Kornits v Ministry of Transport

[2007] NSWADT 20

CITATION:	Kornits v Ministry of Transport [2007] NSWADT 20
DIVISION:	General Division
PARTIES:	APPLICANT Josef Kornits RESPONDENT Ministry of Transport
FILE NUMBER:	063326
HEARING DATES:	10/11/2006
SUBMISSIONS CLOSED:	10 November 2006
DATE OF DECISION:	18 January 2007
BEFORE:	Pearson L - Judicial Member
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 (Taxi-Cab Services) Regulation 2001 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 EB v Director General, Department of Transport [2002] NSWADT 258 Farquharson v Director General, Department of Transport [1999] NSWADT 53 Hughes & Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 Lal v Director General, Department of Transport [2001] NSWADT 74 Loye v Director General, Department of Transport [2000] NSWADT 145 McDonald v Director General of Social Security (1984) 1 FCR 354 Saadieh v Director General Department of Transport [1999] NSWADT 68 Singh v Director General, Department of Transport [1999] NSWADT 96
REPRESENTATION:	APPLICANT J Gounder, solicitor RESPONDENT A Wozniak, solicitor
ORDERS:	Decision under review affirmed

1 On 21 July 2006 a delegate of the Director General, Ministry of Transport, invited the applicant to respond to a statement setting out grounds on which the cancellation of his Driver Authority was being considered. That statement noted that on 4 April 2002 following a fitness review in response to 49 complaints and network breaches, the applicant had been directed to attend retraining and satisfactorily complete modules in Customer Care and Rules & Regulations; that a show cause notice was issued on 31 January 2006 as a result of 13 customer complaints and breaches of the Passenger Transport (Taxi-cab Services) Regulations 2001 since completing retraining; that the applicant had completed further training in Rules & Regulations on 27 April 2006; and that there had been a further three customer complaints.

2 The applicant responded in writing, commenting on the three customer complaints recorded in 2006. His representative submitted that the applicant does not have a criminal conviction record, has a current clean driving record, and is the sole caretaker of his wife.

3 On 28 August 2006 the respondent informed the applicant that his Driver Authority No AB4704 had been cancelled under section 33 of the Passenger Transport Act 1990 (the PT Act). The reasons for this decision were:

The community must have confidence that a driver would behave appropriately in relation to all passengers. The fact that you have accumulated further complaints for breaches of the Passenger Transport (Taxi-cab Services) Regulations since completing retraining casts grave doubts about your fitness to hold a taxi-cab drivers authority, and of your ability to carry out the duties responsibilities and aptitude of the position according to law and custom.

The fact that you have undergone retraining and yet have accumulated complaints of a similar nature for breaches of the regulations indicates the likelihood that you will continue to act in such a way and highlights that you are not prepared to comply with the required Standards and Regulations. Given your complain history, it is considered that you may not possess the level of responsibility and aptitude required to be the holder of a public passenger vehicle authority.

You were afforded the opportunity to respond to the Ministry’s Notice to Show Cause issued on 21 July 2006, however your response did not fully challenged the Ministry’s facts, evidence and material against you.

4 On 30 August 2006 the applicant applied for internal review, and also applied to the Tribunal for review of the decision, and an urgent stay. On 5 September 2006 a stay was granted, and the matter was adjourned for hearing.

5 On 4 September 2006 the decision was affirmed on internal review.

Legislation

6 The Tribunal's task is to make the correct and preferable decision having regard to the material before it. The role of the Tribunal is to determine whether, having regard to the underlying facts in the matter and the applicable law, the decision of the respondent is the correct and preferable one: s63 Administrative Decisions Tribunal Act 1997 (ADT Act).

7 The Tribunal must make its own decision and there is no presumption that the decision of the respondent is correct: s 63 ADT Act; McDonald v Director General of Social Security (1984) 1 FCR 354 at 357.

8 Section 33F of the PT Act provides:

33F Variation, suspension or cancellation of authority

Having regard to the purpose of authorisation under this Division, the Director-General may at any time vary, suspend or cancel any person’s authority under this Division.

9 Section 33 relevantly provides:

(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.

10 The respondent relied on the records of complaints made against the applicant, which includes complaints made by the network as well as customers. The respondent submitted that the applicant has been has allowed the opportunity to be retrained and to correct any problems, however there have continued to be complaints.

Applicant’s case

11 The applicant’s representative submitted that the applicant has been driving taxis for 20 years, and has committed $60,000 for the purchase of a maxi taxi. The applicant has provided references from people who appreciate his work and how he provides services. The three recent complaints arose from a misunderstanding, and the applicant had no intention of being dishonest. In responding to the Show Cause Notice and at the hearing the applicant’s representative stated that the applicant was prepared to have a period of probation.

Good Repute and Fit and Proper Person

12 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 96 at [25] to [28], Farquharson v Director General, Department of Transport [1999] NSWADT 53 at [27]. In Farquharson v Director General, Department of Transport [1999] NSWADT 53, President O’Connor DCJ said:

A taxi driver has a continuing responsibility to ensure that he is of “good repute” and a “fit and proper person”. Clearly, the laying of serious criminal charges bears on the reputation of an individual and may raise questions as to the person’s character. 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).

13 “Repute” is defined in the Macquarie Dictionary (Third Edition) to mean “estimation in the view of others; reputation”. Whether a person’s history is known in the community will be a factor in assessing what weight to give to the evidence of repute. A positive estimation in spite of knowledge of a blemished history would ordinarily weigh in favour of the person: EB v Director General, Department of Transport [2002] NSWADT 258 at 40. References which do not specifically address the applicant’s offences or the issues with which the Tribunal is concerned are of less use: Loye v Director General, Department of Transport [2000] NSWADT 145.

36 In the decision of Director General, Department of Transport v Z [2002] NSWADTAP 37 at [38] the Appeal Panel stated:
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 produces 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.

14 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.

15 In response to the letter of 21 July 2006 the applicant provided five written references, all providing positive endorsements of the applicant as a taxi driver. Only one, the reference by Mr Paul Bolt, Manager Wheelchair Accessible Taxis, refers to “some issues regarding his past performance that the Ministry wish to deal with”. In this reference, Mr Bolt states that Zero200 “will monitor Mr Kornits performance with the WATS Licence conditions and also with Customer Care issues”. Applying the reasoning in Loye, I regard the other four references provided by the applicant has having limited value, as they do not indicate that the provider of the reference was aware that the applicant was at risk of having his driver authority cancelled. However, they do provide some evidence as to the way in which the applicant is regarded as a taxi driver, and I am not satisfied that the applicant cannot be regarded as being of “good repute”.

16 The Tribunal has frequently cited the decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 as a guide to the meaning of “a fit and proper person”. In that case Toohey and Gaudron JJ stated (at 380):

The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

17 Their Honours further stated (at 388):

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 The activities in which the person will be engaged is relevant to consideration of whether he is a “fit and proper person”: Hughes & Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 at 156-7. In Saadieh v Director General Department of Transport [1999] NSWADT 68 at [17] Deputy President Hennessy set out a number of factors based on the legislation and relevant case law as being relevant to determining a person’s fitness and suitability to obtain an authority. These included:

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.

19 Based on the material on the respondent’s file, I find that on 25 February 2002 Taxis Combined Services requested a review of the applicant’s fitness to hold a Driver Authority. The schedule of the history of complaints shows a total of 49 customer related and network complaints from November 1992 to February 2002. The customer related complaints relate to a variety of matters, including overcharging, rudeness, and failure to carry out a hire. The respondent directed the applicant to undergo retraining in Module 3 (Rules & Regulations) and Module 4 (Customer Care). On 30 April 2002 the applicant was assessed as competent in these modules. On 13 March 2003 the applicant was convicted of two matters of Fail to Complete Worksheet in contravention of clause 38(1) of the Passenger Transport (Taxi-cab Services) Regulation 2001. On 31 January 2006 the respondent issued a Notice to Show Cause, on the basis of the conviction and 11 further complaints during the period July 2003 to August 2005 relating to a variety of matters, including demanding more than the prescribed fare, failure to complete hiring, and road rage. The applicant responded, contesting the allegations. On 23 March 2006 the applicant was directed to complete Module 2 (Rules & Regulations) of the Taxicare Plus Bronze Level. The applicant completed this certificate on 27 April 2006. On 3 May 2006 the respondent wrote to the applicant, stating:

…I must inform you that should any further matters come to the attention of the Ministry, action may be taken against your authority to drive a public passenger vehicle.

20 The respondent’s file shows that two complaints were received after this warning letter, a complaint dated 10 May 2006 for demanding more than the prescribed fare, and complaint dated 13 May 2006 for demanding more than the prescribed fare and not using the meter. A further complaint dated 6 April 2006, for demanding more than the prescribed fare, was also recorded.

21 It is not clear from the respondent’s file when the applicant was first licensed to drive a taxi. However, the respondent did not dispute the applicant’s assertion that he has been driving taxis for 20 years. Since 1992 the applicant has had a significant number of complaints, made both by customers and by the network. Those complaints were sufficiently numerous, and serious, for the network to request a review of the applicant’s fitness in 2002. Since then, the applicant has been given the opportunity to undergo retraining on two occasions. He has continued to attract complaints from customers. The applicant’s representative argued that the recent complaints were not serious, and arose from a misunderstanding. The respondent relied on the history of complaints and the opportunities that have been provided for the applicant to refresh his understanding of the requirements. I am satisfied that the applicant has had ample opportunity to address any issues as to his understanding of the relevant requirements, and I cannot be satisfied that he is unlikely to be the subject of further complaints. There is no provision in the legislation for a period of probation to be imposed. While I accept that the respondent has derived his livelihood from driving taxis, and has entered into a financial commitment for the purchase of a maxi taxi, hardship to the applicant is not a matter that can be taken into account: Lal v Director General, Department of Transport [2001] NSWADT 74. I am satisfied that the applicant is not a fit and proper person to be the driver of a taxi-cab, and that the decision of the respondent to cancel his Driver Authority was the correct and preferable decision.

Order

Decision under review affirmed.