Hasegawa v Director General, Department of Transport

[2000] NSWADT 96

CITATION:	Hasegawa -v- Director General, Department of Transport [2000] NSWADT 96
DIVISION:	General Division
PARTIES:	APPLICANT Raymond Hasegawa RESPONDENT Director General, Department of Transport
FILE NUMBER:	003090
HEARING DATES:	12/05/2000
SUBMISSIONS CLOSED:	05/12/2000
DATE OF DECISION:	07/25/2000
BEFORE:	Britton A - Judicial Member
APPLICATION:	Passenger Transport Act - taxi driver - suspension of authority - Taxi driver - suspension of authority
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Passenger Transport Act 1990
CASES CITED:	Saadieh v Director General Department of Transport [1999] NSWADT 68 Singh v Director General Department of Transport [1999] NSWADT 96
REPRESENTATION:	APPLICANT J Tancred, solicitor RESPONDENT A Wozniak, solicitor
ORDERS:	1. The decision of the Director General to suspend the applicant's taxi-cab authority is revoked

Introduction

1 This decision concerns an application by Raymond Hasegawa for review by this Tribunal of the decision by the Director General, NSW Department of Public Transport (the administrator), to suspend his taxi authority.

2 By way of notice dated 3 February 2000, a delegate of the administrator, advised the applicant of the decision to suspend his authority to drive taxi-cabs. An internal review affirmed the administrator’s original decision. On 29 March 2000 the applicant filed an application in the Administrative Decisions Tribunal of NSW (the Tribunal) under the Public Transport Act 1990 (the Act), ss52(1) for a review of the administrator’s decision.

3 The issue for determination in this inquiry is whether the Director General's delegate made the correct and preferable decision having regard to any relevant factual material and any written or unwritten law Administrative Decisions Tribunal Act (NSW) 1997 (the Tribunal Act), s63(1).

Undisputed Facts

4 The applicant was born in Indonesia and has been driving cabs in Australia for approximately nine years.

5 It is not disputed that the decision to suspend Mr Hasegawa’s licence was precipitated by an incident in January 2000 involving overcharging passengers (the Tariff Two incident).

6 A Statement of Reasons attached to the administrator’s 3 February 2000 suspension notice set out the facts relied on by the Department in reaching its decision to suspend Mr Hasegawa’s taxi-cab authority. They include: the Tariff Two incident; an incident in 1990 where it is alleged Mr Hasegawa cheated during a taxi locality examination; two complaints from passengers, the first concerning failure to accept a passenger check and the second in August 1996 alleging driving in an unsafe and aggressive manner; and finally, the applicant’s traffic record.

7 Mr Hasegawa’s taxi authority was suspended on 22 August 1996 for failure to comply with the Department’s request to undergo a standard medical examination. The authority was re-issued some six days later following receipt of Mr Hasegawa’s medical report.

8 Driving taxis is Mr Hasegawa’s only source of income. He supports a family including his daughter who is studying medicine.

Relevant Legislation

9 Section 63 of the Tribunal Act provides:

(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.
(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:
(a) to affirm the reviewable decision, or
(b) to vary the reviewable decision, or
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or
(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

10 Section 14 of the Act provides that 'Having regard to the purpose of an authority, the Director General may at any time vary, suspend or cancel any person's authority'. Sub-section 11(2) of the Act provides that the purpose of an authority 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 public passenger 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.

11 Section 4 of the Act sets out the objectives of the Act which include ‘(e) to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services’.

12 Section 34A of the Act provides that ‘the Director General may from time to time, by notice published in the Gazette, determine fares (including maximum fares) or approve other arrangements for remuneration in connection with taxi-cab or private hire vehicle services.’

13 The Passenger Transport (Taxi-cab Services) Regulations 1995 (the Regulations) contains detailed regulations governing the conduct of taxi-cab drivers. These include:

40 Fares for taxi-cabs
(1) The driver of a taxi-cab must not demand more than the authorised fare for any hiring of the taxi-cab, except in respect of any portion of a journey travelled beyond the taxi-cab's area of operations.
Maximum penalty: 5 penalty units.
30 Driver of taxi-cab to accept hiring
(1) Subject to this clause, the driver of a taxi-cab that is available for hire must accept a hiring immediately when offered.
Maximum penalty: 5 penalty units.
(2) The driver of a taxi-cab may refuse to accept a hiring:
(e) if the intending passenger is a person referred to in clause 44 (Luggage and soiled clothing) or 45 (Passengers who are intoxicated),
45 Passengers who are intoxicated
(1) If, in the opinion of the driver of a taxi-cab or an authorised officer, a person:
(a) is under the influence of alcohol or any drug, and
(b) is causing, or is likely to cause, a nuisance or annoyance to other passengers, the driver or authorised officer may direct the person not to enter or to leave the taxi-cab.
Evidence and findings
Tariff Two Incident

14 On 27 January 2000 officers of the Department issued Mr Hasegawa with an infringement notice for charging more than the correct fare. He was fined $150.

15 While a precise date could not be provided to the Tribunal it is not disputed by the parties that sometime prior to Christmas 1999 a two-tier fare system for taxi-cabs was introduced in NSW. Under this system, fares for taxi journeys taken between 10pm and 6am, attract a 20 per cent loading. These fares are referred to as ‘Tariff Two’ fares.

16 The Tribunal is advised that new meters were installed in cabs to accommodate the new fare system. A screen attached to the meters contains a box displaying the number ‘1’ or ‘2’. A ‘1’ indicates that the meter is set at the ordinary tariff; a ‘2’ indicates that the premium ‘Tariff Two’ fare applies. The driver is required to manually switch over the metre to either tariff one or two as appropriate at the relevant time.

17 No evidence was put to the Tribunal on whether the Department monitors individual driver compliance with the two-tier fare system on an on-going basis through the use of computer technology. It would appear that compliance is monitored by a system of random checks undertaken by officers of the Department.

18 It is not disputed that at 7.15pm on 27 January 2000 officers of the Department found that the display box in the cab driven by the applicant was covered with black electrical tape fixed by the applicant; the meter had been set at the premium Tariff Two rate; it was the applicant’s intention to charge the Tariff Two rate to the passengers who were in the cab at that time.

19 Mr Hasegawa gave evidence that sometime before 7pm on 27 January 2000 a driver at the Kingsford taxi rank advised him that the Tariff Two period had been changed from 10pm to 6am to 7pm to 3am. On the basis of that conversation Mr Hasegawa said he switched over his meter and charged his next passenger at the Tariff Two rate. He said he told the passenger that the Tariff Two rate applied; the passenger raised no objection.

20 Mr Hasegawa gave evidence that after that journey he felt uneasy and was concerned that passengers might be confused and ask questions about the revised fare arrangements. He therefore decided to place a piece of tape over the tariff box to deflect enquiries. His next trip terminated at Sydney airport, where the taping of the meter was detected by officers of the Department. According to Mr Hasegawa these two trips were the only occasions where he had charged the Tariff Two fares outside the period, 10pm to 6am.

21 In cross-examination Mr Hasegawa said that after his conversation with the driver at the Kingswood rank he made repeated attempts to contact his taxi base to verify his colleague’s advice but was unable to get through. He agreed that prior to giving evidence before the Tribunal in these proceedings he had not mentioned these attempts to the Department or indeed his solicitor.

22 The applicant conceded in cross-examination that he had not been truthful when he told Departmental officers that the meter had been switched to Tariff Two as an oversight. Nor was his explanation that the tape was placed on the metre for ‘decoration’ correct. Mr Hagesawa said he gave these incorrect answers as he was stressed and confused.

23 In a letter to the Department dated 15 February 2000 Mr Hasegawa stated: ‘He [the driver at the Kingswood rank] told me that the Government is considering, subject to alteration, Tariff Two starting from 7pm.’ In evidence he claimed the driver said that the new Tariff Two period had commenced. In cross-examination the applicant could not offer an explanation for this discrepancy.

24 English is not Mr Hasegawa’s first language. While he did not request the services of an interpreter it was apparent to me from his evidence that he was at times confused about the meaning of some questions and his answers at times reflected this. I have taken this into account in assessing his evidence.

25 The Tribunal accepts Mr Hasegawa’s evidence that he had a conversation with a driver at the Kingswood rank where changes to the Tariff Two arrangements were discussed. On balance, the version of this conversation provided to the Department in February of this year, that is, that a change in the fare arrangements was under consideration is preferred. I do not accept Mr Hasegawa’s last minute defence offered during evidence before the Tribunal that he attempted to verify this advice with his base. It is evident that when discovered Mr Hasegawa lied to officers of the Department, although I accept his explanation that he was confused and stressed, no doubt because he was aware of the seriousness of his actions.

26 It is difficult to accept Mr Hasegawa’s inherently implausible evidence relating to the taping of the meter. The presence of black tape across the metre indicates premeditation and a desire to conceal his overcharging of passengers from them.

27 In summary I find that Mr Hasegawa had been advised by a colleague that a change to the taxi fare structure was to be introduced; Mr Hasegawa was uncertain as to when this new fare regime was to apply but in any event he knew or had a strong suspicion that it was not in operation on the day of the Tariff Two incident; his decision to tape the metre was premeditated to avoid detection.

Driving test Incident

28 In November 1990 while taking a locality test administered by the Department the exam supervisor noted that Mr Hagesawa had written the answers to the exam questions on his left arm and referred to these in the course of the examination. The applicant’s exam was discontinued and he was not permitted to take the exam for another two months.

29 In cross-examination Mr Hasegawa denied he cheated during the exam. These denials are not accepted.

Failure to accept a passenger

30 In 1996 a member of the public complained that he and a friend hailed a taxi driven by Mr Hasegawa after a night out in North Sydney. They had been drinking. The applicant refused to accept these passengers and take them as requested to Harbord claiming his shift was about to finish and he was going to the city. The irate complainant grabbed Mr Hasegawa’s taxi authority card from the taxi.

31 In evidence, Mr Hasegawa said he refused to accept the fare when he realised the complainant and his companion were drunk. In 1994 he was assaulted and seriously injured by intoxicated passengers and had to take ten days off work. Since that time he had refused to take intoxicated passengers.

32 Mr Hasegawa’s claim that the complainant was aggressive and intoxicated is supported by the complainant’s act of snatching the taxi authority card. The complainant acknowledged in his letter to the Department dated 25 August 1996 that he had been drinking. Clause 30 of the Regulations provides that a driver may refuse a hiring where the intending passenger is intoxicated. In light of his 1994 experience I do not find Mr Hasegawa’s refusal to take the complainant and his companion to their required destination to be unreasonable. In any event it is not a breach of clause 30 of the Regulations to refuse to accept a fare from an intoxicated person.

Driving Record

33 The Department’s file contained a complaint from a passenger alleging that in 1995 Mr Hasegawa had driven in a careless and dangerous fashion during a journey from Harold Park to St Leonards. He was reprimanded by the taxi company he was working for at that time.

34 His driving record reveals a number of convictions for traffic infringements.

Conclusions

35 The law relating to the meaning of the terms ‘fit and proper’ and ‘good repute’ has been canvassed at length in previous decisions of this Tribunal. See for example the decisions of Deputy President Hennessy in Saadieh v Director General Department of Transport [1999] NSWADT 68; and Singh v Director General Department of Transport [1999] NSWADT 96.

36 In Saadieh's case Deputy President Hennessy set out a number of factors that need to be taken into account in determining a person's suitability and fitness to obtain an 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.

37 Overcharging passengers is a most serious offence. Passengers are entitled to expect that their driver will not defraud them. Community confidence in the public transport demands that taxi drivers will be scrupulous in their financial dealings with their passengers. Not only has Mr Hasegawa committed a dishonesty offence, but the Tariff Two incident arose in the context of his employment as a taxi driver, and therefore constitutes a breach of trust.

38 In assessing the applicant’s fitness to hold a taxi authority a critical issue to be determined is whether the errant behaviour is likely to recur. In other words, was the Tariff Two incident an aberration or typical of a pattern of behaviour? Mr Wozniak submits that this incident cannot be seen in isolation from his behaviour during the 1990 exam and points to Mr Hasegawa’s dishonest character. I am not comfortably satisfied on the evidence before me that these two cases of dishonesty, close to a decade apart establish that Mr Hasegawa is a fundamentally dishonest person. While recognising the seriousness of the Tariff Two incident I note that no other complaints of dishonest dealings with passengers have been made against Mr Hasegawa throughout his nine year career as a taxi driver in this country.

39 The applicant has expressed contrition for the Tariff Two incident. Ms Tancred for the applicant submits that he is deeply ashamed of his actions. While accepting that his remorse is genuine, and that he acknowledged that his actions were wrong, I am troubled by the fact that throughout his evidence Mr Hasegawa continued to proffer the implausible explanation that his motivation for taping the meter was to spare his passengers confusion about the new fare system.

40 In assessing whether Mr Hasegawa meets the requirements of s11(2) of the Act I am required to take into account not only any complaints made against him but other factors such as his reputation within the community and driving record. Four character references were tendered in support of Mr Hasegawa and attested to his honesty and good character. His driving record, while not unblemished, contains no serious offences.

41 In light of the seriousness of the Tarrif Two incident I am satisfied that the Department made the correct and preferable decision in suspending Mr Hasegawa’s taxi authority.

42 Mr Hasegawa’s authority has now been suspended for just over six months. The passage of time requires me to assess whether a continuation of the suspension is appropriate. I note the decision was made to suspend rather than cancel the applicant’s authority, which implies that the Administrator took the view that some time in the future it would be appropriate to re issue the applicant’s authority.

43 It is clear from a reading of the Regulations that charging more than the correct fare does not automatically result in the cancellation or suspension of a taxi-cab authority. Clause 40 of the Regulations provides that the maximum penalty for demanding more than the excess fare is 5 penalty units. That being said, a finding that the Regulations have been breached also brings into question whether the administrator can continue to attest that the holder of the authority is considered to be of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle.

44 In my view the Tariff Two incident does not establish that Mr Hasegawa can never again satisfy the high standards demanded of taxi drivers as set out in s11(2) of the Act. Taking into account all the material before me I am satisfied on balance that the applicant is a fit and proper person to hold a taxi authority. In reaching this conclusion I note that this is the first dishonesty complaint made against Mr Hagesawa during his employment as a taxi cab driver; Mr Hagesawa has been penalised for his actions having been deprived of his ability to earn an income as a taxi cab driver for over six months; he has expressed contrition; his character witnesses attest that the offence is out of character.

45 Accordingly, I order that the administrator’s decision to suspend the applicant’s taxi-cab authority be set aside.