Lekrari v Director General, Department of Transport

[2000] NSWADT 7

CITATION:	Lekrari -v- Director General, Department of Transport [2000] NSWADT 7
DIVISION:	General Division
PARTIES:	APPLICANT Adel Lekrari RESPONDENT Director General, Department of Transport
FILE NUMBER:	993214
HEARING DATES:	22/11/1999
SUBMISSIONS CLOSED:	11/22/1999
DATE OF DECISION:	01/11/2000
BEFORE:	Skinner PM - 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
CASES CITED:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
REPRESENTATION:	APPLICANT Adel Lekrari RESPONDENT Director General, Department of Transport
ORDERS:	1. The decision of the Director General, NSW Department of Transport, to cancel the applicant’s authority under the Passenger Transport Act 1990 to drive public passenger vehicles is affirmed.; 2. If by 26 April 2000 the applicant attends and complies with all requirements and standards of a ‘Last Chance’ Re-training Program conducted by Taxis Combined Services Pty Ltd, he is to be issued a new authority under the Passenger Transport Act 1990 to drive taxi cabs on or after 26 April 2000.

Application

1 This is an application by Mr Lekrari for review by this Tribunal of a decision by the Director General, NSW Department of Transport to cancel his authority to drive public passenger vehicles, specifically taxi cabs.

2 The applicant received a Notice of Decision dated 26 July 1999 from the Department. The notice attached a Statement of Reasons which set out 15 separate complaints from 14 April 1994 to 24 March 1999 in respect of the applicant’s behaviour as a taxi driver.

3 The applicant sought internal review by the Department of the decision on 17 August 1999 and by letter dated 25 August 1999 the applicant was advised that the decision was affirmed, subject to one variation. In the internal review the Department no longer relied upon one of the original complaints but attached a Statement of Reasons in relation to the remaining fourteen complaints.

4 The applicant applied to this Tribunal on 21 September 1999.

Evidence

5 The respondent relies on fourteen complaints, as set out in the Statement of Reasons attached to the letter dated 25 August 1999 advising the applicant of the result of the internal review. I append to my reasons the ‘Facts, Evidence and Material’ set out in and relied upon in that Statement of Reasons.

6 The respondent tendered a copy of the Departmental file in relation to the applicant and also a copy of the Taxi Driver Authorisation Standards for taxi drivers in NSW dated August 1996 and published by the Department.

7 The applicant tendered written submissions going to each of the complaints, and also seeking to explain some issues raised by the Departmental file as to his responses to notices to show cause and etc.

8 The applicant gave sworn evidence and was cross-examined by counsel for the respondent.

Issue for decision

9 Division 2 of Part 2 of the Passenger Transport Act 1990 (‘the Act’), containing ss 11 to 14, regulates the grant of authorities to drive taxi cabs.

10 s 12 gives the Director General a discretion to grant authorities, having regard to the purpose of such an authority.

11 Sub-section 11(2) sets out the purpose of an authority in the following terms:

‘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.

12 The issue in this case is whether, considering the fourteen complaints upon which the respondent relies, the applicant should be granted an authority attesting the matters set out in s 11(2) of the Act.

Applicable law

13 This Tribunal has jurisdiction to hear this matter pursuant to s 52(1) of the Act and s 38(1) of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’)

14 This Tribunal has now handed down several decisions dealing with authorities to drive taxi cabs and assessments under s 11(2). I list fourteen of them in my decision of even date in Rasheed, and that decision may be added to the list. The principles are clear. Division 2 of Part 2 of the Act charges the administrator, and this Tribunal in a merits review, with substantial responsibility in relation to protection of the public in taxis, and gives appropriately wide powers to discharge that responsibility.

15 Ultimately it is a value judgment for me to exercise as to whether the applicant should be granted an authority, see e.g. Chief Justice Mason in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63], taking account in this case of the nature, seriousness and frequency of the complaints made against the applicant.

Decision

16 The applicant did not impress me as a witness. His evidence changed as it was challenged under cross-examination or even in response to some questions seeking clarification asked by me. The applicant seemed to me to deliberately deny everything, alleging a conspiracy of lies against him, until confronted with overwhelming evidence and then to create excuses for his conduct.

17 As well as inconsistencies between his evidence and that relied upon by the respondent, internal inconsistencies abound in the applicant’s evidence. Where there are inconsistencies between the applicant’s version of events and those relied upon by the respondent, I prefer the respondent’s version.

18 The applicant has no satisfactory explanation for why seven members of the public saw fit to go to the trouble of contacting the authorities to register complaints against him.

19 I have read the Department’s file carefully and examined every complaint individually. However, in my opinion there is no need to judge whether any particular one of them justifies the decision under review, as I hold that the cumulative effect of them is more than enough to do so.

20 Some of the complaints could be said to be relatively minor, being breaches of procedures set by the cooperative regulating the taxis that the applicant was driving at the time. However the procedures of the cooperative are clearly relevant to an assessment of whether a driver should hold an authority under Division 2 of Part 2 of the Act – see s 11(2)(b). In a regulated industry the drivers must abide by the conditions, laws and customs under which the cooperatives run taxi cab services in this State.

21 Others of the complaints however show a worrying level of rudeness and aggression to passengers, particularly women.

22 In any event, looking at the complaints collectively I agree with the decision maker conducting the internal review by the Department, Mr Millard, who in the memorandum dated 25 August 1999 setting out his decision stated:

‘. . . on an overall basis I find that the facts evidence and material that contributed to the decision conclusively cast serious doubt on Mr Lekrari’s ability to abide to [sic] law and custom. Mr Lekrari has a continued history of complaints of a serious nature and a very poor customer service record. I believe the original decision to cancel his authority was the appropriate course of action . . .’.

23 I am of the view however that the cancellation should not be permanent. I form this view on the basis of three considerations:

(a) The case for the respondent, although raising issues of whether the applicant could be considered a fit and proper person to hold an authority, see s 11(2)(a) of the Act, essentially focused on the other limb of s 11(2), s 11(2)(b). These are matters that can be addressed by appropriate training and education.

(b) I agree with Mr Millard as to the finding that ‘serious doubt [is cast] on Mr Lekrari’s ability to abide with law and custom’. It is difficult however to be conclusive.

(c) I note that the Department became involved in the case after receipt of a letter by them from Taxis Combined Services Pty Ltd dated 6 May 1999 pointing out that the applicant had failed to attend a ‘"Last Chance" Re-training Program for recalcitrant drivers’. The cooperative clearly intended to give Mr Lekrari a last chance. In coming to its decision to cancel his authority the Department clearly relied upon the applicant’s failure to avail himself of this last chance, and had no evidence to consider as to why he failed to attend the course. However the applicant has provided evidence to this Tribunal, in his testimony and corroborated by some documents, as to why he failed to attend. Whilst not wholly convinced by same I do hold a doubt as to whether the applicant deliberately decided to not avail himself of this last chance of redemption.

24 Accordingly I am of the view that the ‘correct and preferable decision’ that I should now make under s 63 of the ADT Act, having heard all the evidence and the explanations by Mr Lekrari as to why he did not attend the re-training program, and taking account of the effect upon the applicant’s livelihood of a decision to cancel his authority, is to afford him that last chance.

25 The cancellation will remain, as before a new authority should be granted the applicant must satisfy the requirements of the cooperative in relation to re-training. However I order that if by 26 April 2000 the applicant attends and complies with all requirements and standards of a ‘Last Chance’ Re-training Program conducted by Taxis Combined Services Pty Ltd, he be issued a new authority to drive taxi cabs on or after 26 April 2000.

26 This order, if it becomes effective upon the conditions being met, will have the effect of imposing a nine month suspension upon the applicant. His conduct revealed by the evidence more than justifies such a penalty, and in my opinion a nine month suspension would be perceived by the community as being sufficient to reinforce the purpose for which an authority is granted under Division 2 of Part 2 of the Act as set out in s 11(2). It should also reinforce to the applicant his obligations under the Act.

STATEMENT OF REASONS

Name of Person Affected: Mr Adel Lekrari Auth. No.: EN9283
Facts, Evidence and Material

The Department relies on the following facts, evidence and material to make the decision to cancel your driver’s authority no. EN9283.

Complaint History
24.03.1999 Complaint received from Taxis Combined Services
A complaint was received from a passenger who travelled with driver authority number EN9283 on 24 March 1999. The passenger hailed taxi in Potts Point and wanted to go to the Art Gallery of New South Wales. Driver became rude and aggressive and told passenger to get out of the taxi, hereby failing to carry out hiring. The driver was identified as Adel Lekrari.

15.08.1998 Complaint received from Taxis Combined Services
A complaint was received from a female passenger who had travelled with driver authority number EN9283 on 15 August 1998. The passenger was picked up at Cremorne Point going to Crows Nest. Driver became abusive towards passenger and put passenger out of taxi in the rain and she had to walk the rest of the way, which made her late. The driver was identified as Adel Lekrari.

19.06.1998 Complaint received from Taxis Combined Services
A complaint was received from the proprietor of the Shell Select service station at Woolloomooloo regarding a taxi driver's behaviour when asked to be more careful and ensuring that safety procedures were followed when using the gogas nozzle. The driver continued to be rude and abusive. The driver was identified as Adel Lekrad.

06.01.1998 Received from Taxis Combined Services
This complaint involves a breach of radio room bylaws from TCS concerning an offence of logging on rank when not on rank. This offence was committed whilst Mr Lekrari was driving taxi T7776.

11.03.1998 Customer Complaint - No: 22341
A complaint was received at the Department of Transport from a male passenger who had travelled with driver authority number EN9283. The passenger was picked up at Sydney Airport and going to Annandale. The driver failed to drive by the shortest practicable route. The driver was identified as Adel Lekrari.

11.08.1997 Received from Taxis Combined Services
This complaint involves a breach of the regulations to which all taxi drivers are to comply with. This offences deals with Mr Lekrari not wearing a compulsory uniform whilst driving taxi T7169.

30.04.1997 Received from Taxis Combined Services
This complaint involves a breach of radio room bylaws from TCS concerning on overtime offence by Mr Leland whilst he was driving taxi T 1 877.

31.05.1996 Customer Complaint - 18185
A complaint was received at the Department of Transport from a male passenger who had travelled with driver authority number EN9283. The passenger was picked up at the Domestic Terminal of Sydney Airport and going just 100 metres down the road. The driver became abusive as the fare was a short fare and that he had been waiting for some time. Driver said that he would have to look it up in the street directory, then pretended that his taxi would not start then ejected the passenger and drove off. The driver was identified as Adel Lekrari.

22.02.1996 Customer Complaint - 17431
A complaint was received at the Department of Transport from a male passenger who had travelled with driver authority number EN9283. The passenger was picked up at Martin Place going to Haymarket. Driver argued with another driver regarding the fare, he became abusive and threw the contents of a can over complainant and another passenger. The driver was identified as Adel Lekrari.

23.11.1995 Complaint received from Taxis Combined Services
This complaint involves a breach of radio room bylaws from TCS concerning a fail to carry out hiring offence by W Lekrari whilst driving taxi T7028.

21.03.1995 Complaint received from Taxis Combined Services
A complaint was received from a male passenger who had travelled with driver authority number EN9233. The passenger was picked up at Circular Quay going to the Boulevard Hotel. The driver demanded more than the prescribed fare and failed to afford every reasonable assistance. The driver was identified as Adel Lekrari.

14.08.1994 Complaint received from Taxis Combined Services
This complaint involves a breach of radio room bylaws from TCS concerning a misuse of alarm offence by Mr Lekrari whilst driving taxi T261.

08.06.1994 Complaint received from Taxis Combined Services
This complaint involves a breach of radio room bylaws from TCS concerning an offence dealing with logging on rank when not on rank. This offence was committed whilst Mr Lekrari was driving taxi T7036.

14.04.1994 Complaint received from Taxis Combined Services
This complaint involves a breach of radio room bylaws from TCS concerning an offence dealing with logging on rank when not on rank. This offence was committed whilst Mr Lekrari was driving taxi T886.

As a result of the above complaints Mr Lekrari has been interviewed and warned that the complaints against him could have serious consequences and as a result he was asked to attend a retraining program in May 1999 but Mr Lekrari failed to attend.

Evidence of the above facts is in the form of:
Fourteen complaints regarding radio room bylaws and breaches of regulations with Taxis Combined Services and the Department of Transport.
Failure to attend re-training program