Hakim v Ministry of Transport

[2008] NSWADT 180

CITATION:	Hakim v Ministry of Transport [2008] NSWADT 180
DIVISION:	General Division
PARTIES:	APPLICANT Mohammad Hakim RESPONDENT Ministry of Transport
FILE NUMBER:	083082
HEARING DATES:	28 May 2008
SUBMISSIONS CLOSED:	28 May 2008
DATE OF DECISION:	20 June 2008
BEFORE:	Handley R - Deputy President
CATCHWORDS:	Taxi driver - refusal of authority
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Passenger Transport Act 1990 Passenger Transport Regulation 2007
CASES CITED:	Singh v Director-General, Department of Transport [1999] NSWADT 96 Saadieh v Director-General, Department of Transport [1999] NSWADT 68 Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
REPRESENTATION:	APPLICANT In person RESPONDENT A Wozniak, solicitor
ORDERS:	The decision under review is affirmed.

REASONS FOR DECISION

1 This matter involves an application by Mohammad Hakim for the review of a decision of a delegate of the Director-General of the Ministry of Transport (‘the Ministry’) to refuse Mr Hakim’s application for a taxi-cab driver authority.

Background

2 Mr Hakim is aged 27. He was born in Afghanistan and migrated to Australia in about 1999/2000. He became an Australian citizen on 10 November 2006.

3 In about August 2007, Mr Hakim commenced a taxi-cab driver training course at the Sydney Taxi School. On 24 September 2007, he completed an application for an authority to drive a taxi-cab, which was sent to the Ministry on 27 September 2007. On 13 November 2007, having failed several tests, he terminated his contract with the Sydney Taxi School. On the same day, the Managing Director of the School, Andrew Nicholas, wrote to the Ministry complaining about Mr Hakim’s behaviour while attending the School and stating that Mr Hakim had failed to meet the requirements for the grant of a taxi-cab driver authority.

4 Mr Hakim attended an interview at the Ministry’s office at Parramatta on 29 November 2007, when he was questioned about his behaviour with a view to ascertaining his suitability to be a taxi driver. On 18 December 2007, a delegate of the Director-General decided to refuse Mr Hakim’s application for a taxi-cab driver authority on the grounds that he had not shown sufficient responsibility and aptitude nor demonstrated that he was of good repute or a fit and proper person to drive a taxi as required by section 33(3) of the Passenger Transport Act 1990 (‘the Act’).

5 On 11 January 2008, Mr Hakim lodged an application for an internal review of this decision, stating that the decision was based on false reports and false information provided by the Sydney Taxi School. On 12 February 2008, a different delegate of the Director-General affirmed the decision after an internal review. On 11 March 2008, Mr Hakim filed an application for a review of this decision by the Tribunal.

The Relevant Legislation

6 The relevant provisions of the Act are as follows:

33(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.

...

33B(1). Having regard to the purpose of authorisation under this Division, the Director-General may grant an application and authorise the applicant to drive a taxi-cab, or may refuse the application.

(2) Before an application is granted, the applicant must meet any criteria set forth in the regulations and must satisfy the Director-General as to any matter the Director-General considers relevant.

...

7 Clause 29(1) of the Passenger Transport Regulation 2007 (‘the 2007 Regulation’) states:
29(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 sub-clauses (2)-(4).
8 In these proceedings, the relevant criteria for the grant of an authorisation to drive a taxi-cab set out in clause 29 are as follows:
(2) The applicant: ...
(e) must satisfy the Director-General that he or she:

(i) ...

(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.

(3) ...

(4) In the case of an application for authorisation to drive taxi-cabs, the applicant must also:

(a) have successfully completed a taxi-cab driver training course approved by the Director-General and conducted by a registered training organisation (or must have such competence as a driver of a taxi-cab as the Director-General considers appropriate), and

(b) have passed an examination or assessment, at a level determined by the Director-General, in the following:

(i) geographical knowledge of areas in which taxi-cabs ply for hire,

(ii) such part or parts of the taxi-cab driver training course referred to in paragraph (a) as may be required by the Director-General (or must have such competence as a driver of a taxi-cab as the Director-General considers appropriate),

(iii) knowledge of this Regulation in so far as it relates to taxi-cabs and the driving of taxi-cabs, and

(c) ...

Mr Hakim’s Evidence and Submissions

9 Mr Hakim said he has been in Australia for eight or nine years during which time he has worked in a number of different jobs. He does not have a criminal record, is a good person and respects others. Mr Hakim provided five references attesting to his good character and referring to him being helpful and polite. He said nobody has ever complained about him previously.

10 Mr Hakim decided that he wanted to work as a part-time taxi driver and, for the purpose of obtaining the necessary qualifications, he enrolled in a course at the Sydney Taxi School for which he paid fees of $1,200. He said he was always polite with the staff and other students at the School and maintained a professional attitude. He was at the School to learn and believes he was badly treated by staff, who labelled him, and denies the allegations made by Mr Nicholas about his behaviour.

11 Mr Hakim was questioned about the statement provided by Mr Nicholas, dated 16 May 2008, in which Mr Nicholas details occasions on 5, 18, 20, 24 and 30 October 2007, and 9 and 12 November 2007, when Mr Hakim was allegedly argumentative, rude, abusive or hostile, angry or aggressive. Mr Hakim said the allegations are completely untrue and he was never angry or aggressive. He is a calm and collected person and he does not have a temper.

12 With regard to an incident on 9 November 2007 when Mr Nicholas alleges that, in the presence of staff and other students, Mr Hakim became aggressive, “shouted and caused a major disturbance, being unable to control himself”, with the result that he was told that “unless he ceased shouting we would call the police and have him removed”, Mr Hakim said he remained calm and relaxed, he did not shout, and no-one said they would call the police. He acknowledged that he had failed the street directory test four times, but said he did not become upset. Mr Nicholas also alleges that on 12 November 2007, when Mr Hakim was informed that Mr Nicholas had been told about his bad behaviour and would refer the matter to the Ministry for consideration, Mr Hakim “shouted unintelligible remarks” and later “[c]aused another disturbance and had to be handled carefully by reception staff”. Mr Hakim denied the allegation and said he was always polite and had not become upset.

13 Mr Hakim was asked about a Memorandum dated 29 November 2007, prepared by Joe Burns, a Compliance Officer with the Ministry, who interviewed Mr Hakim on that day at the Ministry’s office at Parramatta about the allegations made by Mr Nicholas. In his Memorandum, Mr Burns said Mr Hakim stated that on 24 September 2007, “he was upset because he believed that the taxi school deliberately singled him out by not sending his public passenger vehicle driver application to the Ministry of Transport”. Mr Burns said Mr Hakim told him that all the allegations except for that on 9 November 2007 were fabricated. In cross-examination at the hearing, Mr Hakim said Mr Burns was lying about his telling Mr Burns that he got upset about his application, and denied that he said that all the allegations except for that on 9 November 2007 were fabricated.

The Ministry’s Evidence and Submissions

14 As noted above, delegate of the Director-General provided a statement from Mr Nicholas dated 16 May 2008. Mr Nicholas, who was available to give evidence but not called, stated that he is employed at the Sydney Taxi School as Managing Director, trainer and assessor, and has many years experience in the taxi industry. Mr Nicholas set out the sequence of events that lead up to his writing to the Ministry about Mr Hakim’s behaviour on 13 November 2007. Mr Nicholas describes incidents on 5, 18, 20, 24 and 30 October 2007, and 9 and 12 November 2007, when he said Mr Hakim was variously argumentative, rude, abusive or hostile, angry or aggressive.

15 Mr Nicholas said on 9 November 2007, Mr Hakim:

“[i]nsisted on being given an easy test. Request was denied and told that this was an improper demand. When assessor showed him a shorter route in a street directory test journey he became aggressive and slammed the directory on the desk. He shouted and caused a major disturbance, being unable to control himself. Neither staff nor other students were able to calm him down. Was told that unless he ceased shouting we would call the police and have him removed. Witnesses to this outburst were student numbers 24491, 23286, 24143 and others. They were all shocked and intimidated by his loud and aggressive behaviour. One, Johnson BOATENG, remarked on the restraint of the testing officer.”
16 Mr Nicholas said:
“Despite multiple attempts to help Mr Hakim to understand that he was required to comply with clear standards of behaviour, he became angry and volatile ...

Mr Hakim showed his inability to participate in a learning organisation in a civil and polite manner.

He demanded to be passed in a test that he had clearly failed.

He disrupted the orderly amenity of staff and students.

He displayed a quick and foul temper ...

He demonstrated a specific and general disregard for standards and gazetted procedures ...”

17 Mr Nicholas said Mr Hakim’s lack of tolerance and self-control “gave us great concern about his suitability for the occupation” of taxi driver.

18 Mr Burns, the Compliance Officer at the Ministry who interviewed Mr Hakim about these matters on 29 November 2007, said Mr Hakim “was polite and well mannered, albeit somewhat nervous, during the interview”. Mr Burns said that Mr Hakim denied having been abusive or aggressive:

“Mr Hakim stated that all of the allegations, except for that of 9 November 2007, were fabricated due to the training school taking extreme exception to his request that they return his books so that he could attend a different school.”
19 Mr Burns concluded:
“It is highly likely that he [Mr Hakim] will continue to attract complaints while being a driver of a public passenger vehicle. Mr Hakim accepted no responsibility for his actions, blaming the school for the problems he had encountered ...

The fact that Mr Hakim breached traffic laws prior to completing the statutory provisional licence period [this appears to refer to a speeding offence on 3 October 2003], casts doubt that he has sufficient responsibility to drive a public passenger vehicle. Considering the fact that Mr Hakim was the subject of six incidents involving abusive behaviour and that he appears to experience difficulty in behaving with civility towards people at the taxi school, who are really only trying to assist him to obtain his driver’s authority, casts doubts that Mr Hakim is suited to be the driver of a public passenger vehicle.”

Mr Burns recommended that Mr Hakim’s application for a taxi driver’s authority be rejected.

20 Mr Wozniak, for the Ministry, noted that pursuant to clause 29(4) of the 2007 Regulation, to be eligible for the grant of a taxi driver authority, Mr Hakim must have successfully completed a taxi driver training course and passed certain examinations or assessments. He has done neither of these things. Mr Wozniak also noted the concerns expressed by Mr Nicholas about Mr Hakim’s behaviour. Mr Wozniak said it is rare for such a report to be made from someone in the industry. He submitted that the Tribunal should not be satisfied on the evidence before it that Mr Hakim is of good repute and otherwise a fit and proper person to be a driver of a taxi-cab.

Discussion

21 Pursuant to section 33B of the Act, the Director-General has a discretion to grant or refuse an application for a taxi-cab driver authority, but before an application is granted, the applicant must meet any criteria set out in the 2007 Regulation and satisfy the Director-General as to other matters the Director-General considers relevant. Section 33(3)(a) requires that such a person must be “of good repute and in all other respects a fit and proper person to be the driver of a taxi-cab”, and section 33(3)(b) requires that such a person must have “sufficient responsibility and aptitude to drive a taxi-cab”.

22 The relevant criteria for the grant of an authority to drive a taxi-cab are set out in clause 29 of the 2007 Regulation. Clause 29(4) requires that a person must successfully complete a taxi-cab driver training course and pass certain examinations or assessments, including as to geographical knowledge for the area for which the authority is sought. Mr Hakim does not meet these requirements.

23 Clause 29(2)(e)(ii) mirrors section 33(3)(a) of the Act and requires a person must be “of good repute and in all other respects a fit and proper person to be the driver of the vehicle concerned”. Clause 29(2)(e)(iii) is similar to section 33(3)(b) and requires that such a person must have “sufficient responsibility to drive the vehicle concerned in accordance with law and custom”.

24 Deputy President Hennessy discussed the meaning of ‘good repute’ in Singh v Director-General, Department of Transport [1999] NSWADT 96: essentially, assessing a person’s reputation involves an estimation of their moral character. She also discussed the factors to be considered when determining a person’s suitability and fitness to obtain a taxi-cab authority, referring to her earlier decision in Saadieh v Director-General, Department of Transport [1999] NSWADT 68. In Saadieh, at paragraph 17, the Deputy President said these factors include:

“the nature, seriousness and frequency of any criminal offences for which the applicant had 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;

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

25 The meaning of the phrase ‘fit and proper person’ was discussed by the High Court in Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127, at paragraph 9, where Dixon CJ, McTiernan and Webb JJ found the word ‘fit’, in relation to an office, to involve honesty, knowledge and ability. The meaning of the phrase ‘fit and proper person’ was also discussed in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, where Toohey and Gaudron JJ said at paragraph 36 of their judgment:

“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.”

As their Honours recognised, at paragraph 66, whether a person is a fit and proper person involves a value judgement to be made in the context of the particular activity to be licensed.

26 Having considered the evidence, I am satisfied from Mr Hakim’s character references that he is of good repute in his local community, albeit not with those with whom he was involved at the Sydney Taxi School. Thus, I make no finding on the issue of good repute. However, I am not satisfied that he is a fit and proper person and has sufficient responsibility and aptitude to be the driver of a taxi-cab. I am unable to accept that Mr Nicholas’s evidence as to Mr Hakim’s poor behaviour while he was attending the Sydney Taxi School is, as Mr Hakim claims, completely untrue. Mr Nicholas’s account of a number of incidents is totally at odds with that of Mr Hakim, who denies any misconduct. I also note the discrepancy between what Mr Burns recorded Mr Hakim as telling him in the course of the interview on 29 November 2007 concerning the incident on 9 November 2007 and the evidence Mr Hakim gave at the Tribunal hearing. Essentially, I find Mr Hakim’s total denial of any misconduct to be implausible.

27 Assuming Mr Nicholas’s account of the various incidents is correct, Mr Hakim’s rude, angry and intolerant behaviour indicates that he does not have the aptitude for and is not suited to be a taxi-cab driver, for which calm, tolerance and politeness are essential pre-requisites. Mr Hakim’s total denial of any misconduct also suggests he has difficulty in accepting responsibility for his actions.

Orders

The decision under review is affirmed.