Mahe v Director General, Department of Transport - [2002] NSWADT 266

No judgment structure available for this case.

CITATION: Mahe v Director General, Department of Transport [2002] NSWADT 266

DIVISION: General Division

PARTIES: APPLICANT
Sione Ma Fuataimi Mahe
RESPONDENT
Director General, Department of Transport

FILE NUMBER: 013220

HEARING DATES: 9/11/01, 17/12/01, 17/01/02, 01/02/02

SUBMISSIONS CLOSED: 02/01/2002

DATE OF DECISION:
12/16/2002

BEFORE: Lees M - 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
Passenger Transport Amendment Act 2000
Road Transport (Driver Licensing) Act 1998

CASES CITED: McNamara v Arnold - BC9502405 (Supreme Court of South Australia Mathieson J, 26 October 1996)
Singh v Director General, Department of Transport [1999] NSWADT 96

REPRESENTATION: APPLICANT
In person
RESPONDENT
A Wozniak, solicitor

ORDERS: 1. Mr Mahe’s taxi-driver authority is suspended until the expiration of the current period of applicable good behaviour conditions on his driver’s licence (19 December 2002) and until he has undertaken a ‘defensive driving course’ and produced written confirmation of his successful completion of such course.

1 Mr Mahe applied to the Administrative Decisions Tribunal (the Tribunal) for review of the decision made by Director-General of the New South Wales Department of Transport (the Director-General) to suspend his taxi driver authority.

2 The Tribunal’s jurisdiction derives from sections 52 of Passenger Transport Act 1990 (the Act) and 38 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act). The Tribunal is required to decide what the correct and preferable decision is in the circumstances, given the law and the relevant material before it (s.63 of the Tribunal Act).

Relevant Legislative Provisions

3 The Act was amended in December 2000 by the Passenger Transport Amendment Act 2000 (No 85). The commencement date of the amendments was 01.09.2001. The Director-General’s original decision to suspend Mr Mahe’s authority was made prior to the amendments. However, due to a number of relevant intervening events concerning Mr Mahe, provisions in the amended Act have also become relevant.

4 Prior to the amendments, Part 2 of the Act concerned the ‘Credentials of Operators and Drivers’. This Part, under its ‘Division 2 - Driver’s Authorities’ includes s. 11 re ‘Authorities’ and s. 14 re ‘Variation, suspension or cancellation of authority’; these were the provisions relied upon by the Director-General in the original suspension decision. Part 2 was then amended to concern ‘Credentials of Operators and Drivers (Other than Taxi-Cabs and Private Hire Vehicles)’ and no longer applied to Taxi-cab drivers (see s. 15A). A new Part 4 titled ‘Taxi-cabs’ was inserted. In relation to authorities, s. 33 now applies; in relation to variation, suspension or cancellation of authorities, s.33F now applies.

5 Section 11(2) of the Act provides:

(a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle; and
(b) that the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates:

6 Section 14 of the Act provides:

Having regard to the purpose of an authority, the Director-General may at any time vary, suspend or cancel any person's authority.

7 Subsection 4(e) of the Act provides that the objects of the Act include:

(e) to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services, …….

8 Section 33 (in Part 4 Division 5) of the Act reads (as relevant) as follows:

(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:

9 Section 33B of the Act reads as relevant:

(2) Before an application is granted, the applicant must meet any criteria set forth in the regulations and must satisfy the Director-General as to any matter the Director-General considers relevant.

10 Section 33F reads:

Having regard to the purpose of authorisation under this Division, the Director-General may at any time vary, suspend or cancel any person's authority under this Division.

11 The relevant regulation in the circumstances of this application is the Passenger Transport (Taxi-cab Services) Regulation 2001 (‘the Taxi-cab Regulation’). Clause 79 of the Taxi-cab Regulation concerning Driver’s Authority Cards reads relevantly as follows:

……..

(5) A person's authority to drive taxi-cabs and driver's authority card do not have any effect, either for the purposes of Division 5 of Part 4 of the Act or for the purposes of this Regulation, while the person's driver licence is cancelled or suspended. _

12 Clause 3 is the definition provision of the Taxi-cab Regulation and it defines ‘driver licence’ as ‘driver licence has the same meaning as it has in the Road Transport (Driver Licensing) Act 1998.’

13 The definitions applicable in the Road Transport (Driver Licensing) Act 1998’ are found in the Dictionary found in Schedule 99 at the end of that Act.

(a) a licence (including a conditional licence, a provisional licence and a learner licence) issued in accordance with the regulations authorising the holder to drive one or more classes of motor vehicle on a road or road related area, or
(b) a driver licence receipt.

14 Clause 33 of the Taxi-cab Regulation concerning criteria for authorisation to drive taxi-cabs reads:

(2) The applicant:

driver licence means a driver licence excluding a conditional licence (other than a conditional licence the sole condition of which is that the holder must wear corrective lenses at all times while driving), learner licence, probationary licence, provisional licence, restricted licence and driver licence receipt.

15 Numerous relevant developments concerning Mr Mahe’s driver’s licence occurred subsequent to the Director-General’s decision to suspend Mr Mahe’s taxi-driver authority and during the course of the Tribunal’s consideration of Mr Mahe’s application. In this regard action was taken by the Roads and Traffic Authority (‘RTA’) and by Mr Mahe himself in relation to Mr Mahe’s regular driver’s licence. These events have occurred beyond the Department of Transport’s control and have overtaken the events giving rise to the original authority suspension. In summary the RTA cancelled Mr Mahe’s (unconditional) driver’s licence on two occasions for different reasons (unpaid traffic offence fines and accrued demerit points) resulting in Mr Mahe obtaining a conditional driver’s licence (subject to a twelve month good behaviour period).

16 These intervening events have impacted upon Mr Mahe’s taxi authority both during and beyond the suspension period nominated in the original suspension decision.

17 Several decisions concerning the staying or not of the operation of the suspension decision were made during the course of the Tribunal’s consideration of Mr Mahe’s application. The following records those decisions and the related findings and reasoning.

18 On 20.09.2001 a stay was ordered by the Tribunal’s Deputy President Hennessy on the operation of the suspension decision.

19 On the first hearing day of 09.11.2001 the Tribunal was advised by the Director-General’s legal representative, Mr Wozniak, that Mr Mahe had been ‘caught again’ for a driving offence since the stay hearing and that Mr Mahe’s driver’s licence had been cancelled on the basis that Mr Mahe had not paid a number of outstanding fines for a number of traffic offences.

20 Mr Wozniak tendered as evidence of the cancellation of Mr Mahe’s regular RTA driver’s licence a facsimile copy of three pages of Mr Mahe’s Traffic Record (dated 09.11.2001) and beginning at 08.02.2001.

21 Mr Wozniak submitted further that where a driver’s licence is suspended or cancelled that driver’s taxi authority is also. He submitted that as Mr Mahe’s driver’s licence had been cancelled, his taxi driver authority was ineffective and that therefore the stay order on the suspension should be lifted. Mr Wozniak relied on sub-clause 79(5) of the Taxi-cab Regulation submitting that its effect was that if a driver’s licence is suspended or cancelled, so too is the driver’s taxi authority. Mr Wozniak also submitted that even if the Director-General’s taxi-authority suspension decision is considered incorrect by the Tribunal, because Mr Mahe has no driver’s licence, he ‘can’t drive at all anyway’.

22 Mr Wozniak informed the Tribunal that the driver’s licence could be reinstated by Mr Mahe paying the outstanding fines, which would then mean that the stay could also be reinstated. However Mr Wozniak also observed that there may be problems for Mr Mahe because he had since the fine-based cancellation had a further offence recorded against him.

23 The Traffic Record facsimile recording the cancellation of Mr Mahe’s licence was not disputed by Mr Mahe. The fact of cancellation was accepted by the Tribunal, although the basis for the cancellation was not perfectly clear from the document.

24 On 09.11.2001 the Tribunal agreed with Mr Wozniak’s submission that the effect of sub-clause 79(5) of the Taxi-cab Regulation was automatic, that is if a driver’s licence becomes cancelled or suspended, such driver’s taxi driver authority has ‘no effect’ for the period equivalent to the suspension or cancellation. Accordingly, the stay on the suspension decision on Mr Mahe’s authority lapsed automatically on his licence cancellation and the stay could not be reinstated unless Mr Mahe’s driver’s licence is reinstated. Accordingly, the stay on the Director-General’s suspension decision on Mr Mahe’s taxi authority was revoked.

25 On 17.12.2001 the hearing continued. Mr Wozniak provided the Tribunal with copies of three further documents. The first was a copy of the Mr Mahe’s Licence Details (1 page) and the second was a copy of his Traffic Record (consisting of two combined records of 12 pages altogether), both up to date as at 17 December 2001. Mr Mahe’s licence status was stated as ‘DISQUALIF’. The Traffic Record stated that on 17 November 2001 Mr Mahe was refused an unrestricted licence on the basis of the number of demerit points he had accrued.

26 The third document provided to the Tribunal was a copy of the document addressed to Mr Mahe from the RTA also dated 17 November 2001. It was a ‘Notice of Refusal and Ineligibility to Apply for a Driver’s Licence’ under the Road Transport (Driver Licensing) Act 1998 ‘sections 14(4)(a) and 16A’. It stated that, as a result of the demerit points Mr Mahe had accrued for five speeding offences, the RTA refused to issue Mr Mahe with a driver’s licence and advised him he was ineligible to apply for a driver’s licence for at least three months. It stated further the steps Mr Mahe then had to take after the three month period had expired. As an alternative to the application of the ineligibility period, the Notice stated that Mr Mahe could elect to be of good behaviour for a period of twelve months, and set out the steps he had to take to do that, and if he did so, he would be permitted to renew his driver’s licence. The Notice also stated that Mr Mahe had the right to appeal against the decision in the Notice.

27 Mr Mahe advised the Tribunal he had not received the letter from the RTA dated 17 November 2001. He felt he was being punished twice for the same offences. Mr Mahe stated he had paid all his fines.

28 Mr Wozniak submitted that fines were not (now) the issue. Mr Wozniak submitted that on the last occasion (09.11.2001) Mr Mahe was able to pay the outstanding fines and get his licence back, but the situation at this date (17.12.2001) was that Mr Mahe’s licence has been cancelled due to his accrued demerit points. Mr Wozniak also referred to cl. 33 of the now applicable Taxi-cab Regulation raising the question whether or not, if a driver holds a conditional licence such as a good behaviour licence, could s/he hold a taxi-driver authority? Mr Wozniak submitted s/he could not.

29 Mr Mahe did not dispute the accuracy of the Traffic Record before the Tribunal. The Tribunal accepted the Traffic Record as accurate.

30 Mr Mahe indicated to the Tribunal that he wanted to lodge an appeal against the RTA cancellation/disqualification decision. After some discussion with the parties and without objection by Mr Wozniak, the Tribunal agreed to allow Mr Mahe the opportunity to lodge his appeal and have it heard, after which this application would proceed. Mr Mahe agreed to advise the Tribunal of the local court hearing date for the appeal so that the Tribunal could also set its hearing date. In the meantime it was understood the disqualification/cancellation on Mr Mahe’s licence continued to run.

31 On 21.12.2001 the Tribunal records reveal that Mr Mahe advised the Tribunal Registry by telephone that he had ‘got his driver’s licence back’. He attended the Tribunal Registry on 24 December 2001 and produced his driver’s licence.

32 On 02.01.2002 another stay hearing was held by Tribunal Deputy President Hennessy who ordered, without objection from the Director-General, that the stay be reinstated and remain until further Tribunal order.

33 On 17.01.2002 the Director-General filed with the Tribunal a copy of a document dated 8 January 2002. It was a letter to Mr Mahe titled ‘Warning Driver’s Authority ER7281’. It advised Mr Mahe that although he (again) held his driver’s authority (under the stay decision) his driving record was of concern to the Department. The ‘Warning’ attached 10 pages of Mr Mahe’s Traffic Record updated to 19.12.2001.

34 On 17.01.2002 the Tribunal hearing continued. Mr Mahe advised the Tribunal he had withdrawn his local court appeal against the disqualification of his driver’s licence.

35 Mr Wozniak noted that the driver’s licence Mr Mahe now holds is in fact a conditional driver’s licence. Mr Wozniak referred to Mr Mahe’s Traffic Record (as attached to the Warning letter) which states that the Refusal (Notice in the RTA letter) of 17 November 2001 had not been implemented as Mr Mahe had, on 19 December 2001, elected to be of good behaviour for a period of twelve months and was accordingly issued with a licence on which ‘Good Behaviour Conditions apply from 19-12-2001 to 19-12-2002 inclusive’. No issue was taken by Mr Mahe as to the accuracy of the facts represented in these additional documents.

36 Mr Wozniak developed the submission he had touched upon at the hearing of 17.12.2001. He submitted that the nature of the driver’s licence Mr Mahe now holds is not a driver’s licence for the purposes of cl. 33 of the Taxi-cab Regulation and that it followed Mr Mahe could not hold a taxi-driver authority.

37 The object of cl. 33 is to set out the criteria that an applicant for a taxi-driver authorisation must meet before an authority can be granted, as required by s. 33B(2) of the Act. Those criteria are set out at cl. 33 (2) (a) to (f). Clause 33(2)(b) states that an applicant ‘must hold a driver licence’. ‘Driver licence’ for the purposes of cl. 33 is defined at cl. 33(3) as

driver licence

38 Mr Wozniak submitted that the licence held by Mr Mahe, as a licence subject to the condition of good behaviour for twelve months, is a conditional licence and as such it is expressly excluded for the purposes of the clause. Mr Wozniak submitted that although Mr Wozniak holds a driver’s licence for the purposes of the Motor Transport Act (sic), he does not for the purposes of the Taxi-cab Regulation.

39 Mr Wozniak also advised the Tribunal that his understanding was that Mr Mahe was believed to have been driving while his licence was suspended and that it was foreshadowed that an Information would be issued against Mr Mahe in this regard. In relation to Mr Mahe’s application before the Tribunal Mr Wozniak foreshadowed that it would ‘take some time to deal with’- as there were issues of non-disclosure and false declarations as well as the potential charges for driving while suspended.

40 Mr Wozniak then sought an order lifting the stay order of 02.01.2002. He advised the Tribunal that the Director-General’s consent was withdrawn to the stay order of 02.01.2002 because consent on that occasion had been granted on a misunderstanding of the circumstances. Consent had been granted on the basis that Mr Mahe was appealing the 17 November 2001 Notice/decision to disallow him from applying for a driver’s licence on the basis of his accrued demerit points. Also on that occasion Mr Wozniak had not had the benefit of an up-to-date computer print out of Mr Mahe’s Traffic Record which would have recorded the details as to Mr Mahe’s conditional licence status.

41 Mr Wozniak submitted that the amendments made to the Act (which commenced in September 2001) together with the updated Taxi-cab Regulation changed the applicable law relevant to taxi drivers and that such should be applied by the Tribunal in relation to Mr Mahe’s present circumstances.

42 Mr Mahe referred to the Department of Transport’s ‘Warning’ letter to him dated 8 January 2002 that stated Mr Mahe can drive under his taxi authority. Mr Mahe informed the Tribunal, in relation to his not lodging an appeal against the Department Notice/decision of 17 November 2001, that he had attended Blacktown Court in this regard and had been advised to go to the RTA and apply for a good behaviour licence, which he had then done. Mr Mahe stated he had been told he would still be able to hold his taxi authority. Mr Mahe did not identify precisely who he consulted or who advised him. He stated further that his taxi company knows the status of his driver’s licence and that it was happy for him to continue taxi driving with it.

43 Mr Mahe suggested there had been a ‘mix up because of the new rules’. He submitted he had five children, a mortgage and a taxi lease to fund and faced a lot of debts if he ‘can’t stay on the road’. Mr Mahe also stated he had ‘made up his mind to learn about the new regulations and rules and stay within’ them. He stated he wanted ‘to do the right thing from now on and stay within the rules’. Mr Mahe stated he had driven buses for more than 10 years and taxis for over 20 years. He preferred taxis so that he could spend more time with his children. He stated he had lots of good customers and that he enjoys taxi-driving. He stated bus driving would not be easy but was something he may have to consider if he had no other option.

44 The Tribunal accepts Mr Mahe’s evidence as to what he had been advised to do regarding his licence and as to the attitude of his taxi company. No account seems to have been taken by his adviser/s of the possible effect of cl. 33 of the Taxi-cab Regulation.

45 The Tribunal agreed with Mr Wozniak’s submissions as to the effect of the current law in relation to Mr Mahe’s driver’s licence and the stay order was revoked, the effect of which was Mr Mahe’s taxi authority was again in suspension. The hearing into Mr Mahe’s application was adjourned until 1 February 2002.

The Suspension Decision

46 On 01.02.2002 the hearing continued. On this occasion Mr Wozniak tendered the following documents: 1. Mr Mahe’s Licence Details (1 page) & Traffic Record (10 pages as at 31.01.2002); 2. Taxi Driver Authorisation Standards cover and first page (as at 01.08.1996); 3. Premier Cabs’ Log Records re Mr Mahe re 10.12.2001 to 14.12.2001(facs. cover sheet plus 1 page); 4. Mr Wozniak’s summary of Mr Mahe’s traffic record detailing cancellations and suspensions and related time periods and reasons, as well as numbers of court appearances, offences, warnings and demerit points; and 5. five Informations laid at the Parramatta Local Court (dated 31 January 2002) against Mr Mahe alleging he drove in December 2001 when holding a suspended driver’s licence and suspended taxi authority.

47 Mr Wozniak submitted that the initial decision taken against Mr Mahe involved ‘the old regulations’ but that the Tribunal must now apply the current law, that is the amended Act and the amended Taxi-cab Regulation. Mr Wozniak sought to support the decision of suspension on both the original and additional bases.

48 One of the bases for the Director-General’s view that Mr Mahe’s taxi authority warranted suspension concerned the Taxi Driver Authorisation Standards (‘the Standards’). The Standards the Director-General (through Mr Wozniak) considered relevant were found in paragraphs 1.2 and 3.1. Paragraph 3.1(b) of the Standards concerning ‘Driver Responsibility and Aptitude’ states:

b) Maintain a satisfactory driving record based upon the number of demerit points accumulated during the past three years. ….’.

49 The legal status of the Standards was not made perfectly clear to the Tribunal. It is stated on the Standards that they ‘have been developed by the New South Wales Department of Transport in consultation with the New South Wales Taxi-Council. For the Authorisation of Taxi Drivers under Division 2 of Part 2 of the Passenger Transport Act 1990’. They are dated 1 August 1996. Given the amendments to the Act and Taxi-cab Regulation At the time of the Tribunal hearing it appeared these Standards had not been updated to take into account the amendments since September 2001. Given their production to the Tribunal and the attendant submissions, however, the Tribunal accepts that although the form of the Standards is out of date, the Director-General continued to consider their substance relevant.

50 It may be that the s.33E provides the legislative basis for the Authorisation Standards with which Mr Mahe and other taxi-cab drivers are required to comply. It provides that taxi-cab drivers ‘must comply with directions given by the relevant taxi-cab network to the driver, being conditions of a kind authorised to be given by or under the standards applying to the network’. Whether or not this is correct, the Tribunal nevertheless accepts that the Director-General (and the Tribunal on review) may consider Mr Mahe’s driving record relevant for the purposes of s.33(3) of the Act particularly.

51 In Mr Wozniak’s submission a driver cannot be considered to have a satisfactory driving record if s/he has lost 12 or more demerit points during the relevant three year period. In Mr Mahe’s case, Mr Wozniak submitted he had accrued 15 demerit points during the relevant period which had given rise to his licence cancellation on 17 November 2001. Accordingly in Mr Wozniak’s submission Mr Mahe Mahe had breached the standard set by the system limiting demerit points for an unrestricted licence (as was held by Mr Mahe at the relevant times) and has also not complied with the relevant Taxi Standards by maintaining a satisfactory driving record.

52 According to the documentary material before it, in the Tribunal’s calculation (at the time of the Tribunal hearing on 01.02.2002) Mr Mahe had accrued twenty-five (25) demerit points in the preceding three year period (beginning with the traffic offence of 20.02.1999). For the three year period prior to the original suspension Mr Mahe had accrued thirty-one (31) demerit points (beginning with the traffic offence of 29.08.1999). The demerit points referred to in the Demerit Points Notice of Refusal of Unrestricted Licence of 17 November 2001 referred to the last five offences occurring between 06.10.1999 and 25.04.2001which together tallied 15 demerit points.

53 The Tribunal also notes that the demerit points scheme was established to deal with drivers who persistently breach the applicable road and traffic laws. It provides drivers who have failed to obey such laws with a penalty and with the opportunity to modify their driving. An object or purpose of the applicable road and traffic laws can be presumed to include the safety of road users, pedestrians and the wider community. It follows that the driver breaching such laws in most circumstances has also driven unsafely. The Tribunal notes that the Standards also state at paragraph 3.1(c) that

(c) drive in a safe and courteous manner and in compliance with traffic rules and regulations.

54 The original (and internal review) decision to suspend Mr Mahe’s driving authority was made on the basis of Mr Mahe’s driving history. Mr Mahe’s record revealed an exceptional number of demerit points against his licence, two previous licence suspensions and two previous licence cancellations. It was considered Mr Mahe failed to meet the basic expectations of his passengers and placed such passengers and the public in general at risk through unsafe driving habits. Accordingly the view was formed that it could no longer be attested that Mr Mahe met the required standards for authorisation as a driver of a public vehicle. The Tribunal considers the Director-General’s original decision was correct.

55 Other relevant matters submitted on behalf of the Director-General as contributing to the view Mr Mahe’s authority should be suspended are: the fact Mr Mahe has been formally charged with driving whilst cancelled and that Mr Mahe has failed to report ‘any conviction or charge in relation to criminal, traffic or other kind of offence (other than parking offences)….’ in his most recent application for a taxi-driver authority (01.01.2001) to the Department of Transport where he wrote ‘No’ in response to the two related questions in the application. A copy of this application was located in the copy of the Department of Transport’s General Division File on Mr Mahe provided to the Tribunal. In this latter regard it was asserted Mr Mahe in fact had 12 such offences that should have been disclosed in the application (between his previous authority application of 28.05.1996 and 01.01.2001). Reference was made in this regard to paragraph 1.2 of the Standards which specifically concerns taxi-cab driver Authorisation, it states

1.2 The driver must immediately report any conviction or charge in relation to criminal, traffic or any other kind of offence (other than parking offences) in NSW or elsewhere, to the Department of Transport.

56 Reference was also made by Mr Wozniak to a statement appearing on the authority application form which reads that:

‘Any person who attempts to obtain a driver’s authority by false statements, representation or any omission of details is liable to a penalty of up to $2200.00 and any authority so obtained will be cancelled’.

57 Mr Wozniak submitted that Mr Mahe’s lack of disclosure of his Traffic Record contributes to determining Mr Mahe’s lack of fitness and propriety. Mr Wozniak cited the decision of McNamara v. Arnold – BC9502405 (Supreme Court of South Australia per Mathieson, J., 26 October 1996) as authority for the proposition that ‘…. a failure to disclose offences casts a grave doubt over fitness and propriety’. Mr Wozniak submitted Tribunal Deputy President Hennessy followed McNamara in Singh-v- Director General, Department of Transport [1999] NSWADT 96 (see para. 27) specifically quoting Mathieson, J. where the Judge stated:

‘In this matter even if the Tribunal merely looks at the [appellant’s] dishonest answer on the application form, this conduct brings into question the honesty of the [appellant]. Honesty is a quality implicit in the notion of a fit and proper person.’ (at 10)

58 When asked about this Mr Mahe replied that he had ‘paid all his bills and dealt with all my traffic fines and all that and I just put down ‘no’ on it meaning that I thought that if I was running away from – running from the fines and all that, that’s how I was responding to that. Didn’t think it was that important really……I wasn’t trying to hide anything from them so I thought they did know everything so I just put down ‘no’ …..I know that they got my records….I put down that for the reasons that I thought they know everything about me and there was nothing that I was hiding….maybe a little bit of a misunderstanding there with me…’.

59 Mr Mahe submitted that there had been a lot of confusion on his part during the course of his application before the Tribunal. He stated he believed that once he reobtained his driver’s licence in December 2001 he was all right to drive the taxi as well. He noted his licence was an ‘unrestricted’ licence and that once before, in 1999, he had been on a good behaviour driver’s licence and he had been permitted to drive a taxi then. He stated that the record shows he was on a good behaviour licence in 1999. Mr Mahe submitted he had been a good driver for over 20 years and thinks it unfair that ‘all these things have just come on’. He submitted he had dealt with these things over the years, by paying fines, going to Court, having his licence cancelled for demerit points. He feels he is answering for the same things again, although he admitted at the hearing on 01.02.2002 that he was ‘starting to understand quite a lot of things’. Mr Mahe asked the Tribunal that he be allowed to drive a taxi on his conditional licence on the basis that if he did anything wrong (his authority) would be automatically cancelled. He asked this in order to be allowed to earn a living. Mr Mahe is also a taxi operator. He is paying off the car itself and currently has another driver subleasing it.

60 The Traffic Records provided to the Tribunal do not reveal that Mr Mahe was on a good behaviour licence at sometime in 1999. The Tribunal nevertheless accepts Mr Mahe’s evidence that he was on such a licence and that he was allowed and authorised to drive a cab at that time, and that the present factual scenario from his point of view appears the same yet appears to have a different outcome. Mr Mahe appeared to understand Mr Wozniak’s submission that the law (regulation) had changed (since 1999, ie in 2001) and this was what was now affecting Mr Mahe’s authority.

61 The Tribunal was provided with a photocopy of the front of Mr Mahe’s driver’s licence. It is noted that on the licence as issued on 19.12.2001 nothing appears beneath the heading ‘Conditions’. Although the Tribunal accepts the Licence Details and Traffic Record print out evidence that Mr Mahe holds a conditional good behaviour licence, such is certainly not clear on the face of Mr Mahe’s licence. The fact such a conditional licence is also stated to be unrestricted can also lead to confusion, as was evident in Mr Mahe’s case.

62 The major basis relied upon by Mr Wozniak (and as submitted previously in relation to requests to revoke the stay on the Director-General’s decision) was that the new Taxi-cab Regulation provides a definition of ‘driver’s licence’ and that such a defined driver’s licence is an ‘absolute requirement’ for holding an authorisation to drive a taxi-cab. In the Director-General’s view the driver’s licence held by Mr Mahe is not a driver’s licence for the purposes of cl. 33 of the new Taxi-cab Regulation.

63 Mr Wozniak’s submission was not that Mr Mahe’s licence be cancelled. He submitted that it was his understanding that courts and tribunals do not make decisions that can have no effect. In his submission if the Tribunal agreed with the Director-General’s interpretation of the Taxi-cab Regulation, a decision simply affirming the Director-General’s original decision to suspend Mr Mahe would be of no effect because the effect of cl. 33 (since 19 December 2001when Mr Mahe obtained a conditional licence) is that Mr Mahe ‘cannot get his authority back until 20 December’ (2002). In Mr Wozniak’s submission, Mr Mahe will not be able to meet the driver licence criterion until the expiration of his good behaviour period. Accordingly in Mr Wozniak’s submission there was nothing further Mr Mahe could do as far as his taxi authority was concerned. In Mr Wozniak’s submission if Mr Mahe manages to retain his good behaviour driver’s licence until 19.12.2002 and completes the relevant driving course, he would be eligible again for an authority from 20.12.2002. In other words the conditional licence period of twelve months in effect subsumes the original six month suspension period: the operation of the Taxi-cab Regulation and the fact of Mr Mahe’s altered driver licence status together have the effect of suspending Mr Mahe’s taxi driver authority until at least the end of the conditional licence period. In Mr Wozniak’s submission, there would be little point in the Tribunal restricting or limiting its decision to affirming or setting aside the Director-General’s suspension. Due to the numerous intervening events and the additional material concerning relevant facts and law that has been put before the Tribunal, he submits that the more practical approach by the Tribunal given the additional material would be to vary the original suspension decision taking into account the additional material. In his submission to simply affirm the original decision and its suspension period would mean that at its completion Mr Mahe would face another Department decision and missive suspending his authority because of the nature of his driver’s licence (and effect of cl 33 of the Tax-cab Regulation) and this would not be a desirable or practical course to adopt. It might also contribute to further frustration and confusion on Mr Mahe’s part. Accordingly Mr Wozniak’s submission was that the Tribunal ‘vary the decision to suspend Mr Mahe until he obtains a full driver’s licence and completes the defensive driving course’. Mr Wozniak added that Mr Mahe would still be permitted to drive a bus because the Bus Regulations have not been amended in the same way the Taxi-cab Regulation has been.

64 In Mr Wozniak’s submission the effect of the failure to meet Taxi-cab Regulation criterion 33(2)(b) is automatic for an applicant for an authority, the driver must meet the criterion and if s/he does not, the driver is not eligible for an authority (see s. 33B (2)). The nature of that decision is mandatory. No distinction was made by Mr Wozniak between an applicant for an authorisation and an already existing authority holder such as Mr Mahe.

65 The Tribunal agrees that the decision is mandatory in the first instance, an applicant must not be granted an authority if he does not hold the relevant driver’s licence. In the second instance where an existing authority holder no longer holds the requisite driver’s licence the operation or effect of the clause is not so clearly ‘automatic’. There is no express provision applicable to these circumstances rendering a taxi authority ineffective while the status or nature of the authority holder’s driver licence is altered (as there is in the circumstances of a licence suspension or cancellation addressed by clause 79(5)).

66 Although the Tribunal previously relied on Mr Wozniak’s argument that because Mr Mahe does not hold a driver’s licence of the requisite kind to meet the criterion in cl.33(2)(b) of the Taxi-cab Regulation due to his holding a conditional (good behaviour) licence it follows that while Mr Mahe holds such a conditional driver’s licence (ie between 19.12.2001 and 19.12.2002) he is ineligible to hold a taxi-driver authority and therefore it is automatically suspended by operation of the clause, the Tribunal does not rely on that argument for present purposes.

67 The Tribunal considers that the power to vary, suspend or cancel an existing taxi-driver authority under the Act is a discretionary power (s. 33F) which in its exercise must have regard to the purpose of authorisation under Division 5 of Part 4 of the Act. As noted above such purpose of an authority is to attest that the authorised person is considered:

(ii) to have sufficient responsibility and aptitude to drive a taxi-cab:

(ii) in accordance with law and custom. (s. 33(3)).

68 In the Tribunal’s view a change in status or type of driver’s licence held by an authority holder and the reasons for that change may be very relevant considerations for the purposes of determining an authority holder’s continuing fitness to hold an authority and the terms of that authority.

69 As noted above the Tribunal considered the Director-General’s original decision to suspend Mr Mahe’s authority to be correct. The Tribunal considers that Mr Mahe’s driving and traffic history and record in itself forms a sufficient basis, in its evidencing consistently unsafe driving practices, to question that the attestation as to his fitness could be maintained. Mr Mahe’s suggestion he believed that once he had ‘dealt’ with a traffic offence, either by paying the fine or answering it in court, that that was ‘the end of it’ is not accepted. As an experienced driver Mr Mahe is well aware of the parallel demerit point system affecting driver’s licences. He was also aware of the Taxi Standards that require him to maintain a satisfactory driving record and that his failure to meet those standards could result in the suspension or cancellation of his taxi-driver authority. Mr Mahe’s choosing not to advise the Department accurately of his numerous traffic offences at the time of his authority application has provided additional support for the decision to suspend Mr Mahe’s authority. His explanations in this regard are not considered adequate.

70 There was no evidence before the Tribunal that Mr Mahe had completed a defensive driving course as required by the Director-General. Such may have occurred in the interim between the hearing and these reasons. This would be a matter of fact to be determined by the Director-General/Department prior to the lifting of the suspension.

Decision

71 In accordance with s. 63 of the Act the Tribunal has decided that in the circumstances of Mr Mahe’s application the correct and preferable decision having regard to the material before it is to vary the Director-General’s reviewable decision.

72 Mr Mahe’s taxi-driver authority is suspended until the expiration of the current period of applicable good behaviour conditions on his driver’s licence (19 December 2002) and until he has undertaken a ‘defensive driving course’ and produced written confirmation of his successful completion of such course.

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Citations

Mahe v Director General, Department of Transport [2002] NSWADT 266

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Chen v NSW Transport and Infrastrucure [2009] NSWADT 285

Cases Citing This Decision

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Chen v NSW Transport and Infrastrucure [2009] NSWADT 285

Cases Cited

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Statutory Material Cited

5

Singh v Director General, Department of Transport [1999] NSWADT 96

CITATION:	Mahe v Director General, Department of Transport [2002] NSWADT 266
DIVISION:	General Division
PARTIES:	APPLICANT Sione Ma Fuataimi Mahe RESPONDENT Director General, Department of Transport
FILE NUMBER:	013220
HEARING DATES:	9/11/01, 17/12/01, 17/01/02, 01/02/02
SUBMISSIONS CLOSED:	02/01/2002
DATE OF DECISION:	12/16/2002
BEFORE:	Lees M - 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 Passenger Transport Amendment Act 2000 Road Transport (Driver Licensing) Act 1998
CASES CITED:	McNamara v Arnold - BC9502405 (Supreme Court of South Australia Mathieson J, 26 October 1996) Singh v Director General, Department of Transport [1999] NSWADT 96
REPRESENTATION:	APPLICANT In person RESPONDENT A Wozniak, solicitor
ORDERS:	1. Mr Mahe’s taxi-driver authority is suspended until the expiration of the current period of applicable good behaviour conditions on his driver’s licence (19 December 2002) and until he has undertaken a ‘defensive driving course’ and produced written confirmation of his successful completion of such course.