Hawchar v Director-General, Department of Transport

[2000] NSWADT 50

CITATION:	Hawchar -v- Director-General, Department of Transport [2000] NSWADT 50
DIVISION:	General Division
PARTIES:	APPLICANT Akl Ahmad Ali Hawchar RESPONDENT Director-General, Department of Transport
FILE NUMBER:	993105
HEARING DATES:	16/11/99, 24/02/2000
SUBMISSIONS CLOSED:	03/24/2000
DATE OF DECISION:	04/27/2000
BEFORE:	Britton A - 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:	Saadieh -v- Director-General, Department of Transport [1999] NSWADT 68 Singh -v- Director-General, Department of Transport [1999] ADT 96 Re T and Director of Youth & Community Services [1980] 1 NSWLR 392
REPRESENTATION:	APPLICANT G Caristo, solicitor RESPONDENT A Wozniak, solicitor
ORDERS:	1. The decision of the Director-General of the Department of Transport not to grant the applicant a taxi authority is affirmed.

REASONS FOR DECISION

1 By way of notice dated 2 March 1999, a delegate of the Director General of the Department of Public Transport ( “the administrator”), advised Mr Hawchar, the applicant in these proceedings, of the decision to refuse to grant him an authority to drive taxi cabs. An internal review affirmed the administrator’s original decision. On 11 May 1999 the applicant applied to the Administrative Decisions Tribunal of NSW ("the Tribunal") under the Public Transport Act 1990 ("the Act"), s52(1) for a review of the decision.

2 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. The Tribunal has the power to affirm, vary or set aside the decision : Administrative Decisions Tribunal Act (NSW) 1997, s 63.

Background

3 The applicant’s taxi authority was cancelled by the administrator in 1996. An appeal against that decision was dismissed by Parramatta Local Court in September 1997. (On 1 January 1999 the right of appeal under the Act was transferred from the local courts to the Administrative Decisions Tribunal.)

4 The applicant reapplied for a taxi authority in 1997, and again in 1999. On both occasions the administrator refused to grant an authority. The most recent of these decisions, namely the administrator’s 2 March 1999 decision, is the subject of this Inquiry.

5 In reaching its 2 March 1999 decision not to grant the applicant a taxi authority, the administrator relied amongst other things on: complaints of harassment and intimidation made by NRMA patrol officers and staff of the Department of Public Transport ("the Department"); the decision of the Downing Centre Local Court 14 March 1997 that the applicant ought not to be dealt with according to law in relation to the assault charges because he was suffering from a mental illness (Mental Health (Criminal Procedure) Act 1990 (NSW), s32); the applicant’s failure to return his cancelled taxi authority to the administrator, as required; and the applicant’s failure make a full and frank disclosure in various taxi authority application declarations.

Evidence

6 The administrator's file on Mr Hawchar was tendered in evidence. The following chronology can be summarised from the file:

• 1990-applicant issued with taxi authority;
• 9 July 1996 -applicant charged with four counts of assault and offensive language;
• 15 August 1996 - administrator cancels applicant's authority to drive taxi cabs;
• 27 September 1996-Parramatta Local Court dismisses applicant’s appeal against the administrator's 15 August 1996 decision ;
• 12 March 1997-Road Traffic Authority suspends applicant's drivers licence on medical grounds, pending a satisfactory psychiatric report;
• 14 March 1997- Downing Centre Local Court finds applicant unfit to plead to 9 July 1996 assault charges pursuant to Mental Health (Criminal Procedure) Act , section 32,
• October 1997-applicant reapplies for taxi authority;
• 10 December 1997-administrator advises applicant of decision not to grant him an authority to drive taxi cabs;
• November 1998 -applicant reapplies to the administrator for an authority to drive taxi cabs;
• 2 March 1999- administrator advises applicant of decision not to grant him an authority to drive taxi cabs;
• 20 April 1999- internal review affirms administrator's March 2 decision.

7 The administrator’s file contains written complaints from approximately 25 NRMA patrol officers alleging harassment by Mr Hawchar. These complaints range from verbal abuse and intimidation to physical abuse. The most serious of these complaints led to criminal charges being laid against Mr Hawchar following an assault on a NRMA patrol officer on 9 July 1996.

8 In evidence Mr Hawchar dismissed these complaints as false. He suggested they were motivated by jealousy on the part of NRMA employees. Mr Hawchar gave evidence that various NRMA patrolmen together with the police conspired to give false evidence against him.

9 In dismissing these charges under s.32 of the Mental Health (Criminal Procedure) Act , Magistrate Kearney discharged Mr Hawchar into the care of his wife on the condition that he continue to take his medication. In support of his s.32 application, medical reports were tendered by Mr Hawchar’s legal representatives. Psychologist , Anna Robilliard, in a written report, 6 December 1996 stated that Mr Hawchar “exhibited symptoms consistent with a mental disorder with marked paranoid delusional beliefs.” In a written report dated 13 March 1997 psychiatrist, Dr Ali stated that in late 1996 he had diagnosed the applicant as paranoid and suffering from delusions and hallucinations. On the basis of more recent examinations Dr Ali’s prognosis was that if the applicant abstained from heavy drinking, continued to attend a psychiatrist and to take his medication which included anti- psychotics, he would do well and would no longer be a danger to NRMA officers or the police.

10 Mr Hawchar denied he had any psychiatric problems in late 1996 and 1997, and dismissed Dr Ali's assessment as the "lies of a sick man". Further Mr Hawchar gave evidence that despite his wife’s undertaking to the Local Court that he has never taken prescribed medication for his illness.

11 The administrator’s file contains a number of complaints from the Department’s staff alleging verbal abuse and harassment by Mr Hawchar. Mr Hawchar gave evidence that on various occasions throughout 1997 he had visited the offices of the Department to make enquiries on the status of his application for a taxi authority. Mr Hawchar denied threatening Departmental staff. In cross examination he suggested that the reason for the complaints may have been staff over-reaction to his (normally) loud voice and large stature.

12 In a taxi driver authorisation declaration dated 5 April 1994 he answered "No" to the question "Have you ever been prohibited from driving a motor vehicle in NSW or elsewhere?" Prior to that date his licence had been cancelled on four occasions. On the same declaration he again answered "No" to the question “have you been convicted of a criminal offence in the past ten years?” In cross examination he agreed he had been convicted for possessing and administering a prohibited drug in 1990 but argued this was a minor matter for which he received a small fine. More recently, on a declaration dated 20 November 1998, he failed to disclose that his RTA driver’s licence had been suspended on medical grounds.

13 In cross examination Mr Hawchar was unable to provide a satisfactory explanation for these incorrect answers suggesting either that he misunderstood the questions because of his poor command of written English or was determined to conceal the truth for fear of being denied an authority.

Dr Samad

14 Dr Samad, a psychiatrist gave evidence that he was seeing Mr Hawchar on a regular basis, initially every fortnight and from early 1999, approximately once a month. He first saw Mr Hawchar on 30 July 1998.

15 In his written report tendered in evidence Dr Samad , stated that in his opinion "Mr Hawchar did not suffer from any psychological problems … had no past psychological problems … does not take any medication… there is no evidence of any narcotic drug use".

16 In short Dr Samad's assessment was that his patient was a well adjusted family man, who at worst "talks at length and is a little excited". Dr Samad attested that in his opinion there was no medical condition, physical or psychological that made Mr Hawchar unfit to drive taxis.

17 In cross-examination Dr Samad said that he had no knowledge of Mr Hawchar's past psychiatric problems; it was his understanding that Mr Hawchar had lost his taxi license after being charged with four counts of assault and one of offensive language but that Mr Hawchar had "gone to Court and cleared his name". He admitted he was unaware that :

• the assault charges against Mr Hawchar had been dismissed under s32 of the Mental Health (Criminal Procedure) Act;
• his patient had been independently diagnosed by two doctors in late 1996 and early 1997 as paranoid, suffering from delusions and hallucinations;
• Dr Oner’s 18 April 1997 referral letter to Dr Samad advised that Mr Hawchar had been prescribed the anti-psychotic drug, Stelazine which in Dr Oner's opinion was necessary if Mr Hawcher was to drive taxi cabs.

18 Notwithstanding these revelations Dr Samad stood by his original assessment that Mr Hawchar did not and has not previously suffered from any mental illness and was fit to drive taxi cabs.

Findings

19 The evidence revealed that since late 1996 Mr Hawchar's behaviour has improved . No longer a heavy drinker, at worst he has the occasional social drink . His last driving offence was in mid 1996. He has had no trouble with the police since August 1996 . There have been no complaints against him by NRMA employees since late 1996.

20 During his nine year career as a taxi driver there has never been a recorded complaint made against him by a pasenger. I accept Mr Hawchar's evidence that he enjoyed his work and on many occasions went out of his way to assist his passengers.

21 His driving record is not unblemished but contains no convictions for serious offences. During the period 1980 to 1996 his licence was cancelled five times.

The applicant's five character witnesses attest to Mr Hawchar's good character and good standing within the community. All state they have never known him to be violent and believe him to be a fit and proper person to drive a taxi.

Mr Hawchar is the sole provider for his wife and two dependents. He is supported by a loving and close family.

24 It is difficult to make findings of fact in relation to all the complaints made against Mr Hawchar when he claims the complaints are "100% lies" and there is no opportunity to cross-examine the people who made the complaints. However from the evidence I conclude that prior to late 1996 at least twenty-five complaints have been made against the applicant by NRMA patrolmen; the applicant denies the substance of these complaints but does not deny that he had numerous dealings with NRMA patrolmen during this period; the evidence of a NRMA patrolman, given during the course of the applicant’s September 1997 taxi authority appeal, that the applicant had approached him in an irrational and unprovoked manner, was accepted by Parramatta Local Court.

In relation to the untested complaints made against him by members of the Department I conclude that the administrator’s file contains numerous complaints of harassment from staff of the Department over various periods after his taxi authority was cancelled in 1996; Mr Hawchar denies threatening and verbally abusing staff of the Department but does not deny visiting the offices of the Department and making phone calls during the relevant period.

The weight of evidence is such that I do not accept Mr Hawchar’s denials in relation to all of the complaints made by NRMA patrol officers and Departmental staff.

The Tribunal has before it conflicting medical evidence on the applicant's medical fitness to drive taxi cabs. The more recent report of Dr Samad claims that the applicant does not suffer from any psychiatric or psychological problems. The earlier reports of Dr Ali and Ms Robilliard diagnose Mr Hawchar as paranoid.

28 Where there is conflicting medical evidence, the Tribunal must take into account, amongst other things the date of the respective medical assessments. All things being equal, greater weight will generally be given to a more recent assessment , especially where an earlier report significantly pre-dates the more recent assessment. Mr Caristo, for the applicant submits that the administrator has given excessive weight to the now four year old assessments of Dr Ali and Ms Robilliard.

29 Mental illness is in most cases a treatable condition. Many individuals diagnosed with mental illness go on to make full recovery and to take their place as responsible members of society. The Tribunal has no evidence before it which would support a conclusion that the condition that Mr Hawchar allegedly suffered in 1997 is untreatable. Indeed the evidence before the Tribunal is that this is not the case.

30 Dr Samad’s more recent assessment is based on an incomplete knowledge of his patient’s medical history. Despite treating his patient for over 18 months, Dr Samad’s evidence reveals an incomplete knowledge of his patient's medical history. It is unclear whether Dr Samad failed to take a detailed history of his patient or whether Mr Hawchar concealed relevant information. Whatever the reason, this incomplete history reduces the weight his evidence can be given.

31 Mr Hawchar's own evidence revealed that he continues to hold the irrational belief that he had been the victim of a NRMA conspiracy. On the basis of this and Dr Samad's incomplete knowledge of his patient's medical history I cannot accept Dr Samad's uncorroborated assessment that his patient does not suffer from a significant mental illness.

32 In relation to Mr Hawchar’s failure to make full disclosure in various taxi declarations I am persuaded that he was confused as to whether the possession of a small amount of a prohibited drug represented a criminal offence and thus answered “No” to the question “Have you been convicted of a criminal offence in the past ten years?” I find that, notwithstanding Mr Hawchar’s difficulties with written English, that he understood the meanings of those questions relating to his medical condition and cancellation of his drivers licence and dishonestly answered those questions.

Relevant Law

33 Section 12 of the Act grants the administrator a discretion to grant an authority, having regard to the purpose of that authority Sub section 11(2) provides that the purpose of an authority under that 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 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 in accordance with law and custom.

34 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.

35 In Saadieh's case Deputy President Hennesy 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.

36 The Deputy President noted [at 18] that in assessing the likelihood that the applicant will re-offend or be the subject of further complaints that several considerations are relevant including: the length of time since the complaints were made; the circumstances in which those offences or complaints occurred or are alleged to have occurred; whether the applicant admits responsibility for the offences or complaints and shows genuine remorse; the efforts the applicant has made to rehabilitate himself or herself during that time and; any change in the applicant's circumstances such as increased support from friends, family or professional service providers.

Conclusions

37 From the authorities it is clear that evidence of a conviction for a criminal offence is prima facie evidence of 'bad repute'. It is apparent that a critical factor in the respondent's decision not to grant the applicant a taxi authority was the behaviour that led to the August 1996 cancellation of the applicant's taxi authority, ie the continued harassment of NRMA patrol officers culminating in the July 1996 assault and the subsequent dismissal of charges under s32 of the Mental Health (Criminal Procedure) Act.

38 The Tribunal notes that these charges were never proved to the criminal standard. Subsection 32(4) of the Mental Health (Criminal Procedure) Act provides that a decision under this section to dismiss charges against a defendant does not constitute a finding that the charges against the defendant are proven or otherwise.

39 Notwithstanding the absence of convictions, the administrator, in assessing whether Mr Hawchar is a fit and proper person, is entitled to take into account the complaints made against him, and specifically the nature, seriousness and frequency of these complaints. These complaints, taken as whole, indicate that the applicant persistently harassed NRMA patrolmen apparently for no good reason. A number of these are serious, involving physical violence.

40 The medical evidence before the Tribunal is that in late 1996 the applicant was suffering from a mental illness. It would appear that this illness was the reason for his errant behaviour. It is therefore highly relevant whether Mr Hawchar continues to suffer from such illness. Given the unsatisfactory evidence of Dr Samad, I am unable to conclude Mr Hawchar no longer suffers from a mental illness.

41 In assessing the likelihood that Mr Hawchar will be the subject of future complaints, I note that Mr Hawchar shows no remorse for his actions. Indeed, he fails to acknowledge that his actions were unacceptable, and from his evidence it is clear that he continues to believe that he was the victim of a conspiracy.

42 While the applicant is taking steps towards rehabilitation by seeing a medical practitioner, this can be given limited weight in any assessment of his rehabilitation given that in the opinion of both patient and doctor, Mr Hawchar does not suffer and, indeed, has never suffered from a mental illness. Notwithstanding that Mr Hawchar is supported by a loving family and has not had any complaints made against him by the NRMA or police since 1996 I cannot, on the basis of the information before me, conclude that the likelihood of similar acts being committed in the future to be low.

43 In reaching this conclusion I am mindful that even at the height of Mr Hawchar's harassment of NRMA employees, there is no suggestion that he dealt with passengers in an inappropriate manner. Whether an individual meets the various tests set out in s11(2) of the Act , is not referrable to their dealings with their passengers alone. While previous dealings with passengers are of course highly relevant, the concept of a “fit and person” is a broader concept and goes to an individual’s intrinsic characteristics (See for example the comments of Waddell J in Re T and Director of Youth & Community Services [1980] 1NSWLR392.)

44 Mr Wozniak for the respondent submitted that the administrator, in reaching its decision, properly took account of Mr Hawchar’s failure to provide correct information in various taxi driver authorisation declarations.

45 The Act, s.4(a) obliges the administrator to maintain a system of accreditation for drivers involved in public passenger services. To this end the administrator requires from applicants and holders of public passengers authorities, information relevant to an assessment of whether the individual meets the criteria for a holder of a public passenger authority. The maintenance of an effective accreditation system requires that the administrator can rely on full and honest disclosure from applicants.

46 The statements of reasons attached to the Notice of Decision dated 2 March 1999 notes that the applicant’s failure to disclose relevant information was one of the reasons that led to the decision not to grant Mr Hawchar a taxi authority. I accept Mr Wozniak’s submissions that honesty is a quality central to the concept of a fit and proper person and is properly a matter to be addressed in the administrator’s assessment of whether an applicant is a fit and proper person to hold a taxi authority.

47 The Tribunal considers that the cumulative force of Mr Hawchar’s failure to make full disclose in various taxi authority application declarations; his failure to accept responsibility for any of the complaints against him; and the unsatisfactory medical evidence that he no longer suffers from the medical condition that led to his errant behaviour in 1996 is such, that Mr Hawchar’s application should be refused.

48 The decision of the Director General of the Department of Transport not to grant the applicant a taxi authority is therefore affirmed.