McKinnon v Department of NSW Transport and Infrastructure

[2010] NSWADT 70

CITATION:	McKinnon v Department of NSW Transport and Infrastructure [2010] NSWADT 70
DIVISION:	General Division
PARTIES:	APPLICANT Kenneth McKinnon RESPONDENT Department of NSW Transport and Infrastructure
FILE NUMBER:	103013
HEARING DATES:	19 February 2010
SUBMISSIONS CLOSED:	19 February 2010
DATE OF DECISION:	19 March 2010
BEFORE:	Grotte E - Judicial Member
CATCHWORDS:	Taxi Authority - Suspension
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990
CASES CITED:	Sterjovski –v- Director-General, Department of Transport (2002) NSWADT 10 Farquarson –v- Director-v- Director –General of Transport (1999) NSWADTR 53;
REPRESENTATION:	APPLICANT In person RESPONDENT A Wozniak, solicitor
ORDERS:	The decision of the Director-General is affirmed.

REASONS FOR DECISION

1 On 27 January 2010 the Director-General of the Department of NSW Transport and Infrastructure (the Director-General) suspended Mr Kenneth McKinnon’s (Mr McKinnon) Taxi Driver Authority number AP2421 essentially because he had been charged with “Assault Occasioning Bodily Harm” as a result of an altercation he had with a passenger of his taxi on 10 December 2009.

2 Mr McKinnon is a 65 year old taxi driver, who has been driving taxis for 23 years, during which tie he has not been the subject of any previous criminal complaints by passengers and who has no prior criminal record. Ms McKinnon is currently in receipt of a pension but he claims that he is reliant on income from taxi driving to pay for his various living expenses.

3 Mr McKinnon has applied to this Tribunal to review the Director-General’s decision to suspend his authority to ensure that it is the correct and preferable one having regard to all the relevant material and law. The reviewable decision is the decision of the Director-General to suspend Mr McKinnon’s authority to drive a taxi. On 2 February 2010 Mr McKinnon applied to the Tribunal for a stay of the reviewable decision. The stay was not granted.

4 On 27 January 2010 the Director-General advised Mr McKinnon that:

“…the NSW Transport and Infrastructure has a continuing obligation under the Passenger Transport Act 1990, to ensure that persons authorised to drive public passenger vehicles are fit and proper persons with sufficient responsibility and aptitude to drive the vehicle in accordance with the conditions and standards under which the vehicle concerned is operated and in accordance with the law and custom.

To be of ‘good repute and in all other respects a fit and proper person’ to drive a public passenger vehicle the community must have confidence that a driver would behave appropriately at all times, and comply with the rules and regulations governing public passenger transport. The seriousness of the offence recorded shows a betrayal of the confidence the community instils in the driver of a public passenger vehicle and demonstrates that you are not fit to hold a public passenger driver authority.

It is not appropriate for the Delegate of the Director-General whose responsibilities relate to public passenger vehicle authorisation to go behind the information supplied by the NSW Police so as to examine the weight of the Police case.

In view of the nature of your behaviour and the offence recorded the Delegate of the Director-General can no longer attest to you being a fir and proper person for the purposes of the Passenger Transport Act 1990.”

5 Mr Wozniak on behalf of the Director-General referred the Tribunal to the NSW Police Facts Sheet, which sets out the facts upon which the Police rely to support the charge of “assault occasioning actual bodily harm”.

6 Mr Wozniak submitted that not only is the offence serious but the seriousness is amplified by the fact that it occurred in the course of the regulated activity, that is, while Ms McKinnon was driving taxis and he allegedly assaulted his passenger.

7 There is no dispute that an altercation took place on 10 December 2009. The NSW Police Facts Sheet states in summary, that on 10 December 2009 Mr McKinnon picked up a passenger, Adam Knight, in Chippendale. Mr Knight instructed Mr McKinnon to take him to an address in Leichhardt. Mr Knight was in the back seat of the taxi. Mr Knight instructed Mr McKinnon where to go and while driving along Hereford Street, Forest Lodge, asked Mr Mc Kinnon “Where are you taking me?” Mr Knight responded “Where do you want to go?” An argument followed between Mr Knight and Mr McKinnon. Mr McKinnon stopped the taxi at the bottom of Hereford Street and said words to the effect of “I am not driving any further until you show me that you have some money”. Mr Knight argued with Mr McKinnon and Mr McKinnon ordered him to get out of the cab. Mr McKinnon refused to get out of the cab and continued to argue and Mr McKinnon opened his door, walked around to the passenger side of the taxi and allegedly began to punch Mr McKinnon’s face and head with closed fists. Mr Knight allegedly kicked Mr McKinnon, attempting to stop the assault and got out of the taxi, running away into a reserve, which backs onto Hereford Street. Mr Knight fell over and twisted his ankle. Mr McKinnon allegedly continued to punch him on the head and face, while Mr Knight was on the ground. Mr McKinnon also allegedly struck Mr Knight’s face and head with a coin tray he had removed from his taxi. Mr Knight tried to back away but Mr McKinnon allegedly continued to punch him. Mr Knight called 000 on his mobile phone and told the operator the registration number of the taxi. Mr McKinnon left the scene while Mr Knight was on the phone. The police arrived and found Mr Knight in the reserve are noting he had a large amount of blood on his face, ear, head and clothing. The police found a number of items in the reserve including a pair of red framed reading glasses and a number of coins. The police interviewed Mr McKinnon on 11 December 2009 once he had been identified as the driver of Taxi T-1039 but he denied any involvement. The police noted a small scratch on Mr McKinnon’s left check and questioned him about it. He told the police that he had sustained the scratch/cut from banging his head on a cupboard. Following further enquiries Mr McKinnon conceded that he had involved in the altercation but he denied being the aggressor and said that he had been afraid he would be hurt. He also strenuously denied continuing to hit Mr Knight while he was on the ground. He explained he had previously denied any involvement because he felt guilty.

8 Charges have been laid by the police against Mr McKinnon and are currently before Balmain Local Court. Mr McKinnon told the Tribunal that he intends to defend the charges.

9 Mr Wozniak submitted that it is appropriate for the Tribunal to suspend Mr McKinnon’s authority despite the fact that he has not yet been convicted and the charges are still pending. Mr Wozniak submitted the Tribunal should not have regard to the strengths or weakness of the case against Mr McKinnon. He submitted the Tribunal’s task is to determine whether the Director-General made the correct and preferable decision.

10 Mr McKinnnon relied on his long and unblemished record as a taxi driver and also on several testimonials attesting to this good character and his fitness to hold an authority. Mr McKinnon made submissions on his own behalf to the Tribunal. He submitted that he would be strenuously defending the charges and that the passenger was affected by either drugs or alcohol or both. He submitted he was acting in self-defence because he was afraid that he would be harmed. He submitted that he wants to earn a living and he needs his taxi authority to do so. He believes that after he has defended the charge, he will be found to be blameless. He submitted that he is a peaceful and rational human being with no criminal convictions.

11 In summary the testimonials on which Mr McKinnon relies are as follows:

(i) Dr Burke stated on 3 February 2010 that Mr McKinnon had been a patient of his for over 30 years. He noted that in 1996 Mr McKinnon sustained a major head injury in a bike accident and was hospitalised for over three months as a result. Dr Burke states that because of this, a further blow to the head, which is said to have occurred in the incident, may have triggered a seemingly more vigorous response from him than would normally be expected.
(ii) T Borrer stated on 12 February 2010 that he has known Mr McKinnon for about 11 years and has shared with him the driving of a taxi. Mr Borrer stated that Mr McKinnon has always been “friendly, punctual showed himself to be a most solid citizen”.
(iii) Mr Don Willessee stated on 9 February 2010 that he has known Mr McKinnon for about 20 years having met him as a member of the Northbridge Golf Club. Mr Willessee stated that is a conscientious taxi driver who has always told him “the customer is the job”. Mr Willessee stated that Mr McKinnon told him about the incident and that he was surprised given his character. Mr Willessee stated that Mr McKinnon is seriously distressed by the incident and believes that it has been a life changing/learning experience.
(iv) Bryan Vowles stated on 13 February 2010 that Mr McKinnon drove his taxi for three shifts week from 2 February 1999 to 1 October 2008 and he considered him to be a truly professional driver. He stated he has a disciplined approach to his work and there were never any reports of rudeness or harassment of passengers.
(v) Mick Craig, the ‘boss’ of Firm Australia Pty Ltd, stated on 12 February 2010 that he has known Mr McKinnon for most of his 60 years, having grown up with him in Willoughby. He stated that Mr McKinnon is a man of great integrity and “one of the finest men he has ever met”. He is of good character, honest, hardworking and from a “good” family in the district. He stated he is aware of the charge of assault occasioning bodily harm but that this is completely out of character. He stated that Mr McKinnon has expressed remorse about the situation.
(vi) Robert Liu, Managing Director of Bennelong Cabs Pty Ltd, stated on 9 February 2010 that Mr McKinnon has been driving a taxi for Bennelong Cabs Pty Ltd for 16 months and he had always been reliable, polite and a competent driver. He stated that he was shocked to learn of the assault charge and found it difficult to believe that Mr McKinnon was at fault.
(vii) Warwick McClure stated on 5 February 2010 that he has known Mr McKinnon for 55 years and he always found him to have good manners, to be honest and displayed friendship. He was shocked to learn of the assault charge.
(viii) Linden Gibson, Vice-President of the Northbridge Golf Club, stated on 4 February 2010 that he has known Mr McKinnon for about 15 years through their mutual membership of the Northbridge Golf Club. He stated that he always found Mr McKinnon to be honest, reliable, helpful and to be of a pleasant and passive demeanour. He stated that he was surprised by the assault charge as he considered it to be totally out of character.
(ix) Stephen Guy stated on 3 February 2010 that he has known Mr McKinnon for 18 years and that Mr McKinnon drove his taxi in July 1996. He stated that in October 1996 Mr McKinnon had a bicycle accident, which left him with serious head and spinal injuries. He knew him to be reliable, honest, courteous and a thorough gentleman. Mr McKinnon has had a very long association with North Sydney Football Club and the McKinnon name is held in very high regard.
(x) Jann Cornelson, Property Manager, stated on 5 January 2010 that she has known Mr McKinnon since 1989 when he was Captain of the Northbridge Golf Club. She was surprised to learn about the assault charge because in her opinion, Mr McKinnon has always been pleasant, polite, well liked and highly respected. He is a peaceful and amiable type of person.
(xi) Jenny Culbert stated on 10 February 2010 that she has known Mr McKinnon for over 30 years and during that time has always found him to be a gentle, polite and understanding person. The crime with which he has been charged is completely out of character and in her opinion, he has always conducted himself with the utmost integrity and he is a valued and caring member of the community.
(xii) Peter Pace stated on 9 February 2010 that he has known Mr McKinnon for about 30 years. He has found him to be a good character, honest, polite and a conscientious worker. He stated that his family, including his two brothers have served the NSW Police Force for about 40 years. They are all highly respected in the community and they are law-abiding citizens. Mr Pace stated that Mr McKinnon has been a serving member of the Northbridge Golf Club for about 24 years, having served as a Director and Club Captain. He stated that he has travelled in Mr McKinnon’s taxi-cab as a passenger and he was shocked to hear about his terrifying experience with a passenger who has had him charged with assault.

12 Mr Wozniak referred the Tribunal to a decision of the Tribunal in the matter of Sterjovski –v- Director-General, Department of Transport (2002) NSWADT 10 (Sterjovski), Judicial Member Montgomery presiding. In that matter Mr Sterjovski had no history of criminal charges but had been charged with assault, which had not been determined prior to the Tribunal hearing. Judicial Member Montgomery stated that the “existence of the criminal proceedings form part of the material” to which he could have regard. Judicial Member Montgomery also referred to and followed the principles set out in a decision by the President of the Tribunal in Farquarson –v- Director- General, Department of Transport (1999) NSWADT 53 (Farquarson) which set out the matters to be considered by a Tribunal in matters where there are criminal charges pending. The President stated in Farquarson:

An Administrator of a licensing scheme would be expected to respond to advice that a regulated person had been charged with a serious criminal offence especially one arising out of circumstances that bear directly on the activity in relation to which the licence has been issued.

…

In considering whether to exercise any discretion to suspend or otherwise interfere with the licence an Administrator cannot reasonably be expected to inquire into the strength or weakness of the case against the licensee. Similarly a review tribunal cannot be expected to go behind the information on which the Administrator has relied to the extent of examining the strengths and weaknesses of the prosecution case.

13 In Sterjovski the Tribunal stated that the fact that the alleged offence of assault occurred in the course of he regulated activity was an “issue, which the Department could take into account in determining to suspend Mr Sterkovski’s licence.”

CONSIDERATION

14 I have considered all of the evidence before me and in particular I have had regard to the following matters:

(i) the fact that although charges have been laid they have not been determined;
(ii) the serious nature of the allegations;
(iii) the fact that the conduct alleged occurred in the regulated activity of driving taxis;
(iv) the responsibility of the Director-General under section 11 of the Passenger Transport Act1990 in respect of the requirement that the Director-General must be satisfied that the person is considered to have sufficient responsibility and aptitude to drive taxis;
(v) Mr McKinnon’s prior good character and unblemished driving record;
(vi) Ms McKinnon’s intention to defend the allegations and his denials; and
(vii) the limited nature of the Tribunal’s review of the decision to suspend Mr McKinnon’s licence.

15 The material taken into account by the Director-General in coming to the decision to suspend Mr McKinnon’s taxi driver authority was the correct material according to the principles set out in Farquarson and Sterjovski.

16 In my view the allegations are serious and they are indeed amplified by the fact that the assault occurred in the regulated activity with a passenger. I have had regard to the testimonials, which suggest that Mr McKinnon’s actions were out of character. Of some note however, is the report from Dr Burke, who appears to concede that the actions of Mr McKinnon were an overreaction. The incident may have been an aberration and Mr McKinnon may have felt himself to be provoked, but his response was inappropriate and dangerous. In contrast to the testimonials attesting to Mr McKinnon’s honesty and good character are the facts that he conceded that he could have called for assistance but did not if he was in trouble, that he left the scene when Mr Knight called for help and that he initially lied to the police about his involvement. These matters show that Mr McKinnon exercised poor judgment and that he behaved inappropriately. The Director-General is required to make decisions in the public interest and for the protection of the travelling public when deciding who should have a licence and who should not. I am satisfied that the decision made by the Director-General in the circumstances of this case was reasonably available to the Director-General and the correct and preferable one.

17 The decision of the Director-General is affirmed.