Luo v Roads and Maritime Services
[2012] NSWADT 140
•10 May 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Luo v Roads & Maritime Services [2012] NSWADT 140 Hearing dates: 10 May 2012 Decision date: 10 May 2012 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: The decision to cancel the Applicant's authorisation to drive a taxi-cab is affirmed.
Catchwords: Passenger Transport Act - taxi driver - cancellation of authority Legislation Cited: Administrative Decisions Tribunal Act 1997
Passenger Transport Act 1990
Passenger Transport Regulation 2007Cases Cited: Saadieh v Director General, Department of Transport [1999] NSW ADT 68 Category: Principal judgment Parties: Xiao Guang Luo (Applicant)
Roads & Maritime Services (Respondent)Representation: Boyd-Boland Law (Applicant)
Smythe Wozniak (Respondent)
File Number(s): 123041
REasons for decision
GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)):
MONTGOMERY: The Applicant held a driver authority under the Passenger Transport Act 1990 ("the Act") and has worked as a taxi-driver since about 1994.
By a Notice of Decision dated 13 January 2012 a delegate of the Respondent advised the Applicant that the Respondent had determined to cancel his driver authority. The original decision to cancel the Applicant's authority was affirmed on internal review.
The Applicant applied to the Tribunal for external review of the Respondent's determination.
The matter came before me for hearing on 10 May 2012 and on that day I affirmed the determination to cancel the Applicant's authority and gave brief reasons for my decision. The Applicant has sought written reasons for the decision and more detailed reasons are now provided.
Background
The determination to cancel the Applicant's authority was taken as the result of a long history of complaints against the Applicant. The more serious of the complaints concerned allegations that the Applicant had misused the taxi transport subsidy scheme (TTSS) and that he had demanded more than the prescribed fare i.e. overcharging.
The relevant background matters were set out in the Statement of Reasons provided by the delegate in relation to the determination. It stated:
Complaints History
04/04/2011 CFI 59607
The complainant alleges that at about 19.10 hrs on 4 April 2011 he hailed taxi T7078 to convey him from East Redfern to Pyrmont. The complainant states that upon entering the taxi he noted that a piece of paper had been positioned over the tariff section of the meter face. The paper was clearly marked with a number one (1). When the complainant looked carefully he could see that the meter displayed tariff two (2) and that he was paying a higher fare. The complainant questioned the driver and he stated that it was an agency taxi. When questioned further, the driver reduced the fare. Combined Communications Network records identify the driver of T7078 as Xiao Guang Luo driver authority: EG5822
You were interviewed by Combined Communications Network Compliance Officers in relation to "Improper use of taxi meter." You stated that you were driving for another driver and you did not notice anything like this in the car. The complaint was found to be justified and recorded for future reference.
09/02/2011 TAXI TRANSPORT SUBSIDY SCHEME (TTSS) MISUSE
It is alleged that at about 17.00 hrs on Wednesday 9 February 2011, a taxi driver attended GM Cabs at Sydney Domestic Airport and tendered three counterfeit (scanned) TTSS dockets to the cashier for payment. The counterfeit TTSS dockets were numbered; 33984200, 35847322 and 35433908. GM Cabs identified Xiao Guang Luo driver authority: EG5822 as the person tendering these dockets for payment. On 10 February 2011 you met with George Mikhael the director of GM Cabs and you repaid five hundred dollars ($500.00) for eleven counterfeit TTSS dockets you had previously tendered. You hand wrote a receipt to GM Cabs in the amount of five hundred dollars together with a notation that you may pay an additional amount at a later date.
On 21 November 2011, you were interviewed by RM Services Authorised Officers in relation to counterfeit TTSS dockets and in particular three dockets that you tendered to GM Cabs for payment on 9 February 2011. The three counterfeit TTSS dockets were numbered 33984200, 35847322 and 35433908. These dockets did not record your name, driver authority number, the number of a taxi driven by you, or details of a journey completed by you. The three counterfeit TTSS dockets had a combined value of eighty eight dollars and thirty cents ($88.30). You stated that you did tender these three counterfeit TTSS dockets to GM Cabs for payment on 9 February 2011. You also stated that you initially accepted twelve (12) scanned TTSS dockets in total from a passenger for a single journey in Redfern on an unspecified date in 2010 and that you had previously tendered nine of these counterfeit dockets for payment over a period of months. Further, you produced a copy of your hand written receipt as evidence that you repaid GM Cabs five hundred dollars for counterfeit TTSS dockets that you had tendered and received payment. On the 8 December 2011, RM Services received correspondence signed by you stating that you had only tendered eight counterfeit TTSS dockets for payment.
20110/2010 CFI 55209
At 15.00 hrs on 17 November the complainant alleges that he entered taxi T1559 at 28-30 Regent Street Sydney and asked the driver to convey him to the Metro, Ryde. The complainant alleges that the driver did not take the shortest route and he was driving very slowly. Upon arriving at the destination the fare was ninety six dollars ($96.00). The complainant consulted the hotel manager at the destination who advised him that the fare for this journey is usually between forty dollars ($40.00) and fifty dollars ($50.00). Combined Communications Network records identified the driver of T1559 as Xiao Guang Luo driver authority EG5822.
Combined Communications Network Compliance Officers investigated the complaint of "Demanding more/other than the prescribed fare." The fare estimate for this journey is forty seven dollars and seventy eight cents ($47.78). This complaint was found to be justified and it was recorded for future reference.
13/03/2008 CFI 37001
The complainant alleges that at about 17.00 hrs on 13 March 2008 he entered taxi T171 at the Sydney Domestic Airport rank in company with his wife and baby. The complainant asked the driver to convey him to the Hyde Park Plaza. The complainant states that upon arrival at the destination, the taxi meter displayed a fare of twenty eight dollars ($28.00). The driver asked for a total fare of forty one dollars ($41.00) which included the airport charges and tolls. The complainant queried the fare and the driver reduced the fare to thirty seven dollars. Combined Communications Network records identify the driver of T171 as Xiao Guang Luo driver authority: EG5822
This complaint of 'Demanding more/other than the prescribed fare", was investigated by RM Services authorised officers. No action was taken due to conflicting statements. Although this complaint was not justified it is of concern to RM Services as it shows a pattern of behaviour when conducting business in accordance with law and custom.
20/02/2007 CFI 29051
The complainant alleges that at about 15.40 hrs on 20 February 2007 he hailed taxi T5649 to convey him from Sydney Domestic Airport to and address in Mascot. The complainant alleges that when he entered the taxi the driver was rude and would not answer any direct questions. The complainant alleges that he informed the driver that the fare would be paid by Cabcharge, but he would not have access to the Cabcharge voucher until they arrived at the destination. The driver told the complainant that he was not happy as it was a short fare. The driver is alleged to have driven in an erratic manner. Upon arriving at the destination the driver started yelling at the complainant for the Cabcharge Voucher. Combined Communications Network records identify the driver of T5649 as Xiao Guang Luo driver authority: EG5822
You were interviewed by Combined Communications Network Compliance Officers in relation to "Verbal abuse and threat" and "Rude to Customer Incivility or impropriety. You stated that you could not recall the incident and you will pay attention to your driving. You denied yelling at the passenger. The complaints were found to be justified and you were provided with a written warning.
01/11/2006 CFI 26743
On 1 November 2006 a passenger hailed taxi T5649 to convey him from the City to Epping. The passenger left his American Express card in the taxi after signing the docket. The driver returned the lost card to the passenger sometime later. The taxi was clean and the driver was courteous. Combined Communications Network records identify the driver as Xiao Guang-Luo.
The matter was investigated by Combined Communications Network Compliance Officers. It was determined that you displayed good driving manners and the network forwarded you a letter of congratulations.
25/10/2006 CFI 26684
The complainant alleges that at 15.20 hrs on 25 October 2006 she hailed taxi T5649 near her place of employment and asked the driver to convey her to Willoughby. The complainant alleges that the taxi was in poor condition and the driver did not exceed forty (40) kilometres per hour. Further the passenger alleges that the driver was not pleasant and appeared to purposely miss green traffic lights in order to increase the fare. Combined Communications Network records identify the driver of T5649 as Xiao Guang Luo driver authority: EG5822
Combined Communications Network Compliance Officers investigated the complaints of "Demanding more/other than the prescribed fare", and "Roadworthiness". Although these complaints were not justified and no further action was taken it is of concern to RM Services as it shows a pattern of behaviour when conducting business in accordance with law and custom.
02/05/2006 CFI 23396
The complainant alleges that on 2 May 2006 he entered taxi T5649 at the Sydney Domestic Airport rank and asked the driver to convey him to Campbelltown. The complainant states that upon arrival at the destination, the taxi meter displayed a fare of one hundred and twenty eight dollars ($128.00). The complainant completes this journey on a regular basis and the fare is usually around ninety two dollars ($92.00) The complainant contacted the Combined Communications Network and he was provided with a fare estimate of ninety five dollars ($95.00). Combined Communications Network records identify the driver of T5649 as Xiao Guang Luo driver authority: EG5822
This complaint of 'Demanding more/other than the prescribed fare", was investigated by RM Services authorised officers and it was found to be justified. Taking into account the fact the following the Notice to Show Cause you had accumulated thirteen additional customer complaints and an infringement for Soliciting, you were required to attend and complete retraining in Module 2; Regulations and Module 3, Customer Service at an approved taxi driver training school at your own expense.
05/05/2000 Notice to Show Cause
On 5 May 2000, RM Services issued you with a Notice to Show Cause as you had accumulated four (4) complaints of "Demand more than/other than·prescribed fare", four (4) complaints "Fail to display driver authority", three (3) complaints of "Rude to customer - incivility of impropriety", two (2) complaints of "Fail to drive by shortest practical route", two (2) complaints of "Driver lack of knowledge of major destinations, one (1) complaint of "Physical abuse or intimidation", one (1) complaint of "Fail to accept hiring immediately", one (1) complaint of " Fail to accept hiring when for hire." In addition you failed to maintain a satisfactory driving record based on the number of demerit point accumulated in the prior three years.
On 7 July 2000, as a result of the Notice to Show Cause, RM Services cancelled your driver authority number EG5822. You submitted a request for an independent review of the decision to cancel your driver authority. As a result of the independent review, you were suspended for a period of three (3) months and you were warned that any additional complaints recorded against you in the following twelve (12) months may result in the cancellation of your taxi driver authority.
RTA drivers Licence
On 5 August 2011 you were issued with an infringement for the offence of "Driver of a vehicle other than a bus drive in bus lane-camera detected.
On 28 July 2011 you with were issued with an infringement for the offence of "Exceed speed limit by not more than 10 km/h whilst driving a motor vehicle (camera detected)
You have failed to comply with clause 44 of the Passenger Transport Regulation 2007, Driver to notify Director General of alleged offence.
By a letter dated 10 January 2012 the Applicant provided the following response to the Complaint History:
CFI 59607
The passenger said that the meter was covered with paper over the tariff. That's not true. If I covered it with paper everybody can see on the meter. Also we didn't talk about this. The story is I picked up the passenger from East Redfern at 7pm going to Pyrmont. I turned left at Cleveland Street and turned right at Wattle Street. Because peak hour time so much traffic. The meter was $18.50. He say why not go to Crown Street and left at Foveaux Street through the city. I say more traffic. Also if you want to go that way you should of told me at the start, Then he say I normally pay $15.00. He was upset. So I say whatever you want to pay. I never disagree with people from Redfern area. (it's a dangerous area). He gave me $15.00.
I note that 1. The passenger was not a she it was a man. So this complaint is not correct.
CFI 55209
The passenger told me to go to North Ryde. So I ask him if it's okay to take the Harbour Bridge and the Lane Cove Tunnel. He agreed to take the Harbour Bridge quickest way. So when we get to North Ryde. He checked a paper for the address of the hotel it was in Ryde. He said Sorry that's where my Head office is in North Ryde. So I turned left at Lane Cove Road to go to Ryde. He complained that the fare was too high. That's not my fault. In the Combined Customer Service interview the lady so nicely talked to me and said you have to pay something back otherwise you will continue to be suspended until we talk to the passenger again to find out the truth. Then back your radio work. If you pay something back, I can put the radio back straight away you can work tomorrow. So I gave back some money. I could work the next day. Actually it wasn't my fault he told me to go to North Ryde then after he looked at booking details and then told me to go to Ryde Hotel.
CFI 370001
The passenger complained that the meter was $28.00 but I charged $41.00 and reduced to $37.00 that's not true. The passenger was in the airport with baby capsule. I put my baby capsule in the back seat the meter was on and then the passenger wants to use his own baby capsule. So he changed the baby capsule. Put baby in and luggage in so when I started driving the meter was already $5.00. To Hyde Park Plaza College Street passenger paid $28.00 + the eastern distributor airport toll = $37.00 I didn't ask for $41.00.
The problem is he complained that I stopped at the Marriott Hotel taxi rank. Because Hyde park Plaza's driveway was blocked by a bus. I can't drive in. I understand he had to carry the baby and so much luggage from the Marriott to Hyde Park Plaza. Also he was rude to me saying "shit stop here". I say can't stop on the street and the driveway was blocked. I think this is the reason the man was upset .So he made this complaint against me.
CFI 2990951
1. About this complaint what the passenger said is not true. The passenger said I was driving erratically from airport to Mascot. I don't think so, because if I had a short job after 20 minutes have to get back to the airport quickest way.
2. I didn't yell at him or her and I never verbally abused or threatened them.
3. Passenger says will pay cab charge at the other end. (Most taxi drivers would not be happy to do this way). Because most of the time passenger runs away or there is no one at the other end.
CFI 26684
About this complaint
1. The passenger complained that I drove at 40 km/hr. But this road was in a residential zone maximum limit is 50 km/hr. I drove 40-45 km/hr is normal driving. Also if drive slows the meter wouldn't go higher.
2. I didn't miss the green lights. The passenger was sitting in the back seat probably didn't see.
CFI 23396
From Airport to Campbelltown hotel. The passenger asked for the street directory to look up the address of the Campbelltown hotel. He said would show me the way. So we went down the M5 (in the tunnel there was heavy traffic). We where talking all the way very nicely. At Campbelltown he told me to turn left at Narellan Street. So this was the wrong turn. He checked the map again and told me to keep going to the hotel from the back way. He kept telling me directions to the hotel. He was happy to show me the way.
He didn't complain about the meter. Need to get my side of the story as well before making any decisions. Please consider. I have to complain about Combined Customer Service they always interview me quickly and sort out the matter and tell me that I can get my radio back you can drive. Otherwise have to be suspended for longer to talk to the passenger again. To make sense of the story. So mostly I choose to get back radio straight away so I can work.
Sometime's I've have a good compliment CFI 26743
1. The passenger lost American Express card in the front seat passenger's side. When driving back to North Sydney. I found the card on the front seat floor. I am honest I know the card is very important to him. So I drove back to Epping to his house. He was very grateful and appreciative good taxi driver.
2. On 19/12/2011 I returned someone's phone the trip was from Botany Rd Alexandria to Neutral Bay. When he got out of the taxi he must have dropped the phone. 30 minutes later I found the phone on the ground. I'm honest I and I know the mobile apple phone is important to him. So much information inside. So I back to the bridge to Neutral Bay returned the phone ...
3. Also I have a good reference from the Taxi Service l drive for Autian Taxi Service Pty Ltd. For the past 4-5 years. ...
4. I have a lot of good stories and the passenger always thanks me. I always help the elderly lift shopping or luggage to near the gate. 1 time I help passenger lift heavy luggage to carry up 6 levels of unit block (no lift). Elderly couple was very happy. They offered to give me $10 tip I refused. They're always happy with my service.
5. In August 2009 from Airport I picked up passenger going to the city. The passenger left their bag in the back seat floor and after I found it I took it to the Mascot Police Station, because I can't find passenger. When the police opened the hag. Inside was a professional camera, women's purse, and a laptop worth nearly $5000. The police found her from her identification. Found passenger was grateful and rang me back and said thank you.
About Record of interview response:
About the electronic interview with Trevor Care and Jim Hallahan on 21/11/2011 I read the electronic recording the record of interview. I think in this interview I made so many mistakes and a lot of answers are incorrect. At that time my understanding of some English words is not good enough. Also on that day I was really sick ... The whole 2 Hours were spent on the m40 cab charge vouchers. Going around and around in circles. This made me confused. ... I only told them when I went in that I didn't feel well. ... I say sorry I'm late I don't feel well.
That time there were two people standing in front of me. They are unfriendly. Maybe as I was late. They showed me a badge and on the table on the right side was one dozen M40 cab charge vouchers and on the left side about your complaints. In the middle a electronic recording machine. 1st thing they told me was this is serious thing. This made [me] stressed, anxious and very nervous.
Then they asked me do you understand English. I say mostly (meaning 60%-70% understand). ... they should have stopped me and got an interpreter. ... But they continue with further questions. So I answer yeah, yep, and m'mmm (means I only understand 50% of what they are saying). If I said yes then that means I understood what they where saying.
When they started the interview 5-10 minutes after my illness was causing me pain ... I was really stressed and anxious and was starting to get a headache and felt nervous. So all the answers are not even 50% correct and many questions I answered are incorrect ...
On pg-5-7 [of the record of interview at questions] number 23 [on page 5] -17 [on page 7] I misunderstood what he was asking me. I thought he was asking if I drove these taxis. Now that I read the record he was asking if the docket's had those numbers recorded on it.
Taxi numbers recorded on these M40 dockets are not used in taxi no 969, 7087, 219, 7078, 3777, 1559, 4345, 3003, 1559. I drove these taxis but the docket is not connected to the taxi. I remember saying the whole dockets are not mine but this is not on the record interview.
About page 27 [of the record of interview I stated at paragraph] number 1 ["If this is this one. I made this one"] l didn't say I made it. I meant I cashed this docket. Because at that time I didn't know it was genuine or not.
Another thing he didn't give me folded notes because he didn't have any.
From Page 18 [of the record of interview I was asked at paragraph] number 4. So he gave you some folded notes did he? My answer is incorrect I didn't understand they were talking about money my answer is [at paragraph] number 10. He had no money only had a couple of silver coins.
Passenger every time he got in stop start meter again and wait. Also told me would pay cab charge and pay cash later. So every time stop meter and start meter that is 1 trip. He entered the taxi more than 8 times. To me this is more than 8 trips. First to second stop he already gave me two cab charge vouchers. He said will pay me cash later. I believed he would pay at the end. So when we get to the end of the trips he gave line a roll of M40 Cab charge vouchers. I tell him you have to pay for 8 trips less the 2 cab charge vouchers and pay half cash. He just gave me a roll of M40 cab charge vouchers. I believe he gave me right cab charge voucher. Also it's a dark area I can't see, I ask for cash and he said has no cash. He said I spent money on food and something else. I can't do anything as is not normal person and was drunk and dribbling from the mouth. It's Redfern which is a dangerous area .So I left quickly from here. (I was assaulted in this area in 2003). So when I get home I found out he had given me 12 cab charge vouchers (Also I didn't now it was not genuine docket or not). But I didn't cash all.
A lot of docket's I don't recognize the number but this is not recorded or may have been (inaudible). But it's not mine I misunderstood I thought he was asking me are the numbers the same So I answered yes but the bunch of dockets are not mine. page 34 number 24.
Also page 38 [of the record of interview Officer Hallahan asked at paragraph] number 15 "Deport you?" ... That time I didn't understand. I so clearly said report [at paragraph] number 14 and [at paragraph] number 16 I said report. The whole time, didn't understand what deport meant. Now that I've read the record of interview. I looked up the dictionary this means to send back to my country. Sounds like I'm illegally living here. I'm offended and insulted by this comment. ...
I don't understand the word defrauded the government. Page 42. I didn't understand what they where asking in the interview.
...
On 6 December 2011 the Applicant wrote to the Respondent's compliance officer, Trevor Care, in relation to the interview conducted on 2 November 2011. In relation to the TTSS dockets he wrote:
About 1 year ago I picked up a passenger from Oxford Street Darlinghurst. That man was big and smelly told me to go to Redfern talking not clear and I smelt alcohol on him and dribbling from the mouth. All the way he was shouting look like he had a mental problem. When at Elizabeth Street Redfern he told met wait. I asked how long to wait he said didn't know. I asked him can you please pay the fare .He told me to stop the [meter] and start again. also he gave me a voucher and said will give me cash later. Please wait for me. So I stopped meter and start again I waited more than 15 minutes, he came back and told me to take to ex wife's house somewhere around Redfern. Same thing stop meter and start again gave me another voucher and told me would pay cash later. I waited another 20 minutes he came back then went a Surry Hills Crown Street and tell me also stop and gave me cab charge voucher start meter again and wait. I saw him going to the shop to get food. Jumped back in the taxi went to King Cross back street. Told me he had to pick up something. So same thing again gave me a voucher. Stopped meter and started again waited for a long time he came back to the taxi and went to Oxford Street. I told him to pay me the money he said sorry I don't have any only silver coins He gave me another few m40 cab charge again he got out the silver coins then get out of the taxi. But he said I have to go home can you take me. I think if I don't take him has no money and will never get home. So helped him took to the ex wife after wait and take him to Elizabeth Street Redfern. He said thank you very very much but gave me a few cab charge again. That is middle of the night he had no money also has a mental problem. I had no choice but to take the vouchers. I think I did the right thing by helping this man get home. Otherwise he'll have to live in the street all night. (I'm always helping people short of money in the middle of the night take home/some people only have$ 10 and tell me to stop half way and will walk home I say don't worry I continue to take you home.)
When I finished my shift I counted the vouchers there was 12 vouchers all filled out and I counted how many times he entered my taxi more than eight times. But I only cashed in 8 vouchers.
So please see all the stopping and starting and waiting as it wasn't a continuous fare. There was more than 8 trips. So I should get more vouchers. He didn't pay cash and was dribbling and drunk. So I don't think it is my fault for this. I actually lost cash and that is why I went to the airport GM to try and get cash.
Relevant legislation
Division 5 in Part 4 of the Act makes provision for authorisation to drive taxi-cabs. The purpose of authorisation is set out in Section 33(3) of the Act as follows:
33 Authorities
...
(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..
The holder of an authority is also subject to the provisions of the Passenger Transport Regulation 2007 ("the Regulations"). Clause 29 of the Regulations provides:
"29 Criteria for authorisation to drive public passenger vehicles
(1) For the purposes of sections 12 (2), 33B (2) and 40B (2) of the Act, the criteria that an applicant for an authorisation to drive a public passenger vehicle must meet before the application is granted are the criteria set out in subclauses (2)-(4).
(2) The applicant:
...
(e) must satisfy the Director-General that he or she:
...
(ii) is of good repute and in all other respects a fit and proper person to be the driver of the vehicle concerned, and
(iii) has sufficient responsibility to drive the vehicle concerned in accordance with law and custom.
...
(4) In the case of an application for authorisation to drive taxi-cabs, the applicant must also:
(a) have successfully completed a taxi-cab driver training course approved by the Director-General and conducted by a registered training organisation (or must have such competence as a driver of a taxi-cab as the Director-General considers appropriate), and
(b) have passed an examination or assessment, at a level determined by the Director-General, in the following:
(i) geographical knowledge of areas in which taxi-cabs ply for hire,
(ii) such part or parts of the taxi-cab driver training course referred to in paragraph (a) as may be required by the Director-General (or must have such competence as a driver of a taxi-cab as the Director-General considers appropriate),
(iii) knowledge of this Regulation in so far as it relates to taxi-cabs and the driving of taxi-cabs, and ..."
Clause 44 of the Regulations provides:
44 Driver to notify Director-General of alleged offence
(1) The driver of a public passenger vehicle must, in accordance with this clause, furnish the Director-General with written details of the following:
(a) any alleged offence (other than a parking offence) with which the driver is charged by a police officer,
(b) any penalty notice issued to the driver in respect of an alleged offence (other than a parking offence) that relates to the driving of a motor vehicle.
Maximum penalty: 10 penalty units.
...
Section 33F of the Act allows the Respondent to suspend or cancel a person's taxi driver authority having regard to the purpose of that authority.
Section 52(1) of the Act confers jurisdiction on the Tribunal to review a decision to cancel an authority. In reviewing this decision, the task of the Tribunal is to determine what is the correct and preferable decision, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law: section 63 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act").
The Respondent's case
The Respondent relies on the files it holds in relation to the Applicant's authority. This material was lodged pursuant to section 58 of the ADT Act. Included in that material is documentation relating to each of the complaints referred to above, including correspondence between the parties. The files comprise over 800 pages however there is much duplication in the material.
Also contained in the Respondent's material is the record of interview of the Applicant by officers of the Respondent that was conducted on 21 November 2011. As noted above, the Applicant has asserted unfairness in relation to the conduct of that interview on the basis that he was unwell and that he did not fully understand what he was being asked in the interview. He has poor understanding of English language and he was not given the assistance of an interpreter.
Also contained in the Respondent's material is the record of interview by officers of the Respondent with the accountant for GM Cabs.
The Respondent contends that the Applicant is not a fit and proper person drive public passenger vehicles. This assertion is based on the view that on 9 February 2011 the Applicant knowingly tendered three counterfeit TTSS dockets to GM Cabs for payment. The Respondent also contends that the Applicant made admissions that prior to 9 February 2011 he had knowingly tendered other counterfeit TTSS dockets to GM Cabs.
The Respondent also points to the Applicant's admission that on 10 February 2011 he reimbursed GM Cabs a total of five hundred dollars for the counterfeit TTSS dockets that he had tendered to GM Cabs for payment.
The Respondent also contends that the Applicant admitted that he accepted twelve TTSS dockets from a passenger in lieu of a full cash payment for a single taxi journey.
The Respondent also points to the fact that the Applicant continued to accumulate complaints following a Notice to Show Cause that resulted in the cancellation of his driver authority, a three-month suspension of his driver authority and retraining. The Respondent contends that this indicates that the Applicant does not have the aptitude or responsibility to be the holder of a driver authority to drive public passenger services.
Mr Wozniak, solicitor for the Respondent, submitted that the Applicant has a history of dishonesty. In July 2000 the Applicant's authority was cancelled. That decision was based largely on the number of complaints against the Applicant, many of which alleged that he had demanded more than the prescribed fare. On internal review the determination was changed from a cancellation of the authority to a three-month suspension. The Applicant was also given a strong warning that the authority would be cancelled if there were any further proven complaints within the following 12-month period. Nevertheless, the complaints continued. In May 2006 the Applicant was sent for retraining. As noted above, further complaints were received following that retraining.
Mr Wozniak submitted that the docket system is designed to assist the disabled, however the system is open to abuse. Drivers can abuse the system by accepting dockets without also insisting that passengers pay cash.
Mr Wozniak referred to three dockets that the Applicant tendered to GM Cabs for payment. He submits that those dockets have clearly been falsified. He submitted that in regard to the Applicant's suitability to drive a taxi it makes no difference whether there were three falsified dockets or whether there were eleven falsified dockets. The Applicant had negotiated the dockets for cash. He submits that if he was innocent, the Applicant should have reported the incident to the Police.
The Applicant's case
The Applicant provided an affidavit dated 3 May 2012 in which he provided a further response to the complaint history. In his affidavit he elaborated on the position that he had taken in the correspondence referred to above.
The essence of his case is that he was the victim of a passenger who did not pay his fare. The fraud was discovered after three dockets were cashed and the Applicant was blackmailed. He paid money to GM Cabs and when he was confronted with the allegations he admitted the part he had played. In relation to his dealings with GM Cabs the Applicant stated:
"54. When I went home I counted my whole shift I had 12 dockets.
55. I put the dockets in my draw at home.
56. Later I cashed three of the TTSS dockets at GM cabs. I just picked the top three dockets and did not look at them.
57. I did not complete any of the details on the dockets
58. These were the only TTS dockets that I was given by the large man that I cashed.
59. I cashed 3 dockets as I believed that I had taken the man on at least three trips.
60. I know that this is not how the TTSS dockets are to be used.
61. I know that I am in the wrong.
62. After I tried to cash them I met with George from GM Cabs.
63. George was very angry with me.
64. He told me that these were bad dockets.
65. He told me that these 3 dockets were forged dockets and I would be in trouble for forging dockets.
66. He told me that there is a big problem in the Taxi business with people forging TTSS dockets.
67. I told him that I did not forge these dockets.
68. I told him about how I got the dockets and explained what happened with the man as set out in my evidence above.
69. He asked me if I had cashed any of the other forged dockets that I got from the man at GM Cabs.
70. I told him I had not.
71. He asked me if I had ever cashed any other dockets at GM Cabs. He said I better tell him the truth as he could check the system and find all of them.
72. I knew that I had only cashed 3 of the dockets given to me by the man at GM Cabs, but did not know if I had cashed other TTSS dockets that may have been forged earlier. I believe is right dockets. Because they always check the computer system before they pay me.
73. He told me that he was losing a lot of money as a result of these forged TTSS dockets and that I would have to pay him back for this.
74. He told me that if I paid him $800.00. He would say nothing.
75.I told him I only had $520 and I paid him $500.00. He said I could pay the other $300 in 3 months."
Mr Boyd-Boland, solicitor for the Applicant, submitted that there is no evidence that the Applicant knew that the dockets were counterfeit.
Mr Boyd-Boland further submitted that any findings based on the record of interview should been seen in light of the Applicant's assertion that he did not have the assistance of an interpreter and that he was not able to understand all the propositions that were put to him. He further submits that some of the answers attributed to the Applicant are either non-responsive or incomplete.
The Applicant also relies on a statement to that he gave to police in September 2003 in which he outlined the details of an armed robbery in which he was the victim. This statement is relied on in support of his assertion that he regards the Redfern area as a dangerous area and that he left the area quickly and did not wait to check the TTSS dockets that he had been given.
The Applicant also relies on a number of references that speak highly of him. These references are given with knowledge of the circumstances that have given rise to these proceedings.
The Applicant's general position in relation to the complaints is that they are not justified. In summary, he stated:
119. I did not forge the TTSS dockets. I have never forged TTSS dockets. I have had nothing to do with forging TTSS dockets.
120. I now understand how serious it is to misuse TTSS dockets.
121. I will never again misuse TTSS dockets.
122. I understand how serious it is to have complaints made about me by passengers.
123. I will now be very careful to ensure that there is no reason for any complaints to be made about me.
124. I understand that if I ever misuse TTSS dockets, I am likely to lose my Driver Authority.
125. I understand that if there are more complaints about me, I am likely to lose my Driver Authority.
Discussion
The respondent's decision was based on the view that it can no longer be attested that the Applicant meets the required standards for authorisation as a taxi driver. This view was formed after consideration of the record of complaints made about the Applicant and in particular the allegation that that the Applicant misused TTSS dockets. I am satisfied that the material on which the Respondent relies accurately records those complaints.
In Saadieh v Director General, Department of Transport [1999] NSW ADT 68 at [17] - [18] the Tribunal's Deputy President set out several factors which should be considered when determining a person's fitness and suitability to hold a taxi authority as follows:
"17 Taking into account the terms of the legislation and the case law interpreting similar provisions, there are a number of factors that need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. These factors include:
the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted;
the nature, seriousness and frequency of any complaints made against the applicant;
the applicant's driving record;
the applicant's reputation in the community; and
the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences.
Though untested, the applicant's references suggest that he is well regarded by some in the community.
The Applicant has not been arrested or convicted of any criminal offences however numerous complaints have been made against him. Many of those complaints involve allegations of overcharging. He has previously been the subject of disciplinary action as a result of complaints.
The Applicant disputed the allegations made in many of those complaints. I have not heard from any of the complainants. However, in the circumstances I do not need to make findings in relation to the complaints. I note, however, that it is of concern that the Applicant continued to incur complaints after he had undergone retraining and been given a warning of the possible consequences if that occurred.
In my view, the complaints are of less significance than the allegations in regard to the misuse of TTSS dockets.
I have limited my consideration to the three dockets that were the subject of the evidence that were tendered to GM Cabs for payment.
On any view of the events that have led to those dockets being presented, and even on the most favourable view to the Applicant, the position remains that the Applicant accepted dockets that are not an accurate representation of the journeys that were undertaken. In my view the Applicant must have been aware that that was the case.
If the Applicant's evidence that he did not complete any of the details on the dockets is accepted, it does not address the fact that he must have known that the information that was written on the dockets does not reflect the journeys that he says took place.
The Applicant presented those dockets to GM Cabs for payment knowing that they were false.
In my view, that is one of the most serious offences that can occur in relation to dockets. It is a fundamental requirement in the dealing with dockets, that the dockets accurately represent the journey that has taken place. That remains the situation whether or not the Applicant was involved in the production of the counterfeit dockets.
I am not of the view that the Applicant is a person who can be held out to the public as somebody who has sufficient responsibility and aptitude to drive a taxicab.
The Applicant presented dockets knowing that they were false and in my mind that is sufficient to warrant the cancellation of his authority.
The acceptance of the dockets in lieu of full cash payment is another major issue that has implications for the scheme to which the dockets relate. The scheme is designed on the basis that the passenger contributes to the fare. The acceptance of dockets in lieu of cash encourages fraudulent use of dockets. While in the circumstances of this matter I do not consider that that the Applicant's conduct in this regard this issue is as serious as that in regard to presenting fraudulent dockets, in my mind it is still a very serious issue.
To attest that the Applicant is considered to have sufficient responsibility and aptitude to drive public passenger vehicles, I must have the confidence that he would behave appropriately in relation to all passengers. In my view, the Applicant's actions demonstrate that he has failed to appreciate the level of responsibility required to hold an authority to operate public passenger vehicles.
The fact that I consider that the Applicant must have known that the dockets were not an accurate reflection of the journeys that were undertaken suggests to me that he is also not a fit and proper person to drive a taxicab.
Decision
The decision to cancel the Applicant's authorisation to drive a taxi-cab is affirmed.
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Decision last updated: 20 July 2012
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