Kamara v Director-General, Ministry of Transport
[2005] NSWADT 83
•13/04/2005
CITATION: Kamara v Director-General, Ministry of Transport [2005] NSWADT 83 DIVISION: General Division PARTIES: APPLICANT
Moses Kamara
RESPONDENT
Director-General, Ministry of TransportFILE NUMBER: 043237 HEARING DATES: 1/09/2004 and 17/12/2004 SUBMISSIONS CLOSED: 28/01/2005 DATE OF DECISION:
13/04/2005BEFORE: Higgins S - Judicial Member APPLICATION: Passenger Transport Act - taxi driver - cancellation of authority - Taxi driver - cancellation of authority MATTER FOR DECISION: Principal matter LEGISLATION CITED: Administrative Decisions Tribunal (General) Regulation 2004
Administrative Decisions Tribunal Act 1997
Crimes (Sentencing Procedure) Act 1999
Passenger Transport (Taxi-Cab Services) Regulation 2001
Passenger Transport Act 1990
Road Transport (Driver Licensing) Act 1998
Road Transport (General) Act 1999
Road Transport (Vehicle Registration) Act 1997CASES CITED: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Director-General
Department of Transport v Z [2002] NSWADT AP 37
Farquharson v Director-General
Department of Transport [1999] NSWADT 53
Goody v Oldhams Press Ltd [1967] 1 QB 33
Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127
Re T v The Director of Youth & Community Services [1982] 1 NSWLR 392
Singh v Director-General
Department of Transport [1999] NSWADT 9REPRESENTATION: APPLICANT
In person
RESPONDENT
A Wozniak, SolicitorORDERS: 1.The decision of the Director-General is affirmed; 2.The disclosure or publication of Ms Jordan’s place of work, or any other material that identifies her place of work, or the address of her place of work is prohibited pursuant to s.75(2)(b) of the Administrative Decisions Tribunal Act 1997
REASONS FOR DECISION
Introduction
1 This is an application by Mr Kamara (“the applicant”) seeking review of a decision of a delegate of the Director-General of the Ministry of Transport (“the Director-General”) to cancel his driver authority to drive a taxi-cab. The original decision to cancel the applicant’s driver authority was made on 7 August 2003. The grounds on which the Director-General cancelled the driver authority was that he could not attest to the applicant being of “good repute” and otherwise “a fit and proper” person to be the driver of a taxi-cab. The factual basis on which that decision was made was the following:
2 Following an internal review request by the applicant, the original decision was affirmed by another delegate of the Director-General, on 23 October 2003. At that time the applicant had lodged an appeal from the decision of the Fairfield Local Court, the consequence of which was that the order in respect of disqualification had no effect pending the outcome of the appeal. The appeal was heard on 3 February 2004 and the court confirmed the convictions but reduced the period of disqualification to 3 months.
a) two complaints made against the applicant by two female passengers on 10 December 2002 and 17 July 2003 respectively, and
b) convictions for an offence of using an unregistered motor vehicle and using an uninsured motor vehicle and findings of guilt of offences of refusing/failing to submit to a breath analysis test, failure to comply with a request to stop for a random breath test, and driving furiously/recklessly in a manner dangerous, or at a speed dangerous. These findings were made, on 17 July 2003, by the Fairfield Local Court. The Court also disqualified the applicant from holding a driver’s licence for 6 months.
3 Prior to the hearing of his appeal, the applicant, as he was entitled to do, lodged an application with the Tribunal seeking review of that decision. This application was heard on 12 March 2004. The applicant failed to attend the hearing, even though he was present before Tribunal, on 10 December 2003, when his application was set down for hearing. At this hearing, the Director-General did not rely on the abovementioned underlying facts on which the original decision was made. Instead, the Director-General relied on the fact that as the applicant had been disqualified from driving he was unable to satisfy a “mandatory criteria” for a driver authority.
4 On 23 July 2004, the Appeal Panel found that the Tribunal had made an error of law in concluding that cancellation was mandatory, rather than examining the circumstances and determining whether the respondent could attest that the applicant met the relevant requirements of the Passenger Transport Act 1990, having regard to the applicant’s driving history (see Kamara v Ministry of Transport (GD) [2004] NSWADTAP 31).
5 The re-hearing of the matter was set down for 1 September 2004. On this date, Mr Wozniak, who appeared on behalf of the Director-General, informed the Tribunal that there were additional factual matters, which the Director-General would be relying on at the re-hearing. These additional matters being charges for offences, committed by the applicant, of driving a taxi-cab while he was disqualified from holding a driver’s licence. In this regard, the Ministry of Transport had issued Court Attendance Notices on 20 August 2004 alleging numerous offences under ss.25(1)(a) and (3)(a) of the Road Transport (Driver Licensing) Act 1998 and s.33(2) of the Passenger Transport Act. A copy of these Court Attendance notices were mailed to the applicant under the cover of a letter dated 27 August 2004.
6 In light of these additional matters, and at the request of the Director-General, the Tribunal adjourned the hearing of the matter to 17 December 2004. The applicant said this was the earliest date suitable to him as he had university exams. On 1 September 2004, directions were made for the filing of written submissions. In particular, written submissions by the Director-General that set out the grounds that were to be relied on at the re-hearing and identified the material, which supported those grounds.
7 On 23 November 2004, the applicant sent a request, by facsimile, that the Tribunal and the Ministry of Transport produce certain documents. The Registry of the Tribunal responded, in writing, on 25 November 2004 by providing the applicant with pro forma forms of summons, Practice Note 7 and the Administrative Decisions Tribunal (General) Regulation 2004. The Registry sent a more detailed reply to the applicant’s request on 1 December 2004.
8 On Friday 10 December 2004, at 5.52pm, the applicant sent by facsimile, to the Tribunal, a written request for the adjournment of the hearing from 17 December 2004 to 24 December 2004. Attached to the applicant’s request for an adjournment was a summary of his submissions, which were to have been filed on 30 November 2004. The basis of the request for an adjournment was that the transcript of the hearing before the Appeal Panel, on 12 July 2004, would not be available prior to the hearing. The Tribunal had made a request for a copy of the transcript for this particular day, following the applicant’s request on 23 November 2004 and it was anticipated that it would be available at the hearing of the matter. The Tribunal refused the adjournment application and the applicant was advised, in writing, of this decision on 13 December 2004.
9 On 16 December 2004, the applicant telephoned the Registry and stated that he would participate in the hearing on 17 December 2004 by telephone. In accordance with his request, at the commencement of the hearing, the applicant was contacted by telephone. From the commencement of the hearing the applicant’s participation was very disruptive and after a relatively short period of time he hung up his mobile phone. Registry contacted the applicant and asked if he wished to continue to participate in the hearing of his application. The applicant responded in the affirmative and the Tribunal telephoned him again. While the applicant confirmed that he wished to participate further in the hearing his participation became even more disruptive. He spoke continuously and when he failed to respond to a request that he participate in an orderly manner, I formed the view that the applicant had demonstrated an on going unwillingness to participate in the hearing in an acceptable and orderly way and that his conduct was of no assistance to the Tribunal. Accordingly, the applicant’s participation by telephone was dispensed with and the Tribunal continued to hear the matter, without the applicant’s participation. It was noted that the applicant was familiar with the procedures of the Tribunal and that he had been provided with the Ministry’s file relating to his driver authority, which was relied on by the Director-General in making his original decision, well before the re-hearing date. It is also noted that the Director-General provided the applicant with the additional material well before the re-hearing, that the applicant returned this material and insisted that Mr Wozniak, who acted for the Director-General, was not to send any material to him.
10 At the conclusion of the hearing, the Tribunal reserved its decision and gave the applicant an opportunity to file and serve any additional submissions he wished to make on or before 28 January 2004. These directions were conveyed to the applicant, in writing, on the same day. On 7 January 2005, the applicant filed additional submissions with the Tribunal.
Jurisdiction
11 The Tribunal has jurisdiction to hear and determine this matter by reason of s.52(1) of the Passenger Transport Act 1990 and s.38 of the Administrative Decisions Tribunal Act 1997.
Issues
12 There are two main issues in this application. These are:
Additional allegations of improper conduct
(a) whether the Tribunal can have regard to allegations of improper conduct that arose after the Director-General had made his decision and after the decision of the Appeal Panel in this matter; and
(b) whether the Director-General can attest that the applicant 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, having regard to the relevant matters relied on by the Director-General.
13 At all times the applicant has contended that the Tribunal has no jurisdiction to consider any material in addition that, which was before the Appeal Panel. I have understood this to mean that the Tribunal is unable to consider any conduct other than the conduct that was relied on by the Director-General when he made the original decision. For the reasons set out below, this contention cannot be supported.
14 It is well established that the Tribunal, in determining whether an administrator’s decision is the correct and preferred decision, the Tribunal makes such a determination as at the date of the hearing: see YG & GG v Minister for Community Services [2002] NSWCA 247 at [25] and Commissioner of Police, New South Wales Police Service v Brett [2002] NSWADTAP 34 at [44]. As pointed out in these decisions, as a matter of construction, in exercising its merits review role in respect of administrative decisions, the role of the Tribunal is to determine whether the decision of the administrator “is” the correct and preferred decision: see s.63 of the Administrative Decisions Tribunal Act 1997. Its role is not to determine whether the administrator’s decision “was” the correct and preferred decision.
15 The Appeal Panel in its decision of the applicant’s appeal from the Tribunal’s original decision did not alter this well accepted construction of the Tribunal’s role in a merits review.
Relevant legislation
16 The legislation applicable to the Director-General’s decision, the subject of this application is set out in sub-section 34F(1) of the Passenger Transport Act 1990. That sub-section provides as follows:
17 The purpose of an authority under the relevant Division (Division 5 of Part 4) is set out in sub-section 33(3) of the Passenger Transport Act 1990. That section, so far as is relevant, provides as follows:
“34F(1) Having regard to the purpose of authorisation under this Division, the Director-General may at any time vary, suspend or cancel any person’s authorisation under this Division.”
Evidence and Findings of Fact
“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, …”
18 As mentioned above, the Director-General relied on several incidents of alleged improper conduct by the applicant when he made the decision to cancel the applicant’s driver authority. The material relevant to these incidents were contained in the Ministry’s file relating to the applicant, which was filed and served prior to the first hearing of the applicant’s application for review. The same material was relied on at the re-hearing.
19 The applicant has at all times disputed these allegations of improper conduct.
20 In respect of the additional matters, or further allegations of driving while disqualified from driving or while the applicants licence was cancelled, the Director-General relied on material that he had filed and served on or about 31 August 2004. This material consisted of numerous Court Attendance Notices alleging that the applicant had committed offences under ss.25(1)(a) of the Road Transport (Driver Licensing) Act 1998 and s.33(2) of the Passenger Transport Act 1990, daily work sheets of the applicant, a summary of these work sheets and a Penalty Notice for a traffic infringement. Besides contending that these matters are of no relevance to this application, which Tribunal has not accepted for the reasons stated above, the applicant also contends that since paying all his outstanding fines in late 2003, his licence is no longer suspended or cancelled.
21 I have considered all of the material that has been put before the Tribunal. Below are my findings in respect of each of the incident of alleged improper conduct by the applicant, which was relied on by the Director-General. The applicant has disputed these incidents as being incidents evidencing improper conduct.
(a) False declaration on Driver Authority Application Form
22 On 5 May 1999, the applicant responded “no” to Question 5 on his application form for a driver authority. That question asked whether he had ever been prohibited from driving a motor vehicle in New South Wales or elsewhere.
23 The Ministry’s file contains a traffic record of the applicant dated 17 May 1999. That traffic record states that the applicant was issued a learner licence on 8 April 1992. It also states that the applicant had his licence cancelled on 19 January 1995 following to several traffic offences during 1992, 1993 and 1994. The demerit points for these offences operated to automatically cancel his licence. The applicant was then issued with a probationary licence on 24 May 1996 and an unrestricted licence on 24 May 1997.
24 In his statutory declaration dated 14 December 2004, the applicant states that his driving offences were committed when he had newly arrived in Australia and at a time that he was not “accustomed with the driving challenges here”.
25 I note that the then Department of Transport, on obtaining a copy of the applicant’s traffic record, never the less reissued the applicant with a further driver authority and did not raise the issue with the applicant. These records also show that the applicant had been the holder of such a driver authority since 24 November 1992. Accordingly, it would appear that, at the time, the then Department considered the applicant’s 1999 application and the declarations he made therein to be such that they did not warrant him being questioned about their correctness. That it was satisfied with the declarations that had been made.
26 On the basis of the material before the Tribunal, I find that the applicant’s declaration in his 1999 application for a driver authority is false. However, the material is not sufficient to make a finding that the applicant knowingly made a false declaration. On this basis together with the fact that the declaration was made almost 6 years ago, I find that this allegation of improper conduct is of limited relevance to this application.
(b) Complaint made on 10 December 2002
27 The Ministry’s file contains a record of a complaint received by the then Department from a female on 10 December 2002. The record states that the female had been in a taxi that evening from the City to Allawah. The complainant alleged that the taxi driver had asked her very personal and inappropriate questions. A more detailed description of events was forwarded by email shortly thereafter. On 30 December 2002, the Department wrote to the applicant informing him that they had received a complaint and stating that he was required to attend the Department for an interview within 7 days. On being informed about the complaint, the Taxis Combined Communications Network suspended the applicant from their network until such time as the applicant contacted the Department. The applicant did contact the Department on 9 January 2003 and an arrangement was made for him to be interviewed at the Department’s office on the following Monday, 13 January 2003. As a result of the applicant’s failure to attend this interview, the Director-General suspended the applicant’s driver authority on that day. On 17 January 2003, the applicant attended the offices of the then Department for an interview. During this interview, he had the content of the complaint read to him. In response, the applicant denied the allegations.
28 Following the interview, on 23 January 2003 the Manager Compliance, Taxi & Hire Car Bureau of the then Department, wrote to the applicant advising him that no further action would be taken in relation to the complaint other than to record the incident on the Department’s files. The applicant was also reminded that:
29 In his statutory declaration of 14 December 2004, the applicant states that he categorically denies the allegations contained in the complaint and contends that this incident was about him playing music loudly.
“… Should the driver of a Public Passenger Vehicle be found guilty of such an offence or found to have continuing complaints against him for incidents of this nature, it could result in the suspension or cancellation of the driver’s authority”.
30 The Tribunal has not received any direct evidence from the complainant and in light of the seriousness of the allegations and the applicant’s denial, I am unable to make any conclusive findings in respect of the allegations. However, I do find that the applicant was warned that if the Department received further complaints of a similar nature, this could result in the suspension or cancellation of his driver authority.
(c) Complaint received on 18 July 2003
31 The Ministry’s file contains a record of a complaint received from a female concerning a taxi ride she had on Sunday 13 July 2003 from King Street, Newtown, to Cremorne. The complainant was identified as Siovan Jordan, who was called to give evidence at the re-hearing. That evidence was given by telephone. Ms Jordan’s evidence was consistent with that contained in the Ministry’s record of her initial complaint. This evidence was to the effect that, at about 11.30pm on 13 July 2003, Ms Jordan hailed a taxi-cab in King Street, Newtown. At the time she was with a male friend, who recorded the registration number of the taxi-cab that had stopped to pick her up. Ms Jordan explained that the driver of the taxi-cab was African, and she recollects that he said he came from Ghana or Cameroon. During the journey, he asked Ms Jordan what she did for a living. She responded by saying that she was a naturopath. In response, he said “So you massage?’ to which Ms Jordan replied “No”. As they were crossing the Harbour Bridge, the taxi driver said to her words to the effect “I am going on a break. Do you want to have a coffee with me?” In response, Ms Jordan said: “No thanks”. Ms Jordan also stated that the taxi driver asked her where she was staying. At the time, she was house sitting on her own, and because of the taxi driver’s repeated request of whether she would have a coffee with him, Ms Jordan decided she did not want him to see where she lived. She went on to say that she felt threatened by the taxi driver’s questions and requests, so she asked the taxi driver to let her out prior to reaching the place where she was staying. When the taxi driver stopped, he said to her words to the effect “Why don’t you ask me in?”, to which Ms Jordan responded “No”. When the taxi driver stopped the taxi, Ms Jordan got out and walked into the yard of one of the neighbouring houses, where she stood behind a garden bush from where she watched the taxi driver turn his taxi around and drive away.
32 Ms Jordan explained that after the taxi driver had asked her so many questions and continued to ask her to have a coffee with him, she took a mental note of his driver authority number which was attached to the inside front windscreen. About five days later, Ms Jordan made her complaint. She made the complaint after she had spoken to the friend who was with her when she hailed the taxi-cab. The friend gave Ms Jordan his record of the taxi registration number and she gave this number and the driver authority number that she had memorised when lodging her complaint. These numbers identified the applicant as being the driver.
33 In her evidence Ms Jordan also acknowledged that the taxi-driver did not touch her and that “maybe he was not going to do anything, but I felt very threatened as a female travelling on my own”.
34 Again, in his statutory declaration of 14 December 2004, the applicant has categorically denied the allegations. In this case, he alleges that the complaint was about an Eftpos transaction for which he had paid the “said amount”.
35 In my opinion, Ms Jordan gave truthful and frank evidence and I find that the applicant acted inappropriately by asking personal questions and requesting that Ms Jordan accompany him for coffee while he had a break as well as asking whether he could come in when he dropped her off. I also find that this inappropriate conduct was threatening in nature.
(d) Traffic Offences Committed on 25 April 2004
36 It is not disputed that at about 7.00pm on 25 April 2004, after a short vehicle pursuit, the applicant was charged with numerous offences, namely use an unregistered motor vehicle, use an uninsured motor vehicle, fail/refuse to undergo breath test, disobey request/signal to stop for breath test, and drive vehicle recklessly, furiously or speed/manner dangerous. As mentioned above, at the time, the applicant was driving a taxi, with two passengers in it. These charges were heard before the Fairfield Local Court on 17 July 2003.
37 I note that, on 16 March 2004, the applicant had filed in the Tribunal a copy of the transcript of the hearing before the Magistrate on 17 July 2003. That transcript makes reference to the applicant being present in Court on that day, that he had pleaded guilty to the charges, that he was convicted of the offences of driving an unregistered and uninsured vehicle, and in respect of the remaining offences, these were proven but no conviction was entered into pursuant to s.10 of the Crimes (Sentencing Procedure) Act 1999. In sentencing the applicant the Magistrate said:
38 On 30 July 2003, the applicant filed an appeal from the decision of the Magistrate. That appeal was heard on 3 February 2004 at the Parramatta District Court. According to the transcript of the hearing before the District Court on 3 February 2004, the applicant was also present at this hearing. As mentioned above, the applicant’s appeal was dismissed, however, the period of disqualification from holding a driver licence was reduced to 3 months. This disqualification commencing on 3 February 2004 and ending 2 May 2004.
“…Having regard to your circumstances and also that good effort you put in the traffic offenders program, those matters could have involved 3 year disqualification which I do not think is merited in the circumstances, so in view of that I will take a pragmatic course …
But in regard the matter, you are off the road for six months, which is a lot less than what you could have got”.
39 In his statutory declaration of 14 December 2004, the applicant stated the following:
40 Having regard to all the material that has been filed in the Tribunal in respect of these charges, I do not accept the applicant’s contention that he has never jeopardised the safety of his customers. As I have mentioned, the applicant’s conviction for driving an unregistered and uninsured vehicle related to him driving a taxi with passengers inside it. Even if it is accepted that the applicant did not speed excessively, the fact that he was driving an unregistered and uninsured vehicle with paying customers meant that he was placing these customers at risk. Other road users were also place at risk as they too would have expected the vehicle driven by the applicant was insured and registered.
“e. My driving conviction at Fairfield Local Court has nothing to do with my public driving, as I have never, ever involved in behaviour that jeopardise the safety of my customers, for example, excessive speed, reckless, sharp braking and accident. In fact, I have never involved in any serious accident in the last ten years”.
41 I also find that the applicant was disqualified from being the holder of a drivers licence from 3 February 2004 to 2 May 2004. In this regard I note the consequences of such a disqualification following the applicant’s conviction by the court for an offence under the road transport legislation as set out in s.26(1) of the Road Transport (General) Act 1999. That subsection provides as follows:
42 The term “road transport legislation” is defined in s.5 of the Road Transport (General) Act 1999 and it includes that Act, the Road Transport (Vehicle Registration) Act 1997 and other specified road transport legislation. In this application, the applicant’s conviction in respect of driving an unregistered vehicle was a conviction for an offence under s.18(1) of the Road Transport (Vehicle Registration) Act 1997.
‘26(1) If as a consequence of being convicted of an offence by a court under the road transport legislation, a person is disqualified (whether or not by an order of the court) from holding a driver licence, the disqualification operates to cancel, permanently, any driver licence held by the person at the time of his or her disqualification.”
43 Section 26 of the Road Transport (General) Act 1999 goes on to make provision for the surrender of the licence that is cancelled by operation of that section. It also provides that a driver who is disqualified from holding a licence is prohibited from holding a driver licence during the period of disqualification (see ss26(3) &(4)). A failure to surrender the licence constitutes an offence.
44 Accordingly, I find, by reason of s.26(1) of the Road Transport (General) Act 1999, that on 3 February 2004 the applicant’s driver licence was cancelled. I also find that since this date the applicant has not re-applied for a driver’s licence, which means that he has been unlicensed to drive a vehicle since 3 February 2004 and he remains unlicensed.
(e) Driving while disqualified
45 The Director-General alleges that between 23 March and 28 July 2004, the applicant continued to drive a taxi-cab even though he was not the holder of a driver licence during this period. The Director-General further alleges that during this period the applicant’s driver authority to drive a taxi-cab was also cancelled giving rise to the applicant contravening s.33(2) of the Passenger Transport Act 1990. As mentioned above, on 12 March 2004, the Tribunal affirmed the decision of the Director-General. While the Appeal Panel set this decision aside, the applicant’s driver authority remained cancelled as the applicant had not sought and the Tribunal did not grant a stay of the Director-General’s original decision.
46 In support of the allegations, the Director-General relied on copies of 55 taxi driver daily work sheets signed by the applicant, which were dated between 23 March 2004 and 28 July 2004. The Director-General also relied on a schedule entitled “Forever Friends Taxi – Detailed Roster for Drivers (NOT A TAX INVOICE)” which was a summary of the daily work sheets. In addition to this, the Director-General relied on a penalty notice, issued to the applicant at 6.59pm on Sunday 25 April 2004. The penalty notice alleged that the applicant had not crossed a lane line with safety. The penalty notice also states that the applicant was driving a taxi at that time.
47 The numerous Court Attendance Notices that were filed by the Director-General related to the 55 taxi driver daily work sheets. I also note that the applicant had not, at the time of the hearing, been found guilty of the offences alleged in these Notices. Not withstanding this, from the material before the Tribunal I am satisfied, on the balance of probabilities, that the applicant drove a taxi during 17 night shifts between 23 March 2004 and 1 May 2004, and that this conduct was in breach of s.25A(1)(a) of the Road Transport (Driver Licensing) Act 1998. Furthermore, on the basis that the applicant was present at the time his appeal was heard, I find that during this period (i.e. 23 March to 2 May 2004) the applicant drove a taxi-cab knowing that he was disqualified from holding a driver’s licence.
48 As mentioned above, I have found that the applicant’s licence was cancelled on 2 February 2004 and that as at the date of hearing, the applicant had not applied for a driver’s licence. Accordingly, from the material before the Tribunal I am satisfied, on the balance of probabilities, that the applicant drove a taxi during 38 night shifts between 1 May 2004 and 23 July 2004, and that this conduct was in breach of s.25A(3)(a) of the Road Transport (Driver Licensing) Act 1998. That is, the applicant drove a vehicle, namely a taxi-cab, without being the holder of a driver's licence.
49 In his statutory declaration of 14 December 2004, the applicant said the following in respect of his driving record:
50 In this regard, I note that at the time the applicant had lodged his application for review, his driver licence, which had been restored after he filed an appeal from the Fairfield Local Court decision was suspended due to his failure to pay outstanding fines in respect of various traffic infringement notices. I accept that he resolved this issue and his licence was restored, however, that was for a relatively short period of time until 3 February 2004 when the District Court confirmed the convictions and disqualified him from holding a driver licence for 3 months. Accordingly, even if the applicant resolved the matters relating to the outstanding fines, he has failed to re-apply for a licence since it was cancelled.
“d. In relation to my driving records with the RTA, they are legally clean because I paid all my fines, most of them are more than five years old. Most importantly, they were committed when I was neully [sic] arrived in Australia and not accustomed with the driving challenges here”.
51 Where the holder of a driver authority under the Passenger Transport Act 1990 has had his/her driver licence cancelled or suspended, clause 79(5) of the Passenger Transport (Taxi cab Service) Regulation 2001 provides as follows:
52 The Director-General contends that by reason of the abovementioned provision, the applicant’s driver authority had no effect during the period 23 March to 23 June 2004 (“the relevant period”) due to his driver’s licence having been cancelled under the Road Transport (Driver Licensing) Act 1998. He goes on to contend that the applicant’s driving of a taxi during this period, when his driver authority was of no effect constituted a breach of s.33(2) of the Passenger Transport Act 1990. This section prohibits a person from driving a taxi-cab unless he/she is the holder of a driver authority. I also agree with the Director-General’s contention that during the relevant period the applicant’s driver authority was cancelled and for this reason his driving of a taxi-cab during this period was also a breach of s.33(2).
“cl.79(5) A person’s authority to drive taxi cabs and drivers authority card do not have any effect, either for the purposes of Division 5 of Part 4 of the Act or for the purposes of this Regulation, while the person’s driver licence is cancelled or suspended”.
53 In my opinion, on the material before the Tribunal, I am satisfied, on the balance of probabilities that the applicant has breached s.33(2) of the Passenger Transport Act 1990, when he drove a taxi-cab during the relevant period.
Whether the applicant is considered to be of good repute
54 The first matter to be determined is whether, having regard to the abovementioned findings of fact, the Director-General, and in this case the Tribunal, can attest to the applicant being considered to be of good repute.
55 As to the meaning of “good repute” in Director-General, Department of Transport v Z [2002] NSWADT AP 37 at [38], the Appeal Panel said:
56 In that decision, at [20], the Appeal Panel cited with approval the following statement of Waddell J in Re T v The Director of Youth & Community Services [1982] 1 NSWLR 392 at 399:
“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 produced evidence from witnesses who vouch in general terms for the person’s reputation cannot 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”.
57 At [21], the Appeal Panel also cited with approval the following dicta of Lord Denning in Goody v Oldhams Press Ltd [1967] 1 QB 33 in relation to convictions:
“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”.
58 As mentioned above, the traffic offences for which the applicant was convicted in 1992-1995 should be given little, if any, weight in determining whether the applicant is a person of good repute as at the date of re-hearing. However, his convictions for driving an unregistered and uninsured taxi during 2003 are relevant. They are more recent in time and they were relatively serious in that they involved a taxi in which the applicant was in fact carrying passengers. Although the applicant pleaded guilty to the charges, he has provided absolutely no explanation to the Tribunal of the circumstances in which he came to drive an unregistered and uninsured taxi-cab. From the material before the Tribunal, it would appear that the taxi was not owned by the applicant, yet without being provided with any explanation about the circumstances in which he came to drive this vehicle, the Tribunal has no alternative but to regard the circumstances giving rise to these convictions as being serious.
“[Previous convictions] stand in a class by themselves. They are the raw material from which bad reputation is built up. They have taken place in open court. They are matters of public knowledge. They are accepted by people generally as giving the best guide to his reputation and standing. They must of course be relevant, in this sense, they must be convictions in the relevant sector of his life and have taken place within a relevant period such as to affect his current reputation…”
59 Convictions are of course not the only basis on which a person’s reputation can be placed in doubt. In my opinion, the applicant’s conduct on 13 July 2003, together with his conduct of driving a taxi-cab while he was disqualified from holding a driver’s licence and while his driver’s licence was cancelled are also relevant.
60 Although the applicant has not been charged with any offences in respect of the complaint made by Ms Jordan, his conduct was inappropriate and it was conduct that he had previously been warned about. If considered on its own, the inappropriate conduct may not be such that it would place the applications reputation in doubt. However, when this conduct is viewed together with his convictions and the ongoing conduct of driving a taxi-cab without being the holder of a driver’s licence, in my opinion, these would give rise to a reasonably-minded person placing the applicant’s reputation in doubt.
61 I note that on 17 December 2003, the applicant filed a character reference from Charles Verheyden. In that reference, Mr Verheyden states that he has known the applicant for 3 years and that during this time he has found him to be enterprising, intelligent and reliable. However, he makes no reference to the abovementioned convictions or the complaint made by Ms Jordan. Accordingly, I can give very little weight to this reference.
62 In his written submissions the applicant contends that he has not had the opportunity to be heard in respect of the complaint made by Ms Jordan. As I have already noted, the applicant has had the material on which the Director-General relied and which sets out the nature of the allegation for some considerable time and the re-hearing was his opportunity to be heard in regard thereto. However, he chose not to avail himself of that opportunity.
63 Accordingly, the Tribunal finds that on the basis of the abovementioned matters, it cannot attest to the applicant being a person of “good repute”. This is sufficient to dispose of this matter. However, in the event I am incorrect I have also considered the question of the fitness and propriety of the applicant.
Whether the applicant is considered to be a fit and proper person
64 It is well established that 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 9 at 25 to 28, Farquharson v Director-General, Department of Transport [1999] NSWADT 53 at 27.
65 The Tribunal has also previously considered the meaning of the term “a fit and proper person”. In this regard it has followed the reasoning of Chief Justice Mason in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63] where he said:
66 It is well established that the discretion to cancel a licence or authority must be exercised keeping in mind the objectives of the activities in which the person has been engaged pursuant to that licence or authority (see Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 at 156 and Bond v Australian Broadcasting Tribunal (1990) 170 CLR 321). In this case the objectives are those set out in s.4 of the Passenger Transport Act 1990. Paragraph 4(e) provides that the objectives include the encouragement of “public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services”.
“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 the person whose witness and propriety are under consideration”.
67 In my opinion, the applicant’s conduct in respect to the convictions following his driving of an unregistered and uninsured taxi-cab followed by his conduct of driving taxi-cabs after his licence and driver authority were cancelled are of sufficient seriousness to find that it cannot be attested that the applicant is a fit and proper person to be a driver of a taxi-cab. His conduct was not isolated but occurred over a significant period of time and during which the applicant placed the safety of his passengers at risk. It also demonstrates an intention to disregard the law, in particular the requirement that he be the holder of a taxi-cab driver authority under the Passenger Transport Act 1990, when he drives a taxi-cab. In this case, not only did he fail to have such an authority he was also not licensed to drive any vehicle. Having done so he has placed the safety of his passengers at risk and he did so on an ongoing basis. In my opinion, this conduct together with the applicant’s inappropriate conduct on 13 July 2003, when Ms Jordan was his passenger, are such that it cannot be attested that the applicant is a fit and proper person to be the holder of a taxi-driver authority.
Conclusion
68 For the reasons set out above, I am of the opinion that the decision of the Director-General is the correct and preferred decision.
69 During the hearing of the application I made an order, pursuant to s.75(2)(b) of the Administrative Decisions Tribunal Act 1997 prohibiting the disclosure or publication of Ms Jordan’s place of work, or any material that identified her place of work or the address of her place of work.
70 The Tribunal orders:
1. The Director-General’s decision is affirmed.
2. The disclosure or publication of Ms Jordan’s place of work, or any material that identifies her place of work or the address of her place of work is prohibited pursuant to s.75(2)(b) of the Administrative Decisions Tribunal Act 1997.
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