Gomes v Ministry of Transport

[2008] NSWADT 303

CITATION:	Gomes v Ministry of Transport [2008] NSWADT 303
DIVISION:	General Division
PARTIES:	APPLICANT Paul Gomes RESPONDENT Ministry of Transport
FILE NUMBER:	083242
HEARING DATES:	4 November 2008
SUBMISSIONS CLOSED:	4 November 2008
DATE OF DECISION:	12 November 2008
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Passenger Transport Act - taxi driver - cancellation of authority
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990 Passenger Transport Regulation 2007
CASES CITED:	Saadieh v Director General, Department of Transport [1999] NSWADT 68 Smith v Ministry of Transport [2008] NSWADT 136
REPRESENTATION:	APPLICANT In person RESPONDENT A Wozniak, solicitor
ORDERS:	1. The decision to cancel the applicant’s authorisation to drive a taxi-cab is set aside. In its place I make the determination that the applicant’s authority is suspended for a period of three-months 2. Pursuant to Clause 43(1)(b) of the Passenger Transport Regulation 2007 the applicant is required to undertake and satisfactorily complete a public passenger vehicle driver training refresher course approved by the Director-General of the Ministry of Transport and conducted by a registered training organisation.

Background

1 The applicant holds a driver authority under the Passenger Transport Act 1990 (“the Act”). By a Notice of Decision dated 8 July 2008 a delegate of the Director General of the Ministry of Transport advised the applicant that the respondent had determined to cancel the applicant’s driver authority. This determination followed the issue of a Notice to Show Cause to the applicant. The Notice to Show Cause, dated 3 June 2008, invited to the applicant to make submissions in relation to a number of matters set out in the attached Statement of Reasons. The applicant had provided written submissions in reply to that invitation and these were taken into account as part of the determination process.

2 The applicant sought an internal review of that determination. The internal review affirmed the original determination to cancel the applicant’s driver authority.

The Notice to Show Cause

3 The statement of reasons provided to the applicant as an annexure to the Notice to Show Cause identified the following complaint history:

“Complaint History

15/5/2008

A complaint was received by the Ministry of Transport from a female passenger who stated she had travelled from Chalmers Street, Surry Hills to Kent Street Sydney, in taxi T056. During the journey the driver engaged the passenger in a conversation of a sexual nature, he ignored her directions as to the route to travel and at the end of the journey charged a fare of $25.00. The passenger travels the same route several times per week and the fare ranges from $9.00 to $18.00. TCS Network identified the driver as Mr Paul Gomes, driver authority GP6605.

You were interviewed by Ministry of Transport officers and an electronic record of interview was conducted.

14/5/08

A complaint was received by TCS Network from a male passenger who stated that at 9.25am he was approached by the driver of taxi T056, the driver asked if he wanted to share the taxi with a female passenger who was already on board. The female passenger left the taxi at the end of her journey and was charged a fare of $25.00, the male passenger continued his journey and was charged a fare of $37.00 This passenger had travelled the same journey on past occasions and the fare came to $25.00. The driver was identified as Paul Gomes, driver authority GP6605.

You were interviewed by TCS, you denied the allegation and you we reprimanded.

27/4/2008

A complaint was received by the TCS Network from a female passenger who stated that she travelled in taxi T6161 at 8.45am from Putney to the Domestic Airport. At the airport the fare requested, including service fees amounted to $105.45. An estimate of the fare conducted by TCS realised a fare of $54.00 plus tolls and service fees. The driver was identified as Paul Gomes driver authority GP6605.

You were interviewed by TCS and stated the journey was lengthy due traffic conditions. No action was recorded.

22/1/2008

A complaint was received by the TCS Network from a male passenger who stated that he travelled in taxi T3238 at 2.30pm from The Ridges Hotel, Sydney to Sydney Domestic Air Terminal. Just prior to the completion of the journey the passenger observed the meter to show a fare of $22.50 and at the completion of the journey the driver demanded $44.00. The passenger argued the fare was usually in the range of $20.00 to $25.00. The driver was handed a $50.00 note in payment of the fare and he declined to offer any change. The driver was identified as Paul Gomes driver authority GP6605.

You were interviewed by TCS and denied the allegations. Nevertheless you refunded the sum of $50.00 to the complainant. The matter was recorded for future reference.

1/10/2007

A complaint was received by the TCS Network from a male passenger who stated that he travelled in taxi T3238 at 5.15am from Killara to the Domestic Air Terminal, Mascot. During the journey the passenger observed the driver appeared to be sleepy and engaged him in conversation to keep him focussed on driving. At the completion of the journey the driver demanded a fare of $96.00 the passenger believed he had been overcharged by $30.00 and when he argued with the driver he was given the explanation that he was charged the night fare. The driver was identified as Paul Gomes driver authority GP6605.

You were interviewed by TCS and you stated you had been unwell but not tired, you stated the fare had been $47.50 plus EFTPOS surcharge of 11%. You refunded $15.00 to the passenger. You were reprimanded by the network.

24/10/2007

A complaint was received by the TCS Network from a male passenger who stated that he travelled in taxi T3238 at 9.50am from the International Airport, Mascot, to Maroubra. During the journey the driver refused to travel by the route requested by the passenger. At the completion of the journey the driver demanded a fare of $35.95, the passenger believed he had been overcharged as the same journey the airport had cost him $25.00, when he asked the driver for a receipt the driver asked, 'how much do you want to pay?' The passenger further alleged the driver was rude to him. The driver was identified as Paul Gomes, driver author GP6605.

You were interviewed by TCS and denied the allegations stating that you drove by the passengers directions. No action was recorded.

1/6/2007

A complaint was received by the TCS Network from a male passenger who stated that he travelled in taxi T4032 from the Domestic Air Terminal, Mascot, to the Mariott Hotel, Sydney. During the journey the driver engaged the passenger in inappropriate conversation and at the completion of the journey demanded a fare of $50.00. The driver was identified as Paul Gomes, driver authority GP6605.

You were interviewed by TCS and claimed you travelled the journey at the direction of the passenger. A refund was forwarded to the passenger. No further action was recorded.

13/5/2007

A complaint was received by the TCS Network from a female passenger who stated that she travelled in taxi T4032 from the City to Pennant Hills. The passenger alleged the driver would not follow her directions for the journey and exceeded the speed limit travelling at speeds of up to 110 K.P.H. At the completion of the journey the driver demanded a fare of $95.00 and he refused to take payment for the entire fare by credit card as he stated he needed cash to pay for gas, the fare was paid by cash and card. The passenger believed the fare was excessive. The driver was identified as Paul Gomes, driver authority GP6605.

You were interviewed by TCS and claimed that you could not recall the fare. You were reprimanded.

8/5/2007

A complaint was received by the TCS Network from a male passenger who stated that he travelled in taxi T4032 from Sydney to Wheeler Heights. The passenger alleged at the completion of the journey the meter showed a fare of $52.00, he handed the driver a CabCharge voucher and he claimed a fare of $68.20. The passenger stated that when he spoke to the driver about the claimed fare the driver yelled at him to get out of the cab. The driver was identified as Paul Gomes, driver authority GP6605.

You were interviewed by TCS and you claimed the metered fare was $62.00 plus service fee. No action was recorded.

28/4/2007

A complaint was received by the TCS Network from a female passenger who stated that she and her husband travelled in taxi T4032 from Moore Park to the City. The passenger alleged the driver declined to travel by their preferred route, the Eastern Distributor, as he stated he had insufficient credit on his e-tag account. Towards the completion of the journey the driver refused to leave the passengers at a location they requested and by doing this they encountered heavy traffic. At the completion of the journey the driver demanded a fare of $35.00, which is $7.00 more than they usually pay. The driver was identified as Paul Gomes, driver authority GP6605.

You were interviewed by TCS and you claimed you advised the passengers you had insufficient credit on your E-tag account prior to commencing the journey. No action was recorded.

5/3/2007

The Ministry of Transport received a complaint from a female passenger who stated that she travelled in taxi T5645 from Kings Cross to Crown Street Surry Hills. The passenger alleged that during the journey the driver had informed her that other passengers had paid for fares by having sex with him and suggested that she could do the same if she wished. At the completion of the journey the driver gave the passenger his mobile telephone number and took hold of her hair and attempted to kiss her. The Legion Network identified the driver as Paul Gomes, driver authority GP6605.

You were interviewed by Ministry Officers and denied the allegations. No action was taken.

29/11/2006

A complaint was received by the RSL Network from an anonymous male passenger who alleged that he had travelled in taxi T242 from Sydney to West Pennant Hills. The passenger alleged he had requested the driver to travel along the M2 motorway but the driver missed the turn and continued the journey through residential areas. At the completion of the journey the driver demanded a fare of $110.00, the passenger believed the fare should have been within the region of $60.00 to $70.00. The driver was identified as Paul Gomes, driver authority GP6605.

You were interviewed by RSL and admitted that you missed the entry to the M2 by mistake. No action was recorded.

10/11/2006

A complaint was received by the Legion Network from a female passenger who stated she had travelled in taxi T720 from Coogee to the City. The passenger alleged the taxi she had travelled in had originally been booked for another passenger but the driver indicated that person had not attended for the fare and offered her his taxi. When the passenger entered the taxi she observed the meter was showing $8.00, the driver stated he had started the meter when he had arrived for his original passenger and he refused to restart it. During the journey the driver asked the passenger a number of personal questions. At the completion of the journey the driver made the passenger pay the $8.00 which had been on the meter at the commencement of the journey. The driver was identified as Paul Gomes, driver authority GP6605.

You were interviewed by the Legion Network, the complaint was considered justified and you were given a 7 day shift suspension.”

The internal review

4 The statement of reasons provided to the applicant in regard to the internal review determination stated:

“Reasoning Process that led to the Decision

Pursuant to section 33F of the Act, in determining to cancel a driver authority, regard must be had to the purpose of the authorisation. The purpose of the authorisation requires me, as the internal reviewer, to be able to attest to Mr Gomes being of good repute and in all other respects fit and proper to drive a taxi-cab.

The concepts of 'good repute' and 'fit and proper' require separate consideration. The concepts of 'good repute' goes to the way in which a person is regarded by others in the community (fairly or unfairly). I note that a number of testimonials were provided in support of the notice to show cause. These references deal with customer service issues and do not record knowledge of the complaints. They are probably designed more to rebut the complaints than be a testimonial of reputation. On the whole, I cannot attest to Mr Gomes being a person of good repute.

The concepts of 'fit and proper' is one of the intrinsic nature of a person. Whether the person is possessed of sufficient moral rectitude and character as to permit the person to be safely accredited to the public, without further inquiry, as a person who is to be entrusted with the responsibility to be a taxi-cab driver.

Mr Gomes's complaint record is poor. In relation to the most recent complaint of 15 May 2008. I note that this involved an allegation of improper sexual comment and overcharging. Overcharging is a regular theme in the complaints made against Mr Gomes and his explanation given to the notice to show cause suggest that alternately, there is never any overcharging, the customers are wrong or if there is overcharging, the excess is repaid. I find this submission to be unpersuasive and the conduct of Mr Gomes is inconsistent with the standard of customer service required of a driver.

Mr Gomes requests that I take into account his difficult financial position. I note this, but afford it little weight, particularly as this is not a matter I am required to have regard to under section 33(3) of the Act. However, I do give some weight to the testimonials, but these are balanced against the frequency and seriousness of the complaints.

Finally, I consider that a member of the public, travelling in a taxi-cab driven by Mr Gomes and being aware of complaints known to me, would object to Mr Gomes being authorised to drive that taxi-cab.”

The external review

5 The applicant applied to the Tribunal for review of the determination to cancel his driver authority and applied for a stay of the decision under section 60(2) of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”).

6 The matter came before the Tribunal’s President on 19 August 2008. On that date the President granted a stay of the decision to cancel the applicant’s authority. The matter was ultimately heard on 4 November 2008 and I reserved my decision.

Relevant legislation

7 Division 5 in Part 4 of the Act makes provision for authorisation to drive taxi-cabs. The purpose of authorisation is set out in section 33 of the Act:

33 Authorities

…

(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.

8 The decision to cancel the applicant’s authority was made under section 33F of the Act, which provides as follows:

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.

9 Section 52(1) of the Act confers jurisdiction on the Tribunal to review a decision to cancel an authority. In reviewing this decision, the task of the Tribunal is to determine what is the correct and preferable decision, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law: section 63 ADT Act.

10 The holder of an authority is also subject to the provisions of the Passenger Transport Regulation 2007 (“the Regulations”). Clause 29 of the Regulations provides:

“29 Criteria for authorisation to drive public passenger vehicles

(1) For the purposes of sections 12 (2), 33B (2) and 40B (2) of the Act, the criteria that an applicant for an authorisation to drive a public passenger vehicle must meet before the application is granted are the criteria set out in subclauses (2)-(4).

(2) The applicant:

…

(e) must satisfy the Director-General that he or she:

…

(ii) is of good repute and in all other respects a fit and proper person to be the driver of the vehicle concerned, and

(iii) has sufficient responsibility to drive the vehicle concerned in accordance with law and custom.

…”

11 Clause 43 of the Regulations provides:

“43 Training of drivers

(1) The driver of a public passenger vehicle must, whenever reasonably required to do so by the Director-General, undertake and satisfactorily complete (or pass an examination in respect of) any one or more of the following training courses, being a training course approved by the Director-General and conducted by a registered training organisation:

(a) a public passenger vehicle driver training course,

(b) a public passenger vehicle driver training refresher course,

(c) a training course concerning the driving of public passenger vehicles in specified places, or in specified circumstances, or in both (for example, a course concerning the driving of public passenger vehicles in the Kosciusko National Park during winter).

(2) The Director-General may:

(a) suspend a driver’s authorisation to drive public passenger vehicles pending the satisfactory completion of (or the passing of an examination in respect of) such a course, or

(b) determine (either generally or in a particular case) that a driver’s authorisation to drive public passenger vehicles will be renewed only on the satisfactory completion of (or on the passing of an examination in respect of) such a course.”

The respondent’s case

12 The respondent filed and served a copy of its file in relation to the applicant’s authority, which comprises 160 pages. Mr Wozniak, the respondent’s solicitor, referred to a number of documents in the file that relate to complaints made against the applicant and the steps taken by the respondent in relation to those complaints. The complaints to which those documents relate are those identified in the Notice to Show Cause statement of reasons.

13 It is apparent that the chronology set out by the respondent in the statement of reasons, and referred to above, is an accurate account. It is also apparent that the applicant disputed most of those complaints. No action was taken in relation to most of the complaints, however the evidence show that the applicant refunded fares on a number of occasions and that he was both reprimanded and suspended on occasions.

14 The respondent also relies on the evidence of Ms Eimear Smith who appeared by telephone and was subjected to cross-examination. None of the other complainants gave evidence. Ms Smith gave evidence that on 16 May 2008 she had travelled in a taxi driven by the applicant and that on that same day she had complained to the respondent about the applicant’s conduct towards her. On 22 May 2008 she provided a written statement to the respondent. She wrote:

“… I live in Chalmers Street, Surry Hills and I work in the City.

4. I journey to work and return two to three days per week by taxi, a total of six journeys per week. The most usual taxi fare varies between $9.00 and $18.00 depending on the time I leave and the traffic.

5. On 16 May 2008 I was in Chalmers Street waiting to hail a cab. I saw a taxi approaching and stopped at the lights with its roof light on. I was going to hail this vehicle. A white Taxis Combined Taxi stopped and the driver pointed to the back seat. I gestured yes and got in.

6. When I got in a conversation with him. He said, 'Oh an Irish girl, I love the Irish', He kept saying, 'I love Irish girls.' I told him I was late for work and I said I was lazy. He thought I said I was crazy.

7. The driver started to talk about his first girlfriend, she was Irish. He said the first time he had sex was with an Irish girl, she was the wife of a diplomat. He continued on with the conversation and said he would marry me. He said he had permanent residency and I could have the same if I married him. I told him I didn't want to marry.

8. I thought the conversation was inappropriate, he went into detail of how he was weak at the knees and she was an older woman who took advantage of him and made him a man. I was uncomfortable with the conversation.

9. When I got into the cab I didn't look at the motor. When we arrived he said, 'that's $25.00 please'. I told him, 'that's not right I get numerous cabs and the fares never more than $18.00'. I didn't have any cash to pay for what I thought was a reasonable fare so I paid by card and he gave me a receipt.

10. I got into the cab at 8.45am and left at 8.59am, so the journey was less than 15 minutes.

11. During the journey I asked him to travel along Eddie Avenue, into George Street, left into Hay Street then down King Street Wharf and up Erskine as I find the traffic lighter along this route. He argued about this route and he travelled along George Street, left down Liverpool Street or Goulburn Street.”

15 In her evidence to the Tribunal Ms Smith restated her assertion that the applicant had engaged in the alleged conversation and that the fare he charged was excessive. Mr Wozniak submits that the Tribunal should be satisfied by Ms Smith’s account of the incident.

16 Mr Wozniak contends that some of the evidence given by the applicant during the hearing is inconsistent with his responses to complaints at the time they were raised with him and in his response to the Notice to Show Cause. For example, when interviewed about the 5 March 2007 complaint he did not mention being given the complainant’s contact number to pick her up the next day. However, he subsequently raised this in his response to the Notice to Show Cause.

17 Mr Wozniak referred me to my recent decision in Smith v Ministry of Transport [2008] NSWADT 136 and submits that the facts in Smith are comparable to those in this matter. He argues that the cancellation of the applicant’s authority is warranted. Accordingly he says that the respondent’s determination should be affirmed.

The applicant’s case

18 The applicant asserts that he is a person of good repute and that he is a fit and proper person to be the driver of a taxi-cab. He relies on a number of references and letters of appreciations from passengers and also gave oral evidence at the hearing. While the references do not address the issues raised in the Notice to Show Cause, they suggest that the applicant is well regarded by their authors.

19 The applicant disputed the complaints identified in the Notice to Show Cause. He denied any wrongdoing or inappropriate behaviour towards passengers in his taxi. His case is consistent with that presented in the submissions that he provided to the respondent in response to the Notice to Show Cause. In his submissions he stated:

“1. As for the specific issues raised, I have to state the followings in seriatim.

(i) I have always tried to do my duties with the best of my ability, dexterity and abiding by the laws and customs. The fact that only complaints are reckoned without looking at my credentials and goodwill, which I earned over the years with my passengers, to cancel my authority as taxi driver, seems unjustified.

I always interacted with my passengers with an open heart and narrated all possible alternatives under a given situation. To err is humane and I am no exception to that. Whenever I made a mistake I immediately took all necessary steps to amend it.

I try to keep my cool always and never had a fight with any passenger. But we the taxi drivers have no place to complaint against the arrogant, misbehaved and uncultured passengers who thinks that we are just a slave for them and makes an issue out of nothing to harass ourselves. Many a times I have seen such passengers cooking up stories to complaint against us.

I have neither ever started talking about sex nor picked up any conversation of a sexual nature with any of my passengers irrespective of their gender.

At times the passenger starts a topic and make me a part of the discussion. I took strong objection to the complaint made by a female passenger on 5/3/2007. If I had any such intentions then she should have not given her contact number to pick her up the next day. I asked for more information about her from the ministry to find out why she would blame on me like that, but I couldn't get it. It takes only about 4-5 minutes drive from Kings Cross to Crown Street Surry Hills. You would appreciate that within such a short span of time, I could (sic) narrate stories about other female passengers. She wanted to pay the fares next day and when I didn't answer to her call, she complained. No action was taken against me.

I had never been rude to anyone. I have never overcharged my passenger whatsoever. At times the passengers insist to make inflated bills for them. I don't understand why overcharging allegation is given to me, as I have no access to the billing system. I cannot manipulate the bill to my liking. Whenever a mistake had been made, I always refunded the excess. At times the meter reading becomes difficult for the sunshine as the screen looks black and re-start of meter could not be ascertained during the rush hours. In such situation when a passenger complains of overcharging I always refund the excess. I have informed of this situations to Mr. Valldis, Manager, Customer Service of TCS and Mr. Roni, Customer Supervisor of TCS and assured them that in this kind of overcharging I would return the money immediately.

The allegations against not adherence to the passenger’s directions is baseless. I always consult my passenger before I take a particular route.

Given the road conditions on a particular day I found my duty to inform the passenger to avail the best route possible and which they agree to. Afterwards when the meter reading is higher the passengers complaint for the non compliances.

(ii) I have always admitted my mistake whenever I made one and was reprimanded for a couple of times. I am honest to my profession and misfortunate to have arrogant passengers over and over again who avenge their fault by holding guilty myself.

(iii) As mentioned in para 1(i) above I have never sexually abused any female passenger whatsoever.

So, I totally rebuke any allegation relating to Sexual impropriety against me.

(iv) As narrated in the preceding paragraphs, I have not been dishonest to anyone at any point of time.

2. On the backdrop of the above stated facts, I think the allegations raised against me are improper.

3. I would like to mention over here that all the complaint history that had been mentioned are well heard of and recorded. No action was taken against me in most of the cases as they upheld my observations.

4. To support my submission, I am citing one example out of hundreds which happened recently and reported to the ministry on 2nd of June, 2008. On the date mentioned above I picked up a passenger from the International Airport. As informed to me, he was supposed to go to North Rocks. He requested me to take him quickest way and to avail M5, M7 and M2. I reminded him that taking this route would cost around $200. I also suggested to him that usually passengers prefer Eastern Distributor to M2 route for economy and convenience because he told me that he was very tired as he lost his luggage. He agreed and ordered me to go that way. He than became friendly with me and started conversation on different issues. When I crossed the Harbour tunnel and told him that the toll is $17.52 and he asked me why so much. I explained him all about the toll and he informed that he had never paid Harbour toll to any taxi driver in the last six years and that every taxi driver is a crook. When I said that it is a rule that the passenger is to pay the toll, he became furious and started jotting down all the information to complain.

He asked me to drop him at the Brooke Street rudely. I requested him to be calm as I would talk to the authorities in front of him through my mobile with speakers on. I also told him that he not worry and he don't have to pay at all for the fare. After listening to the person (Sandra) at the Ministry, as I could not contact with the TCS, he paid me when I dropped at his destination. I headed straight to the Ministry of Transport at Parramatta and met Ms. Sandra Mussett and Ms. Juan Matterson, who took my interview on 29/05/2008 and informed about the incident.

Had I not contacted the authority, I would have been charged with an offence, if the passenger complained. At times it becomes difficult to contact the authorities in time and I pay the price for that for no fault of mine.

5. I am a man of morale and integrity. I take this opportunity to state briefly about the credentials which I have earned over the years.

(a) I have returned innumerable lost properties to my esteemed passengers. Photocopies of some of the 'Lost Property Receipt Form' are enclosed for your perusal. I have sometimes gone out of my way by contacting the person and delivering the property at his/her residence. Is it my fault to help human beings?

(b) I have received countless 'Letter of appreciations' from my passengers, photocopies of some are enclosed for your perusal.

(c) I just provide one instance for my honesty and integrity amongst hundreds of thousands.

One day (17/01/2008) I was driving a businessman to the airport. On arriving at the airport, to his surprise, he could not find any wallet, cards etc. with him to pay the fare. He was in a hurry to catch the flight for an important business meeting. He asked me whether I could drive back to his residence and return back in time to avail the flight. I said yes and jokingly asked him that whether he would give me thousand dollars if I do so. When we were approaching the airport, he took the EFTPOS and entered the amount for the fare. I told him the fare was around $100. I didn't check the receipt. After finishing the shift I was horrified to see a $1000 entry. I contacted Mr. Roni, TCS customer supervisor and informed him that this was unfair to take such money even if the passenger paid gratuitously as I was just joking and returned $900 the next day to TCS to give the amount to the passenger concerned. A photocopy of the receipt is enclosed for your perusal.

6. I reckon that I could clear my stand in the preceding paragraphs and look forward for your dispassionate considerations. I am looking forward to achieve the 'best taxi driver' award, within the next couple of years with my honesty and integrity.”

20 The applicant disputes Ms Smith’s account of the conversation that took place between them on 16 May 2008. He also denies that he failed to take the most direct route or that he overcharged her for the trip. He says that he has taken advice in relation to dealing with passengers and that it is unlikely that there will be any further complaints against him. He asserts that there is no basis on which the Tribunal could conclude that his authority should be cancelled and accordingly the determination under review should be set aside.

Findings

21 The respondent’s decision was based on the view that it can no longer be attested that the applicant meets the required standards for authorisation as a public passenger vehicle driver. This view was formed after consideration of the record of complaints made about the applicant. I am satisfied that the material on which the respondent relies accurately records those complaints.

22 In Saadieh v Director General, Department of Transport [1999] NSW ADT 68 at [17] – [18] the Tribunal’s Deputy President set out several factors which should be considered when determining a person's fitness and suitability to hold a taxi authority as follows:

“17 Taking into account the terms of the legislation and the case law interpreting similar provisions, there are a number of factors that need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. These factors include:

the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted;

the nature, seriousness and frequency of any complaints made against the applicant;

the applicant's driving record;

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.

23 The applicant has not been arrested or convicted of any criminal offences however several serious complaints have been made against him. The applicant disputed the allegations made in those complaints.

24 Though untested and unrelated to these proceedings, the applicant's references and letters suggest that he is well regarded by some in the community. However, the question of the likelihood that he will be the subject of further complaints is not so clear.

25 I note that the applicant disputed the allegations of inappropriate behaviour towards passengers in his taxi. I have heard evidence from Ms Smith but I have not heard from any of the earlier complainants. In the circumstances I am unable to form a view in relation to the earlier complaints other than to note that there appears to be a pattern to the complaints in that they relate primarily to overcharging, not follow directions given by the passenger and failing to take the most direct route.

26 Given the history of complaints against him and the reprimands previously given to him, it would be reasonable to expect that the applicant would have adapted his behaviour to avoid the possibility that passengers might consider his behaviour inappropriate. He says that he has attempted to adapt his behaviour in this way but if that is the case he has not succeeded. I note that he has asserted that it is unlikely that there will be further complaints against him but the history of complaints suggests otherwise.

27 The most serious complaints are those alleging inappropriate conversations. I note that the applicant has denied the alleged conduct. However, I accept that Ms Smith was uncomfortable with the conversation that took place on 16 May 2008. In my view it is probable that the applicant acted in a manner that was inappropriate.

28 I do not agree with Mr Wozniak’s submission that the circumstances are comparable to those in Smith. Mr Smith had a poor traffic record and extensive complaints history including three complaints that alleged sexual harassment of female passengers. Evidence was given by one of those complainants that Mr Smith had touched her inappropriately and that he had commented on her physical appearance. There were also complaints of Mr Smith’s abusive conduct towards the network operator and his improper radio use. Mr Smith had previously been the subject of disciplinary action including a period of suspension.

29 In my view the complaints against the applicant in this matter are significantly less serious than those against Mr Smith. Nevertheless, it is my view that some action against the applicant’s authority is justified.

30 I consider that the most appropriate outcome is that the applicant’s driver authority be suspended and that he be directed to undertake retraining before he resumes driving. In my view both the applicant and his passengers would benefit from the applicant’s completion of training modules on Customer Care and Regulations. In the circumstances it is my view that an appropriate period of suspension is three months.

Decision

1. The decision to cancel the applicant’s authorisation to drive a taxi-cab is set aside. In its place I make the determination that the applicant’s authority is suspended for a period of three-months.

2. Pursuant to Clause 43(1)(b) of the Passenger Transport Regulation 2007 the applicant is required to undertake and satisfactorily complete a public passenger vehicle driver training refresher course approved by the Director-General of the Ministry of Transport and conducted by a registered training organisation.