Hopkins v Ministry of Transport

[2006] NSWADT 338

CITATION:	Hopkins v Ministry of Transport [2006] NSWADT 338
DIVISION:	General Division
PARTIES:	APPLICANT Matthew John Hopkins RESPONDENT Ministry of Transport
FILE NUMBER:	063289
HEARING DATES:	25/09/06
SUBMISSIONS CLOSED:	09/25/2006
DATE OF DECISION:	12/01/2006
BEFORE:	Fitzgerald K - Judicial Member
CATCHWORDS:	Passenger Transport Act - taxi driver - grant of authority - Taxi driver - grant of authority
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Passenger Transport (Taxi-Cab Services) Regulation 2001 Passenger Transport Act 1990
CASES CITED:	Abouhassoun v Director General, Department of Transport [2001] NSWADT 193 Armani v Director General, Department of Transport Australian Broadcasting Tribunal v Bond (1999) 170 CLR 321 Basham v Director General, Department of Transport [2000] NSW ADT 170 Carter v Commissioner of Police, New South Wales Police Service [2005] NSW ADT 265 Caska v The Director General of New South Wales, Department of Transport [2001] NSWSC 205 Director General, Department of Transport v Z [2002] NSWADTAP 37 Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 EB v Director General, Department of Transport [2002] NSWADT 258 Farquharson v Director General, Department of Transport [1999] NSWADT 53 Hughes & Vale Pty Limited v State of New South Wales (1955) 93 CLR 127 Jasmin v Commissioner of Police, New South Wales Police Service [2001] NSW ADT 45 Jawad v Director General, Department of Transport [2003] NSW ADT 55 Lal v Director General, Department of Transport [2001] NSW ADT 74 Lal v Director General, Department of Transport [2001] NSW ADT 74 Loye v Director General, Department of Transport [2000] NSW ADT 145 Loye v Director General, Department of Transport [2000] NSWADT 145 Maythisathit and Registrar of Motor Vehicles [1996] AATACT 165 McDonald v Director General of Social Security (1984) 1 FCR 354 Re T and Anor v The Director of Youth and Community Services [1980] 1 NSWLR 392 Saadieh v Director General Department of Transport [1999] NSWADT 68 Singh v Director General, Department of Transport [1999] NSWADT 9
REPRESENTATION:	APPLICANT In person RESPONDENT A Wozniak, solicitor
ORDERS:	The decision of the Ministry of Transport, to refuse Mr Hopkins an authority to drive a taxi-cab under section 33B of the Passenger Transport Act 1990, be affirmed.

REASONS FOR DECISION

Background

1 On 7 July 2006 the Ministry of Transport notified Mr Hopkins that his application for authorisation to drive taxi cabs dated 4 April 2006 had been refused in accordance with Section 33B of the Passenger Transport Act 1990. This decision was affirmed on 21 July 2006 following internal review and on 1 August 2006 an application was lodged with this Tribunal.

2 The licence was refused initially because the Director General’s delegate considered that Mr Hopkins could not be a fit and proper person for the purpose of the Passenger Transport Act, nor could he be considered to have sufficient responsibility and aptitude to drive a taxi-cab in accordance with law and custom. On internal review Mr Hopkins was found not to be of good repute and in all other respects a fit and proper person to be the driver of a taxi-cab so it was unnecessary to determine whether he had sufficient responsibility and aptitude. The internal review tended to the view that Mr Hopkins is regarded by those in his community as being of “good repute” but ultimately found that he was not “fit and proper” to be the driver of a taxi-cab.

3 The core facts relevant to this matter are not in dispute. Mr Hopkins was convicted by the Local Court at Macksville on 10 November 2005 for the offence of cultivating of a prohibited plant. He was sentenced to a period of 9 months imprisonment suspended on entering a bond of good behaviour with other conditions including that he obey all reasonable directions of probation and parole in relation to counselling, psychiatric treatment, vocation training, financial planning and debt counselling. He was also ordered to pay court costs of $65. The good behaviour bond concluded on 10 August 2006.

4 The Police Facts Sheet was in evidence. It stated that Mr Hopkins was uncooperative with police during their investigation, that 240 plants were removed from his property and that they also found an irrigation system and lamps.

5 Mr Hopkins traffic record shows that he has been convicted of traffic offences including fined for speeding offences occurring in 2005, 2001, 1998 and 1985.

Applicant’s Case

6 Mr Hopkins argued that he was only charged in relation to 5-50 cannabis plants not the larger amount listed in the Police Fact Sheet and that his pre-sentence report recommended low level intervention. Mr Hopkins explained the offence as based on his domestic circumstances in that he had no money and had to provide for his wife and children in a property settlement. His position was that having been punished by the Court he should not be again punished by the Tribunal.

7 Mr Hopkins pointed to the high unemployment rate in his area as well as to his health issues to argue that taxi driving may be the one job he can actually do. He also drew the Tribunal’s attention to the fact that he had previously held a taxi authority and drove taxis from the end of August 2002 until January/February 2003 and no complaints were made against him in this period. He also said that he was ineligible for government assistance until October 2006 and was struggling financially.

8 Mr Hopkins provided references. First, he provided a reference from Crisis Accommodation Brokerage Service dated 14 July 2006 which spoke of the high unemployment rates in the Nambucca Valley Area. The reference talks in general terms of support for initiative being shown by any individual in relation to overcoming employment barriers but makes no mention of the offences of which Mr Hopkins was charged nor of personal knowledge of or support for Mr Hopkins.

9 Second, Mr Hopkins provided references and other material that had been prepared for his Court hearing. George Hicks, Mayor of Nambucca Shire Council, provided a reference dated 5 October 2005. The reference notes that Mr Hicks is aware of the charges that Mr Hopkins was facing and believes that the allegations are “out of character”. He recommended Mr Hopkins as a reliable and honest person of good character having known him for the previous 15 years.

10 Mr Hopkins provided a reference dated 18 October 2005 from Mr Glenn Robinson who stated that he has known Mr Hopkins for approximately 10 years both personally and through business. Mr Robinson stated that he was very surprised that Mr Hopkins had been charged and that it was “very much out of character” as he has always been a “honest and trustful person”. Mr Robinson runs his own business and is the co-ordinator for the Maxwell Safety House System as well as acting president for the Nambucca Valley Safety House System.

11 Mr Hopkins also provided a medical and psychological reference that he was well enough to drive a taxi-cab including one from Dr A R Adams dated 1 November 2005 which stated that:

“the combination of poor medical health, inability to work and financial hardship and the responsibility for caring for three children, all contributed to Mathew’s decision to grow marijuana for financial gain”.
The reference noted that Mr Hopkins’s past and current medical illnesses were a significant contributor to his impaired judgement in relation to cultivating marijuana. A note dated 9 November 2005 detailing Mr Hopkins’s domestic situation and Mr Hopkins’s considerable emotional stress in relation to contact with this children was provided by Michelle Harding, solicitor for Mr Hopkins.
12 Mr Hopkins’s Community Offender Services Probation and Parole Service pre-sentence report dated 10 November 2005 detailed his health and domestic problems and noted that he had been forthright in his admission of guilt and that he had commissioned the offence for monetary gain. This report stated that:
“he took responsibility for his actions and his contrition was evident in regard to performing an illegal act. However, he did not appear to be fully aware of the possible repercussions in regard to the consequences of his behaviour.”
13 In response to comment by Mr Wozniak that his references referring to his criminal conduct were out of date, Mr Hopkins argued that he lived in a town of 3000 people and that as his conviction was in the paper everyone would have been aware of his criminal offences. He also points to the fact that the internal review is contradictory as it finds that he is of good repute from the references before ultimately finding that he was not of good repute. I accept that the internal review is not in the clearest terms but as I read it while the decision found Mr Hopkins of “good repute” it did not find him a “fit and proper person”. In any event, the question before me is whether the decision is the correct and preferable one.

14 Mr Hopkins argued that he was penalised for being an Australian as there was no way to properly check overseas drivers’ criminal history. He stated that his ex-wife informed on him and that her new boyfriend’s brother is a policeman as a result of which Mr Hopkins had made 4 or 5 complaints to the Ombudsman. Details of these complaints were not provided to the Tribunal.

15 Mr Hopkins raised issues about the dates in the Police Facts Sheet and noted that he had also made a complaint to the Police Integrity Commission. He did not dispute the details in the Police Facts Sheet, just the dates. Again details of the Police Integrity Commission complaint were not provided.

16 Finally, Mr Hopkins argued that the offence did not occur in relation to a taxi, that he was not using the drugs so there was no risk to passengers and that the offence was not of a violent or sexual nature. He did acknowledge the seriousness of the offence.

Respondent’s Case

17 The primary thrust of Mr Wozniak’s argument for the Director General was that it was just too soon after Mr Hopkins’ conviction for him to be granted a taxi-cab authority. He acknowledged that the offence was not in the range of the most serious offences but argued that it was still serious and so required at least 12 months after the bond elapsed to demonstrate that Mr Hopkins was of good repute and a “fit and proper person”. He also noted that Mr Hopkins’s sentence was the most serious type of bond, breach of which leads to automatic detention.

18 Mr Wozniak relied on Carter v Commissioner of Police, New South Wales Police Service [2005] NSW ADT 265 at paragraph 23 ff and the authorities set out there in relation to the meaning of “good repute”. At paragraph 29 of that decision, the relevant factors in relation to cases involving offences were listed as follows:

“(a) the nature and extent of [the applicant’s] criminal record;

(b) the time since his last conviction;

(c) the likelihood of re-offending having regard to any evidence of contrition and good character; and

(d) the nature of the duties he is required to perform…”

19 He also cited Re T and Anor v The Director of Youth and Community Services [1980] 1 NSWLR 392 in relation to consideration of criminal offences (see for example at 402).

20 In response to Mr Hopkins’s assertion that he should not be punished again by the Tribunal, Mr Wozniak referred to Basham v Director General, Department of Transport [2000] NSW ADT 170 at paragraphs 53-54 to support the argument that the statutory licensing regime while having a punitive effect was predominantly designed to protect the travelling public.

21 Mr Wozniak draw the Tribunal’s attention to Loye v Director General, Department of Transport [2000] NSW ADT 145 to support the contention that references needed to be provided to show the person expressing the view was aware of any criminal history of the applicant and also the purpose for which they were expressing the view. Mr Wozniak then noted that Mr Hopkins’ references were aware of the charge rather than his conviction which is a different circumstance.

22 Mr Wozniak also relied on Lal v Director General, Department of Transport [2001] NSW ADT 74 at paragraph 47 and Jawad v Director General, Department of Transport [2003] NSW ADT 55 at paragraph 29 to assert that hardship to the applicant was not a matter that the Tribunal could consider.

23 At the hearing Mr Wozniak also stated that Mr Hopkins had breached the legislation in not notifying the Ministry that he had been arrested (Regulation 36 of the Passenger Transport (Taxi-Cab Services) Regulation 2001) because he held a previous licence. In response to this Mr Hopkins said that he had ceased driving in 2003 so he was not required to meet this obligation to which Mr Wozniak replied that Mr Hopkins had breached section 53B of the Passenger Transport Act 1990 by not surrendering his authority immediately. Mr Hopkins stated that he never understood that he was to have done this.

Relevant Law

24 The role of the Tribunal is to determine whether, having regard to the underlying facts in the matter and the applicable law, the decision of the Director General is the correct and preferred one, see Section 63 Administrative Decisions Tribunal Act 1997.

25 The Tribunal must make its own decision and there is no presumption that the decision of the Director General is correct (Section 63(1) of the Administrative Decisions Tribunal Act; McDonald v Director General of Social Security (1984) 1 FCR 354 at 357.)

26 The Tribunal undertakes a review of the merits of the original decision and is obliged to reconsider all of the material first considered, together with any other relevant material so as to confirm the original decision, vary it, or set it aside and substitute another (see Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77).

27 Section 33B of the Passenger Transport Act 1990 states:

“Grant or refusal of application

(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.”

28 Section 33(3) of the Passenger Transport Act 1990 states that the purpose of an authority under the 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.”

29 Relevantly, regulation 33 of the Passenger Transport (Taxi-Cab Services) Regulation 2001 provides:
“33. Criteria for authorisation to drive taxi-cabs

(1) The object of this clause is to set forth, for the purposes of section 33B(2) of the Act, the criteria that an applicant for an authorisation to drive taxi-cabs must meet before the application is granted.

(2) The applicant:

(f) must satisfy the Director General that he or she:

(i) is of good repute and in all other respects a fit and proper person to be the driver of a taxi-cab, and

(ii) has sufficient responsibility to drive a taxi-cab in accordance with law and custom.”

30 Of “good repute” and “fit and proper person” are distinct concepts which must both be satisfied before an authority can fulfil its purpose. ( Re T and Anor and the Director of Youth and Community Services [1980] 1 NSWLR 392; Caska v Director General of New South Wales, Department of Transport [2001] NSWSC 205).

31 An assessment of whether a person is “fit and proper” involves different considerations from those relevant to “good repute”: Singh v Director General, Department of Transport [1999] NSWADT 96 at 25 to 28, Farquharson v Director General, Department of Transport [1999] NSWADT 53 at 27.

32 In Farquharson v Director General, Department of Transport [1999] NSWADT 53, O’Connor DCJ, President said:

“A taxi driver has a continuing responsibility to ensure that he is of “good repute” and a “fit and proper person”. Clearly, the laying of serious criminal charges bears on the reputation of an individual and may raise questions as to the person’s character. The concepts of “good repute” and “fit and proper character” involve different considerations. The former concept goes to the way in which a person is regarded by others in the community (fairly or unfairly), while the latter concept goes to an individual’s intrinsic characteristics, whether they are known to others or not: see, for a detailed discussion, Re T and Director of Youth & Community Services [1980] 1 NSWLR 392 (Waddell J).”
33 “Repute” is defined in the Macquarie Dictionary (Third Edition) to mean “estimation in the view of others; reputation”. See Abouhassoun v Director General, Department of Transport [2001] NSWADT 193 at para 50.

34 Whether a person’s history is known in the community will be a factor in assessing what weight to give to the evidence of repute. A positive estimation in spite of knowledge of a blemished history would ordinarily weigh in favour of the person. EB v Director General, Department of Transport [2002] NSWADT 258 at 40.

35 Conversely, where testimonials do not specifically address the applicant’s offences or the issues with which the Tribunal is concerned, they are of less use. See Loye v Director General, Department of Transport [2000] NSWADT 145.

36 In the decision of Director General, Department of Transport v Z [2002] NSWADTAP 37 at [38] the Appeal Panel stated:

“Good repute refers to the way reasonably-minded people assess an individual’s current reputation, with reasonably precise knowledge of those matters that put the person’s reputation in doubt. The fact that the person produces evidence from witnesses who vouch in general terms for the person’s reputation can not be conclusive. Equally, care must be taken, as we see it, not to use the “good repute” requirement as a way of bringing into consideration stereotypes or assumptions which offend, for example, against human rights or anti-discrimination standards.”
37 At [20] the Appeal Panel also cited with approval the following statement of Waddell J at 399:
“This definition “reputation” [Shorter Oxford Dictionary, 1973, 1083] makes it clear, as is the law, that a person’s reputation is to be found in the estimate of his moral character entertained by some specific group of people, such as by those who live in the neighbourhood of his residence, those who work with him, or those with whom he associates in his occupation or profession”.
38 The term “fit and proper” is not defined in the Passenger Transport Act 1990 but the reasoning in Australian Broadcasting Tribunal v Bond (1999) 170 CLR 321 has often been cited by this Tribunal. In Bond at 63 Chief Justice Mason said:
“The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring a person whose fitness and propriety are under consideration”.
39 The meaning of “fit and proper” is dependent on the nature and purpose of the activities which the person will undertake.

40 Further, in Jasmin v Commissioner of Police, New South Wales Police Service [2001] NSW ADT 45 at 33ff citing Hughes & Vale Pty Limited v State of New South Wales (1955) 93 CLR 127 at 156 it was said that fit and proper involves three things, honesty, knowledge and ability.

41 For the purpose of determining whether a person is a “fit and proper” person to undertake the activity for which a licence or authority is sought the Tribunal and the Appeal Panel has cited with approval the test posed by the equivalent ACT Administrative Appeals Tribunal dealing with an equivalent legislative scheme in Maythisathit and Registrar of Motor Vehicles [1996] AATAAT 165 per Curtis P:

“One must put oneself, so far as possible, in the position of a member of the public who might travel in a taxi driven by the applicant and ask whether that member of the public, knowing of the applicant’s criminal record and what he has done…to rehabilitate himself, would object to the applicant as the driver of the taxi.”
42 The community must have confidence that the applicant can discharge his obligations. Whether or not the public would be concerned about a taxi being driven by a person with the applicant’s criminal record, depends on the nature and circumstances of those convictions as well as any other evidence favouring the applicant, Armani v Director General, Department of Transport [1999] NSWADT 20, at para 33.

43 Breaches of the law and any propensity to re-offend are of crucial importance. See for example Carter v Commissioner of Police, New South Wales Police Service [2005] NSW ADT 265 at 15.

44 In Saadieh v Director General Department of Transport [1999] NSWADT 68 at 17 a number of factors based on the legislation and relevant case law were set out as being relevant to determining a person’s fitness and suitability to obtain an authority. These included:

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.

45 In assessing the last factor, the length of time since the offences were committed and the circumstances in which they were committed is relevant as is the applicant admitting responsibility and showing remorse as well as any efforts of the applicant to rehabilitate and any change in the applicant’s circumstances for example increased support from others including professional service providers.

46 Hardship to the applicant is not a matter that can be taken into account. See Lal v Director General, Department of Transport [2001] NSWADT 74.

Decision

47 The correct and preferable decision is that Mr Hopkins’ application to drive a taxi-cab be refused under section 33B of the Passenger Transport Act 1990.

48 Mr Hopkins provided two references that were supportive of him and written in contemplation of the charges Mr Hopkins faced. The third and more recent reference was not directly supportive of Mr Hopkins and the author did not appear to be aware of Mr Hopkins’s conviction. The assertion by Mr Hopkins that due to the publicity of his situation any referee would know of his offences is insufficient alone to demonstrate this. Nevertheless, I am ultimately persuaded that Mr Hopkins is regarded as of good repute by those who know him, although it would be preferable to have more recent testimonials and ultimately the decision is a close one.

49 Therefore the Tribunal must also consider whether Mr Hopkins is a “fit and proper” person for the purposes of the Passenger Transport Act 1990. Although he was only convicted of one drug offence, Mr Hopkins was sentenced to a period of imprisonment for a serious offence of cultivating a prohibited plant. The good behaviour bond period related to this charge has only recently elapsed on 10 August 2006. Mr Hopkins did acknowledge that the charges against him were serious but did not appear to show remorse and instead focused on the external factors causing him to commit the offences and his view that his situation, including in relation to the investigations against him, were unfair.

50 I note also that Mr Hopkins has a record of speeding fines that span several years although I have not taken into account the matters raised by Mr Wosniak at the hearing in relation to breach of the Passenger Transport Act 1990 as the precise allegations were not entirely clear and Mr Hopkins had not a proper opportunity to address them.

51 In summary, Mr Hopkins was convicted of a serious drug offence for which he has not demonstrated sufficient remorse, his sentence for this offence has only recently expired and previously he has had a record of speeding fines the most recent of which was in 2005. In these circumstances, it is likely that a member of the travelling public driven by Mr Hopkins and being aware of Mr Hopkins’s situation would object to Mr Hopkins being authorised to drive a taxi-cab. The fact that he has previously driven taxis in 2002-2003 without complaint being made against him is insufficient to change this view as it was only for a relatively short six month period. The fact that Mr Hopkins’s offence did not involve other passengers and was not of a violent nature is not enough to demonstrate that he is a “fit and proper person” for the purposes of the Passenger Transport Act 1990.

52 Mr Hopkins financial and domestic situation together with the lack of employment opportunities in the Nambucca Valley are not matters that can be taken into account when making this decision.

53 While the testimonial and references provide support for Mr Hopkins, it is simply too soon after conclusion of his bond to determine that he is a suitable to hold a taxi-authority and will not re-offend. This is particularly in circumstances where he does not appear to take full responsibility for his actions. Mr Wosniak did not specify precisely what in his view would be a suitable time to elapse but I would imagine that if Mr Hopkins commits no further offences the Director General should be in a position to reconsider his application within 6-12 months from the time his bond concluded. It would be helpful if at that time Mr Hopkins provided current references that demonstrated knowledge of his previous convictions.

54 As Mr Hopkins has not satisfied the criteria in clause 33(2)(f)(i), it is unnecessary for me to consider clause 33(2)(f)(ii).