Kumar v Ministry of Transport

[2009] NSWADT 114

CITATION:	Kumar v Ministry of Transport [2009] NSWADT 114
DIVISION:	General Division
PARTIES:	APPLICANT Ravindra Kumar RESPONDENT Ministry of Transport
FILE NUMBER:	093065
HEARING DATES:	13 May 2009
SUBMISSIONS CLOSED:	13 May 2009
DATE OF DECISION:	20 May 2009
BEFORE:	Handley R - Deputy President
CATCHWORDS:	Private hire vehicle – cancellation of licence
LEGISLATION CITED:	Passenger Transport Act 1990 Passenger Transport Regulation 2007 Administrative Decisions Tribunal Act 1997
REPRESENTATION:	APPLICANT S Singh, solicitor RESPONDENT A Wozniak, solicitor
ORDERS:	The decision under review is affirmed.

1 Ravindra Kumar has applied to the Tribunal for a review of a decision of the Director General of the Ministry of Transport (‘the Ministry’), made under the Passenger Transport Act 1990 (‘the Act’), to cancel Mr Kumar’s private hire vehicle licence.

Background

2 On 23 January 2009, Mr Kumar applied to the Ministry for a short term (12 months) private hire vehicle licence for the Camden local government area. The Ministry approved this on 5 February 2009, and Mr Kumar was granted a licence for a period of 12 months from 5 February 2009. The licence is subject to conditions, including condition 3 stating that, “The vehicle must not ply or stand for hire on any road or road related area and must not carry out a hiring other than a pre-booked hiring.”

3 At 9.50 pm on Saturday 14 February 2009, Ministry compliance officers observed Mr Kumar’s hire car standing outside the Camden Hotel and Mr Kumar speaking with two security officers. It is alleged a man asked Mr Kumar for “a cab” and Mr Kumar motioned for him to get in and then drove away. The following Monday 16 May 2009, one of the compliance officers, Paul Adams, telephoned Mr Kumar to ask him about the incident. Mr Adams alleges that Mr Kumar acknowledged having “made a mistake” and said it would not happen again. Mr Adams decided that, on this occasion, a warning about not picking up passengers without a pre-booking would suffice and no further action was taken.

4 At 1.47 am on Sunday 1 March 2009, Mr Adams and a Senior Project Officer with the Ministry, Emma Reedy, got out of their car, parked opposite the Camden Hotel, and walked to the footpath area outside the Hotel where about 40 people were standing. The officers observed two other hire cars stop outside the Hotel and collect passengers, followed by Mr Kumar’s hire car. Mr Adams alleges that one of the security guards invited the two officers to get into Mr Kumar’s car and, when they did so, Mr Kumar asked them where they wanted to go and then drove them to their destination. Having paid Mr Kumar the requested $15 fare, the officers identified themselves and questioned Mr Kumar about what had occurred. He is alleged to have admitted being “in the wrong” although claiming that he had a booking.

5 Following this incident, Mr Adams issued Mr Kumar with a $750 infringement notice and recommended that the Ministry cancel Mr Kumar’s private hire car licence. On 4 March 2009, a delegate of the Director General cancelled Mr Kumar’s licence. On 10 March 2009, Mr Kumar applied to the Tribunal for a review of this decision and for a stay. On 18 March 2009, the Tribunal granted a stay pending the outcome of these proceedings. It is not clear whether Mr Kumar subsequently applied for an internal review of the decision to cancel his licence. Nevertheless, pursuant to s 55(3)(b) of the Administrative Decisions Tribunal Act 1997, I am satisfied that it is necessary to deal with Mr Kumar’s application in order to protect his interests.

The Relevant legislation

6 Section 39 of the Act empowers the Director General to grant private hire vehicle licences. Section 39F provides relevantly:

39F Conditions of licence

(1) A licence is subject to:

(a) the conditions prescribed by the regulations, and

(b) such additional conditions as the Director-General may impose on the licence...


(2) ...

(3) A licensee who contravenes a condition of the licence is guilty of an offence.

Maximum penalty: 1,000 penalty units.

(4) ...

39G Variation, suspension or cancellation of licence

(1) The Director-General may at any time vary, suspend or cancel any licence if:


(a) owing to the default of the licensee, or the agents or employees of the licensee:

(i) the provisions of this Act or the regulations, or

(ii) the terms and conditions of the licence,

have not been or are not being complied with, ...

7 Clause 189 of the Passenger Transport Regulation 2007 (‘the 2007 Regulation’)

189 No plying or standing for hire

The driver of a private hire vehicle must not:


(a) ply, stand or park the vehicle for hire on any road or road related area, or

(b) use the vehicle to carry out a hiring other than a pre-booked hiring, or

(c) if the licence for the private hire vehicle specifies an area of operation for the vehicle-use the vehicle to carry out a hiring to convey a passenger from a place outside the vehicle’s area of operation to a place other than a place inside that area.


Maximum penalty: 50 penalty units.

The Ministry’s Evidence

8 The Ministry provided affidavits from Paul Adams, dated 26 February 2009 and 1 May 2009, and an affidavit from Emma Reedy, dated 1 May 2009. Mr Adams also gave oral evidence at the hearing.

9 Mr Adams is a compliance officer with the Ministry, a position he has held for a period of 10 months, having previously served in other similar positions. In relation to the incident on Saturday 14 February 2009, Mr Adams described how he and another officer, in the course of an operation code-named ‘TomTom’, were, at 9.30 pm, parked near the Camden Hotel. At about 9.50 pm, Mr Adams observed Mr Kumar’s hire car parked directly outside the Hotel. Mr Kumar got out of the car and walked over to two security guards outside the Hotel with whom Mr Kumar appeared to have a conversation. While on the footpath outside the Hotel, Mr Adams heard a man, who was about four metres from him, say to Mr Kumar, “Can I get a cab?” Mr Kumar did not ask the man to identify himself, motioned to him to get into the hire car and Mr Kumar drove off. Mr Adams did not follow up this incident immediately because of his involvement in operation ‘TomTom’.

10 On Monday 16 February 2009, Mr Adams telephoned Mr Kumar to discuss the incident on 14 February. Mr Adams told Mr Kumar that he had observed Mr Kumar pick up a passenger outside the Hotel and Mr Adams asked whether the job was pre-booked. Mr Kumar said, “I am very sorry sir but I may have made a mistake. Sometimes the security give me work.” Mr Adams told Mr Kumar he was not allowed to pick up passengers unless they were pre-booked. Mr Kumar said, “I am very sorry it will not happen again. I now know that I have to do the right thing.”

11 In cross-examination, Mr Adams said he was making notes on his computer contemporaneously as he was talking with Mr Kumar. Mr Adams acknowledged that Mr Kumar pointed out that although his car was parked in a marked ‘taxi zone’, the zone only had effect from 10.00 pm to 3.00 am. Mr Adams said he did not include mention of this in his notes because he did not consider it had any relevance. Mr Adams denied that Mr Kumar told him he had a pre-booking.

12 Mr Adams said that, on this occasion, he thought a verbal warning would suffice and took no further action beyond recording the incident on his computer.

13 In relation to the incident at about 1.46 am on Sunday 1 March 2009, Mr Adams described how he and Ms Reedy observed approximately 40 people on the footpath outside the Camden Hotel. He and Ms Reedy walked to this area from their car, and observed two hire cars stop and collect passengers. One of the two security guards present asked, “Who’s next?” and, when Mr Kumar pulled up in his hire car directly in front of them, the security guard said to Mr Adams and Ms Reedy, “This is your cab, get in.” Mr Kumar, who had not got out of the car or spoken to the security guard, asked them where they were going and they told him the Shell Service Station at Narellan. On arrival, they paid Mr Kumar $15 and Mr Kumar gave Ms Reedy a receipt when she asked for this.

14 Mr Adams and Ms Reedy then identified themselves and questioned Mr Kumar about the incident. When Mr Kumar said he had a pre-booking, they challenged this, because when they got into the car, Mr Kumar did not ask who they were or check if it was a booking. Mr Kumar said he was aware it is an offence to undertake a hiring that is not pre-booked but explained, “I got a call from some guy I dropped earlier and I thought it was them.”

15 In cross-examination, Mr Adams said he and Ms Reedy both made contemporaneous notes about the incident, Ms Reedy taking notes while they were talking with Mr Kumar and Mr Adams immediately after Mr Kumar left. Mr Adams said he has not seen Ms Reedy’s statement. He said that Mr Kumar did not mention that he had a booking with ‘Josh’.

16 In relation to the first incident, Mr Adams said he had only given Mr Kumar a warning because Mr Kumar had only recently received his licence. Following the second incident, Mr Adams issued an infringement notice and recommended cancellation of Mr Kumar’s licence because this was normal practice.

17 Ms Reedy’s account of the incident on 1 March 2009 is similar to that of Mr Adams. She stated that when, after they had identified themselves, Mr Adams asked Mr Kumar whether the Ministry had advised him that all his journeys must be pre-booked, Mr Kumar answered, “Yes, but we have an arrangement at the hotel.” Mr Kumar said he had a booking and, when Ms Reedy challenged this, he said, “I am sorry, I am in the wrong here.” Mr Kumar acknowledged that he knew it was an offence to conduct a hiring that was not pre-booked, but said, “I got a call from some guy earlier and I thought it was them.”

Mr Kumar’s Evidence

18 Mr Kumar provided a statement, with attachments, dated 27 April 2009, and gave oral evidence at the hearing. He said he collects passengers from the Camden Hotel on Fridays and Saturdays. He has an arrangement with the Hotel that if someone wants to go home and there is no taxi available, either the passenger or the Hotel will phone to ask him to drive the passenger home.

19 In relation to the incident at 9.50 pm on 14 February 2009, Mr Kumar denied that he had taken a passenger without a pre-booking. He said that when he spoke to Mr Adams on the telephone a few days later, Mr Adams said he had been parked in a ‘taxi zone’. This was the main focus of the conversation. Mr Kumar responded that it was only a taxi zone from 10.00 pm. Mr Adams told him that he might be fined if he carried a passenger without a pre-booking. Mr Kumar knew he could only take pre-bookings because of his licence conditions. He did not make a note of his conversation with Mr Adams either on this occasion or after the incident on 1 March 2009.

20 At the hearing, in answer to my question, Mr Kumar said he had a pre-booking for about 10.15 pm on the evening of 14 February 2009, and arrived at the hotel early because he had nothing better to do. He was there talking to the security guards. He had recorded the 10.15 pm booking in his notebook.

21 In relation to the incident on 1 March 2009, Mr Kumar said he had a pre-booking from ‘Josh’, from whom he had had a booking on a couple of previous occasions. Josh phoned him that evening and asked Mr Kumar to collect him from the Camden Hotel. When Mr Kumar arrived at the Camden Hotel, a security guard opened the front passenger door, told him his passenger was inside the Hotel, and said, indicating people on the footpath, “These people have been waiting for a while. Would you take them?” They only wanted to go a short distance so, as a favour, Mr Kumar agreed to take them and the security guard opened the car door for them to get in. Mr Kumar acknowledged that he should not have taken them.

22 Mr Kumar said he had told Mr Adams of his booking on 1 March 2009. Mr Kumar said he phoned Josh after receiving the infringement notice to find out who he was and Josh gave him his telephone number and email address, and said the Tribunal could contact him. Mr Kumar noted Josh’s details on the back of one of his business cards, which he tendered in evidence.

23 Mr Kumar said the infringement notice in respect of this incident came in the post. He has made a court election because he considers the $750 fine is “too much”, but has not yet received a court attendance notice.

24 Mr Kumar said that since the hearing on his stay application, he has documented all his passenger hirings and has not infringed in any way and will not do so in the future. He tendered the “running sheets” for his passenger hirings.

25 Mr Kumar attached to his statement documentary evidence of his indebtedness. He said the private hire car business, for which he has incurred considerable expenses, is his sole livelihood from which he supports his family. He also cares for his “sickly, aged mother” as her full-time carer, except on Fridays and Saturdays when he operates his business and his wife looks after her. If he is unable to operate his business, this “will have a devastating effect on my family and me”. He said he is a responsible person, his actions were not deliberate, and while he acknowledges that he infringed on one occasion, he has strictly complied with the conditions of his licence since the stay was granted, has learned a “massive lesson” and will never re-offend.

Submissions

26 Mr Wozniak, for the Ministry, said financial hardship is not relevant in this matter: Lal v Director General, Department of Transport [2001] NSWADT 74 (‘Lal’). Nor, he said, is whether Mr Kumar is a ‘fit and proper person’. Rather, this matter involves the cancellation of a licence pursuant to s 39G(1)(a) of the Act on the ground that Mr Kumar failed to comply with the conditions of that licence. Mr Kumar’s licence was subject to a condition that all journeys must be pre-booked. The Ministry contends that he breached this condition on two occasions.

27 Mr Wozniak also noted that, on 14 February 2009, Mr Kumar seems to have been ‘plying’ for business contrary to cl 189(b) of the 2007 Regulation. He submitted ‘plying’ means where a person is in a public place seeking custom.

28 Mr Wozniak noted that it was open to Mr Kumar to produce evidence of his pre-booking on 14 February 2009 but he has not done so. Mr Kumar does not dispute that, having been given a warning on 16 February 2009, he breached his licence conditions on 1 March 2009. His excuse is that he was doing so for the public good. Mr Wozniak submitted that the decision under review should be affirmed.

29 Mr Singh, for Mr Kumar, asked the Tribunal to take into account Mr Kumar’s circumstances and the financial hardship that cancellation of his licence will cause. He noted that Mr Kumar is providing a service to the Camden area, has kept running sheets of all his hirings since the second incident, and submitted there is no likelihood that Mr Kumar will re-offend.

30 Mr Singh questioned why Mr Adams had not produced notes of his telephone conversation with Mr Kumar on 16 February 2009. Mr Kumar denies that he infringed his licence conditions on 14 February 2009 – he says the discussion with Mr Adams was about his parking in the taxi zone - and, while acknowledging the breach on 1 March 2009, has explained the circumstances.

Consideration

31 Generally, in relation to the presentation of Mr Kumar’s case in these proceedings, I find it strange that Mr Kumar, who was legally represented, has not produced any corroborating evidence as to the pre-booking that he claims to have had at about 10.15 pm on 14 February 2009 nor, apart from a business card on which Mr Kumar wrote ‘Josh’s’ telephone number and email address, has he produced any evidence of the pre-booking from Josh on 1 March 2009.

32 Mr Singh questioned the accuracy of Mr Adams’ account of what occurred in the incident on 14 February 2009 and of the record of his subsequent conversation with Mr Kumar on 16 February 2009. I found Mr Adams’ evidence to be credible. His notes of what occurred on 14 February 2009 were recorded 2 days later and his notes of the telephone conversation were contemporaneous. Mr Adams made notes of the second incident, on 1 March 2009, immediately afterwards and Mr Adams’ account of what occurred accords with that of his colleague, Ms Reedy, who, Mr Adams states, made her notes contemporaneously and whose affidavit, Mr Adams says, he has not seen.

33 First, in relation to the incident on 14 February 2009, I find Mr Kumar’s evidence that he was parked outside the Camden Hotel at 9.50 pm because he had a pre-booking for about 10.15 pm and had nothing better to do in the meanwhile, lacks plausibility. As mentioned above, Mr Kumar has not produced any corroborating evidence of this pre-booking. I also note that he parked his hire car in what was marked as a taxi zone (albeit one only from 10.00 pm to 3.00 am), which might be taken to suggest that the car was for hire. In the light of these factors and of the second incident on 1 March 2009, when Mr Kumar acknowledges that he accepted a hiring without a pre-booking, in my view, it seems likely that had he been asked to take someone home on 14 February 2009, without a pre-booking, he would have done so. All of this indicates that, as alleged by Mr Adams, Mr Kumar may have accepted a hiring without a pre-booking on 14 February 2009. I also note that plying or standing for hire is itself an offence under cl 189 of the 2007 Regulation and a breach of condition 3 of Mr Kumar’s licence.

34 Mr Kumar acknowledged in oral evidence that Mr Adams told him on 16 February 2009 that he might be fined if he accepted a hiring without a pre-booking. Mr Kumar also acknowledged that he was aware of the conditions to which his licence was subject. Condition 3 to his licence states: “The vehicle must not ply or stand for hire on any road or road related area and must not carry out a hiring other than a pre-booked hiring.” In my view, after the first incident on 14 February 2009, and his telephone conversation with Mr Adams, Mr Kumar was clearly on notice that he was prohibited from conducting his business in such a way.

35 Second, in relation to the incident on 1 March 2009, I find Mr Adams’ and Ms Reedy’s account to be credible and likely to be accurate as to what occurred. While Mr Kumar acknowledges that he accepted a pre-booking, his account of what occurred differs in several respects from that of the two officers. The officers’ accounts of Mr Kumar remaining in his car and of the security guard not having spoken to him, indicates that Mr Kumar was open to hirings without a pre-booking and that it was not just, as he suggests, a hiring he took as a matter of doing the prospective passengers a favour.

36 As Mr Wozniak has pointed out, neither Mr Kumar’s financial circumstances, nor whether Mr Kumar is a fit and proper person to hold a private hire car licence are relevant considerations. In Lal, at [47], the Tribunal held that hardship to Ms Lal was not a factor the Tribunal could take into account in determining whether the Director General has made the correct and preferable decision. In Mr Kumar’s case, it is a question of whether Mr Kumar breached the conditions of his licence. He has acknowledged that he did so on 1 March 2009. I find, on the balance of probabilities, that he also did so by plying for hire on 14 February 2009.

37 In my view, Mr Kumar having received a verbal warning from Mr Adams in respect of the first incident, it was reasonable after the second incident for a delegate of the Director General to cancel Mr Kumar’s licence pursuant to s 39G of the Act. Thus, the decision under review should be affirmed.

Decision

38 The decision under review is affirmed.