Laliotis v Director-General, Department of Transport

[2001] NSWADT 36

CITATION:	Laliotis -v- Director-General, Department of Transport [2001] NSWADT 36
DIVISION:	General Division
PARTIES:	APPLICANT Michael Laliotis RESPONDENT Director-General, Department of Transport
FILE NUMBER:	003137
HEARING DATES:	20/07/2001
SUBMISSIONS CLOSED:	07/20/2000
DATE OF DECISION:	02/09/2001
BEFORE:	Lees M - Judicial Member
APPLICATION:	Passenger Transport Act - taxi driver - cancellation of authority - Taxi driver - cancellation of authority
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Passenger Transport Act 1990 Administrative Decisions Tribunal Act 1997 Passenger Transport (Taxi-cab Services) Regulation 1995
CASES CITED:	Saadieh v Director-General, Department of Transport [1999] NSWADT 68 Lekrari v Director-General, Department of Transport [2000] NSW ADT 7 Bayat v Director-General, Department of Transport [2000] NSWADT 19 Hawchar v Director-General, Department of Transport [2000] NSWADT 50 Lloyd v Director-General, Department of Transport [1999] NSWADT 101 Re T & Director Youth & Community Services [1980] 1 NSWLR 392
REPRESENTATION:	APPLICANT C Stomo, solicitor RESPONDENT A Wozniak, solicitor
ORDERS:	1. The decision under review is affirmed

Reasons for Decision

Background
1 Mr Laliotis applied to the Administrative Decisions Tribunal (the Tribunal) for review of the decision made by Director-General of the Department of Transport cancelling Mr Laliotis’ taxi driver authority.

2 The Tribunal’s jurisdiction derives from sections 52 of Passenger Transport Act 1990 (the Act) and 38 of the Administrative Decisions Tribunal Act 1997 .

Legislative provisions
3 Section 11 of the Act provides as relevant:
(1) A person who drives a public passenger vehicle is guilty of an offence unless the person is the holder of an appropriate authority under this Division.
(2) 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.
……


4 Section 14 of the Act provides:
Having regard to the purpose of an authority, the Director-General may at any time vary, suspend or cancel any person's authority.

5 Clause 23 of the Passenger Transport (Taxi-cab Services) Regulation 1995 (the Regulation) reads
The driver of a taxi-cab must not do any of the following:
(a) smoke while in the taxi-cab, whether or not the taxi-cab is being driven for hire,
……..

The evidence

6 Mr Laliotis provided the Tribunal with his completed application form and copies of correspondence from the Department of Transport (DOT) advising him of the decisions to cancel his taxi authority (initial decision: 28 March 2000 and internal review decision: 18 April 2000).

7 Mr Laliotis also provided the Tribunal with a letter prepared by his former solicitors Criticos & Co., dated 28 February 2000. It was prepared for the purposes of responding to a ‘show cause’ notice issued to Mr Laliotis by the DOT, dated 18 February 2000. It contained responses to the complaints made against Mr Laliotis listed in the show cause notice. Mr Laliotis, through his legal representative, relied on this letter for the purposes of the present application.

8 Mr Laliotis provided a brief reference from ‘East Line Pty Ltd’ dated 1 March 2000. It states that East Line Pty Ltd was Mr Laliotis’ employer at that time and that he was found to be ‘honest, responsible and reliable’.

9 Mr Laliotis had two summonses (to produce documents) issued by the Tribunal. These were issued on 5 July 2000 to Concord and Canterbury Hospitals. The date for return of summons was 13 July 2000. Concord Hospital replied by letter on the 19 July 2000 advising that it could find no evidence that Mr Laliotis had been treated at that hospital and therefore it could not comply with the summons. Canterbury Hospital replied by letter dated 11 July 2000 enclosing a copy of its documents relating to Mr Laliotis’ kidney treatment.

10 The Canterbury Hospital documents indicate that Mr Laliotis attended its Emergency Department on 20 May 1998 experiencing severe loin and groin pain. The problem was diagnosed as renal colic and Mr Laliotis was treated and advised to return if the pain could not be controlled. Mr Laliotis was subsequently admitted to the hospital on 27 May 1998 and treated there before being discharged on 13 June 1998. This material was relied upon to explain the urination incident giving rise to two complaints being lodged against Mr Laliotis.

11 On behalf of the Director-General a copy of the DOT file entitled ‘Driver Authorities’ and subtitled ‘Michael Laliotis’ was provided to the Tribunal. In addition the Tribunal was provided with a copy of the ‘Taxi Driver Authorisation Standards’ dated 1 August 1996 published by the Department.

12 The file documents reveal that Mr Laliotis signed a ‘Transport District Taxi Driver Authorisation Declaration’ (the Declaration) on 31 October 1994 and was issued on that day with an authority ‘EQ1612’ with the expiry date of 31.10.95. Mr Laliotis again signed such a declaration on 22.09.95, and was issued with an authority ‘EQ 1612’ with the expiry date of 31.10.01.

13 The Declaration includes the following paragraphs:
I have read and understand the Standards for Taxi Driver Authorisation outlining the responsibilities and obligations of taxi driver authority holders and agree to be bound by them.
I will comply with all Acts, Regulations and prescribed standards relevant to taxi driving.
I understand that failure to comply with all of the Acts and Regulations governing the drivers of taxis, the conditions of licence for the vehicle being operated, the responsibilities, obligations and standards outlined in the Standards for Taxi Driver Authorisation, may result in my authority being varied, suspended or cancelled….
I understand that failure to continue to meet the standards for reputation, medical fitness and responsibility and aptitude outlined in the Standards for Taxi Driver Authorisation and any additional standards that may from time to time be introduced by the Director-General…may result in my authority being varied, suspended or cancelled.
I will abide by the NSW Taxi Industry’s Code of Conduct for authorized taxi drivers.

14 The statement of reasons for the Director-General’s decisions consisted of a 13 page document which included a complaints history summary (previously provided to Mr Laliotis as part of the ‘show cause’ procedure), several pages of Mr Laliotis’ Road and Traffic Authority (RTA) traffic record and another page referring to the evidence relied upon by the Director-General, the applicable law and the reasoning process which lead to the decision. The same statement was adopted and relied upon by the Director-General for the purposes of the internal review decision.

15 In the reasoning the Director-General concluded that it could no longer be attested that Mr Laliotis was considered to meet the required standards for authorisation as a taxi cab driver. This was because it was considered Mr Laliotis lacked the responsibility or sufficient responsibility to drive a taxi cab in accordance with law and custom and that he may not be a fit and proper person to drive a taxi cab due to his having:
- been warned and cautioned about smoking whilst driving yet he continued to do so;
- been convicted for failing to accept a hiring immediately when offered;
- attracted a number of complaints of a similar nature on different dates; and
- his having engaged a taximeter on tariff 2 outside the approved hours according to both an independent passenger and a DOT compliance officer.

16 The RTA traffic records indicate a total of 16 traffic infringements since 1981. Due to 6 infringements between February 1995 and November 1997 Mr Laliotis’ unrestricted licence was cancelled and a week later a probationary licence was issued which was to convert to an unrestricted licence again in November 1998. (The inter-relationship between a probationary licence and a taxi authority was not explained or explored before the Tribunal).

17 The DOT’s file documents include the records relating to the complaints made against Mr Laliotis. These documents include complaint forms completed by individual passengers or witnesses in their own handwriting, DOT telephone complaint reports taken by DOT or Taxis Combined Services personnel, and related memorandums, records of interview and correspondence.

18 All in all the file discloses a total of 17 separate complaints or reports made about 16 separate occasions concerning Mr Laliotis’ behaviour as a taxi driver. The majority of the complaints concerned Mr Laliotis smoking in the vehicle; four concerned his overcharging or attempted overcharging of passengers and several concerned his failure or refusal to accept a hiring. The last occasion giving rise to a report by a DOT compliance officer involved the personally observed misuse of the taximeter which suggested the likely overcharging of a passenger. One of the more recent complaints against Mr Laliotis resulted in his being convicted by a magistrate in the Downing Centre Local Court. That offence involved his failure to accept an immediate hire by an ill passenger with a disability.

19 Mr Laliotis appeared and gave oral evidence before the Tribunal. He was asked in evidence if he remembered the Declarations he signed in 1994 and 1995 that provided that if the driver breaks the rules, s/he may lose their authority/licence. Mr Laliotis answered yes and that he followed the rules.

20 When individual occasions giving rise to complaint were raised with Mr Laliotis his answers included: ‘I follow the rules’, ‘I never swear’, ‘They never spoke to me about that’, ‘I don’t remember’, I never refused any dockets’, ‘I can explain’, ‘I never smoked again’. Mr Laliotis also stated at one point in his evidence that ‘there’s no law I can’t smoke in the cab alone’. In other answers Mr Laliotis provided his alternative explanation of the circumstances. Out of all the occasions put to him, Mr Laliotis agreed and admitted to only one of the complaints; it was a smoking complaint and he agreed there was no excuse and that he had apologized at the time. He also explained the urination incident was as the result of a kidney problem he was experiencing at the time and that he relied on the medical reports to support his evidence in that regard.

21 Mr Laliotis stated he had been complimented over his driving ‘many times’ over the years but nobody calls the company to make compliments. He put the fact that he has had so many complaints made about him in the last couple of years down to ‘bad luck’. He said he was trying to do his best.

Submissions

22 Mr Laliotis’ legal representative, Mr Stomo, suggested that the complaints against Mr Laliotis were ‘hearsay upon hearsay’, that they had been accepted in their entirety by the DOT and that Mr Laliotis had not been provided with the opportunity to ‘test’ their veracity before the Tribunal.

23 Mr Stomo suggested that it was significant ‘half the complaints were not made on the day’ of the alleged breach pointing out they had been made 3 or 5 days later or more. He suggested that this may have led to embellishment and that the complainants involved may have ‘sensitivities’.

24 Mr Stomo submitted that the cancellation of Mr Laliotis’ authority was too severe a decision in response to the complaints made. Rather, in Mr Stomo’s submission, an appropriate decision would be to regard the period of cancellation already experienced by Mr Laliotis as a suspension of his licence and that the suspension period should end at the time of the Tribunal’s decision.

25 Submissions made on behalf of the Director-General concentrated on the Director General’s discretion under s 11(2) of the Act to grant an authority having regard to the purpose of the authority, which is to attest to the finding that the driver is considered to meet the necessary requirements.

26 The submissions referred to previous Tribunal decisions of Saadieh v Director-General, Department of Transport [1999] NSWADT 68 re the test of a driver’s ‘fitness’; Lekrari v Director-General, Department of Transport [2000] NSW ADT 7 re the cumulative effect of numerous complaints without satisfactory explanation from the driver; Bayat v Director-General, Department of Transport [2000] NSWADT 19 re a driver having had numerous complaints made against him exhibiting a lack of understanding of an authority’s requirements; Hawchar v Director-General, Department of Transport [2000] NSWADT 50 in relation to honesty being central to a person’s character and their being fit and proper; Lloyd v Director-General, Department of Transport [1999] NSWADT 101 in relation to offences involving dishonesty; and finally the NSW Supreme Court decision in Re T & Director Youth & Community Services [1980] 1 NSWLR 392 in relation to a person being of good repute.

27 The Director-General submitted that Mr Laliotis’ denial of all bar one of the complaints and his dismissing them as a lie or not remembered, or offering an alternative explanation as to why or how the incidents occurred, suggested no sign of remorse on Mr Laliotis’ part, not even in relation to the incident for which he was convicted involving the ill young man with Down’s Syndrome.

28 The Director-General submitted that it was significant that the industry body (Taxi Combined Services Pty Ltd Customer Service) which generally dealt with taxi driver complaints and reported back to the DOT on the action taken, specifically requested after complaint number thirteen, that the DOT deal with Mr Laliotis as it had spoken to him ‘before about similar complaints and others’.

29 The Director-General noted that Mr Laliotis had not provided the Tribunal with any references as to his character and accordingly that there was no evidence before the Tribunal as to his good character. It was submitted that evidence of a person’s conviction is evidence of the person’s bad character.

30 The concluding submission on the Director-General’s behalf was that in the circumstances, although taking the weight of the numerous complaints alone would be sufficient, taken together with the conviction under the Act and Mr Laliotis’ traffic record, the decision that it could no longer be attested that Mr Laliotis met the requirements of section 11(2) of the Act was appropriate.

Reasons

31 Section 11(2) of the Act states that the purpose of an authority is to attest that the holder of the authority meets all of the following six requirements:
(i) s/he is of good repute (s11(2)(a))
(ii) s/he is in all other respects a fit and proper person to be the driver of a public passenger vehicle (s11(2)(a))
(iii) s/he has sufficient responsibility to drive a public passenger vehicle in accordance with the conditions under which a public passenger service is operated (s11(2)(b)(i))
(iv) s/he has sufficient responsibility to drive a public passenger vehicle in accordance with law and custom (s11(2)(b)(ii))
(v) s/he has sufficient aptitude to drive a public passenger vehicle in accordance with the conditions under which a public passenger service is operated (s11(2)(b)(i)) and
(vi) s/he has sufficient aptitude to drive a public passenger vehicle in accordance with law and custom (s11(2)(b)(ii)).

32 Accordingly, if it is considered any one of these six requirements is not met, the attestation cannot, or should not, be properly made.

33 The ‘show cause’ notice/statement of reasons refers to a total of 15 complaints excluding the one leading to the conviction. It is noted that the complaint of 4 January 1996 was omitted from the notice. It is also noted that the notice incorrectly dates one of the complaints as 22 October 1999 instead of 22 October 1998. The incorrect date is significant as the complaint was one of two complaints made in the same week which culminated in Mr Laliotis being issued with a ‘Final Warning’ letter (November 1998). Mr Laliotis had had five complaints made against him that year alleging the breach of eight different items of the Code of Conduct (‘the Code’ - summarises the Regulations).

34 Mr Laliotis had a further four complaints made against him after he had been issued with the Final Warning.

35 Contrary to Mr Stomo’s submission, several of the occasions complained about were investigated by DOT officers including the conduct of interviews with Mr Laliotis. According to DOT records, between 1995 and 1999 inclusive, Mr Laliotis was twice counselled, reprimanded 9 times and warned 5 times.

36 In relation to the 16 complaints made, and Mr Stomo’s submission that no opportunity was provided to ‘test their veracity’, Mr Laliotis did not call any witnesses or seek to have any summonsed in this regard. The opportunity was there but it was not taken. Determining the total accuracy or otherwise of all the complaints is not necessary for the purposes of this present application. It is clear, however, that the veracity of one of the complaints was tested in the courts and the finding was against Mr Laliotis.

37 One fact not disputed by Mr Laliotis was that the 16 complaints were made. His response to all the complaints about incidents he could remember was to deny the complaint as alleged and to seek to excuse his behavior by providing a different version of events or his own explanation as to how the incidents took place. On each occasion bar one smoking incident and the urination incident, Mr Laliotis appeared to believe he had not done anything wrong or at all inappropriate at any time; he seemed unwilling to afford the complaints or complainants any legitimacy and accordingly showed no remorse or contrition at all in relation to the behaviour or incidents involved.

38 This lack of remorse was also apparent in relation to the complaint of the breach he was convicted for by the local court. The case involved the charge that Mr Laliotis had ‘failed to accept a hiring immediately when offered’. His evidence before the Tribunal in relation to this complaint and conviction was that he still denied refusing the fare to the young man involved and put his loss of the case down to bad luck.

39 Mr Stomo’s submissions as to the timing of complaints and their possible resultant embellishments are not accepted.

40 The incidents complained about which appear to have contributed significantly to the Director-General’s decision to cancel Mr Laliotis’ authority were the occasions involving his alleged misuse of the taximeter and its potentially dishonest outcome of overcharging passengers. The fact that the two complaints involved were made by taxi industry workers (one taxi driver and one DOT compliance officer) who understand the operation of the meters is significant. The fact such an allegation was made not once but twice in a matter of weeks is significant. This is behaviour that members of the general public, the wider community beyond the taxi driving industry, would not necessarily be aware of or be able to detect. Intentional manipulation or careless operation of the meter that results in passengers being overcharged is more than irresponsible, it is dishonest and a clear breach of trust between driver and passenger. Complaints of this kind cast considerable doubt on both Mr Laliotis’ capacity for responsibility and his honesty.

41 Mr Laliotis’ own evidence was not sufficient to displace the doubt created by the two informed, independent and recent complaints concerning meter operation. The fact of the two earlier complaints concerning overcharging lends support to this conclusion.

42 The conviction is accepted as further evidence indicating that Mr Laliotis may have insufficient responsibility to drive in accordance with law and custom.

43 As can be seen above, Clause 23 of the Regulation proscribes a driver of a taxi-cab from smoking ‘while in the taxi-cab, whether or not the taxi-cab is being driven for hire’. This Regulation was gazetted in early 1996. By his own admission Mr Laliotis continued to smoke in taxis he was driving both when there were passengers and when there were not passengers until 1999. In evidence before the Tribunal, Mr Laliotis stated ‘there’s no law I can’t smoke alone in the cab’. Mr Laliotis’ understanding of the law is wrong in this regard.

44 Mr Laliotis did not dispute the facts that he had been interviewed, reprimanded and warned. While his evidence suggested that he generally understood the reprimand and warning system and its purpose of maintaining industry standards, his behaviour illustrated that he was somewhat recalcitrant in the area of smoking in the cab. This suggested lack of heed to the system suggests a lack of respect either for the system or its standards. This does not assist Mr Laliotis in establishing his credibility as a driver who understands and carries out his responsibilities in accordance with the industry’s law and custom.

45 The fact Mr Laliotis continued to attract complaints about similar behaviour suggests that he did not take the reprimands and warnings seriously or seriously enough. This was a concern of the Taxis Combined Services Customer Centre, as evidenced by a DOT memo which records that the Centre had asked the DOT to deal with the latest complaint (#13) as ‘Mr Laliotis has been spoken to before about similar complaints and others’ (see Taxi Compliance Unit Memorandum dated 19 November 1998).

46 Excepting the urination incidents, Mr Laliotis provided no evidence to suggest or allow that it could be concluded confidently that the types of incidents complained about would not be repeated.

47 It is true Mr Laliotis has driven taxis, on and off, for quite a few years and his evidence that he has often been thanked and complimented on his driving is accepted. Given the amount of driving taxi drivers do, it is not that surprising that their traffic records reveal more infringements than drivers who are not so frequently on the road. It is also true that day to day compliments given to taxi drivers are not likely to be made formally and recorded on departmental files. It would not be unreasonable to surmise or suggest that not everyone happy or unhappy with a driver’s behaviour or performance goes to the trouble of complimenting or complaining about that driver. In relation to Mr Laliotis sixteen different people went to the trouble to complain.

48 The community is entitled to expect that taxi drivers are persons who know, understand and abide by the applicable law and custom applying to their work and that they are persons who are trustworthy and honest in their dealings.
49 It is found, given the number, similarity and seriousness of the complaints and the conviction, taken together with Mr Laliotis’ attitude, that as at the beginning of the year 2000, Mr Laliotis could not be considered to be driving and behaving with sufficient responsibility in accordance with the standards he is obliged to meet and accordingly no attestation under section 11(2) could be properly made.

50 The ‘show cause’ notice/statement of reasons letter expressly refers to and attaches Mr Laliotis’ documented traffic history. Nothing further is expressly stated about the traffic history in the Director-General’s reasoning for the authority cancellation decision. Although Mr Laliotis had his unrestricted driver’s licence cancelled in 1997 on the basis of accrued demerit points, since he was reissued with a licence in late 1997 through to mid 2000, Mr Laliotis’ record reveals only one traffic infringement. Of all the complaints made about Mr Laliotis, only one concerned his driving and that was in 1996. The rest concerned his conduct or behaviour connected with his being a driver. The Director-General’s inclusion of Mr Laliotis’ traffic record as a basis for the decision to cancel Mr Laliotis’ authority is not considered to be correct.

51 Mr Laliotis provided the Tribunal with some supporting evidence as to his good character or his fitness or propriety for taxi driving work. The very brief ‘East Line’ reference, although positive is not persuasive without anything further. It provided no indication as to the length of Mr Laliotis’ employment with the company nor whether it had any knowledge of Mr Laliotis’ recent conviction or of his complaint history, particularly the most recent complaints regarding the misuse of his taximeter. No person or persons representing the company were called as witnesses.

52 Mr Laliotis did not provide the Tribunal with any evidence or material as to his being of good repute in order to counter the submission that his conviction can stand as evidence of his bad repute. Having already concluded that Mr Laliotis did not meet the ‘sufficiently responsible’ requirements to warrant attestation, it is not necessary to make findings in relation to the additional bases and submissions relied upon by the Director-General that Mr Laliotis is not of good repute and is a not fit and proper person.

53 Mr Laliotis signed the Standards Declarations in 1994 and 1995 as detailed above. He clearly knew what his responsibilities were and the consequences that could flow should he not meet those responsibilities or not meet them sufficiently.

54 Accordingly, in the circumstances, it is agreed with the Director-General that it was not possible to make the attestation to all the matters set out in s. 11(2) of the Act in relation to Mr Laliotis. The Director-General’s decision to cancel Mr Laliotis’ authority was the correct decision although there is not agreement, or not necessarily agreement, as to all the reasons on which the Director-General’s decision was based.

Decision
55 In accordance with section 63 (3)(a) of the Administrative Decisions Tribunal Act 1997, the decision of the Director-General of the Department of Transport to cancel Mr Laliotis’ taxi cab driver authority is affirmed.