Jawad v Director General, Department of Transport

[2003] NSWADT 55

CITATION:	Jawad v Director General, Department of Transport [2003] NSWADT 55
DIVISION:	General Division
PARTIES:	APPLICANT Salah Jawad RESPONDENT Director General, Department of Transport
FILE NUMBER:	023286
HEARING DATES:	20/01/03
SUBMISSIONS CLOSED:	01/20/2003
DATE OF DECISION:	03/17/2003
BEFORE:	Conley J - Judicial Member
APPLICATION:	Passenger Transport Act - private hire vehicle driver - grant of authority - Passenger Transport Act - taxi driver - cancellation of authority - Private hire vehicle driver - grant of authority - Taxi driver - cancellation 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:
REPRESENTATION:	APPLICANT In person RESPONDENT A Wozniak, solicitor
ORDERS:	1 The decision of the Director General to cancel Mr Jawad's taxi authority is affirmed; 2 The decision of the Director General to refuse to issue a private hire car authority is affirmed.

1 On October 2002 the Director General, Department of Transport (“the Director General”) cancelled Mr Jawad’s authority to drive a taxi pursuant to section 33F of the Passenger Transport Act1990 (PT Act) and refused to issue an authority to drive a private hire car pursuant to section 40B of that same Act. The reason for cancellation was that Mr Jawad had been convicted of the offence “obtain money by deception”. The conviction related to the use of stolen cab-charge cards.

2 On 11 December 2002 Mr Jawad lodged an application with the Tribunal for a review of the Director-General’s decision.

JURISDICTION

3 Having regard to the purpose of the authorisation the Director General may cancel a taxi-cab authority pursuant to section 33F of the PT Act. Section 33 (3) of the PT Act provides as follows:

33 (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…

4 Section 40B of the PT Act provides the Director-General may grant an application and authorise a person to drive a private hire car vehicle, or refuse the application having regard to the purpose of the authorisation.

5 Section 40 of the PT Act sets out the purpose of such authority.

(1) 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 private hire vehicle, and
b) that the authorised person is considered to have sufficient responsibility and aptitude to drive a private hire vehicle:
(i) in accordance with the conditions under which the private hire car service concerned is operated, and
(ii) in accordance with law and custom…

6 Pursuant to section 52 (1) of the PT Act a person whose application has been refused or authority varied, suspended or cancelled may apply to the Administrative Decisions Tribunal for review of that decision.

7 Section 38 of the Administrative Decisions Tribunal Act 1997 (the ADT Act) provides the Tribunal has jurisdiction to review the Director General’s decision. Pursuant to section 63 of the ADT Act the Tribunal must “decide what the correct and preferable decision is” having regard to “any relevant factual material”, and “any applicable written or unwritten law”.

EVIDENCE

8 A copy of the Department’s file was admitted into evidence as was the District Court of New South Wales file in respect of the charge against Mr Jawad Obtain Money by deception. Mr Jawad tendered a bundle of documents being references. Mr Jawad also gave oral evidence.

9 There was no dispute that Mr Jawad had been convicted of the offence “obtain money by deception”. Mr Jawad did however dispute the sum fraudulently obtained. While the Respondent claimed the sum was close to $30, 000.00 Mr Jawad relies upon the order of the District Court which records he pay $ 8959.07 in compensation to cab-charge.

10 The Department file records 4 complaints in respect of over-charging. Mr Jawad gave evidence denying that he had over-charged in those instances.

11 There is a record of a complaint on 8 January 1998 in respect of Mr Jawad taking a passenger on a “joy ride” from Chippendale to Darling Harbour. It was claimed that Mr Jawad did not respond to the investigations when requested and that he was suspended from the radio network. He denied the over-charging and that he was ever suspended from the radio network. He stated that some-times his former wife causes trouble for him by making false allegations.

12 A complaint was made by a passenger with a visual impairment who travelled from Ryde to Parramatta on 7 April 1999. Mr Jawad had completed the cab-charge voucher for the passenger. The complaint arose after a friend of the passenger noticed the fare on the receipt was approximately twice that usually paid. Mr Jawad stated the passenger had specified he take a lengthy route to reach the destination. He stated he “could not disagree with passenger”, because he must take the route requested, he said he did as requested. He refunded $20.00 when the complaint was made to avoid trouble.

13 Taxi-cab records showed Mr Jawad was the driver in respect of an overcharging complaint for travel from Kings Cross to Bondi on 30 June 2002. Mr Jawad denied this.

14 A complaint was made in respect of over-charging by a passenger travelling from Ultimo to Sydney airport. Mr Jawad acknowledged he could have taken a shorter route and refunded $ 15.00 when the complaint was made.

15 Mr Jawad relied upon a number of written references which attest his good character, reliability and honesty.

16 Mr Wozniak claimed that the Department’s file records that on two of the above occasions Mr Jawad inserted a different taxi authority number on the receipt provided to the passenger, however investigations by the taxi network had revealed the driver was Mr Jawad.

FINDINGS

17 There was no dispute that Mr Jawad was convicted of the offence obtaining money by deception, although Mr Jawad disputed the sum alleged to have been fraudulently obtained. Mr Jawad also denies the complaints made against him in respect of overcharging. On the basis of the documentary material and oral evidence given by Mr Jawad the Tribunal made the following findings:

a) Mr Jawad has held a taxi driver authority since 1992;

b) Mr Jawad lodged an application for an authority to drive a private hire vehicle on 11/3/02;

c) Some time prior to 23 August 2002, the Director-General carried out routine checks with the Roads and Traffic Authority and the New South Wales Police Service in respect of that application. In making those checks the Director-General was advised by the NSW Police Service that on 1 September 2001 Mr Jawad had been charged with three counts of “obtain money by deception”;

d) The charges were heard on 5 August 2002, where Mr Jawad pleaded guilty to one of the charges, with the remaining two charges being taken into account for the purposes of sentencing. All charges related to unauthorised use of Cab Charge dockets;

e) The matter was heard and determined by the Local Court. Mr Jawed appealed against the severity of the penalty to the District Court.

f) The District Court file Police Fact Sheet show Mr Jawad was charged with three offences, the total amount of all transactions being $ 29,500.00. The “list of offences to be taken into account” records between 21 January 2002 attempt to obtain $ 19,874 by fraudulently using a Cab Charge Card and between 21 February 2001 and 19April 2001 dishonestly obtain $ 9,626.00 by fraudulently using a Cab charge Card. A plea of guilty was entered in respect of one offence of obtaining money by deception. The other charges were taken into account in respect of sentencing. The District Court ordered the payment of $ 8, 959.07 compensation to Cab Charge in lieu of the Magistrate’s order for the payment of $14,266.00;

g) At the time Mr Jawad made the application for an authority to drive a private hire car he had been charged with the offence of obtain money by deception;

h) When completing the application form for the above authority question 8 enquired “Are there any charges pending against you for any criminal, traffic or other offences (other than parking offences)? Mr Jawad responded “no”;

i) Mr Jawad did not notify the Director General when he was convicted of the above offence;

j) On becoming aware of Mr Jawad’s conviction for an offence of obtaining money by deception, on 23 August 2002 the Director-General wrote to Mr Jawad requesting that he show cause why the Director-General should issue him with an authorisation to drive a private hire vehicle and allow him to continue to drive a taxi cab;

k) On 2 October 2002 the Director-General issued a notice of cancellation of Mr Jawad’s taxi cab driver authority. He also issued a notice refusing his application for an authority to drive a private hire vehicle;

l) Mr Jawad received a copy of the notices on or about 2 October 2002 and ceased driving his taxi cab at about this time;

m) On 1 November 2002 Mr Jawad was sentenced in respect of the charge he had entered a guilty plea;

n) On 19 November 2002 Mr Jawad applied to the Department for an internal review of the Director-General’s decision;

o) On 26 November 2002 the internal review was completed and the original decisions of the Director-General were affirmed;

p) On 11 December 2002, Mr Jawad filed an application for review of the Director-General’s decision and made an urgent application for a stay of the Director General’s decision which was refused;

q) Mr Jawad has four children aged 28, 15, 4, and 3. His wife does not work;

r) Mr Jawad has repaid part of the money unlawfully obtained;

s) The explanation given by Mr Jawad for obtaining the money was that he needed to send money overseas to support his family in Lebanon. In particular his step-father needed an operation which he could not pay for.

t) A number of complaints have been made against Mr Jawad for over-charging. He denies those complaints, however on two occasions to avoid further trouble he repaid money.

18 Mr Jawad submitted that having given up driving since the beginning of October this year and having pleaded guilty to the charges that he has been punished. He made a mistake and otherwise always obeys the law. He has not had another job or income since he has been unable to drive taxi-cabs. He has a family to support. He sends money to his family overseas. He submitted that he was suffering financial hardship.

RESPONDENT’S SUBMISSIONS

19 Mr Wozniak submitted that having regard to the seriousness of the matters for which Mr Jawad had been convicted, it was in the public interest for the taxi-cab authority to be cancelled and the private hire car authority not to be granted.

20 The offences for which Mr Jawad was convicted relate directly to the work functions performed by taxi-cab and private hire car drivers. A driver is required to receive money in the form of cash, credit cards and cab charge vouchers. As such the public expects a high standard of honesty.

21 It was submitted that the references supplied by Mr Jawad attest to his good character, reliability and honesty. No mention is made of the fact that the referee is aware of his conviction for dishonesty. In the absence of an acknowledgment by the referee acknowledging they are aware of his convictions for dishonesty the references should be given very little weight.

22 In addition to the acts of dishonesty for which he was convicted Mr Jawad had failed to notify the Director-General of the charges and to disclose those charges in his application for a hire car driver authority. This failure amounted to a serious breach of the Passenger Transport (Taxi-Cab Services) Regulations, 2001.

REASONING AND DECISION

23 In considering what is the correct and preferable decision in respect of the cancellation of a taxi-cab authority and the refusal to issue a private hire car authority regard must be had to the purpose of the authority. The legislative provisions in respect of taxi-cabs and private hire cars (section 33 (3) and section 40 respectively) are identical.

24 The authorised person is to be “considered of good repute” and “in all other aspects a fit and proper person”. Further the authorised person is considered “to have sufficient responsibility and aptitude” to drive the vehicle “in accordance with the conditions under which the vehicle service is operated and in accordance with law and custom.

25 Mr Jawad used two separate Cab Charge cards on multiple occasions to obtain money by deception. A conviction was recorded for this offence.

26 Mr Jawad did not declare the charges were pending when he made application for the private hire car authority. To the contrary he deliberately mis-stated the position. He also did not advise the Director-General of the conviction as required under the terms of his authority.

27 The acts of dishonesty directly relate to the tasks required of a taxi-cab and private hire car driver, that is the receipt of money.

28 The Tribunal does not accept Mr Jawad’s submission that the fact that he has already been adequately “punished” in terms of the criminal sanction (being periodic detention) is relevant to the determination. The issue is whether Mr Jawad is a “fit and proper person”, to hold an authority to drive taxi-cabs and private hire cars.

29 Mr Jawad’s financial hardship was not disputed. Financial hardship however is also not a relevant consideration when determining whether Mr Jawad is a fit and proper person to hold taxi-cab and private hire car authorities. This circumstance does not alter the fact that Mr Jawad has committed and been convicted of a serious offence of dishonesty which was committed in the course of his activities as a taxi driver.

30 I accept Mr Wozniak’s submission that references attesting to honesty without acknowledging the acts of dishonesty must be given very little weight.

31 I note the complaints made in respect of over-charging. In the circumstances of this application where there is a conviction for acts of dishonesty it is unnecessary for me to consider these complaints further.

32 Having regard to this fact I find that the applicant is not a fit and proper person to hold either a tax-cab authority nor a private hire car authority.

33 The Director-General’s decision to cancel Mr Jawad’s taxi-cab authority is affirmed. The Director-General’s decision to refuse Mr Jawad’s application for a private hire car authority is affirmed.