Khan v Roads and Maritime Services

[2014] NSWCATAD 101

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Khan v Roads and Maritime Services [2014] NSWCATAD 101
Hearing dates:	15 April 2014
Decision date:	17 July 2014
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Hennessy LCM, Deputy President
Decision:	The applicant's application for a stay of the decision to cancel his taxi driver authority is refused.
Catchwords:	STAY - cancellation of taxi driver authority - seriousness of allegation - interests of applicant - public interest
Legislation Cited:	Administrative Decisions Tribunal Act 1997 (NSW)
Category:	Interlocutory applications
Parties:	Muhammad Khan Roads and Maritime Services
Representation:	Milestone Legal (Applicant) Smythe Wozniak Legal (Respondent)
File Number(s):	1420158

reasons for decision

1. DEPUTY PRESIDENT: Mr Khan, a taxi driver, has applied for a stay of a decision to cancel his taxi driver authority. The basis for the cancellation is an allegation by a female passenger that during the course of a journey when she was sitting in the front seat, he told stories about previous passengers who had performed sexual acts in the taxi while he was driving. It was also alleged that he told the passenger about a female passenger who had performed sexual acts on him in the taxi. The passenger said that at the end of the journey Mr Khan unzipped his trousers and pulled out his penis. The passenger attempted to get out but alleges that Mr Khan grabbed her right hand. The passenger says she withdrew her hand and said, "Sorry, I have a boyfriend."

1. In evidence was a text message the passenger sent to a friend after the incident which said, "Omg you will never believe what just happened to me!!!! The taxi driver started telling me stories about people having sex in his taxi and then at the very end of my trip pulled out his dick. WTF!!! I feel violated."

1. Under s 60 of the Administrative Decisions Review Act 1997 (NSW), the application for a stay is refused. That provision states that:

(1) Subject to this section, an application to the Tribunal for a review of a reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision.

(2) On the application of any party to proceedings for an application for a review of a reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of a determination of the application.

(3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account:

(a) the interest of any person who may be affected by the determination of the application, and

(b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and

(c) the public interest.

(4) ...

1. I take into account the evidence that has been provided in terms of the seriousness of the allegation and the credibility of the complainant. I also take into account that Mr Khan has denied the allegation. I make no finding as to whether the alleged events actually took place but given the seriousness of what is alleged it is, in my view, in the public interest to refuse the stay.

1. The seriousness of the charge is significant and is the main factor that I have taken into account. I understand the applicant's submission that the Tribunal has not heard all the evidence and we will ultimately have to make factual findings at a hearing. But I have to determine the stay application on the basis of what the applicant has given me today and the oral submissions. Nothing the applicant has told me about the facts is inconsistent with or contrary to the allegations that were made. I find that none of the factors which the applicant suggests mean that the incident did not take place are significant. He suggested that the length of the journey, the fact that it was dark and that there was CCTV footage which did not show the actual incident, are all inconsistent with what is alleged to have happened. While I make no findings about what happened, none of the factors to which the applicant referred mean that it could not have happened.

1. The female passenger made a statement and the evidence is that the text message was sent the next morning at about 7.30 am. I also do not think there is anything that would necessarily cast doubt on the credibility of the applicant by the fact that she went to the police and then changed her mind about pressing criminal charges. Furthermore, the fact that she did not tell Mr Khan that she wanted to get out of the taxi does not necessarily suggest that the event as alleged did not take place.

1. I have also taken into account the interests of Mr Khan. I understand this may lead to financial hardship for him and the likelihood of him getting another job would, I imagine, be very small. Nevertheless the matter can be listed in about 6 weeks' time, in early June 2014. The hearing will be expedited to minimise any loss that Mr Khan would otherwise suffer. This is a serious allegation and there is nothing to suggest that it is improbable or invented. In those circumstances a stay is refused in the public interest.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 17 July 2014