at least two years, and to produce them as required by the Director-General. The worksheets produced by Mr. Gofur are manifestly incomplete. During the hearing on 20 December 2005 he maintained that he had additional worksheets at home which backed his case up. When given the opportunity to do so, he failed to produce them. On 17 January 2006 he told me that he had produced all records to the Director-General, including those which would demonstrate that he was not driving when traffic offences were recorded against him. I do not accept that the Director-General has failed to provide the Tribunal with relevant worksheets. The materials relied on by the Director-General are comprehensive and complete. Rather, I infer that the worksheets which Mr. Gofur has not produced would not assist his case: Jones v Dunkel (1950) 101 CLR 298.

22 I reject Mr. Gofur’s claim that the road traffic offences incurred against his licence after 2000 are not his fault, but that of other drivers. Where road traffic offences are detected by camera, the owner of the vehicle concerned when receiving a traffic infringement notice has the opportunity to deny that he or she was driving and to nominate who was driving. As Mr. Gofur pointed out in his statement incurring fines for traffic offences is something of an occupational hazard for taxi drivers. Equally, ensuring that one does not pay the fines or suffer the demerit points incurred by drivers is an important consideration for taxi operators such as Mr. Gofur. Among other things, this is one of the uses of driver worksheets which are required to be completed by each driver of a taxi-cab during every shift: clause 38 of the Passenger Transport (Taxi-cab Services) Regulation 2001. It strikes me as highly improbable that Mr. Gofur, as a taxi operator, would elect to take on the penalties levied against his drivers. This when considered in the light of his failure to produce any driver worksheets supporting this assertion leads me to reject his denials. I am therefore satisfied that the traffic offences appearing on his record form 2000 onwards are his.

23 The driver worksheets produced by Mr. Gofur show that during the period of licence suspension from 18 May 2004 to 9 August 2004 he drove seven shifts. The driver sign on/off data shows that in the same period a person using his driver identity number logged on an off for a total of 41 shifts. That log on/off data includes the dates for which Mr. Gofur has produced driver worksheets showing he was working, although the times recorded do not exactly correspond. They do however over lap. For example on 7 June 2004 there is a worksheet showing Mr. Gofur did a shift in T1697 from 5:00pm to 1:00am the next morning. The sign on/off data has a person using his driver identity number logging on in T1697 at 2157 and off at 0109 on 7 June 2004. It is also apparent from the logged activity records that other drivers of Mr. Gofur’s taxis regularly log on and off the system using their own driver identity numbers. Mr. Gofur’s explanation that other drivers used his driver identity number does not equate with the correspondence between his driver worksheets and the logged activity. I am comfortably satisfied that that the records of a person logging onto and of the system using his identity number show the times when Mr Gofur was driving the taxis during this period of licence suspension. I am satisfied he drove knowing that his licence was suspended.

24 I am also satisfied that Mr. Gofur drove an unregistered vehicle on 6 August 2004, and that a charge of driving an unregistered vehicle on that day was found proven by the Local Court at Burwood but dismissed under s.10 of the Crimes (Sentencing Procedure) Act 1999.

25 For the suspension period 24 September 2004 to 24 December 2004, the driver worksheets produced by Mr. Gofur show him driving T7320 for three shifts in that period on 7, 10, and 12 October 2004. There is again a correspondence between those worksheet records and the logged sign on and off data of a person using Mr. Gofur’s driver identity number, for 15 shifts in this period. The GPS logs make it clear that the taxis were being driven during some of these shifts. As an example, on 7 October 2004 the worksheet shows Mr. Gofur’s shift starting at 6:30pm and finishing at 2:10am the next day. The sign on/off data shows a person using his identity number logged on at in T7320 at 1833 and off at 0109 the next morning. The GPS logs make it clear that the taxi was being driven during this shift. For the same reasons as those discussed above with respect to the first period of suspension, I am comfortably satisfied that the logged records reflect the amount of driving Mr. Gofur did during this period of suspension, and that he drove his taxis knowing his drivers licence was suspended.

26 The records show that a person using Mr. Gofur’s driver identity number signed on in T1697 at 1639 on 24 November 2004 and off at 1703. This is less than an hour after Mr. Gofur was intercepted by Police driving T1697 at 1531, had his licence seized, and was told not to drive. In the time the driver was logged on the logged activity records show that T1697 accepted and undertook a job in Botany. No GPS records are available for this date. Nonetheless, I am comfortably satisfied that the person who logged on in T1697 using Mr. Gofur’s driver identity number was Mr. Gofur, and that he drove T1697 having had his licence seized by Police and after being warned not to drive.

27 I also note that among the worksheets produced for T1697 is one showing that D Singh drove the vehicle from 4:30am to 3:00pm on 24 November 2004. I do not consider that this worksheet is in conflict with the fact that Mr. Gofur was detected by Police driving the taxi-cab at 3:31pm.

28 I accept that the records show no driving by Mr. Gofur during the second period of suspension after 24 November 2004. There are two very short log ons in December, of very short duration, which are not sufficient to persuade me that Mr. Gofur was driving at that time.

The Law

29 The issue to be determined in this case is whether Mr. Gofur meets the requirements of s.33 of the Passenger Transport Act 1990 for the holder of an authority to drive taxi-cabs, in terms of being of “good repute”, being a “fit and proper person” and having the requisite “responsibility and aptitude”. These are distinct concepts which require separate consideration: Abouhassoun -v- Director General, Department of Transport [2001] NSWADT 193; Re T and Anor and the Director of Youth and Community Services [1980] 1 NSWLR 392.

30 “Good repute” refers to the view others take of a person, their reputation within the community. 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 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 can not 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.

31 The meaning of "fit and proper" is dependent on the nature and purpose of the activities which the person will undertake. In Australian Broadcasting Tribunal v Bond (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.
In the past the Tribunal and the Appeal Panel have frequently cited with approval the test posed by the equivalent ACT Tribunal dealing with an equivalent legislative scheme in Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 per Curtis P:
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 ... to rehabilitate himself, would object to the applicant as the driver of the taxi.

32 In Farquharson -v- Director General, Department of Transport [1999] NSWADT 53, O’Connor DCJ, President, said:

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).

33 With respect to his record of traffic offences, while I accept that traffic offences are somewhat of an occupational hazard and incident of taxi driving, Mr. Gofur’s accumulated record of offences is extensive. The offences concerned are of a mixed nature, involving lesser and more serious speeding offences and camera detected traffic signal offences. They are not of themselves, sufficient to persuade me that he is not a fit and proper person.

34 I am satisfied that Mr. Gofur has driven a taxi during periods when he knew that his drivers licence was suspended on numerous occasions in 2004. This conduct has occurred within the regulated environment of the taxi industry, and with disregard for the laws which govern the industry. I am satisfied that the pattern of driving during periods of suspension demonstrated by the evidence cannot be accounted for by inadvertence, or other exculpatory explanations. The evidence points to a pattern of continued driving of taxis when Mr. Gofur knew his drivers licence was suspended. The pattern so demonstrated is sufficiently serious for me to conclude, without more, that Mr. Gofur is not a fit and proper person to hold an authority to drive a taxi-cab. When his driving record is also considered, that conclusion is reinforced. I have no doubt that a member of the public, knowing what Mr. Gofur has done in terms of driving a taxi while his driver’s licence was suspended and knowing his driving record, would object to Mr. Gofur as a taxi driver.

35 There are other issues which were raised by the evidence. These concern complaints going back over a number of year which Mr. Gofur denies, and his failure to tell the Director-General, when applying for the renewal of his authority, about the fact the offence of driving an unregistered vehicle had been heard in the Local Court at Burwood, and found proved but dismissed under s.10 of the Crimes (Sentencing Procedure) Act 1999.

36 Given the conclusion I have reached that Mr. Gofur is not a fit and proper person to hold a taxi-drivers authority, I see little merit in reviewing the complaints.

37 With respect to the allegedly false answer in the application for renewal of Mr. Gofur’s driver’s authority, the application in which Mr. Gofur is said to have given an incorrect answer is not among the materials before me. Without knowing the precise from of the question Mr. Gofur answered, and what precisely he wrote, I do not think it would be fair or proper to embark on a consideration of that issue. I have considered whether I should reconvene to seek that evidence, but, given the conclusion I have already reached, think that no benefit would flow from doing so. It is, I think, preferable to reach no conclusion on that issue.

Conclusion

38 The decision of the Director-General to refuse Mr. Gofur’s application for a renewal of his authority to drive a taxi-cab is affirmed.