Khamis v Director General, Department of Transport

[1999] NSWADT 103

CITATION:	Khamis -v- Director General, Department of Transport [1999] NSWADT 103
DIVISION:	General
APPLICANT:	Michael Khamis
RESPONDENT:	Director General, Department of Transport
FILE NUMBER:	993069
HEARING DATES:	07/05/1999; 08/16/1999
SUBMISSIONS CLOSED:	08/16/1999
DATE OF DECISION:	27 October 1999
BEFORE:	N Hennessy - Deputy President
PRIMARY LEGISLATION:	Passenger Transport Act 1989
APPLICATION:	Review of decision to cancel taxi-cab authority -
MATTER FOR DECISION:	Principal matter
REPRESENTATION:	Applicant: In person Respondent: P Culbert, solicitor, Department of Transport on 05/07/99 A Wozniak, solicitor, Smythe & Mallam on 16/08/99
ORDERS:	1. The decision of the Director General of the Department of Transport to refuse the applicant's application for a taxi-cab authority is affirmed.

Background

1 During the time that the applicant, Mr Khamis, has been a taxi driver he has come to the attention of taxi networks and the Department of Transport (“the Department”) on numerous occasions. Overall, twenty-three passengers have complained about his conduct. Their allegations range from incivility to assault. Mr Khamis denies all except one of the allegations stating that the Department accepted the complainant’s version rather than his.

2 The applicant’s taxi-cab authority was cancelled in 1994. Two years later the Department agreed to re-issue the authority, however complaints against him continued and the authority was cancelled again at the end of 1997. This hearing concerns Mr Khamis’ most recent application for a taxi-cab authority made on 11 February 1999.

3 On 19 April 1999, a delegate of the Director General refused Mr Khamis’ application. The result of an internal review of this decision was that the original decision was affirmed. Mr Khamis applied to the Tribunal for a review of this decision.

4 Oral evidence was given by Francis Malone, operations manager in the Department and by Mr Khamis. The Department did not call any of the complainants or network employees to give evidence, but relied instead on letters and statements contained in the file. The Department tendered their entire file which contains details of the complaints made against Mr Khamis, details of the Department’s investigation of those complaints, correspondence from various networks about complaints and investigations, the applicant’s criminal record and his traffic record.

Evidence in relation to the Department’s procedures

5 Mr Francis Malone, operations manager, Department of Transport, outlined the Department’s processes for dealing with complaints. He said that the Department receives complaints against taxi drivers and owners. Some complaints, involving the taxi itself and minor overcharging, are dealt with by the taxi network concerned. The Department deals with complaints involving the behaviour of drivers including physical abuse or intimidation, verbal abuse or rudeness, sexual harassment and racist, homophobic or other discriminatory language. Other areas of complaint are lack of geographical knowledge and insufficient knowledge of English.

6 The officer handling the complaint registers it and then decides whether there is a possible breach of the Passenger Transport Act 1989 or regulations. If so, further details are obtained from the complainant. If the complaint reveals that a criminal offence may have been committed, the complainant is encouraged to contact the police. If the police subsequently charge the driver or owner, their authority is suspended pending the outcome of criminal proceedings. The kinds of action that the Department can take after investigation of the complaint are:

• no action; (if the complaint is not justified)
• requiring the driver to undergo retraining in relation to customer care, geography or English language skills;
• giving a verbal warning;
• giving a written warning;
• issuing a “show cause” letter; or
• suspending or cancelling the licence or authority.

7 The respondent’s file in relation to the applicant discloses a long history of complaints by passengers, a conviction for assault and numerous traffic offences. Mr Khamis did not address all of these matters in his oral evidence.

Evidence in relation to complaints made against the applicant

8 On 25 July 1993, the applicant said that he responded to a radio job from the taxi operator to pick up a person from Rockdale RSL Club. He said that when he arrived he asked the doorman to page the passenger and when he received no response he told the radio operator that no-one was there. Ten minutes later a message appeared on his computer screen in the taxi that “you are suspended.” Mr Khamis said he tried to call back but the operator ignored him.

9 A different version of events appears from a letter in the Department’s file from the doorman of the Club, Mr Doug Porter. He said that the applicant came to pick up a passenger but talked on the public phone in the foyer for 15 minutes keeping the passenger waiting. When the passenger rang for another cab an altercation took place where Mr Khamis swore at the doorman and threw a punch at him which missed.

10 On investigation by St George Cabs Co-Operative Limited, Mr Khamis denied any knowledge of the incident. He received a warning from the network.

11 On the same night when he went to get fuel, Mr Khamis says that a network radio operator said “You’re lying, you did not pick up that fare.” When Mr Khamis asked the operator who he was he identified himself and said “I am your master.” Mr Khamis said he was going to report the matter to Mr Ryan, the manager of the network. Mr Khamis then said the operator “attacked me. He hit me and I hit him back.”

12 The Departmental file reveals that an eye witness to this incident, S. Beavis, reported that Mr Khamis had punched the operator in the mouth without provocation, and that he required six stitches. On 20 January 1994 Mr Khamis was convicted of assault occasioning actual bodily harm in relation to this incident and fined $150.00. The Department cancelled his authority on 23 March 1994. An appeal against this cancellation was dismissed by the Local Court.

13 Mr Khamis applied for a taxi-cab authority again on 19 October 1994 and indicated on the form that he had never been prohibited from driving a motor vehicle. Although the applicant admitted that this was not true he said he did not understand what was meant by "prohibited.” His application was refused on this occasion.

14 Mr Khamis re-applied for a taxi driver’s authority on 21 February 1995. This application was refused and an appeal against the Department’s decision was dismissed by the Local Court. However he successfully applied for a Bus and Long Distance Tourist Authority on 31 August 1995.

15 Following representations by a member of parliament, the Department issued Mr Khamis with a taxi-cab authority on 15 January 1996. After this several more complaints were received including two separate complaints from female passengers alleging sexual innuendo or comments about appearance as well as speeding and harassing pedestrians and other drivers. There were also two complaints of incivility and impropriety which included allegations of multiple hiring without consent and threatening a passenger that he would chop their head off if a complaint was made. Mr Khamis denied these allegations.

16 On 5 December 1996 two passengers alleged that the taxi which Mr Khamis was driving was involved in an accident following which the driver was very agitated and ran red lights. Later in the journey the female passenger stated that he propositioned her and suggested they go to Malabar Beach. She stated that she felt extremely threatened by this behaviour and reported being ill after the journey both as a result of the trauma from the accident and Mr Khamis’ behaviour. Mr Khamis denied all these allegations.

17 The Department gave Mr Khamis a final warning on 4 April 1997 telling him that any further complaints would lead to consideration being given to cancelling his authority.

18 A further complaint was received from a Mr Rowe in relation to an incident outside Harold Park Hotel on 4 August 1997. The Department conducted an investigation in relation to this and other complaints and, on 24 November 1997, issued a notice cancelling the applicant’s taxi driver’s authority. Mr Khamis appealed to the Local Court against this decision and on 19 January 1998, both Mr Khamis and Mr Rowe gave evidence about the incident.

19 Mr Khamis told the magistrate that he had responded to a booking at Harold Park and had pulled up and got out of his taxi and turned off the lights. An intoxicated passenger got into the driver’s side of the taxi and demanded to be taken home. Mr Khamis said that he told the man that he had a customer booked. He said the man hit him with the door of the taxi and they had a fight.

20 Mr Rowe’s evidence was that he had approached the applicant’s taxi which had its roof light on indicating it was vacant. He asked to be taken to Five Dock. Mr Rowe stated that Mr Khamis refused saying “I’ll go where I fucking like because I own the taxi.” When Mr Rowe said he would report him, Mr Khamis “pushed the door out and against me and I moved away and he got out of the taxi and started throwing punches at me. A couple of seconds later he kicked me in the chest.”

21 The magistrate was satisfied, on the balance of probabilities, that Mr Rowe was telling the truth about what occurred on 4 August 1997. Mr Khamis said that the magistrate believed Mr Rowe because he is Australian. Although charged, the applicant was not convicted of any offence in relation to this incident.

22 The applicant lodged a further application for a taxi authority in May 1998. This application was refused on 31 August 1998.

Findings of fact

23 It is difficult to make findings of fact in relation to all the complaints made against Mr Khamis when he denies any wrongdoing and there is no opportunity to cross examine the people who made complaints. However I am comfortable about making the following findings of fact:

• at least twenty-three complaints have been made against the applicant since 1993;
• the applicant did not deny that he was in the taxi when the incidents are alleged to have occurred, but he does deny the details of each complaint in so far as they implicate him in any wrong doing;
• the applicant has been unable to give a satisfactory explanation as to why so many people would lodge false complaints against him; and
• while a few of the complaints were not pursued, many were investigated either by the network concerned or the Department, or both, and found to be substantiated.

24 There are at least two incidents about which evidence has been given, and tested, in court. Mr Khamis was convicted of assault occasioning actual bodily harm in relation to the incident involving the network radio operator on 25 July 1993. I accept that Mr Khamis did assault the network employee. In relation to the incident outside Harold Park Hotel the magistrate had an opportunity to hear oral evidence from both Mr Ryan and the applicant and to make an assessment about credibility. I accept the magistrate’s findings that the incident occurred in the way described by Mr Ryan. It follows from these findings that Mr Khamis did not tell the truth in relation to at least one of the complaints made against him.

25 The applicant first obtained a driver’s licence in Australia in September 1980. Since that time his licence has been cancelled four times due to loss of points relating to some 27 infringements including negligent driving, speeding, disobeying traffic lights and failing to give way to a pedestrian.

26 Mr Khamis tendered several references attesting to his good character. One was from Simon Mandile, a local real estate agent who has known the applicant for four years and found him to be honest and respectable. References were also tendered from family friends, three medical practitioners, a TAB manager and an employee of The Australian Magazine who has used Mr Khamis’ services as a cab driver for at least two years.

27 Mr Khamis promised that if his licence is restored he will behave very “calmly and smoothly.” He said that taxi driving is his life and he has nothing else he can do.

Legislation

28 Section 12 of the Passenger Transport Act 1989 gives the Director General a discretion to grant authorities, having regard to the purpose of that authority. Sub-section 11(2) sets out the purpose of an authority in the following terms:

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 public passenger vehicle; and

(b) that the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates:

(i) in accordance with the conditions under which a public passenger service is operated; and

(ii) in accordance with law and custom.

29 I have discussed the concepts of “fit and proper” and “good repute” in previous cases (See Saadieh v Director General Department of Transport [1999] NSWADT 68. Extracts from this decision are set out below.

The issue in this case is whether, in the light of the responsibilities and expectations of a taxi driver, the applicant is a "fit and proper person" to hold a taxi authority. Being a "fit and proper person" includes being of "good repute." [12]

Chief Justice Mason in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63] said that:

"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." [16]

30 In Saadieh v Director General, Department of Transport I set out a number of factors, based on the terms of the legislation and the case law interpreting similar provisions, that need to be taken into account in determining a person's suitability and fitness to obtain an authority. These factors were:

• 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.

31 On 20 January 1994 Mr Khamis was convicted of assault occasioning actual bodily harm in relation to the incident involving a network employee who had suspended him. This is a serious offence which, together with the incident involving Mr Ryan some years later, indicates that the applicant has a volatile temperament and is prone to express himself through violence.

32 The history of complaints against the applicant is of considerable concern. Apart from assaulting a network employee, Mr Khamis denies any wrongdoing in relation to each of these complaints. The magistrate’s findings in relation to the incident outside the Harold Park Hotel leads me to conclude that Mr Khamis was not telling the truth about this incident. Neither has he come up with any rational explanation as to why 22 other people would make false complaints alleging aggressive, abusive and sexually suggestive behaviour.

33 The applicant’s driving record is extremely poor. Even taking into account that he has spent a great deal of time on the road driving taxis, he has nevertheless committed twenty-seven infringements resulting in him losing his licence on four separate occasions.

34 The applicant’s reputation in the community was addressed by several references. These referees attest to his good character, but there is no indication that any of the referees knew of his conviction for assault, his traffic record or of the nature and extent of the complaints made against him. I do not accept, in these circumstances, that the applicant is of “good repute.”

35 I believe there is an extremely high probability that the applicant, if granted a taxi authority, would continue to be the subject of complaints and infringement notices. He has been given numerous warnings about the complaints that have been lodged and has lost his licence on four occasions. He has repeatedly promised to change his ways but despite this there is no evidence of any improvement in his conduct towards passengers or in his ability to obey the rules of the road.

36 Taking all these factors into account I am satisfied that the applicant is not of good repute or a fit and proper person to be the driver of a public passenger vehicle. He does not have sufficient responsibility and aptitude to drive a taxi. Consequently I affirm the decision of the Director General of the Department of Transport to refuse his application for a taxi-cab authority.