Laliotis v Director General, Department of Transport (No. 2)

[2002] NSWADT 132

CITATION:	Laliotis (No. 2) -v- Director General, Department of Transport [2002] NSWADT 132
DIVISION:	General Division
PARTIES:	APPLICANT Michael Laliotis RESPONDENT Director General, Department of Transport
FILE NUMBER:	023007
HEARING DATES:	11/03/2002 14/05/2002
SUBMISSIONS CLOSED:
DATE OF DECISION:	07/31/2002
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	Passenger Transport Act - taxi driver - grant of authority - Taxi driver - grant of authority
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Passenger Transport (Taxi-Cab) Regulation 2001 Passenger Transport Act 1990
CASES CITED:	Laliotis v Director General, Department of Transport [2001] NSWADT 36 Blair v Curran (1939) 62 CLR 464 Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 Matsuko v Australian Postal Corporation (1995) 21 WAR 9 Saadieh v Director General Department of Transport 1999 NSWADT 63
REPRESENTATION:	APPLICANT In person RESPONDENT J McDonnell, solicitor (11 March 2002) and A Johnson, solicitor (14 May 2002)
ORDERS:	The decision of the Director General not to grant Mr Laliotis a taxi driver authority is affirmed.

Introduction

1 On 10 January 2002, Mr Laliotis applied to the Tribunal for a review of a decision made by the Director-General, Department of Transport (the Director-General) to refuse his application for a taxi driver authority. Mr Laliotis had previously applied to the Tribunal for a review of a decision to cancel his taxi driver authority. On 9 February 2001, in the matter of Laliotis v Director General, Department of Transport [2001] NSWADT 36, the Tribunal affirmed the Director-General’s decision to cancel Mr Laliotis’ authority.

2 The Tribunal has jurisdiction to determine this matter pursuant to section 52 of Passenger Transport Act 1990 (P T Act) and 38 of the Administrative Decisions Tribunal Act 1997 (ADT Act). The matter was heard on 11 March 2002. There was no interpreter present on that occasion and Mr Laliotis had difficulty understanding and addressing the respondent’s oral and written submissions. I adjourned the matter to 14 May 2002 to complete the hearing with an interpreter present.

Issue estoppel

3 A question which arose in these proceedings was whether the Tribunal should exercise its discretion not to re-hear issues which had already been determined by the Tribunal on a previous occasion. The principle of issue estoppel was enunciated by Dixon J in Blair v Curran (1939) 62 CLR 464 at 531:

A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies.
4 Because the Director General has made a reviewable decision, that is to reject Mr Laliotis’s application for a taxi authority, the Tribunal must review that decision, despite the doctrine of issue estoppel. However, in my view, the Tribunal has a discretion not to re-hear issues which had already been determined by the Tribunal on a previous occasion.

5 The respondent submitted that the Tribunal’s previous decision represents the status quo as to Mr Laliotis’ suitability to hold a taxi driver’s licence and that it is up to Mr Laliotis to bring fresh evidence which would justify the Tribunal coming to a different view.

6 In the area of federal administrative law, the leading case on this point is Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 at 526, where the Administrative Appeals Tribunal (AAT) suggested that:

There is no single appropriate answer to the question of what extent estoppel as a matter of policy rather than law should apply in administrative decision-making as the balance of individual and public interests can and will produce different answers in the diverse areas of administrative practice.

The tribunal is of the view that estoppel does not apply where there is a different decision, a clear legislative intent, the reconsideration decision is not “final” and there has been prima facie a change in circumstances.

7 In Matsuko v Australian Postal Corporation (1995) 21 WAR 9 the AAT added “where justice of the parties require a departure from the general rule” to the four factor listed above.

8 Under s 73(1) of the ADT Act, “The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure.” In general, in relation to the review of a reviewable decision before this Tribunal, the Tribunal should exercise its discretion not to re-hear issues which have already been determined unless there has been a change in circumstances or where fresh evidence becomes available or where the justice of the case requires. In some cases, the mere passage of time will constitute a change in circumstances, for example where the passage of time gives a person the opportunity to prove that he or she has been rehabilitated.

9 I asked Mr Laliotis what had changed in the two years since his taxi driver authority had been cancelled. Although Mr Laliotis was not able to specify any change of circumstances, or any fresh evidence apart from some character references, I allowed him to put his version of events to the Tribunal again.

Relevant legislation

10 Section 33A(1) of the Passenger Transport Act 1990 (PT Act) provides that a person may apply to the Director General for authorisation under this Division. Section 33B(1) and (2) provide that having regard to the purpose of authorisation, the Director-General may grant an application and authorise the applicant to drive a taxi, or may refuse the application. Under s 33 of the PT Act:

(1) The Director-General may, by the issue of authorities under this Division, authorise persons to drive taxi-cabs, subject to and in accordance with this Division. A person authorised under this Division is referred to in this Part as an "authorised drives a taxi-cab is guilty of an offence unless the person taxi-cab driver".

(2) A person who is an authorised taxi-cab driver.

Maximum penalty 100 penalty units.

(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.

This provision means that there are essentially six elements which an applicant must satisfy before being granted an authority. They are:

· that he is of good repute;

· that he is in all other respects a fit and proper person to be the driver of a public passenger vehicle;

· that he has sufficient responsibility to drive a public passenger vehicle in accordance with the conditions under which a public passenger service is operated;

· that he has sufficient responsibility to drive a public passenger vehicle in accordance with law and custom;

· that he has sufficient aptitude to drive a public passenger vehicle in accordance with the conditions under which a public passenger service operated; and

· that he has sufficient aptitude to drive a public passenger vehicle in accordance with law and custom.

11 The elements in issue in these proceedings are those which appear in italics.
The Tribunal’s first decision

In the first Tribunal hearing, the Director General considered Mr Laliotis lacked 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. This conclusions was reached on the basis that Mr Laliotis had:

· been warned and cautioned about smoking while driving but 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

· engaged a taximeter on tariff 2 outside the approved hours according to both an independent passenger and a Department of Transport compliance officer.

12 At paragraph 18 of its decision the Tribunal summarised the kinds of complaints made against Mr Laliotis:
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.
13 The Tribunal outlined Mr Laliotis’ evidence at paragraphs 20 and 21:
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.

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.

14 The Tribunal came to the following conclusion at paragraphs 49 and 51:
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.

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.

Further evidence

15 At the hearing on 11 March 2002, Mr Laliotis provided six references as further evidence of his good character and reputation. These references were from his family doctor, a colleague who worked with him as a taxi driver, a taxi operator who employed Mr Laliotis, the rector at the All Saints Church, Belmore, a person who believed him as a security guard for two months during the Sydney Olympics and an employer who employed him as a delivery driver for three months in 2001. These references attested to Mr Laliotis’ good character, however he conceded that only two of these referees, both previous employers, knew of the circumstances surrounding the cancellation of his taxi authority. The other referees knew that his authority had been cancelled but did not know the reasons for the cancellation.

16 The Director General tendered the current Taxi Driver Authorisation Package, Taxi Driver Authorisation Standards dated 1 August 1996, Authorised Taxi Drivers’ Code of Conduct and NSW Taxi Council Code of Conduct dated May 1992.

17 Mr Laliotis explained that he had made a few mistakes when he was driving taxis but he would never do those things again. He admitted that he smoked a few times in the taxi. On other occasions he said he smoked outside the taxi but was accused of smoking in the taxi. He said that if he had a taxi authority he would not smoke anywhere near the taxi. He said he had the taxi meter on the wrong tariff when he was stopped because he accidentally pressed the wrong button, but he did not charge his previous passenger the wrong amount. He admitted mistakenly having the meter on the wrong tariff on one occasion.

18 In relation to being convicted for failing to pick up a passenger, Mr Laliotis said that there were two people waiting for a taxi and he asked them where they were going. When they told him, he said he did not know the way. He asked one of the passengers whether he could navigate or whether he should look up the street directory. The passenger pointed to the next taxi and said he would go in that taxi. Mr Laliotis said, if you would like to go in the next taxi, you can go in that taxi.” The Magistrate did not accept his version of events and he was convicted for failing to accept a hiring.

19 Mr Laliotis said that he was not to blame for most of the complaints which had been made against him. The Departmental officers investigating the complaints had accepted the passenger’s story rather than his version of events.

20 Mr Laliotis admitted that he received a final warning from the Department of Transport after he had been reprimanded on a number of occasions. However he said that he had only been told he was in the wrong when he had smoked in the taxi and when he had accidentally left the meter on tariff 2. On the other occasions he told his version of events and was told, “You’re right, go back to work.” Despite complaints having been made about not taking the shortest route and swearing at pedestrians and other drivers, Mr Laliotis denied that he had ever done either of these things. Mr Laliotis said that even though he explained his version of events, the complaints were never removed from the computer records.

21 Mr Laliotis said that when he started driving taxis he was “so soft and so good with people.” But after so many years driving, it has made him “a bit tough.” He said that he used to pick up Aboriginal people but now he pretends he doesn’t see them. He explained that this was because he had so many problems with Aboriginal people not paying the fare or pretending they didn’t have any money. He said he would never pick up Aboriginal people again if they hailed him. If he was on a taxi rank and an Aboriginal person got in to his taxi, he would not refuse to accept the hire.

22 The file of documents tendered by the respondent includes eleven occasions where Taxis Combined Services Pty Ltd wrote to the complainant advising that Mr Laliotis had been “reprimanded” in relation to alleged behaviour. Mr Laliotis accepts that he may have been “reprimanded” on two occasions but that on the other occasions he was told “You’re right, go back to work.” The file also contains two documents which record that Mr Laliotis was “counselled” in relation to a complaint. Again, Mr Laliotis denies that he was ever “counselled” in relation to allegations made against him.

23 Mr Laliotis said he should not be disadvantaged because he continues to deny that he engaged in certain conduct as alleged by passengers and officials.

Respondent’s submission

24 The respondent submitted that Mr Laliotis had been the subject of a large number of complaints from passengers for a range of prohibited misconduct, including smoking, incivility, refusing to accept a hiring, eating in the cab, driving recklessly and overcharging. He had been reprimanded eleven times and counselled twice, and given a final warning on 20 November 1998. Shortly after the final warning there was another complaint on 30 January 1999 of refuse to accept a hiring for which the applicant was prosecuted and convicted on 29 November 1999.

25 After the final warning Mr Laliotis was reprimanded again for smoking and for two matters involving charging the wrong rate.

26 The respondent submitted that Mr Laliotis has not demonstrated that his behaviour has changed since his taxi authority was cancelled and that he now has sufficient responsibility to drive a public passenger vehicle in accordance with law and custom. The respondent relies on the frequency of the complaints made against Mr Laliotis (17 in a period of 5 years) and the nature and seriousness of those complaints. (See Saadieh v Director General Department of Transport 1999 NSWADT 63). The number of complaints about smoking in the taxi show that Mr Laliotis refused to admit the facts alleged against him and did not change his behaviour despite several reprimands. Clause 43 of the Passenger Transport (Taxi Services) Regulation 2001 sets out conduct which a taxi driver must not engage in including displaying the night-time surcharge rate at a time when that rate is not applicable, smoking while in the taxi-cab, whether or not the taxi-cab is being driven for hire, eating or drinking in the taxi-cab while the taxi-cab is hired or available. According to the respondent, the complaints involving refusing to accept a hiring are also of great concern. The overcharging complaints raise concerns about Mr Laliotis’ honesty. In the respondent’s view, Mr Laliotis’ explanations are implausible.

27 In relation to Mr Laliotis’ repute within the community, the six references provided suggest that Mr Laliotis is well regarded by a cross section of employers and responsible people in the community. They attest to Mr Laliotis being reliable, hard working, pleasant and honest. Mr McDonnell noted that none of the references indicate an awareness of the circumstances of the cancellation of Mr Laliotis’ authority and consequently should be disregarded or given little weight.

28 The respondent expressed concern that if Mr Laliotis was given a taxi driver authority he would be the subject of further complaints. Despite reprimands and counselling, complaints continued to be made about Mr Laliotis even after a final warning and conviction. Apart from two complaints, Mr Laliotis has consistently denied that the facts occurred as alleged by the complainants or that he is to blame. He has shown no remorse or contrition. Until Mr Laliotis is able to accept responsibility for and show contrition for his wilful and dishonest behaviour, he cannot be a fit and proper person to be authorised to drive a taxi.

Tribunal’s findings and decision

29 Mr Laliotis’ evidence was similar to the evidence he gave to the Tribunal on the first occasion. He admitted that he has made “a few mistakes” but said that he is not to blame for the majority of the complaints made against him. He said he was only reprimanded on two occasions. On the other occasions he was told “You’re right, go back to work.”

30 The new evidence which Mr Laliotis gave comprised six references from people who know him professionally or socially and the information he volunteered about his conduct towards Aboriginal passengers.

31 In relation to Mr Laliotis’ repute within the community, the six references provided suggest that Mr Laliotis is well regarded by a cross section of employers and responsible people in the community. They attest to Mr Laliotis being reliable, hard working, pleasant and honest. Mr McDonnell noted that none of the references indicate an awareness of the circumstances of the cancellation of Mr Laliotis’ authority and consequently should be disregarded or given little weight. While these references demonstrate that Mr Laliotis’ has a good reputation in the community, they are not relevant to the issue of his responsibility to drive a taxi in accordance with law and custom.

32 Mr Laliotis’ admissions in the present hearing in relation to not picking up Aboriginal passengers unless they are on a taxi rank, is a matter of serious concern. This is a further breach of the standards of behaviour expected of taxi drivers and reflects poorly on his ability to drive a taxi in accordance with law and custom.

33 In relation to the individual complaints, Mr Laliotis did not provide further evidence which would cast doubt on the findings of the Tribunal in the first decision. Those findings included the following:

· Sixteen complaints were made against Mr Laliotis and his response to all the complaints about incidents he could remember was to deny the complaint as alleged and to seek to excuse his behaviour by providing a different version of events or his own explanation as to how the incidents took place.

· Because Mr Laliotis did not accept the substance of the majority of the complaints, he showed no remorse or contrition at all in relation to the behaviour or incidents involved.

· Mr Laliotis was convicted in the Local Court for 'failing to accept a hiring immediately when offered'.

· Two complaints were made by industry workers who understand the operation of the meters, involving the misuse of the taximeter. 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.

· By his own admission Mr Laliotis continued to smoke in taxis he when he was driving both when there were passengers and when there were not passengers until 1999.

· Mr Laliotis did not dispute the facts that he had been interviewed, reprimanded and warned.

· The fact that Mr Laliotis continued to attract complaints about similar behaviour suggests that he did not take the reprimands and warnings seriously or seriously enough.

34 Although two years has passed since the Director General cancelled Mr Laliotis’ licence, Mr Laliotis was unable to provide the Tribunal with any significant fresh evidence in his favour. As Mr Laliotis denied the substance of the majority of the complaints made against him, this is not a case where the passage of time assists him. I agree that he should not be disadvantaged because he denies the substance of many of the complaints but I am satisfied, on the basis of all the evidence and submissions, that he does not have sufficient responsibility to drive a public passenger vehicle in accordance with law and custom.

Orders

The decision of the Director General not to grant Mr Laliotis a taxi driver authority is affirmed.