Lo -v- Director-General, Department of Transport

[2002] NSWADTAP 39

Appeal Panel

CITATION:	Lo v Director General, Department of Transport (GD) [2002] NSWADTAP 39
PARTIES:	APPELLANT Kwai Hung Lo RESPONDENT Director General, Department of Transport
FILE NUMBER:	029034
HEARING DATES:	31 October 2002
SUBMISSIONS CLOSED:	10/31/2002
DATE OF DECISION:	11/27/2002
DECISION UNDER APPEAL:	Lo v Director General, Department of Transport [2002] NSWADT 101
BEFORE:	O'Connor K - DCJ (President); Goode P - Judicial Member; Bolt M - Member
CATCHWORDS:	statutory interpretation - refusal to receive evidence
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	023094
DATE OF DECISION UNDER APPEAL:	06/18/2002
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990
CASES CITED:	Farquharson v Director-General, Department of Transport [1999] NSWADT 53 Commissioner for Motor Transport v Darcy Francis Leo 10 September 1986, unreported Sterjovski v Director-General, Department of Transport [2002] NSWADT 10 Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB223 Re T and Director of Youth and Community Services [1980] 1 NSWLR 392 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127
REPRESENTATION:	APPELLANT B Murphy, barrister RESPONDENT A Wozniak, solicitor
ORDERS:	1. Appeal dismissed; 2. Decision under appeal affirmed.

1 The appellant, a taxi driver, appeals against a decision of the Tribunal to affirm the decision of the respondent, the Director-General, Department of Transport, to suspend his taxi driver authority issued under the Passenger Transport Act 1990 (PTA). The power to suspend is conferred by s 33F of the PTA which provides that the Director-General may at any time vary, suspend or cancel a person’s authorisation ‘having regard to the purpose of authorisation’. Section 33(3) provides that the purpose of an authorisation to drive a taxi cab 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 tax cab ...’.

2 Following advice as to events that occurred on the evening of 27 March 2002, the Director-General’s delegate suspended the appellant’s authority on 24 April 2002. The appellant sought internal review. The Director-General’s delegate confirmed the decision by notice dated 3 May 2002. The application for review was lodged on 7 May 2002 and heard on 30 May 2002. The decision affirming the Director-General’s decision was delivered on 18 June 2002.

3 The first incident occurred when a driver in the feeder queue at Sydney Airport (he said he had been in the queue waiting for an hour and ten minutes) disputed the right of the appellant to overtake him. According to the police brief an argument and ‘scuffle’ followed. The other driver said in his statement to police that in the course of the altercation the appellant pulled out a ‘black cylinder object’ from under his radio, and threatened him with it. The other driver left the Airport. The appellant followed him. The other driver said in his statement to police that the appellant forced him to a halt in Bourke Street, Alexandria. The appellant, he said, got out of his taxi and approached him, again threatening him with the black cylinder object which had something flashing out of it like an electrical sparking device. He says that he was attacked. He says that the appellant grabbed his taxi’s door and attempted to wrench it off its hinges.

4 The other driver then decided to head towards Mascot Police Station. The appellant followed him. The other driver parked his car in a street near the Police Station. He states that he looked back and saw the appellant park near his car, and then get out and smash the windscreen with an object, and then smash the passenger side mirror. The other driver reported these events to the Mascot Police. The police took statements, and laid charges of malicious damage (windscreen, two rear view mirrors) against the appellant. The hearing of the charges by the Local Court had, as at the time of the present hearing, not been finalised. The appellant denies that he committed any offences. In particular he claims that he did nothing wrong in going back to the head of the queue without waiting in line after handling a ‘short fare’, as is permitted under the protocol governing the feeder queue. There is a statement from the security supervisor of the queue confirming that he had given him such an authorisation.

5 We note that the Director-General was informed by the Taxi and Hire Car Bureau and by the Police that the appellant had been involved in two altercations with another taxi driver. The rules binding taxi drivers (see Tribunal hearing transcript 13) require them to immediately report any conviction or charge in relation to a criminal, traffic or any other kind of offence. The appellant did not comply with this rule. The appellant’s solicitor said that the first charge had not been notified until two weeks after the incident and that a second charge had been laid more recently. This explanation was not consistent with the charge sheets which showed the charges as having been laid the next day, 28 March 2002. There was no direct explanation given at the hearing for not complying with this rule. Moreover, the appellant complained at the hearing, through his solicitor, over the fact that he had been the subject of such a report.

6 The Director-General’s primary reason for suspending the licence relates to the events as recorded in the police fact sheets and statements, in particular the malicious damage charges and the allegations relating to the use of an offensive weapon. The Director-General has also taken into account the appellant’s criminal history which records convictions of resist arrest and assault police in 1995 (total of four counts, fined $250 on each). The Director-General explained that these convictions had been disclosed by the appellant when he first applied for a taxi authority in 2001. As a significant period of time had passed since the convictions, and as the appellant had had a bus driver authority for the 6 months prior to the application without incident, the Director-General had proceeded to grant the application.

7 There is a right to appeal to the Appeal Panel in relation to questions of law, and, by leave of the Panel, the appeal may be extended to a reconsideration of the merits: Administrative Decisions Tribunal Act 1997 (the Tribunal Act), s 113(2).

8 The reasons under appeal follow a usual pattern. They recite the relevant statutory provisions, state the issues, refer in summary to the evidence, set out at length the Director-General’s case and Mr Lo’s case, and then set out the detailed reasoning as to the correct and preferable decision.

9 Attached to the notice of appeal are written submissions prepared by counsel as to the alleged errors in the Tribunal’s reasoning process.

10 The appellant’s primary objection concerns the approach adopted by the Director-General, and approved and adopted by the Tribunal, of relying on the statements in the police brief without enquiring behind them. The primary Tribunal agreed with the view expressed in Farquharsonv Director-General, Department of Transport [1999] NSWADT 53 (by the President when sitting at first instance in the General Division) that the Director-General can not be expected to enquire into the strengths and weaknesses of the police case.

11 In that decision the President expressed his agreement with the approach adopted by McInerney J of the Supreme Court in Commissioner for Motor Transport v Darcy Francis Leo 10 September 1986, unreported. In 1986 the review jurisdiction in respect of decisions to suspend taxi driver authorities lay with the Local Court. The driver’s authority had been suspended following advice to the administrator that the driver had been charged with five counts of wanton driving, the alleged conduct involving high speed races along a public street with passengers on board. In Farquharson the President referred to McInerney J’s decision, as follows, and continued:

‘16 The magistrate had regard to the material from the committal proceedings, looked at the circumstances of the accident, and referred to the proposition that a person was innocent until proven guilty. He also noted that the Commissioner [the administrator] had certain statutory duties.
17 McInerney J was critical of the approach adopted by the magistrate. His Honour said:
" ... I have difficulty in understanding precisely why it was he allowed the appeal. It is probable that what he has done is to decide the facts although he has stated the Court could not determine the facts. He has purported to make findings on what he says are the discrepancies he found disclosed in the evidence and came to the conclusion that those discrepancies were of such a nature that it would be unlikely he would be convicted and therefore the Commissioner in these circumstances should not have suspended the licence.
It is my view that what the magistrate had to determine was not the guilt or innocence of the [driver] of the charges of wanton driving against him but whether having regard to the charges preferred against [the driver] the Commissioner was justified in suspending his licence on the grounds he purported to act."
18 McInerney J concluded:
"[The driver] was operating his taxi cab at the time, conveying paying passengers and serious allegations have arisen out of his driving. His vehicle is said to have been at least partly responsible for a serious road accident in which three persons were killed. It was then for the magistrate to determine whether in those circumstances the charges themselves being of such a serious nature whether the Commissioner was entitled to suspend the licence on the grounds he purported to act.
It is my opinion, doing the best I can, the magistrate has not addressed himself to that particular matter and has attempted to determine the issues of fact to be determined by a Judge and jury. In my view that was not a matter that the magistrate was asked to determine. The matter he was asked to determine was whether having regard to the charges preferred against [the driver] and the circumstances in which those arose having regard to his utilisation of a taxi driver's licence, whether the Commissioner in the circumstances was entitled to suspend his licence."
19 The matter was remitted to the magistrate to be heard and determined according to law.
20 The Tribunal agrees with the broad thrust of McInerney J's observations. Regulatory schemes which provide for the issuance of licences on the basis of satisfaction as to a licensee's fitness and character usually include, as part of their continuing oversight powers, a power to suspend the licence for public interest reasons. While it is the case that a person charged with a criminal offence must be presumed innocent until proven guilty, it does not follow that consequences that lie outside the criminal law may be avoided. Civil consequences typically attach to the laying of criminal charges in various categories of public sector employment. Commonly a public sector employee may be stood down with or without pay, depending on the statutory provisions.
21 An administrator of a licensing scheme would be expected to respond to advice that a regulated person had been charged with a serious criminal offence, especially one arising out of circumstances that directly bear on the activity in relation to which the licence has been issued. That was the situation in Leo's case . 22 In considering whether to exercise any discretion to suspend or otherwise interfere with the licence, an administrator can not reasonably be expected to enquire into the strength or weakness of the case against the licensee. That was the error into which the magistrate in Leo's case fell. Similarly a review tribunal can not be expected to go behind the information on which the administrator has relied to the extent of examining the strength and weaknesses of the prosecution case.’

12 The appellant contended that it was appropriate for the Tribunal to inquire behind the material comprised by the charges and the police statements, and to give the appellant the benefit of the presumption of innocence until presumed guilty. For the reasons given by McInerney J in Leo and by the President in Farquharson, we reject that submission. See also, Sterjovski v Director-General, Department of Transport [2002] NSWADT 10 esp [46].

13 The Director-General has, as we see it, a duty to the community not to place passengers in contact with drivers against whom serious allegations of violence have been made, and over which independent and responsible police officers have decided to lay charges. A case could conceivably arise where a licensed person was able to bring forward prima facie evidence that the charges themselves were laid corruptly. In such an instance it may well be appropriate, and necessary, for the administrator and the Tribunal to enquire into the circumstances of the laying of the charges. But this is not such a case.

14 The appellant submitted that the allegations here were much less extreme than those in Leo (wanton driving) and Farquharson (driver suspended while on bail charged with conspiracy to murder).

15 In oral submissions, counsel for the appellant indicated that the error of law said to have occurred was that the decision was a manifestly unreasonable one in the Wednesbury sense (Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB223 per Lord Greene at 229-230). It is plain, in our view, that there is no basis for such a submission. The conduct alleged against the appellant is of the utmost seriousness. The conduct occurred within the regulated environment of the use of taxis on the roads of New South Wales. The appellant is said to have dealt violently with another driver and his taxi cab. One consequence of what he is said to have done would have been to deprive the driver of the use of his car and its income until it was repaired. There is other conduct alleged against the appellant (carrying and using an offensive weapon) of great seriousness. It is not the subject of charges but it is, in our view, open to the Director-General to take it into account pending any clarification that may be provided by the Local Court proceedings. The Director-General and the Tribunal, properly, in our view also took into account the prior criminal history.

16 There were also submissions challenging the Tribunal’s understanding and application of the tests relevant to the question of whether a licensed person continues to be of ‘good repute’ and otherwise a ‘fit and proper person’.

17 The Tribunal referred to the difference between these two concepts as explained for example in Re T and Director of Youth and Community Services [1980] 1 NSWLR 392 at 395 per Waddell J. The Tribunal also referred to the discussion of ‘fitness’ found in the leading cases of Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63] per Mason J; Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 at 156.

18 In Re T the administrator’s contention was that the applicant’s record of convictions was so poor that on that basis he could not be said to be a person of ‘good repute’. He might otherwise be a person of good character but given the record he was not a ‘fit and proper person’ to be entrusted with the adoption of children. Waddell J concluded that while the administrator had formed a reasonable conclusion on the basis of the material that had been before him, the Court had had the benefit of more extensive evidence as to the applicant’s current reputation. The Court was satisfied on the basis of the additional evidence that the persons who knew T and with whom he worked now held him in good repute, and had formed that view reasonably having regard to the way in which T had gone about rehabilitating himself since his last convictions. (‘The evidence is that, since then [his last conviction three years before], his drinking habits have changed; he has matured considerably, and that he has devoted himself to his family responsibilities as a foster parent’: at 403.) Consequently the Court allowed the appeal against the administrator’s decision.

19 The appellant criticised the Tribunal for attaching significance on the question of ‘good repute’ to the charges. We do not read the Tribunal’s reasons as going that far. It approached the matter as we see it on the basis of whether the matters alleged could properly be taken into account in forming a view as to whether the driver could continue to be trusted with an authority on fitness grounds. There was only limited evidence on the question of the opinion held by others as to the appellant’s current reputation.

20 Re T was an unusual case in that the administrator did not place the applicant’s general fitness to adopt in issue but had proceeded entirely on the basis that the criminal record was so bad that the applicant could not be said to be of ‘good repute’.

21 This is, as we see it, the typical case where the administrator alleges lack of ‘good repute’ and, in any case, lack of ‘fitness’. It is enough for the administrator to succeed under one of these headings. This case is, in our view, essentially one to do with ‘fitness’. The Tribunal, as we see it, did not commit any error of law in its approach to that question.

ORDER

1. Appeal dismissed.

2. Decision under appeal affirmed.