Hauchab v Roads and Maritime Services
[2013] NSWADT 181
•13 August 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Hauchab v Roads and Maritime Services [2013] NSWADT 181 Decision date: 13 August 2013 Jurisdiction: General Division Before: S Frost, Judicial Member Decision: Decision under review affirmed
Catchwords: Passenger transport - taxi driver authority - cancellation - complaints of sexually explicit comments by driver to passengers - driver's conviction for offensive behaviour - fitness and propriety - repute Legislation Cited: Passenger Transport Act 1990
Passenger Transport Regulation 2007Cases Cited: Sodiki v Roads and Maritime Services [2013] NSWADT 145 Category: Principal judgment Parties: Hauchab Hauchab (Applicant)
Roads and Maritime Services (Respondent)Representation: G Willis (Applicant)
Smythe Wozniak (Respondent)
File Number(s): 133066
reasons for decision
GENERAL DIVISION (S FROST, JUDICIAL MEMBER): The Applicant is a 65-year-old taxi driver who has been driving taxis for over 20 years.
In February this year, the Respondent formed the view that Mr Hauchab was not a fit and proper person with sufficient responsibility and aptitude to drive a taxi-cab. Accordingly the Respondent decided to cancel Mr Hauchab's taxi driver authority.
Mr Hauchab has applied to the Tribunal for review of the cancellation decision.
I agree with the Respondent's decision to cancel Mr Hauchab's driver authority. My reasons follow.
The relevant legislation
The relevant legislation for the purposes of this application is the Passenger Transport Act 1990 (the Act) and the Passenger Transport Regulation 2007 (the Regulations).
Section 33F of the Act provides as follows:
Having regard to the purpose of authorisation under this Division, [the Respondent] may at any time vary, suspend or cancel any person's authority under this Division.
The purpose of authorisation, referred to in that section, is exposed in s 33(3) of the Act in the following terms:
(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.
Clause 35(b) of the Regulations states that the driver of a public passenger vehicle must behave in an orderly manner and with civility and propriety towards any passenger, intending passenger, driver of another public passenger vehicle or authorised officer.
This case turns on the question whether Mr Hauchab meets the standards set out in paragraphs (a) and (b) of s 33(3).
Background to the cancellation decision
The Respondent received a complaint alleging that on 4 January 2013, Mr Hauchab asked a young male passenger questions of a personal nature and told the passenger that he would like to give him a "head job". The Respondent notified Mr Hauchab of the complaint. He was interviewed by authorised officers who found the allegation justified.
A delegate of the Respondent examined Mr Hauchab's complaint history and found a number of complaints made against him, dating back to 1994. Many of those complaints were of a minor nature and many of them were found not to be justified. In some cases, where the complaint was found to be justified, Mr Hauchab had been issued with a warning letter or a reprimand.
Mr Hauchab's traffic record over the most recent five year period was also examined. A number of demerit points and fines had been incurred, with offences including disobey traffic lights, disobey sign at intersection, and exceed speed limit.
But there were two particular incidents in Mr Hauchab's history that caused grave concern to the Respondent. I will deal with them later, as the "2008 incident" and the "2011 incident". First I will detail what is known about the January 2013 incident.
The January 2013 incident
The complainant, a 22-year-old off-duty police officer, gave the following statement to the Respondent's officers:
On 5 January 2013 at around 3:40am, taxi T3080 was outside of ARQ night Club located at 16 Flinders Street, Surry Hills. I approached the Taxi and sat in the front passenger seat of the vehicle. I said hello to the driver and asked him to drive me to my home address ...
The driver proceeded to drive south down Flinders street and down towards South Dowling Street. While in the taxi the driver asked how my night was. I replied to the driver saying to the effect of: "I had an ok night but ARQ is not really my favourite club to go to so I left my mate there".
The driver laughed and then informed me that he likes to go to ARQ every Sunday. I continued to have a conversation with the driver when he started telling me he lived with a mate on Crown Street in Surry Hills. The driver then asked me if I was gay or straight, I laughed and replied "well I just came out of ARQ so I'm gay". I started to become uncomfortable with the driver and began typing his Taxi licence number "AQ6751" which was located on the top of the front windscreen into my phone. The driver then asked if I had a boyfriend to which I informed him I was single.
The taxi driver was arriving to my building and asked him to pull over to the side of O'riordan Street Mascot just near the Caltex Service station. I proceeded to pay the driver with cash. While paying the driver he asked if that was my building while pointing towards my building. I told him it was and continued waiting for my change.
As I was getting out of the cab I heard the cab driver say to the effect of "I would love to give you a head job some time". I got offended by this comment and I shut the door of the taxi and quickly ran towards my building while the driver of the taxi did a u turn and proceeded to drive north on O'riordan Street heading back towards the city.
When questioned by the Respondent's officers about the alleged incident, about a month after it was reported, Mr Hauchab said that he could not recall the incident.
I now turn to the two earlier incidents which the Respondent was concerned about.
The 2008 incident
The first was his conviction in March 2008 of the offence of "behave in offensive manner in/near/within view from/within hearing from a public place/school". The background to this incident is set out at page 180 and following of the s 58 documents as follows:
At 3.35 a.m. on Friday 1st February 2008, police were patrolling the vicinity of Wyndham Street, Alexandria approximately 100 metres south of the intersection of Boundary Street.
At this time police have observed Premier taxi cab bearing registration plates T-3080. At the time the taxi availability light was clearly illuminated and the drivers side window was down. The driver appeared to be slumped across from the drivers seat onto the passengers seat as it if he had been assaulted.
Police have immediately made their way around the block and have stopped parallel to the taxi and have looked in. Police have observed the driver of the cab laying across from the drivers side to the passengers side towards a younger male sitting in the passengers seat.
It was clear to see that the passenger had his jeans undone and they were pulled down to his knees. The driver's head was moving up and down in the crotch of the passenger performing oral sex.
Police have alerted the pair as to their presence at the location and in a mad flurry, clothing was being adjusted and buttoned up and the driver has sat straight up and was seen by police to be licking his lips.
Police have requested that both persons produce some form of identification. Both supplied their respective drivers licences.
The accused, HAUCHAB, was the driver ...
...
Police have spoken to the co-accused first and after having all safeguards according to LEPRA afforded to him again he made full admissions to what had happened in the taxi prior to and while police were present at the location.
...
Police have then spoke[n] to the driver, the accused, HAUCHAB. Again all safeguards according to LEPRA have been applied to the accused. After he was cautioned and questioned he eventually made full admissions as to how he made advances to the co-accused and admitted to performing oral sex on the co-accused.
...
Mr Hauchab pleaded guilty and was fined $100 and ordered to pay costs of $70 (page 105 of the s 58 documents).
The 2011 incident
The second incident, on 25 January 2011, is described at page 152 and following of the s 58 documents:
The POI (taxi driver) starts a conversation with the VIC[TIM], the VIC has clear view of what the POI looks like. For some reason the POI allows the VIC to smoke, the VIC lights up a cigarette and smokes in the car.
In the course of the conversation the POI finds out that the VIC is homosexual, the POI comments that he preferred boys. The POI starts to pat the VIC's thighs, he grabs his hand, interlocks fingers and starts to kiss the VIC's hand and arm. The VIC quickly retrieves his hands from the POI's grip.
The conversation between the two continued with the POI inquiring about the VIC's relationship status, where he frequents and then queries if he prefers top or bottom.
About 4.50am the taxi pulls into the driveway of the LOC[ATION - St Pauls College, Camperdown]. The taxi display indicates $28.00, the POI verbally reduces the fare to $25.00. The VIC gives the POI the money, when he did this the POI said, "How bout a BJ", "here and now". The VIC was offended but politely declined.
The POI stokes [sic - presumably "strokes"] the VIC's crotch making contact with thigh and penis, the POI says, "oh you're still soft". The VIC holds his hands out in front with the palms of his hands facing the POI (indicating stop), the POI then allegedly grabs the VIC by the side of his arms and draws him closer towards the driver side. The POI then begins kissing the VIC (with tongue), the VIC tries to push away from the POI but had difficulty doing so because the POI was strong.
The VIC manages to back away, he gets out of the taxi and went straight to his dormitory. The VIC took a shower and went to bed. Later that afternoon then the VIC woke up, he recalled the incident and informs his close friend ...
The matter was reported to the Police but it seems that no further action was taken.
The Applicant's response to the alleged incidents
In relation to the January 2013 incident, Mr Hauchab swore in his affidavit:
[7] I note that it is alleged that this incident occurred on the 5 January 2013. The details of this complaint were not brought to my attention until I was interviewed on the 6 February 2013. By that time, I had worked many shifts and I could not remember that particular fare. However, if anything had occurred in the nature of the complaint, it is something that I would remember.
[8] In the course of my taxi driving, I frequently drive a shift that includes the early hours of the morning. I often pick up fares from the area of Oxford Street at Darlinghurst, because it is a very busy area late at night, or early in the morning. Many of the passengers I pick up from that area in the early hours of the morning come from the night clubs along Oxford Street. Late at night, most of them are affected by alcohol, some of them being on the border of being drunk.
[9] I often talk to my passengers. It is usually small talk, where they have been; have they had a good night; do they go to that club regularly etc. On some occasions, that small talk can extend to matters of a generally personal nature. If I have picked a passenger up from outside a known gay night club, sometimes they will tell me whether they are gay and whether they are single etc. I do not usually begin this type of conversation, it is usually the passenger who starts it, particularly if they have had a lot to drink.
[10] I have been married for 41 years and I am not a homosexual. Although I cannot remember the particular fare on the 5 January 2013, I deny that I had an inappropriate conversation with a passenger and I deny that I said to a passenger that I would like to give him a head job, or anything of that type.
In relation to the 2008 incident, Mr Hauchab swore in his affidavit:
[14] I acknowledge that I was charged by the Police with behaving in an offensive manner arising from an incident on the 1 February 2008 and which resulted in me being fined $100.00. I have read the police report in relation to that incident and I acknowledge that I was asked about it by the RMS officer in my interview on the 6 February 2013. I do not agree with the facts recorded in the police report about that incident and I did not agree with them at the time. The police officer who gave me the Court Attendance Notice told me I could just write a letter to the court, which was what I did. I later received a notice to tell me that I had been fined $100.00. I felt at the time that this was the best way to deal with the matter, whether I agreed with it or not.
In relation to the 2011 incident, Mr Hauchab swore in his affidavit:
[15] I also acknowledge that I was apparently investigated by the police at Newtown in relation to an alleged incident that occurred on the 25 January 2011. I have read the police report of that alleged incident on the RMS file and I do not agree with it. I deny that I behaved in an inappropriate way to that passenger. I acknowledge that I was asked about this incident in my interview with an RMS officer on the 6 February 2013. I believe that I told him that I could recall a passenger who was drunk and was asleep and I had to slap him to wake him up to pay the fare and get out of the taxi. I deny that I acted in the way alleged in the police report. I note that there was CCTV which apparently showed my taxi dropping off this passenger. However, the CCTV did not provide any evidence in support of the allegation of my alleged behaviour. This was a case of the passenger's word against mine and there is no reason why his version of the incident should have been preferred over mine.
Mr Hauchab also gave oral evidence and was cross-examined by Mr Wozniak, representing the Respondent.
Mr Hauchab told the Tribunal that the passenger involved in the 2008 incident had dropped his money on the floor of the cab, and Mr Hauchab had tried to pick it up for him. As to whether the passenger's jeans were down to his knees, it "didn't happen". The alleged "moving up and down" of Mr Hauchab's head, which the police officers identified as Mr Hauchab performing oral sex on the passenger, also "didn't happen". There was also no licking of lips. Mr Hauchab denied having made "full admissions" to the police. He stated that the police report was wrong - "I was looking for a wallet." He said that he did not contest the 2008 charges because he could not afford to.
In relation to the 2011 incident, Mr Hauchab denied having said that he "preferred boys". He denied having offered a blow job to the passenger. He denied having said anything about the passenger being "still soft". It "didn't happen".
He could not remember the January 2013 incident. He denied the contents of the conversation with the passenger. He denied having expressed a willingness to give the passenger a head job.
He did not know why, on three separate occasions and involving three apparently unconnected people, there were reports of his having initiated, or having offered to engage in, sexual activity with young male passengers. He thought it must be bad luck.
He said he would not initiate personal conversations with passengers in the future.
Should the Applicant's driver authority be cancelled?
Mr Wozniak pointed out, correctly, that the purpose of a driver authority is to have the regulator (that is, the Respondent, or on review the Tribunal) "attest" that a driver is of "good repute", is "fit and proper" to be a taxi driver, and has "sufficient responsibility and aptitude" to drive taxis. It is not about giving a driver "another go".
It is of concern to me, as it was to the Respondent, that on two separate occasions, once in 2011 and once in 2013, there have been complaints made by male passengers about sexually explicit comments Mr Hauchab has made to them. This cannot be put down to coincidence, or "bad luck".
It is of concern to me, as it was to the Respondent, that in 2008 Mr Hauchab was convicted of "behave in offensive manner in/near/within view from/within hearing from a public place/school" when the essential fact underpinning that conviction was Mr Hauchab's performing of oral sex on a male who was apparently a passenger in his taxi.
I do not accept his denial that the 2008 incident occurred as described by the police officers. In light of the officers' statement that he had made "full admissions" at the time, the explanation that he now offers is so implausible as to be ludicrous.
I agree with what Judicial Member Molony said in Sodiki v Roads and Maritime Services [2013] NSWADT 145 at [46]:
The public reasonably expects that they can [travel in a cab] free of sleazy suggestions and sexualised language and/or conduct from taxi drivers.
I am certainly not satisfied that a member of the public travelling in Mr Hauchab's cab would have that expectation met.
I am not swayed from that view by the references that were tendered in support of Mr Hauchab's character. Although he has been described in those references as "well-respected, hardworking and honest", "good and well behaved", "honest and peaceful", "quiet and gentle" and a "responsible and respectful family man", none of the authors had been given any detail as to the matters raised against Mr Hauchab by the Respondent. At most, Mr Hauchab had told them that he needed the references for his job, to get his licence back. The references do not assist him.
I cannot attest to the matters set out in s 33(3) of the Act, and for that reason the correct and preferable decision is to cancel Mr Hauchab's taxi driver authority.
The decision under review is therefore affirmed.
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Decision last updated: 13 August 2013
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