Lo v Director-General, Department of Transport

[2002] NSWADT 101

CITATION:	Lo -v- Director General, Department of Transport [2002] NSWADT 101
DIVISION:	General Division
PARTIES:	APPLICANT Kwai Hung Lo RESPONDENT Director General, Department of Transport
FILE NUMBER:	023094
HEARING DATES:	30/05/2002
SUBMISSIONS CLOSED:	05/30/2002
DATE OF DECISION:	06/18/2002
BEFORE:	Higgins S - Judicial Member
APPLICATION:	Passenger Transport Act - taxi driver - suspension of authority - Taxi driver - suspension 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:	Farquarson v Director General, Department of Transport [1999] NSW ADT R 53 Re T and the 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 Bond v Australian Broadcasting Tribunal (1990) 170 CLR 321 B v Director General, Department of Transport [2001] NSW ADT 203 Sterjovski v Director General, Department of Transport [2002] NSWADT 10 Lal v Director General, Department of Transport [2001] NSW ADT 74
REPRESENTATION:	APPLICANT L Kwok, solicitor RESPONDENT A Wozniak, solicitor
ORDERS:	The decision of the Director General, Department of Transport, suspending Mr Lo’s authority pending the outcome of the hearing of the charges laid against him, is affirmed.

Background
1 Mr Lo lodged an application with the Administrative Decisions Tribunal (“the Tribunal”) on 7 May 2002 for review of a decision made by a delegate of the Director General of the NSW, Department of Transport (“the Director General”) to suspend his driver authority under the Passenger Transport Act 1990 to drive a taxi cab.

2 The Tribuna1’s jurisdiction derives from s.52(1) of the Passenger Transport Act 1990 and s.38 of the Administrative Decisions Tribunal Act 1997.

3 The grounds on which the Director General suspended Mr Lo’s authority was an incident that occurred on 27 March 2002 at the Sydney Airport and Mascot with another authorised taxi cab driver. As a result of the incident Mr Lo has been charged with an offence of malicious damage.

4 Section 33F of the Passenger Transport Act 1990 (“the PT Act ”) provides that:
“Having regard to the purpose of authorisation under this Division, the Director General may at any time vary, suspend or cancel any person’s authorisation under this Division.”
5 The “Division” referred to in this section is Division 5 which relates to taxi cab drivers. Subsection 33 (3) of the PT Act sets out the purpose of an authorisation to drive a taxi cab. That subsection provides as follows:
“33 (3) the purpose of an authorisation 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…”

Issues
6 The issue in this case is whether, the circumstances surrounding the allegations against Mr Lo in respect of the 27 March 2002 incident are of such a nature that he cannot be considered to be a person of good repute and in all other respects a fit and proper person.

7 The Director General has not made any adverse finding against Mr Lo in respect of his responsibility and aptitude to drive a passenger vehicle as required under s.33(3)(b) of the PT Act.

Evidence
8 At the hearing the Director General relied on material from the Department’s files which it filed with the Tribunal.

9 At the hearing Mr Lo was legally represented by Mr Kwok and he had the assistance of an official interpreter.

10 For the purpose of this application Mr Lo relied on an unsworn statement made by Mr Lo, a statutory declaration by Mr Abdul Malek Hossain, four photographs, which Mr Kwok on behalf of Mr Lo submitted were taken on the day of the incident, a reference from Mr Thomas Ng dated 29 April 2002 and a further reference from Ms Vivian Luu dated 28 May 2002.

The Director General’s Case
11 The Director General relied on a police fact sheet dated 28 March 2002, a statement (dated 27 March 2002) by the complainant/victim of Mr Lo’s alleged criminal conduct, and a charge sheet or information which alleges that Mr Lo on 27 March 2002, at Rosebery, did maliciously damage property, to wit, both rear view mirrors and the windscreen of Taxi 5155 the property of the complainant.

12 According to the fact sheet and the statement of the complainant, on 27 March 2002 Mr Lo was driving a taxicab when at approximately 6pm at the Sydney domestic airport he became involved in a dispute with the complainant who was the driver of another taxi cab. It is alleged that the dispute arose as a result of Mr Lo jumping the queue of the major taxi feeder at the domestic airport. It is alleged that he jumped in front of seven cars that were standing in the feeder at that time. The complainant was the third car in that queue.

13 The complainant states that he got out of his taxi and went over to Mr Lo’s cab. They then had a heated conversation and the complainant states that he saw Mr Lo place his hands under his radio and pull out a black cylinder object. He states that he quickly grabbed Mr Lo’s arm who dropped the object and then punched him twice in the chest.

14 It would appear that the Australian Protective Service officers on duty at that time separated Mr Lo and the complainant. The complainant states that he waited for about half an hour for the police to arrive, but was advised that they could not attend so he decided to proceed to Mascot Police Station to lodge a complaint against Mr Lo. He goes on to state that on his way to Mascot Police Station he noticed Mr Lo following him. He alleges that Mr Lo then overtook him and pulled in front of him causing him to stop. He states that he then saw Mr Lo get out of his taxi and approach him. He states that he noticed Mr Lo again had the same black cylinder object in his hand. He states that Mr Lo struck him and was trying to punch him. The complainant alleges that he struggled to get back into his taxi cab and once he got inside he made his way to Mascot police station. He then goes on to state that Mr Lo followed him to the police station and parked his taxi beside his. He then states that Mr Lo smashed the front windscreen of his taxi and then went on to smash the passenger side mirror as well.

15 The complainant then states that he went into the police station to report the incident.

16 The Department also relies on Mr Lo’s criminal history, which shows convictions on 14 September 1995 by the Local Court of NSW for offences of assault police and resisting police. There were a total of 4 charges for which Mr Lo was fined $250 on each charge.

17 Mr Wozniak for the Director General, submitted that the Department was entitled to rely on the matters referred to in the police fact sheet, the statement of the complainant and the charges which had been laid. He argued that it was not for the Department to assess the truth or otherwise of the allegations on the basis of the decision of the President of this Tribunal in Farquarson v Director General, Department of Transport [1999] NSW ADT R 53 (“Farquarson”). He submitted that in administering the PT Act the Director General was required to examine the seriousness of the alleged conduct, the circumstances in which the conduct took place and any other relevant circumstance.

18 In this case, Mr Wozniak submitted that the allegations against Mr Lo were serious, involving acts of violence and were of particular seriousness as they occurred in the course of Mr Lo driving his taxi. In addition to the current allegations there were previous criminal convictions for acts of violence.

19 It was on these grounds that Mr Wozniak argued that the Director General’s decision was the correct and preferred decision as Mr Lo could not be considered to be a person of good repute and in all other respects a fit and proper person to be the driver of a taxi cab.

Mr Lo’s Case
20 Mr Lo, in his unsworn statement states that he did not jump the queue, that he had a short fare and was entitled to be where he was. He also states that the complainant who was considerably taller and larger than Mr Lo, came up to his taxi and smashed the right hand side of the passenger door of his cab and then opened the driver’s door and pulled him out of the cab.

21 He states that it was the complainant who hit him and not the other way around. He acknowledges that the Protective Service officers separated them. However, he alleges that he independently went to the Mascot police station. He states that as he was trying to get inside the car park of the police station he saw the complainant. He said the complainant blocked his way and when he moved he parked his car in the police station car park next to a red vehicle.

22 Mr Lo then states that he went into the police station where he saw the complainant waiting at the counter. He then gives an account of what he states occurred, which resulted in the police officers informing Mr Lo that he was to be charged with damaging the complainant’s vehicle. Mr Lo’s account differs to that of the complainant in that he states that he was not there at the time. He states that he was surprised to hear that he was to be charged as he felt police officers should be charging the complainant and not vice versa.

23 The statutory declaration of Mr Hossain states that he works for Chubb Security at the Sydney domestic airport, that he was on duty in the hub control room on 27 March 2002 between 5.30pm and 6.00pm. He also states that he authorised Mr Lo to get into the Qantas picking bay and that he saw the altercation that happened to Mr Lo. However, Mr Hossain provides no details about the particular altercation.

24 Mr Lo relies on the reference by Ms Luu and Thomas Ng as demonstrating that he is a person of good repute. Ms Luu in her reference states that she has known Mr Lo for ten years and that she had known him to be honest, hardworking, gentle hearted, an honourable person, trustworthy and always providing help to others. She makes reference to allegations against Mr Lo but does not specifically state what they are and goes on to state that Mr Lo has never shown any violence or arrogance towards others or to his family and friends.

25 Mr Ng in his reference also states that he has known Mr Lo for ten years and that he has known him to be honest, hardworking and an honourable person. Mr Lo also makes reference to allegations but is not specify what they are.

26 Neither Mr Ng or Ms Luu make any reference to the earlier convictions against Mr Lo for assault and resisting police.

27 In his submissions Mr Kwok, on behalf of Mr Lo, submitted that the Director General’s decision was inequitable. He stressed that the decision was based on an altercation between two taxi drivers where the story of one has been believed and the other has not been believed. He also stressed the fact that the allegations had not been proven and that the Tribunal should give consideration to the matters referred to in Mr Lo’s statement. He said if the allegations are not proved, Mr Lo will have suffered substantially by having had his authority suspended during this time. He stated that Mr Lo has been a driver for one year with no complaints having been made against him by any member of the public. Prior to this he had been a bus driver for six months and no complaints had been made during this period either.

28 He also submitted that Mr Lo’s authority had been issued by the Director General, with full knowledge of his previous convictions in 1995. He pointed out that these were not committed in circumstances where he had been driving a taxi cab and that despite his convictions he had asserted his innocence and had taken the matter up with the NSW Ombudsman and a Member of Parliament.

29 He also submitted in all other respects, Mr Lo was highly regarded by people who knew him.

Findings and Reasoning
30 The meaning of “good repute” has been canvassed in several cases. Wattle J in Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 393 said that:

“A person’s reputation, in fact and in law, is to be found in the estimate of his moral character entertained by some specific group of people, such as those who live in the neighbourhood of his residence, those who work with him or those with whom he associates in his occupation or profession… Evidence of conviction for a criminal offence is, however, admissible as evidence, indeed, most cogent evidence of bad reputation”.
31 The Tribunal has also considered the meaning of a “fit and proper person” on numerous occasions and has followed the reasoning of Chief Justice Mason in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63] where he stated:
“The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose witness and propriety are under consideration”.
32 In the decision of Farquarson v Director General, Department of Transport [1999] NSW ADTR 53 the Deputy President of this Tribunal stated:
“A taxi driver has a continuing responsibility to ensure that he is of ‘good repute’ and a ‘fit and proper person’. Clearly the laying of serious criminal charges bears on the reputation of an individual and may raise questions as to a person’s character. The concepts of ‘good repute’ and ‘fit and proper character’ involve different considerations. The former concept goes to the way in which the person is regarded by others in the community (fairly or unfairly), while the latter concept goes to an individual’s intrinsic characteristics, whether they are known to others or not”.
33 In the same decision at paragraph 30, the President stated the following in respect of the Director General’s power to suspend an authority:
“Powers of suspension are, by their nature, designed to provide a temporary form of intervention pending further development or further consideration or action by the administrator. A power of the suspension, as compared to outright cancellation, does carry the (marginal) benefit for the licensee in not placing at risk the license itself”.
34 The discretion to suspend a licence or authority must be exercised, keeping in mind the activities, which the person is authorised to undertake, and the objectives of regulating those activities (see Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 at 156 and Bond v Australian Broadcasting Tribunal (1990) 170 CLR 321). In this case, Mr Lo is authorised to drive a taxi cab and the objectives of regulating this activity are those set out in s.4 of the PT Act , which includes paragraph (e) which provides:
“(e) to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services,

…”

35 Accordingly, in exercising his responsibilities for passenger transport regulations, the administrator must take account of likely perceptions of the travelling public if they found themselves travelling with a person suspected of and charged with a criminal offence that involves violence and damage to property (see Farquarson at paragraph 36).

36 Earlier in his decision in Farquarson, at paragraph 20, the President made the following statement in respect of the power to suspend a licence where a person is charged with an offence:

“registry schemes which provide for the issuance of licences on the basis of satisfaction as to licensee’s fitness and character usually include, as part of the continuing oversight powers, a power to suspend the licence for public reasons. Whilst it is the case that a person charged with a criminal offence must be presumed innocent until proven guilty it does not follow the consequences that lie outside the criminal law may be avoided. Commonly, a public sector employee may be stood down with or without pay depending on the statutory provisions.”
37 The President went on to state at paragraph 22:
“In considering whether to exercise any discretion to suspend or otherwise interfere with the licence an administrator cannot reasonably be expected to enquire into the strength or weakness of the case against the licensee. Similarly a review tribunal cannot be expected to go behind the information on which the administrator has relied to the extent of examining the strengths and weaknesses of the prosecution case.”
38 The decision in Farquarson has been followed in other decisions of the Tribunal, in particular in B v Director General, Department of Transport [2001] NSW ADT 203 and Sterjovski vDirector General, Department of Transport [2002] NSWADT 10.

39 In accordance with the abovementioned principles, in my opinion, the relevant factors in this case are:

(a) the seriousness of the allegations which have been made against Mr Lo;

(b) the circumstances in which the conduct is alleged to have occurred;

(c) the fact that charges have been laid, but there has been no finding of guilt;

(d) Mr Lo’s previous convictions; and

(e) Mr Lo’s otherwise previous good character.

40 In my view, it does not matter how the Director General became aware of the charges, which have been laid against Mr Lo. Having become aware of these, the Director General clearly had a duty to consider these as part of his responsibilities under s.33(3) of the PT Act . Mr Wozniak pointed out that regulation 36(1) of the Passenger Transport (Taxicab Services) Regulation 2001 required Mr Lo to inform the Director General of any charges that had been laid against him. However, it was not part of the Director General’s case that Mr Lo had failed to meet his obligations under that particular regulation so I have considered that matter no further.

41 In my opinion the decision of Farquarson correctly states the law and the Tribunal equally cannot reasonably be expected to enquire into the strength or weakness of the case against Mr Lo. I note that Mr Lo denies the allegations and that he will be given every opportunity to defend the allegations when they are heard in September 2000.

42 However, in my opinion, the allegations, which have been made against Mr Lo are serious as they involve an allegation of violence. The alleged act of violence is against property, and they also relate to conduct which occurred in the performance of Mr Lo’s licenced occupation.

43 Mr Lo has been an authorised taxi cab driver for about one year when the incident, the subject of the charges, occurred and I appreciate that Mr Lo may view the Director General’s decision as being harsh in light of the complainant’s allegations not having been proved at this time. I also appreciate that any suspension may cause financial hardship to Mr Lo.

44 However, Parliament has clearly placed an obligation on the Director General to have regard to the charges laid against Mr Lo. And if, in the circumstances, the Director General forms the opinion that he can no longer attest to Mr Lo being considered as a person of good repute and a fit and proper person to be the driver of a taxi cab while the charges remain outstanding, the Director General has a discretion to suspend his authority. The fact that a suspension may cause financial hardship to Mr Lo is not a relevant factor in deciding whether it can be attested that Mr Lo is considered a person of good repute and a fit and proper person under the PT Act (see also Lal v Director General, Department of Transport [2001] NSW ADT 74).

45 In this case, in addition to the criminal charges of malicious damage, Mr Lo also has a criminal record, which also involves an act of violence. While the Director General granted Mr Lo his authority, notwithstanding this previous conviction, it is a matter that can be taken into account for the purposes of this application, particularly in light of the fact that they also involve an act of violence. That act of violence being an act of violence against a person in authority, a police officer.

46 As I have already mentioned a suspension of an authority is interim in nature and in my view on the basis of the material which has been put before the Tribunal and the objectives of the PT Act the allegations against Mr Lo are of sufficient seriousness to show that it was reasonably open to the Director General to decide that Mr Lo’s authority should be suspended pending the outcome of the hearing of the charges before the Local Court. Accordingly, in my view the Department’s determination was the correct and preferable decision.

ORDER

On the basis of the matters set out above I make the following order that the decision of the Director General, Department of Transport, suspending Mr Lo’s authority pending the outcome of the hearing of the charges laid against him, is affirmed.”