Kent v Ministry of Transport

[2007] NSWADT 37

CITATION:	Kent v Ministry of Transport [2007] NSWADT 37
DIVISION:	General Division
PARTIES:	APPLICANT Walter Kent RESPONDENT Ministry of Transport
FILE NUMBER:	063348
HEARING DATES:	4/12/2006
SUBMISSIONS CLOSED:	4 December 2006
DATE OF DECISION:	13 February 2007
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Passenger Transport Act - taxi driver - cancellation of authority - Taxi driver - cancellation of authority
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990
CASES CITED:	Adams v Yung (1998) 83 FCR 248 Bannister v Walton (1993) 30 NSWLR 699 Bond v Australian Broadcasting Tribunal (1990) 170 CLR 321 Briginshaw v Briginshaw (1938) 60 CLR 336 Farquharson v Director General, Department of Transport [1999] NSWADT 53 Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 Khamis v Director General, Department of Transport [1999] NSWADT 103 Lal v Director General, Department of Transport [2001] NSWADT 74 Marsden v Amalgamated Television Services Pty Ltd [2001] NSW SC 510 McCarthy v Law Society of NSW (1997) 43 NSWLR 42 McDonald v Director General of Social Security (1984) 1 FCR 354 Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 24 ALR 247 Saadieh v Director General, Department of Transport [1999] NSW ADT 68 Taylor v Director General, Department of Transport [2001] NSWADTAP 29 Yung v Adams (1997) 80 FCR 455
REPRESENTATION:	APPLICANT N Dawson, counsel RESPONDENT A Wozniak, solicitor
ORDERS:	The Ministry's decision to cancel Mr Kent's taxi driver authority is set aside

Introduction

1 Mr Kent, who turns 70 next month, has been a taxi driver for 24 years. On 12 September 2006, a delegate of the Director General of the Ministry of Transport (the Ministry) cancelled his taxi driver authority. Mr Kent has applied to the Tribunal for a review of that decision.

2 In a period of a little over 2 years, 16 passengers have made complaints against Mr Kent alleging, among other things, that he has been rude, unhelpful, demanded more than the prescribed fare and moved the taxi while the passenger was entering or leaving. Eleven years ago, in 1996, Mr Kent was asked to “show cause” as to why his taxi authority should not be cancelled. That request was made as a result of 16 complaints that had been made against him since April 1992. The Ministry decided not to cancel his taxi authority on that occasion.

3 The Ministry says that despite being formally warned, reprimanded, counselled and given remedial training, Mr Kent has not acknowledged any wrong doing or changed his behaviour towards his passengers. Mr Kent says that he was not contacted about many of the complaints until months after the incidents occurred and that the Ministry found many of the complaints not to be justified. In those circumstances, and given his denials, he says the Tribunal should not take action that would deprive him of his livelihood.

Tribunal’s role

4 The Tribunal’s role is to decide whether the Ministry’s decision to cancel Mr Kent’s driver authority was the “correct and preferable” decision: Administrative Decisions Tribunal Act1997 (ADT Act), s 63. There is no onus on either party to prove its case. Rather, the Tribunal conducts a merits review of the administrator’s decision. Section 63 states that:

(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

5 Relevant factual material includes the documents filed by the Ministry pursuant to s 58(1)(b) of the ADT Act. The Ministry is obliged to lodge “a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal.” The Ministry served those documents on Mr Kent. As long as the material lodged by the administrator is relevant to the determination, that material is “before” the Tribunal and the Tribunal must have regard to it when determining an application: ADT Act, s63.

6 That conclusion is not entirely consistent with comments made by the Appeal Panel in Taylor v Director General, Department of Transport [2001] NSWADTAP 29 (12 September 2001). In that decision, the Appeal Panel (over which I presided) said at [87] to [89], that the Tribunal could admit or reject documentary evidence of complaints from passengers. I now think that the better view is that if documentary material recording details of complaints from passengers is provided to the Tribunal in compliance with s 58 of the ADT Act, and that material is relevant factual material, then, in accordance with s 63, the Tribunal must have regard to it when determining the application. The Tribunal may decide to give little or no weight to that material, but it may not disregard it.

7 The Ministry did not call any witnesses and Mr Kent did not give oral evidence. Consequently, the material that is before the Tribunal are the documents filed by the Ministry under s 58 and Mr Kent’s written response to the 16 most recent complaints. Mr Kent’s potential financial hardship if he is no longer able to drive a taxi is not relevant: Lal v Director General, Department of Transport [2001] NSWADT 74 at [47]. Nevertheless, it must be borne in mind that if the Ministry’s decision is affirmed, Mr Kent will be deprived of any realistic opportunity to earn a living.

8 The Tribunal must be satisfied, to the civil standard of proof (on the balance of probabilities) before making a finding: McDonald v Director General of Social Security (1984) 1 FCR 354 at 357. A proper evidentiary foundation must be found for a decision based on reasonable satisfaction as to relevant circumstances. As with any occupational decision, "in such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences. ... weight is given to the presumption of innocence and exactness of proof is expected." (Briginshaw v Briginshaw (1938) 60 CLR 336 at 362-3 per Dixon J.) A state of "comfortable satisfaction on the balance of probabilities" should be achieved: Bannister v Walton (1993) 30 NSWLR 699 at 711-2, also McCarthy v Law Society of NSW (1997) 43 NSWLR 42 at 58.

The evidence

9 In relation to good repute, Mr Kent produced character references from four people including a hotel proprietor and a customer. They found no fault with him as a taxi driver and expressed the views including that he was “polite”, “courteous” and “honest”.

10 The Ministry’s file shows that in a little over two years from 2004 to 2006, 16 people complained about Mr Kent’s conduct as a taxi driver. All of those complaints were investigated to some extent by the taxi service provider. Mr Dawson, representing Mr Kent, submitted that the 16 complaints relating to the period prior to 1996 should not be taken into account because they were not mentioned specifically in the Ministry’s statement of reasons. He said it would be a denial of procedural fairness for the Tribunal to take those complaints into account. We agree that it would be unfair to Mr Kent for the Tribunal to rely on complaints which are now over 10 years old, especially in circumstances where a decision was made not to cancel Mr Kent’s licence on the basis of those complaints. Nevertheless, it is relevant that the Department advised Mr Kent at that time that should he “come under further adverse notice for any criminal offence, or breaches of the legislation” his “authority will be suspended or cancelled.”

11 Mr Kent’s relevant complaint history is summarised briefly below:

21 January 2004: incivility and failure to provide reasonable assistance to passenger: matter not pursued.

26 March 2004: unable to understand directions, rude and abrupt: not pursued because of conflicting versions.

15 July 2004: rude, unhelpful: not pursued because of conflicting statements.

30 October 2004: overcharging: not pursued because complainant remained anonymous and versions were in conflict.

1 November 2004: failure to complete a hire, moving the taxi while passengers entering/leaving; lack of street knowledge and major destinations: counselled in relation to moving the taxi while passenger entering/leaving; not pursued in relation to other matters because of conflicting statements.

7 January 2005: moving the taxi while passenger entering/leaving: not pursued because of lack of detail from passenger.

23 February 2005: rude, refusal of fare to a blind passenger: reprimanded for rudeness, refusal of fare not pursued because of conflicting statements.

10 March 2005: driving in an unsafe manner: not pursued because Mr Kent could not remember the incident.

13 May 2005: rudeness: reprimand.

19 October 2005: lack of street knowledge and major destinations, demanding more than the prescribed fare: not pursued because of conflicting statements.

28 October 2005: rude to customer: not pursued because of conflicting statements.

20 February 2006: verbal abuse or threat; refusal of a fare: not pursued because of conflicting statements.

29 February 2006: moving the taxi while passenger entering/leaving; rude to customer: not pursued because of conflicting statements.

16 March 2006: fail to drive by shortest practical route: not pursued because of conflicting statements.

1 April 2006 - failure to provide reasonable assistance to customer: not pursued because complaint was made by anonymous caller.

12 A second show cause letter was sent to Mr Kent on 31 July 2006. He replied to the complaints listed in the letter for the period from January 2004 to 1 April 2006. His responses were that he could not remember the incident or that the incident did not occur in the way the passenger had described. He did not admit to any of the adverse allegations made by passengers. He says that in six cases, he was not contacted about a particular incident for between one and four months after the incident had occurred. The Ministry’s file records that Mr Kent said he did not remember the particular incident on only two of those six occasions. While it is important that Mr Kent be given "adequate notice of the findings which might be made against him and a fair opportunity to respond" at all stages of the process, we are not satisfied that that did not occur in this case. (Yung v Adams (1997) 80 FCR 455 at 455E, affirmed on appeal: Adams v Yung (1998) 83 FCR 248 at 297.)

13 Mr Dawson, representing Mr Kent, said that in several cases the outcome of the complaint was recorded as “not justified”. This occurred where, for example, there was a conflict in the evidence or the complainant remained anonymous. Mr Wozniak, representing the Ministry, submitted that the “not justified” notation means that no action was taken; it was not a finding that the alleged incident did not occur. Mr Dawson placed much more significance on the “not justified” findings. He said that in circumstances where complaints had been investigated and found not to be justified, it was extremely unfair for Mr Kent’s livelihood to be removed on the basis of complaints, some of which were found not to be justified at the time.

14 After reading these documents and the records of conversations the relevant officer had with passengers and with Mr Kent, I am satisfied that the “not justified” notation indicates that that matter would not proceed further. That is how I have recorded the outcome in the summary of the complaints. “Not justified” indicates that the officer could not come to a firm view about the culpability of the driver so the driver was not formally warned or reprimanded. The absence of any oral evidence from either party means that none of the allegations or denials in relation to complaints made against Mr Kent can be tested by cross-examination. Furthermore, Mr Kent says he cannot recall some of the incidents. That leaves the Tribunal in the difficult position of evaluating conflicting evidence all of which is untested.

Reputation and fitness

15 The test the Tribunal must apply is whether it can be attested:

(a) that the person is considered to be of good repute and in all other respects a fit and proper person to drive a taxi; and

(b) that the person is considered to have sufficient responsibility and aptitude to drive a taxi: Passenger Transport Act 1990, s 33(3) and s 33F.

16 President O’Connor said in Farquharson v Director General, Department of Transport [1999] NSWADT 53, that:

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).

17 In Saadieh v Director General, Department of Transport [1999] NSW ADT 68 at [17] I set out several factors which should be considered when determining a person's fitness and suitability to hold a taxi authority:

Taking into account the terms of the legislation and the case law interpreting similar provisions, there are a number of factors that need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. These factors include:

- the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted;

- the nature, seriousness and frequency of any complaints made against the applicant;

- the applicant's driving record;

- the applicant's reputation in the community; and

- the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences.

18 The discretion to issue a licence or authority (or to cancel such an authority) must be exercised keeping in mind the activities in which the person will be engaged if an authority is granted: 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). I

Conclusion

19 Mr Kent has no relevant criminal record. He has been driving taxis for 24 years. In 1996 the Department (as it then was) warned him that should he “come under further adverse notice for any criminal offence, or breaches of the legislation” his “authority will be suspended or cancelled.” It is not clear from the material before us whether any of the complaints subsequently lodged against him would, if proved, have amounted to a breach of the legislation. Mr Kent did not deny that he was the driver when those alleged incidents occurred. In some cases he could not remember the incident but in the majority of cases he gave a version of events that was inconsistent with the allegations.

20 We accept Mr Dawson’s submission that it is not appropriate to ask Mr Kent why so many people would lodge “false” complaints against him. In Khamis v Director General, Department of Transport [1999] NSWADT 103 (27 October 1999) at [23] I decided that one of the factors relevant to making a finding of fact against the applicant was his inability to give an explanation for the complaints. Mr Dawson submitted that at least since the decision of the Court of Appeal in Marsden v Amalgamated Television Services Pty Ltd [2001] NSW SC 510 at [82] and [83], that is not the law. I am persuaded by this authority that even in cases where neither party bears the onus of proof, it is not appropriate for the Tribunal to take into account the fact that a person accused of misconduct does not give a satisfactory explanation as to why his accusers would have lied. That is the case unless the issue of whether the accuser had a reason to lie or in fact lied is litigated.

21 The Tribunal is left with the details of the allegations in the summary of the complaints and Mr Kent’s denial of, or failure to recollect, those events. In most cases, there is merely a record of the complaint made by an officer, rather than a written complaint from the passenger or other road user. Records of the complaints are hearsay evidence which is generally less reliable than direct evidence from the complainants. In Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 24 ALR 247 at 256 –257 Brennan J held that the federal Administrative Appeals Tribunal’s power to depart from the rules of evidence gave it a flexibility in procedure but did not empower it to make orders without a basis in evidence having rational probative force. Brennan J said that: “the logical weakness of hearsay evidence may make it too insubstantial, in some cases, to persuade the Tribunal of the truth of serious allegations.” That is the situation in this case. No complainant gave oral evidence of the details of the complaint. Adopting the language used by the High Court in Briginshaw, the proofs are inexact and the testimony is non-existent. Mr Kent should not be deprived of his livelihood on the basis of such evidence.

Order

22 The Ministry’s decision to cancel Mr Kent’s taxi driver authority is set aside.