Kohistani -v -Director General, Department of Transport

[2002] NSWADT 177

CITATION:	Kohistani -v -Director General, Department of Transport [2002] NSWADT 177
DIVISION:	General Division
PARTIES:	APPLICANT Mohammed Kohistani RESPONDENT Director General, Department of Transport
FILE NUMBER:	023033
HEARING DATES:	27 August 2002
SUBMISSIONS CLOSED:	08/27/2002
DATE OF DECISION:	09/25/2002
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	Passenger Transport Act - taxi driver - variation of authority - Taxi driver - variation of authority
MATTER FOR DECISION:	Principal Matter
LEGISLATION CITED:	Passenger Transport Act 1990
CASES CITED:
REPRESENTATION:	APPLICANT In person RESPONDENT A Wozniak, solicitor
ORDERS:	The decision to impose conditions on Mr Kohistani's taxi driver authority is set aside. The decision is remitted to the administrator for reconsideration.

1 Following several complaints from passengers and breaches of the Passenger Transport Act 1990 (PT Act), the Director General imposed the following conditions on Mr Kohistani’s taxi authority:

1. Such authority is subject to probation conditions for a period of six months.
2. The authority holder is not to be the subject of any substantiated complaint from any taxi passenger or intending passenger.
3. The authority holder is not to be the subject of any breach of the Passenger Transport Act, 2000, as amended or associated Regulations.
4. The authority holder is not to be the subject of any breach of any driving offences.
5. The authority holder is not to be the subject of any criminal conviction within the time of such probation.

2 At the hearing Mr Wozniak advised the Tribunal and Mr Kohistani that conditions 4 and 5 had been withdrawn. Mr Wozniak said that the second condition, that Mr Kohistani not be the subject of any substantiated complaint, should be interpreted as Mr Kohistani not being convicted of any breach of the PT Act or associated Regulations as a result of a complaint from a passenger or intended passenger. Consequently, according to Mr Wozniak, conditions 1, 2 and 3 amount to a single condition that Mr Kohistani not breach the PT Act or associated Regulations for a period of 6 months.

3 The conditions were imposed pursuant to s 33D(1)(c) of the PT Act. That provision, and other relevant provisions in that section, are set out below:

(1) An authority under this Division is subject to:
(a) the condition imposed by this Division, and
(b) the conditions prescribed by the regulations, and
(c) such additional conditions as the Director-General, having regard to the purpose of authorisation under this Division, may impose on the authority.

(2) Conditions imposed by the Director-General may be varied (whether by amendment, addition, revocation or suspension of one or more conditions) by the Director-General from time to time by notice served on the authorised person.

(3) An authorised taxi-cab driver who contravenes a condition of the driver's authority is guilty of an offence.
Maximum penalty: 100 penalty units.

(4) A variation of conditions imposed on an authority by the Director-General is, for the purposes of Division 3 of Part 5 (Reviews by Administrative Decisions Tribunal), a variation of the authority. (Emphasis added)

4 This is the first time that the Tribunal has reviewed a decision of this kind. I am satisfied that the Tribunal has jurisdiction to review the decision, pursuant to s 52(1) of the PT Act. That provision states that:

Any person whose application under Part 2, 4 or 4A has been refused, or whose accreditation, authority or authorisation has been varied, suspended or cancelled may apply to the Administrative Decisions Tribunal for a review of the refusal, variation, suspension or cancellation.

5 In this case s 33D(4) deems Mr Kohistani’s authority to have been varied.

6 Section 33D gives the Director General power to impose additional conditions on an authority, having regard to the purpose of authorisation. Section 33D provides that a driver who contravenes a condition of the driver's authority is guilty of an offence. Whether the five original conditions, or the condition as reformulated by Mr Wozniak, is the proper subject of review for this Tribunal, the result is that a condition or conditions have been imposed on Mr Kohistani’s driver’s authority which have the effect that it is an offence for Mr Kohistani to commit certain offences.

7 In my view a decision to impose a condition or conditions of this kind is untenable because it potentially exposes Mr Kohistani to two penalties for the same action. Section 33D was not intended to be used to achieve such a result. Its purpose is to allow the Director General to impose conditions the breach of which would not ordinarily amount to an offence. In addition, any conditions must have regard to the purpose of an authority as set out in s 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, and
(b) that the authorised person is considered to have sufficient responsibility and aptitude to drive a taxi-cab:
(i) in accordance with the conditions under which the taxi-cab service concerned is operated, and
(ii) in accordance with law and custom.

8 The correct and preferable decision in this case is to set aside the decision to impose the above conditions on Mr Kohistani’s licence and to remit the matter for reconsideration by the Director General. The Director General may decide:

· not to impose any conditions on Mr Kohistani’s authority;

· to impose different conditions on Mr Kohistani’s authority; or

· to make any other decision he is authorised to make in relation to Mr Kohistani’s authority.

9 If Mr Kohistani does not agree with any further decision made by the Director General, he must apply for an internal review of that decision before lodging a fresh application with the Tribunal.