Ly v Director General, Department of Transport

[2001] NSWADT 108

CITATION:	Ly v Director General, Department of Transport [2001] NSWADT 108
DIVISION:	General Division
PARTIES:	APPLICANT Thanh Hai LY RESPONDENT Director General, Department of Transport
FILE NUMBER:	013025
HEARING DATES:	19/06/2001
SUBMISSIONS CLOSED:	06/19/2001
DATE OF DECISION:	06/28/2001
BEFORE:	Foster GF - Judicial Member
APPLICATION:	Passenger Transport Act - taxi driver - cancellation of authority - Taxi driver - cancellation of authority
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990
CASES CITED:	Re. T v Director of Youth and Community Services (1981) NSWLR 392 Maythisathit v Registrar of Motor Vehicles (1996) ACT 165
REPRESENTATION:	APPLICANT In person RESPONDENT A Wozniak, solicitor
ORDERS:	1 Decision of the Respondent to cancel the Applicant's driver authority is affirmed; 2 No order as to costs

1 By letter dated 5 October 2000 the Director General of the Respondent Department, the Administrator, by way of a decision made by a delegate cancelled the authority of the Applicant to drive a public passenger vehicle, being a taxi.

2 The refusal was notified to the Applicant by letter dated 5 October 2000. Such letter enclosed the statement of reasons for the Administrator’s decision. The statement of reasons in summary relied on three matters:

(i) the fact that the Applicant’s New South Wales Driver’s Licence was suspended on 19 February 2000 and yet he continued to drive taxi cabs under his public passenger authority on no less than 24 occasions between 26 April 2000 and 19 May 2000;
(ii) the Applicant's complaint history comprising 5 complaints in the period from 24 April 1995 to 25 July 2000. Two of the complaints involved a deception of the passenger in the Applicant demanding more than the prescribed fare. Two of the complaints involved a failure or refusal to accept a hiring when for hire and the final complaint involved a failure to drive by the shortest practicable route and failure to display the Applicant's authority ID card.
(iii) The Applicant's traffic history which at that time included the following offences:
(i) 17 August 1990- exceed speed by more than 30 kph;
(ii) 27 January 1991 -not wear seat belt;
(iii) 20 February 1991 -exceed speed by more than 15 kph;
(iv) 7 September 1991 -exceed speed by more than 15 kph;
(v) 24 May 1992- exceed speed by more than 15 kph;
(vi) 12 July 1992- exceed speed by more than 15 kph;
(viii) 23 April 1993 -exceed speed by more than 15 kph;
(ix) 7 September 1993 -not wear seat belt;
(x) 28 February 1994 -drive contrary to stop sign;
(xi) 8 August 1994- drive contrary to stop sign;
(xii) 2 October 1994- exceed speed limit by not more than 15 kph;
(xiii) 20 September 1997 -exceed speed by not more than 15 kph;
(xiv)10 January 1998- unlawful U turn;
(xv) November 1998- cross unbroken lane line;
(xvi) 18 June 1999- exceed speed by more than 15 kph;
(xvii) 29 September 1999 -exceed speed by more than 15 kph.

3 As a consequence of the various offences the Applicant was subject to a demerit point suspension of his unrestricted licence for the period from 19 February 2000 to 19 May 2000 inclusive.

4 As a consequence of the matters set out above the Director was of the view that the Applicant could no longer be attested to meet the required standards for authorisation as a taxi cab driver. As a consequence of that opinion the Applicant's public passenger vehicle authority was cancelled.

5 The Applicant sought an internal review of the Director General decision and by letter dated 7 November 2000 the Applicant was advised of the review determination which confirmed the decision of the Director General to cancel the Applicant's public passenger vehicle authority No. AM6291.

6 From the determination of the Director General the Applicant filed an application with the Tribunal on 2 February 2001 for review.

7 Drivers authorities are issued under Division 2 of Part 2 of the Passenger Transport Act 1990. Section 11 of that Act provides:-

" A person who drives a public passenger vehicle is guilty of an offence unless the person is the holder of an appropriate authority under this Division, maximum penalty 100 units."

8 Section 11(2) provides:

"The purpose of an authority under this Division attests

(a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be a driver of a public passenger vehicle and
(b) that the authorised person is considered to have sufficient responsibility and aptitude to drive a 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 "

9 The decision to cancel a public passenger vehicle authority to the Applicant is reviewable by the Tribunal under the provisions of Section 55 of the Administrative Decisions Tribunal Act 1997 ("the Act").

10 Section 55(1) provides:

" A person may apply to the Tribunal for a review of a reviewable decision only if:

(a) the application is made by an interested person; and
(b) an internal review is taken to have been finalised under Section 53(9)"

11 Section 52(1) of the Passenger Transport Act 1990 provides:

" Any person whose application under Part 2 has been refused or whose accreditation or authority has been waived suspended or cancelled may apply to the Administrative Decisions Tribunal for a review of the refusal, variation, suspension or cancellation "

12 The Act specifies the responsibilities of the Tribunal in dealing with the present application. Section 63 provides:

"1. In determining an application for a review of a reviewable , decision the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it including
(a) any relevant factual material;
(b) any applicable written or unwritten law.
2. For this purpose the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the Administrator who made the decision.

13 Thus the position of the Tribunal in hearing the application is that the Tribunal is standing in lieu of the Administrator in determining the question of the cancellation of the subject authority of the Applicant.

14 Section 11(2)(a) of the Passenger Transport Act refers to good repute and fit and proper person as relevant criteria. The objects of the Passenger Transport Act, inter alia, provide in Section 4(e):

"To encourage public passenger services that meet the reasonable expectations of the community for safe reliance and efficient passenger transport services."

15 Safety has a variety of connotations. Such connotations are relevant in the context of public transport. It relates to the quality of vehicle as well as infrastructure such as rail and roadways. It also relates to passenger safety especially in relation to misconduct by other passengers. The driver of a public passenger transport vehicle may also present a risk to the safety of the passenger. The passenger and the driver are strangers to each other brought together in an intimate setting with the driver being in control of the route to the destination.

16 This is particularly so in relation to taxis as public passenger vehicles.

17 The requirement of good repute and the assessment of good repute is a matter for the Tribunal weighing all the evidence. The Tribunal takes the approach in assessing reputation described in the decision of Re. T v. Director of Youth and Community Services (1981) NSWLR 392 per Wardell J. where His Honour said:

"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. "

18 The following documents were before the Tribunal:

(i) the departmental file;
(ii) an update print out of the Applicant's traffic history which disclosed the following further traffic offences:
20 June 2000 -exceed speed by not more than 15 kph;
27 July 2000 -exceed speed by not more than 15 kph;
1 September 2000 -exceed speed by more than 15 kph.

19 The Applicant did not wish to give sworn oral evidence and made short submissions to the Tribunal through an interpreter.

20 In exercising its responsibilities for passenger transport regulation the administration must take account of the likely perceptions of the travelling public. A member of the travelling public is likely to be concerned to note that the driver of their taxi has been convicted on numerous occasions of exceed speed and other traffic offences and has been the subject of complaints asserting dishonesty as a taxi driver in attempting to procure the payment of an inappropriate fare. A member of the travelling public would most likely be concerned that the driver has been the subject of complaint in refusing to accept a hiring when available for hire or indeed a complaint for failure to take the shortest route to a destination. More particularly the travelling public would be gravely concerned if a taxi driver was found to be unlicensed and indeed driving a public passenger vehicle during a period of licence suspension.

21 Generally the Tribunal refers to the comments in Maythisathit v. Registrar of Motor Vehicles (1996) ACT 165. In that matter the Tribunal (Professor L.J. Curtis, President) said at (12):

"One must put oneself so far as possible in the position of a member of the public who might travel in a taxi driven by the Applicant and ask whether that member of the public knowing of the Applicant's criminal record and what he has done in the past to rehabilitate himself would object to the Applicant as the driver of a taxi."

22 This comment is equally applicable to other aspects of misconduct.

23 Having regard to all of the matters before the Tribunal, it cannot be said that the travelling public would be confident that the Applicant is a "fit and proper" person to be a taxi driver.

24 For the above reasons the Tribunal affirms the decision of the Administrator to cancel the public passenger authority of the Applicant. There will be no order as to costs.