Haidary v Director General, Department of Transport

[2000] NSWADT 106

Set aside by Appeal: Set aside by appeal on 13/12/2000 - Remitted back to Tribunal

CITATION:	Haidary -v- Director General, Department of Transport [2000] NSWADT 106
DIVISION:	General Division
PARTIES:	APPLICANT Zabihullah Haidary RESPONDENT Director General, Department of Transport
FILE NUMBER:	003150
HEARING DATES:	03/08/2000
SUBMISSIONS CLOSED:	08/03/2000
DATE OF DECISION:	08/16/2000
BEFORE:	Hoeben GMM - Judicial Member
APPLICATION:	Passenger Transport Act - taxi driver - cancellation of authority - Taxi driver - cancellation of authority
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Passenger Transport Act 1990
CASES CITED:	New South Wales Bar Association -v- Evatt (1968) 117 Ziems -v- Prothonoary of the Supreme Court of New South Wales (1957) 97 CLR 279 Clearihan -v- The Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25 Re T 1980 1 NSWLR 392 Australian Broadcasting Tribunal -v- Bond & Others (1990) 94 ALR 11 Saadieh -v- Director General, Department of Transport [1999] NSWADT 68 Maio -v- Superintendent of Licences New South Wales Police (1987) ASC 55 - 551 Re Naumovski -v- Minister for Immigration and Ethnic Affairs (1994) 20 AAR 388
REPRESENTATION:	APPLICANT In person RESPONDENT A Wozniak, solicitor
ORDERS:	The decision of the delegate of the Director General dated 12 April 2000 to cancel the applicant's authority is affirmed.

1 On 8 March 2000 the Department of Transport cancelled the applicant's authority to drive a taxi on the grounds that:

· "the fact that you have been charged with criminal offences may mean that your reputation in the community is not sufficiently good;
· the fact that your behaviour leading to the charges occurred while you were employed as a taxi driver may mean that you do not have the responsibility and aptitude to be a taxi driver; and
· the behaviour that led to your charges showed that you might not have sufficient responsibility to drive taxis in accordance with law and custom."

2 An internal review dated 12 April 2000 affirmed the original decision.

3 Under the Passenger Transport Act 1990 (the Act), pursuant to s 52 (1), any person whose application to hold an authority has been refused may apply to the Administrative Decisions Tribunal for a review of that decision. The applicant made such an application, which was undated.

Evidence

4 The applicant is a 29 year old married man and was unrepresented. It was explained to him the procedure to be followed before the Tribunal. The applicant was informed that he would be given every opportunity to present his case, and, subject to that presented by the respondent it would be the decision of the Tribunal to decide " what the correct and preferable decision is having regard to the material then before it..": s63 of the Act.

5 The reviewable decision contained adverse findings in respect of 9 traffic convictions relating for the most part to speeding, the first occurring in 1994 and the latest in June 1998. Variously, these convictions resulted in numerous fines and a cancellation period in 1997. On the 4 April 1998 a complaint was made against the applicant by passengers to the effect that he was speeding.

6 In addition to the above, the reviewable decision also took into account the outcome of a charge of assault occasioning actual bodily harm (AOABH). In relation to this the applicant was found guilty on 28/10/99 at the Downing Centre Local Court.

7 The applicant in his evidence sought to rely upon substantially the same written evidence, which he submitted, for the internal review.

8 The significant submissions relied upon by the applicant included an explanation in relation to the circumstances surrounding the AOABH conviction. He stated that he did not want to carry three inebriated males in his taxi. In response to their efforts to remain in the vehicle he took a home-fashioned cord, part of which he held in his own hand and whipped one of the prospective passengers causing severe injury. He also stated that at the time of the incident he had a booking elsewhere.

9 In giving due credit to the applicant he made admissions relating to his poor traffic record and regretted the AOABH offence.

10 In regard to the passenger complaint the applicant stated that he was forced to suddenly brake while driving causing one occupant, a female, to hit her head against a section of the vehicle. The Tribunal was given no reason for the suddenness of the action apart from the claim that the male and female passengers were doing something inappropriate in the back seat of the car and the sudden stopping of the car had interrupted them.

11 The applicant tendered numerous references, all of which attested to his personal qualities and community work.

12 In further support of his case the applicant tendered a Certificate of Achievement in Precision Driver Training dated 28/4/98 which he was directed to undertake under the transport rules. However, approximately 2 months after successfully completing this course he was again convicted of speeding and disqualified until 10/3/99.

13 In reply the respondent tendered the applicant's file. The respondent's evidence centered on the almost continuing bad traffic record as an illustration of the applicant's unreliability at reforming his driving record.

14 The respondent also brought to the Tribunal's attention a copy of the Taxi Driver Authorisation Standards (the Standards) in which it is stated, inter alia at paragraph 1.2:

"The driver must immediately report any conviction or charge in relation to criminal, traffic or any other kind of offence (other than parking offences) in NSW or elsewhere to the Department of Transport."

This was provided by the respondent as an illustration of the plaintiff's lack of honesty, when as a requirement for attaining an authority, one must declare one's knowledge of the transport rules including the Standards. In neither the case of the applicant's traffic convictions nor the AOABH conviction, did the applicant bring these matters to the attention of the Department of Transport.

15 In relation to the AOABH conviction the respondent made a number of submissions some of which the Tribunal will refer to later in this decision.

Jurisdiction

16 Section 12 of the Act gives the Director- General a discretion to grant authorities. Section 11(2) (a) and (b) requires, inter alia, attestation as to whether:

"(a) 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 public transport vehicle: and

(b) that the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates:

(i) in accordance with the conditions under which a public passenger service is operated; and

(ii) in accordance with law and custom."

The Decision

17 The consideration of whether the applicant is a fit and proper person and, it follows, is otherwise of good character is, in the circumstances of this case closely connected to the applicant's criminal record and lack of frank and open disclosure.

18 There are numerous cases evaluating the fitness of an applicant to hold a licence. This Tribunal itself has an established line of law on the subject and I do not now intend to revisit those authorities except insofar as they specifically relate to the present case. Isolated or passing departures from proper standards may not warrant the suspension of a licence but intentional or extended conduct over a period of time is viewed differently: New South Wales Bar Association v Evatt (1968) 117 at 183; Ziems v Prothonotary of the Supreme Court of New SouthWales (1957) 97 CLR 279 at 298.

19 In Clearihan v The Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25, at 30 Miles CJ stated that each case must be assessed on its merits. In assessing the impact of past adverse determinations on certain licence applications, he believed this might not always be relevant. On the other hand, adverse determinations may point to a lack of what is demanded by the licence and that consideration of them then becomes important. I concur with this view.

20 The applicant has an extensive history of traffic convictions extending over a 5 year period. Together with this is the AOABH offence which belongs to the serious class of assault and, as a result, carries with it a maximum of 5 years imprisonment. The circumstances of the assault are contained in the police statement of facts. When the passengers refused to leave the taxi the applicant took a piece of cord which he kept in his car, held it in his right hand and proceeded to whip one of the passengers. The victim sustained extensive bruising, swelling and welt marks on his neck below his left ear, below the left side of his lip and left cheek. There is clear authority for the proposition that the nature, circumstances and seriousness of an offence are relevant factors in determining whether a person is fit and proper: Re T 1980 1 NSWLR 392 at 402.

21 The Tribunal has taken into account the applicant's admissions as to his bad traffic record . Nevertheless, by itself it illustrates a poor driving record over an extended period of time. The tribunal has also considered the applicant's references. None of the authors were aware of the current proceedings or the applicant's criminal record. The weight which can be given to this evidence is, therefore, greatly reduced. The Tribunal has also taken into account the applicant's regret in regard to the AOABH offence.

22 In relation to AOABH conviction, the applicant pleads extenuating circumstances being as he was confronted by 3 inebriated males. However, by its very nature, the business of taxi driving attracts difficult situations and it is notorious that people who are inebriated will often turn to taxis as a reasonable mode of transport to get them to their destination. The Tribunal has considered the applicant's excuse that he was booked elsewhere but as the witness statements and his own record of interview makes no reference to this the Tribunal does not believe this version of events. In any event, as a magistrate has already recorded a conviction and made findings of fact in relation to the offence the Tribunal does not now intend to reagitate the matter.

23 The test of fit and proper person is best set out in the judgment of Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond & Others (1990) 94 ALR 11 at 56 ( Bond ) that:

"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 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 an indication of future conduct) or reputation (because it provides an indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not a fit and proper person to undertake the activities in question."

24 In applying the test and principles enunciated in Bond to the circumstances of the present case it cannot be said that the applicant fully appreciates the seriousness of the AOABH offence in the context of public passenger carriage or the significance of honesty which is implicit in the concept of fit and proper person: Re T 1 NSWLR 392 AT 402. The ultimate question must, therefore, be asked: can the applicant hold himself out to the community at large that he is a fit and proper person to hold the licence he now seeks? The answer must be in the negative.

25 In assessing the overall criteria of fit and proper person this Tribunal has already determined principles to be followed in relation to taxi authorities. Deputy President Hennessy in Saadieh v Director General, Department of Transport [1999] NSWADT 68 (25 August 1999) at [17] adequately listed the factors relevant in such cases. In particular the Deputy President singled out one particular factor relevant to the present case:

" the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences."

26 In applying this factor to the present case it is clear that in relation to the AOABH offence the applicant has shown regret and it is improbable that an incident of this type will ever happen again. However, the same cannot be said in respect of his continuing and extensive traffic convictions. The Tribunal is not convinced that the applicant has illustrated any real measure of driving rehabilitation or improvement in his level of driving responsibility.

27 While the Tribunal finds against the applicant on this occasion this does not mean that the applicant will never satisfy the relevant tests to hold a taxi authority. However, sufficient time must elapse before it can be clearly indicated to the community that the applicant is entitled to hold the licence sought: Maio v Superintendent of Licences New South Wales Police (1987) ASC 55- 551 at 57,177 and Re Naumovski v Minister for Immigrationand Ethnic Affairs (1994) 20 AAR 388 at 392.

28 The decision of the delegate of the Director-General dated 12 April 2000 to cancel the applicant's authority is affirmed.