Karolia v Ministry of Transport

[2007] NSWADT 257

CITATION:	Karolia v Ministry of Transport [2007] NSWADT 257
DIVISION:	General Division
PARTIES:	APPLICANT Imran Karolia RESPONDENT Director-General, Ministry of Transport
FILE NUMBER:	073080
HEARING DATES:	28 May 2007
SUBMISSIONS CLOSED:	28 May 2007
DATE OF DECISION:	22 October 2007
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	Passenger Transport Act - taxi driver - cancellation of authority - Passenger Transport Act - taxi driver - cancellation of operator accreditation - Taxi driver - cancellation of authority - Taxi driver - cancellation of operator accreditation
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Crimes Act 1900 Passenger Transport Act 1990
CASES CITED:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Director-General, Department of Transport v Z [2002] NSWADTAP 37 Farquarson v Director-General, Department of Transport [1999] NSWADT 53 Hughes & Vale Pty Ltd v State of New South Wales [1955] 93 CLR 127 Paulus v Director-General, Ministry of Transport [2004] NSWADT 175 Ratay v Director-General, Department of Transport [2003] NSWADT 40
REPRESENTATION:	APPLICANT M Boulton, barrister RESPONDENT A Wozniak, solicitor
ORDERS:	The decision of the respondent is affirmed

Introduction

1 This is an application by Imran Karolia (‘the applicant’) seeking review of a decision of a delegate of the Director-General of the Ministry of Transport (‘the respondent’) to cancel his taxi operator accreditation and driver authority which had been issued under the Passenger Transport Act 1990 (‘the Act’).

2 The applicant, having made his application for review within a reasonable time following the decision of the respondent, with the consent of the parties, the tribunal determined to deal with the application pursuant to s.55(2)(c) of the Administrative Decisions Tribunal Act 1997 notwithstanding the fact that the applicant did not seek internal review of the decision pursuant to s.53 of that Act.

Background

3 The applicant has been the holder of an operator accreditation since March 1995 and the holder of a driver authority since August 1996. This operator accreditation and driver authority were cancelled on 21 March 2007 following the applicant’s conviction of 61 offences under s.178BB of the Crimes Act 1900 of obtaining money by false or misleading statements.

The offences

4 The offences of which the applicant was convicted related to the applicant’s misuse of the taxi transport subsidy scheme dockets (‘the TTSS dockets’) which are issued by the government to people with disabilities so as to assist them in their travel to and from work and other specified activities. Persons issued with these dockets present the docket to the taxi driver as payment for half of the metered fare. The remainder of the fare is paid by the holder of the docket and the taxi driver then submits the docket to the respondent for payment of the other half. In this application, it is not disputed that for a period of more than 2 years the applicant regularly drove a passenger, ‘A’ to and from work each day. A suffers from cerebral palsy and was issued with TTSS dockets so that he could get to and from his place of work. The cost of a fare from A’s home to his place of work was no more than $30.00, which meant that A was required to pay $15.00 for each trip and the applicant was entitled to recover the remainder by lodging A’s TTSS docket with the respondent.

5 In this case the applicant completed the TTSS dockets on behalf of A and in doing so entered incorrect information such as the applicant’s destination and the fare amount. The fare amount was stated to be $60.00 for each trip so that the applicant would recover the entire amount of the fare from the respondent and A was not required to make any contribution towards it.

6 The 61 charges were only representative of the overall conduct.

Grounds of cancellation

7 The respondent cancelled the applicant’s operator accreditation and driver authority pursuant to ss.31F and 33F of the Act respectively. That is, on the basis of the circumstance surrounding the applicant’s convictions, the respondent found that he could not attest to the applicant being:

(a) considered to be of good repute and in all other respects fit and proper to be responsible for the operation of a taxi-cab service (see s.31(2)(a) of the Act); or

(b) considered to be good repute and in all other respects a fit and proper person to be the driver of a taxi-cab in accordance with law and customs (see s.33(3)(a) of the Act).

8 The role of the tribunal to determine whether, having regard to the applicable law and the relevant facts, the decision of the respondent is the correct and preferred decision; see s.63 of the Administrative Decisions Tribunal Act 1997. That is, for the purposes of this application the issues are whether:

(a) the applicant is a person of good repute; and

(b) the applicant is otherwise a fit and proper person to be the holder of an operator accreditation or driver authority under the Act.

9 It is well established that for the purposes of ss.31 and 33 of the Act both reputation and fitness and propriety must be satisfied.

Reputation

10 In the decision of Director-General, Department of Transport v Z [2002] NSWADTAP 37 at [38] the Appeal Panel made the following comments about the meaning of ‘good repute’:

“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 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”.

11 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”.

12 At [21] the Appeal Panel cited with approval the dicta of Lord Denning in Goody v Oldhams Press Ltd [1967] 1 QB 33 where he said the following in respect of how old convictions are dealt with in ascertaining reputation in defamation law:

“[previous convictions] stand in a class by themselves. They are the raw material upon 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, that 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…”.

13 On the basis of the 61 convictions of offences involving dishonesty, the tribunal would need to find that the applicant is not a person of ‘good repute’.

14 However, the applicant tendered affidavits or references from 6 persons who know the applicant personally or who have come to know him through his licensed activity. The deponents of the affidavits, each made specific reference to the 61 offences for which the applicant had been convicted. They each state that notwithstanding these particular offences, they have always found the applicant to be well-mannered, personable, extremely likeable, honest and trustworthy. They all also state or infer that the only explanation for the unlawful conduct was the applicant’s desire to help the less fortunate within our community.

15 The deponents of the affidavits and those who provided a reference clearly hold the applicant in high regard not withstanding his convictions and on this basis the tribunal finds that the applicants is, as at the date of the hearing, considered to be a person of good repute.

Is the applicant a fit and proper person?

16 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.

17 As to the meaning of ‘fit and proper’, the tribunal has previously accepted the reasoning of Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63] when he 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 the person whose fitness and propriety are under consideration.’

18 It has also accepted the following reasoning in Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 at 156 per Dixon CJ, McTiernan and Webb JJ:

‘… is to give the wider scope for judgment and indeed for objection. “Fit” (or idoeneus) with respect to an office is said to involve three things, honestly, knowledge and ability; “honesty” to execute it truly, without malice, affection or partiality; knowledge to know what he ought to do; and ability as well as a state as embodied that he may intend and execute his office, when need is, diligently and not for impotency or poverty neglected.’

19 It is also well established that the ‘fitness and propriety’ of a person must be considered in the context of what the person will be authorised to do if the licence is granted: see Hughes and Vale Pty Ltd (supra) and Bond (supra). And in this regard consideration is to be given to the objectives of the legislation under which that licence will be issued. In this case the objectives are those set out in s.4 of the PT Act. 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.’ These objectives apply equally to those who are to be accredited operators and those who are to be issued with a driver authority under the Act.

20 Again, on the basis of the circumstances surrounding the applicant’s convictions, which involved a long period of dishonest conduct in the course of his licensed activity, from which he derived a financial benefit, the tribunal would need to find that the applicant could not be considered to be a fit and proper person to be responsible for the operation of a taxi-cab service or to be the driver of a taxi-cab; see Ratay v Director-General, Department of Transport [2003] NSWADT 40 and cf. Paulus v Director –General, Ministry of Transport [2004] NSWADT 175.

21 However, the tribunal also needs to take into account the evidence of the applicant which he argues shows that as at the date of hearing he was a fit and proper person to continue to be the holder of his operator accreditation and his driver authority. In this regard the applicant’s evidence was that:

he otherwise has a trouble free history;

he is well regarded within the industry and by his drivers;

he engaged in the unlawful conduct purely to assist A as other drivers refused to do this work because it was time consuming. He also drove the applicant to other destinations and often waited for him for some considerable time;

he had not engaged in similar conduct with any other passenger nor had he requested his drivers to do the same;

he has acknowledged that his conduct was unlawful when he pleaded guilty to the offences for which he was charged;

he regrets having engaged in that conduct; and

he has not engaged in any unlawful conduct since being questioned by the respondent’s investigating officers, nor has he come to the notice of the respondent.

22 I accept that the applicant is remorseful for what he has done, however, I do not accept that his conduct was motivated entirely for altruistic purposes. If they were one would have expected to see him present evidence of him having provided assistance to the disadvantage for no cost. The arrangement he had reached with A was clearly one that was convenient to them both. A was transported at no cost and the applicant was guaranteed payment so long as their arrangement was not discovered by the respondent.

23 In my opinion the conduct of the applicant was the more culpable as he was the person who made the false entries on the dockets. When doing this, given his experience in the industry, he must have realised that the operation of the TTSS docket system was based on trust and honesty of the taxi driver as well as the holder of the docket. The applicant having breached that trust over a considerable period of time and in a substantial way in my opinion overwhelmingly demonstrates that, as at the date of the hearing, he can not be considered to be a fit and proper person to be responsible for the operation of a taxi-cab service or to be the driver of a taxi-cab.

Conclusion

24 For the reasons set out above, in my opinion, the decision of the respondent is the correct and preferred decision.

Orders

The tribunal orders that the decision of the respondent is confirmed.