MOHAMED and DEPARTMENT OF TRANSPORT
[2011] WASAT 76
•11 MAY 2011
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: ROAD TRAFFIC ACT 1974 (WA)
CITATION: MOHAMED and DEPARTMENT OF TRANSPORT [2011] WASAT 76
MEMBER: MR C RAYMOND (SENIOR MEMBER)
HEARD: 8 MARCH 2011 AND 30 MARCH 2011
DELIVERED : 11 MAY 2011
FILE NO/S: CC 78 of 2010
BETWEEN: AHMED SHEIKH MOHAMED
Applicant
AND
DEPARTMENT OF TRANSPORT
Respondent
Catchwords:
Road Traffic Act 1974 (WA) Review of decision to cancel an extension T endorsement to driver's licence Matter remitted by Supreme Court for rehearing before differently constituted Tribunal Issues on rehearing limited to consideration of whether applicant of good character Basis upon which may conclude there is reason to suspect or reason to believe not of good character discussed
Legislation:
Evidence Act 1996 (WA)
Road Traffic (Authorisation to Drive) Regulations 2008 (WA), reg 7, reg 11(1), reg 12, reg 12(1), reg 12(2)(a), reg 12(7), reg 25, reg 25(d), reg 28(3), reg 28(4), reg 41, reg 41(1), reg 41(2), reg 41(3), reg 42, reg 42(2), Pt 2, Div 3
Road Traffic Act 1974 (WA), s 48, s 102(7)
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2), s 27(3), s 29(1), s 29(5), s 29(5)(b), s 32(1), s 32(2), s 32(4), s 32(7)(a)
Taxi Act 1994 (WA)
Taxi Regulations 1995 (WA), reg 13A(1), s 16(1)(a), reg 15, reg 21
Result:
Decision under review set aside and substituted with order for suspension
Category: B
Representation:
Counsel:
Applicant: Ms L Black
Respondent: Mr B Levison, with Mr P Busby
Solicitors:
Applicant: Alana Padmanabham
Respondent: Department of Transport
Case(s) referred to in decision(s):
Commodore Homes (WA) Pty Ltd and Deegan & Anor [2007] WASAT 45
Elmi and Director General of Transport (Unreported, WASAT CC 1774 of 2010, 27 January 2011)
Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [No 2] [2008] WASC 166
Hardingham v Chief Executive Officer, Department for Child Protection [2011] WASC 86
Mohamed and Department of Transport [2010] WASAT 68
Mohamed v Director General Department of Transport [2010] WASC 375
Nabhan and Director General of Transport (Unreported, WASAT CC 1595 of 2010, 21 January 2011)
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Real Estate and Business Agents Supervisory Board v LJW [2011] WASCA 35
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant applied for a review of a decision cancelling an extension T endorsement to his motor vehicle driver's licence permitting him to carry passengers for reward as a taxi driver.
The review was determined in favour of the respondent but that decision was set aside on appeal to the Supreme Court on the basis that the Tribunal had erred in treating traffic infringements as if they were convictions and in having regard to a psychologist's report which was not relevant to the matters in issue. The matter was referred back to the Tribunal, differently constituted, for rehearing and in that rehearing the only issue was whether or not the applicant is of good character.
The Tribunal examined the basis upon which it may be open to find the requisite statutory criteria that there is reason to suspect, or reason to believe, that a person is not of good character in accordance with the authorities referred to in Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [No 2] [2008] WASC 166. The Tribunal rejected submissions on behalf of the applicant that it was not appropriate to have regard to passenger complaints made against the applicant and his history of traffic infringements. The Tribunal found that it was required to have regard to certain passenger complaints which the parties had agreed were not to be relied on by the respondent, because material had been placed before the Tribunal concerning those complaints and it had to arrive at the correct and preferable decision, notwithstanding any such agreement. In the event, however, the Tribunal determined that no weight should be attached to such complaints because there was no supporting material upon which a reasonable suspicion or belief could properly be founded.
The Tribunal then considered in detail the evidence relating to a particular passenger complaint, in relation to which a witness statement had been provided, and the circumstances surrounding the applicant driving a taxi, after a decision had been made to cancel his T extension. The Tribunal accepted the applicant's evidence in relation to the passenger complaint. On the evidence the Tribunal was unable to find that the notice of cancellation had been served on the applicant. The Tribunal also declined to draw any inference adverse to the applicant in relation to his alleged breach of the taxi operating conditions by accepting a fare outside the restricted area imposed by the taxi plate conditions which was not pressed (although not abandoned) by the respondent on the rehearing.
In relation to the applicant's record of traffic infringements the Tribunal accepted that as the applicant had committed no breaches of road traffic laws for almost two years he had mended his ways in this regard. The number and nature of the traffic infringements reflected adversely on the applicant's character as at the date of the decision under review, but no longer formed a basis for a finding that he was not of good character as at the date of review. That history and consequent conclusion that the applicant was not of good character at that earlier time were however relevant and should be taken into account when considering any appropriate sanction on review.
The applicant was found by the Tribunal to have failed to display his taxi driver's identification card on the particular occasion and to have attempted to remove the identification card of another driver which was being displayed. Further, that the applicant had failed to log on with the taxi dispatch service on this occasion. All of this reflected adversely on the applicant's character because it indicated a propensity to disregard the taxi regulations when it suited him.
The Tribunal observed that in determining whether to suspend or cancel a T extension the objectives were primarily to protect the public and the reputation and standards of the taxi industry and not to punish the licensee. Cancellation should result only where these objectives could not be achieved by a suspension.
Taking into account all factors the Tribunal concluded that the correct and preferable decision was that the applicant's T extension be suspended for a period of one year from the date on which the original decision under review was made.
Background
The applicant (Mr Mohamed) seeks a review under reg 42 of the Road Traffic (Authorisation to Drive) Regulations 2008 (WA) (the regulations) of a decision made by a duly authorised delegate of the Director General of the Department of Transport to cancel his class T extension to his motor vehicle driver's licence, which authorises Mr Mohamed to drive a taxi for the purposes of carrying passengers for reward. The decision under review was made on 10 December 2009.
The matter has a protracted and unsatisfactory history. The decision was originally based (erroneously) on the number and nature of Mr Mohamed's convictions under the Road Traffic Act 1974 (WA) (RT Act) or regulations made thereunder. The alleged offences related to incidents over a period commencing on 17 November 2005 through to 9 May 2009. Mr Mohamed was not convicted in respect of any of those incidents. He received traffic infringement notices and elected to pay a penalty to avoid prosecution. Until amendments were made to the RT Act in 2008, s 102(7) of the RT Act provided for traffic infringements to be deemed convictions for the purposes of s 48 of that legislation. In 2008, the power granted to the Director General to refuse, cancel or suspend drivers' licences under s 48 of the RT Act was substituted by similar powers under reg 25 of the regulations. Both the previous s 48 of the RT Act and reg 25 of the regulations empowered the Director General to refuse to grant a licence based on the number or nature of the person's convictions for offences under the RT Act or regulations made thereunder but no amendment was made having the effect that a traffic infringement be regarded as a conviction for the purposes of reg 25.
During the course of the review the respondent added as a ground for justification of its decision that Mr Mohamed no longer satisfied the requirements for the grant of an extension T because it was alleged that he is not of good character
The Tribunal concluded that the decision under review would be affirmed: see Mohamed and Department of Transport [2010] WASAT 68 (Mohamed (1)). That decision was set aside on appeal to the Supreme Court in Mohamed v Director General Department of Transport [2010] WASC 375 (the Supreme Court decision). The Supreme Court upheld two grounds of appeal. The first ground related to the Tribunal taking into account offences alleged to have been committed by Mr Mohamed under the RT Act or the regulations thereunder, in respect of which traffic infringement notices were served. The second ground which was upheld related to the Tribunal taking into account a report from an occupational psychologist, Dr Paul Smith, which was held to be irrelevant to Mr Mohamed's character or to any fact in issue.
The Supreme Court acknowledged that there was other material before the Tribunal to which it could properly have regard in deciding whether there was reason to believe Mr Mohamed was not of good character and therefore sent the matter back for reconsideration and directed that the Tribunal be differently constituted. The Tribunal is now differently constituted. The parties are also represented by different counsel.
Broadly, the further material then before the Tribunal related to a series of complaints made by passengers concerning Mr Mohamed's conduct, the circumstances relating to the incidents which gave rise to the various infringement notices and the circumstances concerning an event on 16 January 2010, details of which will be addressed further below.
The Tribunal convened a directions hearing after the remittal from the Supreme Court in order to address the manner in which the rehearing was to be conducted. Counsel for both parties pressed that it was not necessary for the Tribunal to conduct a full oral hearing notwithstanding that credibility issues would have to be determined and that the parties were content, subject to some qualification, to rely on the material previously before the Tribunal in Mohamed 1. The qualifications related to disagreement on the extent to which any reliance could be placed on Dr Smith's report and on the customer complaints. The Tribunal therefore directed that the respondent file and serve a proposed amended statement of issues, facts and contentions and a supplementary bundle of any additional documents on which it wished to rely. Provision was made for Mr Mohamed to object to the proposed amendment, if so advised, and, failing any such objection, the matter was listed for hearing on 8 March 2011.
Correspondence between the parties filed with the Tribunal reflects that Mr Mohamed did have concerns about the proposed amended statement of issues, facts and contentions but elected to make his points at the hearing, rather than risk a delay of the final hearing. In accordance with the Tribunal's directions, the proposed amended statement of issues, facts and contentions, therefore, stands as the amended statement of issues, facts and contentions.
The parties ultimately reached agreement on some of the matters in issue arising from the form of the respondent's amended statement of issues, facts and contentions. The Tribunal was informed at the commencement of the hearing that the parties had agreed that the respondent would not rely on any of the complaints made against Mr Mohamed other than a particular complaint made by a person, named in the respondent's amended statement of issues, facts and contentions (headed 'Further - Statement of Issues, Facts and Contentions') who will be referred to in these reasons for decision as Ms P. Counsel for Mr Mohamed confirmed by letter dated 2 March 2011, addressed to the Tribunal, and copied to the respondent, that the respondent had clarified that it would not rely on Dr Smith's report 'other than to mention it in the context of the above complaint' (Ms P's complaint) (parenthesis added) which triggered serious concerns about the applicant's suitability and resulted in the referral to Dr Smith. Additional documents filed by the respondent related to Ms P's complaint but no further documents were filed relating to the other complaints.
The issues for determination
Based on the above clarification of the issues for determination, counsel for Mr Mohamed submitted, and counsel for the respondent did not suggest otherwise, that there were three matters in issue which would be determinative of the proceeding, namely:
1)Whether the complaint allegedly made by Ms P was admissible in these proceedings and, if so, whether it was capable of demonstrating that Mr Mohamed is not of good character;
2)Whether the traffic infringements admitted against Mr Mohamed and his accumulation of demerit points could be taken into account when considering whether the applicant is of good character;
3)The extent to which the events said to have occurred on 16 January 2010 are relevant to Mr Mohamed's suitability to hold a T extension to his motor vehicle driver's licence.
I would add as the ultimate issue for determination whether:
4)In the event that any one or more of the above issues are determined adversely to Mr Mohamed:
a)Is Mr Mohamed of good character?
b)If not, what is the appropriate disposition of the case?
Notwithstanding the agreement between the parties that no reliance would be placed on the passenger complaints, other than that of Ms P, I raised at the commencement of the hearing on 8 March 2011 that it might be appropriate for the Tribunal to have regard to the other complaints, even if little or no weight might ultimately be attached to them. This was because, I indicated, the parties had filed material relating to those complaints which was before the Tribunal. Further, the Tribunal was obliged to arrive at the correct and preferable decision on review and therefore should possibly not be bound by an agreement between the parties concerning material which was before the Tribunal. Counsel for Mr Mohamed maintained her objection to any reliance being placed on such other complaints. In the circumstances, it is convenient to address first the extent to which, if at all, the Tribunal should have regard to the complaint made by Ms P, the other passenger complaints and the traffic infringements as being relevant to a consideration of Mr Mohamed's character.
Before addressing the above issues it is necessary to set out the legislative framework governing the case.
The legislative framework
The regulation of who may drive taxi cars in Western Australia is through the regulation of driver's licences. The Taxi Act 1994 (WA) includes provisions relating to whether a person is fit be the owner or lessee of taxi plates, or the provider of a taxi dispatch service, but is not concerned with fitness to be a driver.
The authorisation to drive a vehicle, including a taxi, is found in the regulations. The Director General may grant a person a licence authorising the person to drive a motor vehicle on a road: reg 7. A driver's licence does not authorise the holder to drive for the purpose of carrying passengers for reward, in a taxi or otherwise, unless it is endorsed under reg 12: reg 11(1). Under reg 12(1) and reg 12(2)(a), the Director General may endorse a driver's licence to include 'extension T'. The holder of a licence endorsed with extension T is authorised to drive for the purposes of carrying passengers for reward, including in a taxi.
Under reg 12(7):
(7)The Director General may make an extension T endorsement if the applicant pays the fee, if any, prescribed under the Road Traffic (Charges and Fees) Regulations 2006 for making the endorsement and the Director General is satisfied that the applicant
(a)has, for a period of at least 3 years or periods adding up to at least 3 years, held a relevant driving authorisation; and
(b)has reached 20 years of age; and
(c)is of good character; and
(d)is mentally and physically fit to drive a motor vehicle for the purposes of carrying passengers for reward; and
(e)has successfully completed a training course or test approved by the Director General.
The criteria for the grant of a driver's licence generally, are found in Pt 2, Div 3 of the regulations. Regulation 25 sets out grounds on which the Director General may refuse to grant a driver's licence:
The Director General may refuse to grant a driver's licence to a person if the Director General has reason to believe that the person
(a)is not of good character; or
(b)suffers from a mental or physical condition (which may include a dependence on drugs or alcohol) that is likely to, or treatment for which is likely to, impair the person's ability to control a motor vehicle; or
(c)is disqualified under a foreign law, as defined in section 44D(2) of the Act, from being authorised to drive; or
(d)should not hold a driver's licence because of the number or nature of the person's convictions for
(i)offences under the Act or regulations made under it; or
(ii)for offences under laws referred to in paragraph (c) that are similar in substance to offences under the Act or regulations made under it.
The grounds for refusal in reg 25 coincide with the criteria for the grant of an extension T endorsement only in the requirement of good character. Regulation 12 is concerned with an extension to the authorisation conferred by a licence. It assumes the applicant for an extension is otherwise fit to hold a driver's licence. The grant of an extension T endorsement focuses on an additional level of fitness specific to the driving of a taxi and requires the Director General to be satisfied the applicant is mentally and physically fit to drive a motor vehicle for the purposes of carrying passengers for reward. Regulation 25 has a more general requirement - the existence of a mental or physical condition likely to impair the ability to control a motor vehicle. The ground for refusal in reg 25(d) is not found in the criteria in reg 12.
The Director General may vary a licence. Before varying a licence to extend the holder's authorisation to drive, the Director General has to be satisfied that the person would be eligible to hold the licence as varied, and that it would be appropriate to make the variation: reg 28(3). The Director General may also vary a licence by suspending or cancelling any authorisation that the licence gives: reg 28(4). It is common ground that this regulation applies to a variation to cancel or suspend an extension T. Regulation 28(4) provides:
Before varying a driver's licence in a way that would suspend or cancel any authorisation that the licence gives, the Director General has to have regard to the principles in regulation 41 that apply to the cancellation or suspension of a driver's licence, and regulation 41(2) and (3) apply as modified for the purpose of helping the Director General to decide whether to make the variation.
Regulation 41(1), (2) and (3) provide:
(1)The Director General may, by notice in writing given to the licence holder
(a)suspend a person's driver's licence if the Director General has reason to suspect that there are grounds on which the Director General could, if then considering whether to grant the driver's licence, refuse under regulation 25 to grant it; or
(b)suspend or cancel a person's driver's licence if -
(i)the Director General has reason to believe that there are grounds on which the Director General could, if then considering whether to grant the driver's licence, refuse under regulation 25 to grant it; or
(ii)the Director General is no longer satisfied of each of the matters referred to in regulation 24.
(2)In order to decide whether there is a basis for suspending or cancelling a person's driver's licence under subregulation (1) the Director General may, by notice in writing given to the licence holder, require the person to satisfy the Director General within the period specified in the notice, being not less than 14 days, as to any matter relevant to that decision.
(3)If the person fails to satisfy the Director General within that period or within any further period that the Director General allows, the Director General may
(a)cancel the person's driver's licence; or
(b)impose or vary any condition on the licence; or
(c)suspend the licence until the Director General is satisfied as to the matter.
The practical effect of reg 28(4), read with reg 41, is that relevant to this case, the Director General:
a)may suspend a T extension if the Director General has reasons to suspect there are grounds on which the Director General could, if then considering whether to grant the T extension, refuse to grant it;
b)may suspend or cancel a T extension if the Director General has reason to believe that there are grounds on which the Director General could, if then considering to grant the T extension, refuse to grant it.
Finally, reg 42 provides that decisions of the Director General, including a decision to vary a driver's licence by amending or cancelling an endorsement on it, are reviewable decisions. A person aggrieved by a reviewable decision of the Director General may apply to the Tribunal for a review of the decision.
The review before the Tribunal is a hearing de novo (s 27(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act)) and is not confined to the matters and information that were before the decisionmaker at the time of the decision. The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review (s 27(2) of the SAT Act). Further, the reasons for decision provided by the decision-maker, or grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision (s 27(3) of the SAT Act).
The Tribunal, on review, has the same functions and discretions corresponding to those exercisable by the decision-maker in making a reviewable decision (s 29(1) of the SAT Act).
Pursuant to s 29(5) of the SAT Act, the decision under review, as affirmed or varied by the Tribunal, or a decision that the Tribunal substitutes for that of the decision-maker:
a)is to be regarded as, and given effect as, a decision of the decision-maker; and
b)unless the enabling Act states otherwise or the Tribunal orders otherwise, it is to be regarded as having effect, or having had effect, from the time when the decision reviewed would have, or would have had, effect.
The Evidence Act 1996 (WA) does not apply to the Tribunal's proceedings. The Tribunal is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures, or the regulations or rules make them apply (s 32(2) of the SAT Act). Further, the Tribunal may inform itself on any matter as it sees fit (s 32(4) of the SAT Act).
Pursuant to s 32(7)(a) of the SAT Act the Tribunal is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in a proceeding. The Tribunal is, however, bound by the rules of natural justice except to the extent that the SAT Act or the enabling Act authorise, whether expressly or by implication, departure from those rules (s 32(1) of the SAT Act).
The criteria and principles to be applied in determining whether or not to suspend or cancel an extension T endorsement
Applying the principles in reg 41(1) the Director General may suspend an extension T endorsement if, when considering whether to grant the extension, the Director General could refuse to grant it. The criteria to be applied in determining whether or not to grant an extension T, are as set out in reg 12(7) and the only relevant criterion in this matter, is a requirement that an applicant for an extension T endorsement be of good character.
On the other hand, if the Director General has reason to believe, rather than merely reason to suspect, there are grounds on which the Director General could refuse to grant a T extension, the Director General may either suspend or cancel that endorsement.
The suspension or cancellation is effected by way of a variation to the motor vehicle driver's licence, effective pursuant to reg 25.
The distinction between reasonable grounds for suspecting something, as opposed to the holding of a reasonable belief in relation to the matter, was addressed in Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [No 2] [2008] WASC 166, at [16] and following (Gypsy Jokers). While the regulations do not refer to reasonable belief but rather to 'reason to believe', that, in my view, does not result in any difference in meaning. To have a reasonable belief must mean that there is reason to believe, as evident from the extract from that decision below.
16In George v Rocket (1990) 170 CLR 104, the High Court considered legislation which allowed a justice to issue a search warrant when there were 'reasonable grounds for suspecting' certain things, as well as 'reasonable grounds for believing' others. The court noted (at 115) that suspicion and belief are different states of mind, and went on to state:
Suspicion, as Lord Devlin said in Hussien v Chong Fook Kam [[1970] AC 942, 948] 'in its ordinary meaning is a state of conjecture or surmise where proof is lacking: "I suspect but I cannot prove."' The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown.
17The court also approved the dictum of Kitto J in Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 (at 303) that:
A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to 'a slight opinion, but without sufficient evidence', as Chambers's Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence.
18As to the state of mind that is necessary for a 'reasonable belief', the court held (at 116):
The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.
…
In these proceedings and in accordance with the regulations, Mr Mohamed's driver's licence may be varied (reg 28(3)) by suspending or cancelling the endorsement thereon of a T extension depending upon whether there is reason to suspect, or reason to believe that there are grounds on which the extension might be refused (reg 28(4) and reg 41) and the relevant ground on which such refusal may be justified is that Mr Mohamed is not of good character (reg 28). In determining whether or not Mr Mohamed is of good character it is necessary to bear in mind the distinction between what constitutes good character and the concept of what might constitute a person fit and proper to hold a licence as discussed in the Supreme Court decision at [27] and following. Under the regulation I consider that good character to have the ordinary meaning which refers to a person's moral qualities: see further the discussion in Real Estate and Business Agents Supervisory Board v LJW [2011] WASCA 35.
I now turn to address the extent to which, if at all, the Tribunal should have regard to the complaint by Ms P, the other passenger complaints and the traffic infringements relevant to a consideration of Mr Mohamed's character.
The Complaint of Ms P
The basis of Mr Mohamed's objection to any reliance being placed on the complaint of Ms P is that she was not called to give evidence, despite the request from Mr Mohamed's counsel that she be called, and consequently the information relied upon by the respondent was not tested in any way. These criticisms are valid.
Ms P makes allegations that Mr Mohamed behaved towards her in a sexually inappropriate manner by suggesting that he be invited in for coffee and that he also repeatedly stroked her arm. The allegations are obviously serious when one has regard to the responsibility of a taxi driver. A taxi driver will have occasion to convey young women who are in a vulnerable state under varying degrees of influence from alcohol or other illicit substances. The complaint is therefore relevant to a determination of Mr Mohamed's good character or otherwise.
The complaint by Ms P was made on 11 September 2007. Following investigation by Mr Keith Evans (on behalf of the respondent), the interviewing of Mr Mohamed and his decision to accept an infringement notice, the complaint was not pursued any further. One can well understand that the respondent would not wish to issue a witness summons requiring a complainant to come forward nearly four years later. But, in making a decision like that, the respondent takes a risk. Because the Tribunal is not bound by the rules of evidence, it may receive and if appropriate rely on such a complaint. What weight will be given to the complaint depends on the manner in which it is made, the existence of any material supporting it and how the other party deals with it.
The Other Passenger Complaints
The other passenger complaints were referred to in the respondent's statement of issues, facts and contention and were included in its bundle of documents which were before the Tribunal in Mohamed 1. While they formed part of the case against Mr Mohamed, even at that stage, the contentions of the respondent reflected that 'the complaints made against him from customers are unsupported and some seem not to have been resolved or investigated and for that reason we cannot place a great deal of weight on them except to say that they exist and that there are a number of them'.
It is open to the Director General, and therefore the Tribunal on review, to act on any material which is sufficiently probative such that either on its own, or with other material before the Tribunal, it is capable of giving rise to either a reason to suspect, or a reason to believe that the holder of a T extension is not of good character. The former need amount to no more than a slight opinion, but without sufficient evidence. Even a reasonable belief may be formed on more slender evidence than proof: see Gypsy Jokers above. If the material had never been before the Tribunal, and given that on any basis, very little weight could be placed on the complaint, I would have acceded to the submissions on behalf of Mr Mohamed that no regard be had to the complaints. All of the passenger complaints were before the Tribunal in Mohamed 1 and were relied upon by the Tribunal at para 45 of that decision. As was recognised in the Supreme Court decision at para 32, if material has some probative value, the weight to be attached to it is a matter for the Tribunal. Counsel for Mr Mohamed frequently made references to criminal procedures and principles during the course of the hearing and it is therefore important to note that what might constitute probative value in a criminal matter, or even in an ordinary civil case, will be more exacting than the probative value sufficient to form a reasonable suspicion or belief. I accordingly consider that it is appropriate to have regard to the other complaints in order to determine what weight, if any, should attach to them.
The Traffic Infringements
Details of Mr Mohamed's traffic infringements which led to him accumulating 33 demerit points and which resulted in a suspension of his driver's licence were before the Tribunal in Mohamed 1 and were relied upon by the Tribunal, albeit that the Tribunal, as then constituted, erred in treating the traffic infringements as if they were convictions, which they were not.
Counsel for Mr Mohamed submits that traffic infringements cannot bear upon the issue of good character, and that as previous decisions of the Tribunal holding otherwise are not binding precedent, they should not be followed. This submission overlooks the principle that the administration of the law would become unpredictable, to the detriment to the public interest, if earlier administrative decisions of the Tribunal were not followed, unless considered to be wrongly decided: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639; Commodore Homes (WA) Pty Ltd and Deegan & Anor [2007] WASAT 45. The respondent specifically relied on two earlier decisions of the Tribunal, both unreported, being Nabhan and Director General of Transport (Unreported, WASAT CC 1595 of 2010, 21 January 2011), and Elmi and Director General of Transport (Unreported, WASAT CC 1774 of 2010, 27 January 2011) in which reliance was placed on traffic infringements as relevant to a determination of good character of a taxi driver.
I am not persuaded that the above decisions are wrong, and therefore I should follow them. In my view the decisions are correct in principle. Obviously it is a matter of fact and degree to be assessed in every case whether or not the traffic infringements under consideration are capable of reflecting on good character. In the case of a taxi driver it is self-evident that public safety must be at the forefront of any consideration of whether or not someone is suitable, by reason of their character, to be licensed to carry passengers for reward. If a history of traffic infringements, which has not been disputed by a driver, shows a propensity to show scant regard to observing traffic regulations of a nature such that a breach is likely to expose passengers and other road users to risk of injury, that may well lead to a conclusion that the particular person does not have the moral qualities required to be so licensed.
Accordingly, and also for the reasons set out above in considering whether regard should be had to the other passenger complaints, I conclude that regard should be had to the traffic infringements acknowledged by Mr Mohamed.
I turn therefore to consider the issue of character.
Is Mr Mohamed of good character?
In order to determine the question of Mr Mohamed's good character, or otherwise, I therefore address the remaining aspects of the three issues as referred to by counsel for Mr Mohamed, together with the additional issue of the other passenger complaints. It is convenient to deal with the other passenger complaints first.
The other passenger complaints
During the period 23 April 2007 to 11 August 2008 a total of six passenger complaints were lodged with the respondent concerning Mr Mohamed. One of these was a complaint by Ms P lodged on 11 September 2007, which according to the respondent's statement of issues, facts and contentions, resulted in the referral of Mr Mohamed to Dr Smith for assessment. That particular complaint is dealt with further below and it is the other five complaints which are dealt with now.
The documents filed by the respondent consist only of the lodgement form as completed by the respondent which shows the date on which each complaint was closed. There is nothing to indicate whether each complainant filed and signed a written complaint. The names and contact details of each complainant are given.
It can be inferred that generally passengers will not lightly make a complaint but that does not mean that there is any justification for a complaint. A complaint may well be made based on wrong motives, or even if on good motives, may be found to be entirely unjustified. None of these complaints were investigated by the respondent so that Mr Mohamed was not afforded an opportunity to respond to these complaints at a time when they might have been fresh in his mind.
If the respondent receives complaints concerning a taxi driver and has some sufficient material to support a reasonable suspicion, or reasonable belief, the Director General may suspend or cancel the T endorsement consistent with the principles set out in reg 41. In assessing the lower of the two tests it must be borne in mind that there must be reasonable grounds for suspicion. There must be a supportable basis for that suspicion: see the discussion by Justice Heenan in Hardingham v Chief Executive Officer, Department for Child Protection [2011] WASC 86 (Hardingham), in particular the conclusions at [9] and [11]. Ordinarily, for instance, in cases involving alleged sexual offences by a taxi driver, it has been the practice of the respondent to put before the Tribunal proof that charges have been laid, the statement of material facts and witness statements.
In the absence of any supporting material in relation to the passenger complaints considered here, none of them can have any weight.
The complaint by Ms P
The complaint by Ms P was lodged on 11 September 2007. It related to the conveyance of Ms P and her friend by Mr Mohamed in his taxi during the early hours of Sunday morning, 9 September 2007. Ms P provided what appears to be her own written statement on 11 September 2007 and later signed another witness statement dated 1 October 2007. On the same date her friend, who I shall refer to as Ms R, also provided a written statement. It is not necessary to set out the facts in much detail. It suffices to say that Ms P refers to the fare arrangements and the difficulty she had in obtaining and providing a cash deposit. She mentions that Mr Mohamed already had another fare paying couple with whom they shared the taxi as they were going in the same direction. It can be inferred from her statement that she was sitting in the front left-hand passenger seat because she refers to her friend being behind, asleep (at one point) in the back. After the other couple had been dropped off she states that Mr Mohamed asked inappropriate questions about whether or not she and her friend were lesbians, whether she had a boyfriend, suggested that he should be invited in for coffee and kept touching and stroking her arm. Ms R in her statement describes how she woke up and witnessed Mr Mohamed stroking her friend's arm.
As this evidence had not been tendered during the initial hearing, Mr Mohamed was called in rebuttal.
Mr Mohamed recalled being interviewed by Mr Evans, the respondent's compliance officer to whom reference has already been made, about the alleged incident. Mr Mohamed denied any inappropriate sexual conduct towards Ms P but said that he elected to pay a penalty of $200 imposed by way of a taxi infringement notice which alleged a breach of s 16(1)(a) of the Taxi Regulations 1995 (WA) (the Taxi Regulations). Section 16(1)(a) of the Taxi Regulations is to the effect that a driver shall at all times while engaged as a driver or when plying for hire conduct himself or herself in an orderly manner.
Mr Mohamed stated that he believed the real issue with Ms P was that she could not understand the basis upon which he was entitled to 75% of the full fare from the couple who first boarded his taxi and a further 75% of the full fare from Ms P and her friend. He said she was very unhappy about this and thought that he was overcharging. He endeavoured to show her a card which explained the multiple sharing fee arrangement.
In a dramatic moment during his evidence, Mr Mohamed was asked whether it was possible for him to have stroked Ms P in the manner alleged. Mr Mohamed testified that he had an artificial left arm which was fitted at the shoulder and which was completely immobile. He removed his shirt to demonstrate the prosthetic limb was as he had described. He stated that the only way he could move the limb effectively was with his right hand. Otherwise he could achieve a slight movement by an exaggerated shoulder movement. It was self-evident that he could not have repeatedly touched or stroked Ms P's arm as alleged. Mr Mohamed's witness statement reflects that in March 2010 he was 34 years of age and that he lost his left arm at the age of 10 years as a result of injuries inflicted by a tank shell.
Mr Mohamed was cross-examined on all aspects of his version of the incident and was entirely unshaken. He presented well in giving evidence on this issue. Ms P and her friend Ms R were not called to give oral evidence, as mentioned earlier.
I accordingly find that there is nothing relating to the alleged incident concerning Ms P which reflects adversely on Mr Mohamed's character.
The traffic infringements
Mr Mohamed's traffic record is as set out in Exhibit D tendered at the original hearing.
The record shows he had recorded 16 separate traffic infringements between 17 November 2005 and 9 May 2009. Key aspects of these were as follows:
•33 demerits were accumulated;
•Eight infringements were for exceeding the speed limit; two were for making a Uturn where it was not allowed;
•Two infringements were contraventions of a red traffic control signal;
•One infringement was for failure to stop at a stop sign;
•One infringement was for failure to give way after leaving from a stop line.
In relation to the speeding infringements, six of the eight incidents related to travelling at speeds of between 10 and 19 kilometres per hour in excess of the speed limit. On an analysis of Mr Mohamed's previous evidence in relation to the incidents it is apparent that he has endeavoured to put the speeding offences down largely to the pressure of work and his attempts to meet the timing requirements of passengers. Similarly, he blamed a passenger for requiring him to commit a U-turn on the one occasion. Mr Mohamed endeavoured to explain that by saying that he had not deliberately committed the infringements he was not trying to avoid responsibility, that he had paid his price, had learned his lessons, that his driver's licence had been suspended for six months as a result of the breach of a good behaviour period election and that for close to a year (as to the date of the original hearing on 4 May 2010) he had not committed any other traffic infringements. (T:53, 04.05.10)
It was common cause that as at the final date of hearing on 30 March 2011 Mr Mohamed had not committed any further infringements of the road traffic laws.
During 2009 Mr Mohamed acknowledged two traffic infringements which occurred on 6 February 2009 and 9 May 2009. His driver's licence was suspended for six months during the period 14 July 2009 to 14 January 2010, as a result of the infringement on 6 February 2009 which breached the good behaviour period election made by him. The number and nature of infringements relating to speeding and non-observation of traffic lights or stop signs and the failure to give way after leaving a stop sign or line are a cause of considerable concern and do reflect adversely against Mr Mohamed's character. They reflect, at least at that time, a propensity to pay insufficient regard to traffic laws and the safety of passengers and other road users. It is conduct which is inconsistent with the standard which the Director General and the public are entitled to expect from taxi drivers and which reflects an irresponsible attitude towards the law, passengers and other road users.
There are, however, some positives which ought to be recognised. The mere election of a good behaviour period, which has the effect that a further breach will double the period of suspension of a driver's licence which would otherwise apply, reflects an intent on the part of the driver to take extra care to avoid traffic infringements. Otherwise, it would be a foolhardy election and one guaranteed to result in a doubling of the period of suspension. Although, save for the incident referred to below on 16 January 2010, Mr Mohamed has not been driving as a taxi driver and has therefore spent less time on the road than would otherwise have been the case, it is a matter very much to his credit that he has not incurred one further demerit point since May 2009, that is almost a period of two years. It does reflect a change in his attitude towards driving and gives credence to his evidence that he had learned his lesson.
Mr Mohamed's driving record as at the date when the decision under review was made, namely 10 December 2009, was sufficiently bad and the number and nature of the infringements were such as to justify the Director General taking action under reg 41 to consider either suspending or cancelling Mr Mohamed's T extension. The review is, however, a hearing de novo and it is necessary to arrive at the correct and preferable decision as at the date of review. As at the present time I do not consider that the correct and preferable decision requires either suspension or cancellation of Mr Mohamed's T extension to his driver's licence on the basis of his record of traffic infringements, although that history will be relevant and should be taken into account in considering any appropriate sanction if Mr Mohamed is found on other grounds not to be of good character.
The events on 16 January 1010
It is necessary first to provide some background to the events which occurred on 16 January 2009.
Mr Mohamed is the holder of a restricted area taxi plate which restricts the taxi to operation within what is referred to as the north-east metropolitan area. This does not prevent the taxi driver from picking up a passenger in the north-east area and taking the passenger to an area outside the restricted area. Further, the driver has 15 minutes after dropping off such a passenger to pick up another passenger (outside the restricted area) provided the passenger is travelling towards the restricted area. As will appear, there is some uncertainty about how these restrictions are intended to operate.
By 28 August 2008 Mr Mohamed had accumulated an aggregate of 13 demerit points within a three year period that resulted in the personal service on him of an Excessive Demerit Point Notice on 8 September 2008 by Mr Keith Evans. On that day Mr Mohamed elected to adopt what is known as a good behaviour period to avoid suspension of his driver's licence. The good behaviour period was to commence on 6 October 2008 and end on 6 October 2009.
On 19 May 2009 the Department of Transport received a notification from the police that Mr Mohamed had committed a driving offence (for which he accepted an infringement notice) on 6 February 2009. The infringement carried with it two demerit points and resulted in a breach of the good behaviour period election. A breach notice was served on Mr Mohamed on 14 July 2009 disqualifying him from driving for a six month period commencing 15 July 2009 and ending on 14 January 2010. On or about 9 October 2009 Mr Mohamed received written advice from the Department of Transport to the effect that his metropolitan taxi driver identification card number 40086 was due to expire on 15 November 2009 and that it was a requirement that he complete a professional development training course prior to his 'ID' being renewed. Mr Mohamed attended such a professional development course and received a certificate of competency dated 24 November 2009.
By letter dated 10 December 2009 a delegate of the Director General wrote a letter to Mr Mohamed advising him of the decision to cancel his T extension based on the number or nature of 'offences you have been convicted of' against the Road Traffic Act 1974 (WA). The respondent asserts that the notice of such decision was served personally on the applicant on 17 December 2009, although the applicant refused to sign a service copy and is said, when asked to hand over his taxi driver's identification card, to have claimed that he did not have it on him. Mr Evans' evidence was that when serving the notice of breach of the good behaviour period he took away both Mr Mohamed's driver's licence and his taxi 'ID'. (T:16, 04.05.10)
Mr Mohamed stated in his evidence that the notice of cancellation of his T extension was served on him only on 18 January 2010. He denied having refused to accept or acknowledge service of the notice on 17 December 2009.
The respondent declined to call as a witness at the original hearing a Mr Bennett who is alleged to have been the employee who is said to have served the notice of cancellation on Mr Mohamed. No explanation was given for this course. That absence could have been cured on the rehearing of the matter but was not.
In taking this attitude towards the calling of witnesses the respondent takes a risk. If the evidence sought to be established by reference to the respondent's records is challenged by credible evidence it may leave a hole in the respondent's case. There are procedures available to summons witnesses to attend the hearing of a Tribunal.
On 15 January 2010 the suspension of Mr Mohamed's motor vehicle driver's licence expired.
On 16 January 2010 Mr Evans and Mr Earl, the respondent's compliance officers, observed taxi number 9007 travelling from the direction of Fremantle on Canning Highway and then turning on to Mitchell Freeway towards the Perth CBD. The taxi number was recognised as a restricted taxi and they therefore followed the taxi until it approached the Hay Street exit for Subiaco, exited the freeway and then dropped its passengers in Hay Street, Subiaco. This, they contended, was a breach of the restricted area conditions applying to the taxi plate and consequently they approached the taxi. According to Mr Earl, one of the female passengers informed him that the taxi had picked the passengers up from East Fremantle. The driver of the taxi was Mr Mohamed. According to Mr Evans' witness statement (Exhibit F) he noticed Mr Mohamed 'trying to remove an ID card from a cardholder' which he then seized. The identification card was that of a Mr Said Ismail Salah (Mr Said). It is to be noted that in evidence which Mr Evans gave during an interim hearing in which the respondent opposed an application by Mr Mohamed for a stay of the decision under review, Mr Evans stated:
He [a reference to Mr Mohamed] was actually caught by officers. The bit about the ID card, he was seen by myself, had the ID card, trying to tuck it under his legs and pulled the ID card out of the ID sleeve. That's when we seized it off him and took note of the ID. (T:19 20, 21.01.10)
Mr Earl in his witness statement made no reference to any observation on his part of how Mr Evans came to seize the identification card in question.
However, under cross-examination he was asked whether the taxi driver identification card was produced or whether it was present in the taxi. Mr Earl responded to the effect that the driver did not have an identification card and that '[t]he ID, as we thought, was trying to be hidden from our view'. (T:24, 04.05.10)
Later when that issue was pursued further Mr Earl expressly stated that the identification card was recovered from the floor, or under Mr Mohamed's leg, or from the seat or floor.
Mr Mohamed's evidence was that no taxi identification card had been displayed and that he had not attempted to hold himself out as being another driver by putting someone else's identification card in the designated holder. (T:31) He said that the identification card of Mr Said was sitting somewhere between the mat and the handbrake and that he had not put it there. (T:36) He denied knowing Mr Said. (T:43) He said that it was possible Mr Said had driven the taxi because '… six months, the vehicle I leased to some other people, or it could be, you know, he left it in the taxi, or someone'. (T:44)
Later he suggested that his evidence had not been that he had subleased the vehicle to anyone else. (T:45)
Mr Evans' evidence was that he recognised Mr Mohamed and thought that he was driving the taxi without a driver's licence. In order to check that, he called the police who attended and verified that Mr Mohamed's driver's licence was in effect.
Mr Mohamed explained that his driver had called in sick and that he felt obliged to drive the taxi in fear that he would otherwise be prosecuted for failing to keep the taxi in operation in accordance with the taxi plate conditions. He had previously been fined for not operating the taxi when a driver was sick. He made reference to correspondence from the respondent referring to that occasion (letter dated 4 August 2009 Document 'K' attached to Mr Mohamed's statement of issues, facts and contentions).
Mr Mohamed never logged in with the taxi dispatch operator so that there was no record of him being the driver of the vehicle. The driver who had logged on with the dispatcher, Swan Taxis, was a Mr Dahir Quule Farah (Mr Farah). Mr Mohamed said that Mr Farah was his permanent driver and that it was he who had become sick and he had obviously forgotten to log off.
Mr Mohamed said that he had not had an opportunity to call at the respondent's offices to collect his own taxi driver's identification card. Consequently, on the Monday morning, 18 January 2010, immediately following the above incident, he attended the respondent's office. It is common cause that he did so and that he had a discussion with Mr Evans who then informed him that his T extension had been cancelled (see cross-examination of Mr Mohamed at T:32, 04.05.10). Mr Mohamed stated that when he returned home on that day he found the notice in his letterbox.
Consideration of 16 January 2010 incident
I generally accept the evidence of Mr Evans and Mr Earl as to what occurred when Mr Mohamed was approached in Hay Street, Subiaco. Although there are inconsistencies in their evidence they are inconsistencies which in my view point to the truthfulness of their version and can be attributed to poor preparation by those responsible for the conduct of the initial hearing. Mr Evans' evidence did not deviate from that which was given in the initial interim hearing and he is corroborated by Mr Earl.
I consider Mr Mohamed's account to be improbable. The taxi driver's identification card is displayed prominently and is there to give confidence to passengers that they are being conveyed by a properly licensed driver who understands his or her responsibilities as a taxi driver. To operate a taxi without a driver's identification card on display would carry a real risk of being reported and given Mr Mohamed's history it was something that he could ill afford. Not only does this version require Mr Mohamed to act in an improbable way, but it also requires that it be accepted that it is purely a matter of chance that some other driver left something as important as his own taxi driver's identification card in the vehicle.
Mr Mohamed's evidence as it appears on the transcript in relation to this aspect of the matter does not read well for him. His attempt to explain the presence of Mr Said's identification card and his confusion over whether or not he had said that the vehicle had been subleased to anyone else is not convincing.
Further Mr Mohamed's evidence explaining why he felt compelled to drive the motor vehicle due to Mr Farah telephoning in sick is also less than convincing. It is one thing for Mr Farah to have forgotten to log off but that does not explain why Mr Mohamed did not log on. Further, the correspondence to which he referred with the respondent concerning the previous occasion when a driver had been sick does not support his explanation. The letter of 4 August 2009 explains clearly that an infringement notice was being issued for $250 because the respondent requires evidence to substantiate any reasons for the taxi being non-operational during peak times. All that Mr Mohamed needed to do was to provide proof that the driver was unwell at short notice.
It appears more likely, and I find, that Mr Mohamed, after being advised that Mr Farah was unwell, took a deliberate chance that he would be able to operate the taxi using the identification card of Mr Said. Mr Mohamed is fully aware of the obligation to display a taxi driver's identification card and to log in with the dispatcher. These are steps which protect the public and ensure that the driver of a taxi can be identified, if the need arises. Mr Mohamed's conduct does not reflect well on his character because it reflects that he remained willing to breach provisions of the Taxi Regulations. Regulation 13A(1) requires a driver of a taxi using a taxi dispatch service to inform the provider of that service on each occasion that the driver commences or completes a period during which he or she is operating the taxi. Regulation 15 provides for the display of driver identification. It is an offence to contravene the provision of the Taxi Regulations. (reg 21)
In coming to the above conclusion, no reliance is placed on the alleged service of notice of cancellation of the T extension on 17 December 2009. I have real concerns about whether that notice was given on that day, or at any time prior to 18 January 2010, although in the end the evidence is insufficient to make a finding either way. Mr Mohamed's attendance at the respondent's office on 18 January 2010 is consistent with his belief as stated in evidence that it was a mere formality for him to collect his taxi driver's identification card. Further, it is a matter to be noted that the notice of cancellation in Mr Mohamed's possession did not have the declaration of service completed, whereas the copy retained by the respondent had an endorsement at the foot of the letter reflecting that service was effected on 17 December 2009.
The Tribunal was informed that the notice of cancellation was served by a compliance officer, Mr Bennett. No explanation was offered for the failure to call Mr Bennett. In these circumstances, I cannot reasonably believe that Mr Mohamed drove his taxi in the knowledge that his T extension had been cancelled. Nor can I find that a reasonable suspicion to such an effect can arise in such circumstances, consistent with the reasoning displayed in the Hardinghamdecision above, as there is insufficient probative value to the evidence to support such a conclusion in the face of Mr Mohamed's denial and conduct.
Finally, I have drawn no conclusions adverse to Mr Mohamed in relation to the circumstance of his alleged breach of his taxi operating conditions by accepting a passenger for conveyance from East Fremantle to Subiaco. Mr Mohamed was issued with an infringement notice for such breach which he acknowledged and paid a fine. He was cross-examined on this issue and it is clear from his evidence that he believed that if he conveyed a passenger to outside the restricted area, he was entitled within a limited period to accept another fare provided it was in the direction of the restricted area. (T:46, 04.05.10) He said that Mr Evans took a different view and although he did not know whether Mr Evans' view was correct, he paid the infringement because it would not be worth the cost of contesting the issue in court. (T:47/T:49) Following questioning from the Tribunal, the respondent's representatives in the rehearing (neither of whom appeared in Mohamed 1) conceded that there was some real controversy in the interpretation and application of the taxi plate condition. The respondent's representatives did not demur from a proposition put to them that if Mr Mohamed had travelled from Fremantle along Stirling Highway towards Subiaco, where he dropped the passengers, it might be very difficult to contend that he was not travelling towards the north-east metropolitan area. In those circumstances, it really should make very little difference if a driver chose to take a route from Fremantle along Canning Highway and on to the Mitchell Freeway to arrive at the same destination. The respondent did not press this issue at all in closing submissions. At most there might be some doubt about the veracity of Mr Mohamed's evidence that he accepted the fare because the passengers had requested to be transported to the Perth CBD and had at the last minute requested to be dropped in Subiaco. There was no mention of this in Mr Mohamed's witness statement and the question does arise whether this version was a late invention to justify a deviation from the city centre to Subiaco.
However, I accept the submission put on behalf of Mr Mohamed, that the case reflects poor preparation prior to the hearing on 4 May 2010 on both sides and that no adverse inference should be drawn. I have already referred to the discrepancy between Mr Evans' witness statement and the evidence which he gave at the interim hearing (which was consistent with the evidence of Mr Earl). There are many other examples. Mr Mohamed's then counsel did not put many aspects of his client's case to the respondent's witnesses. Mr Evans was not crossexamined in relation to Mr Mohamed's visit to the respondent's offices on 18 January 2010 and the discussion which Mr Mohamed says that he had with Mr Evans. Conversely, Mr Mohamed was not challenged about this in crossexamination and, indeed, the crossexamination is premised on an acceptance that Mr Mohamed did attend the respondent's offices and had a discussion with Mr Evans on that day. (T:43, 04.05.10) At its highest, the crossexamination inquired into whether Mr Mohamed had been told that a notice of cancellation of his T extension had been served on him, rather than being advised that it would be served.
In the only oral evidence that Mr Mohamed gave before me, he acquitted himself well and his evidence on that particular aspect of the matter, relating to the complaint of Ms P has been accepted. In those circumstances unless there is a more cogent basis on which to reject Mr Mohamed's evidence concerning the deviation to Subiaco, I do not consider it appropriate to do so or to draw any adverse inference against him.
Conclusion
Mr Mohamed's conduct in driving his taxi on 16 January 2010 when displaying the identification card of another driver, without having logged on with the taxi service provider, his attempt to hide the other driver's identification when questioned by compliance officers, and the false explanations given by him on that occasion, which he maintained in his evidence before the Tribunal, support a finding, which I make, that there are reasonable grounds on which to believe that Mr Mohamed is not of good character.
The question then arises as to what is the appropriate disposition of the matter consistent with reg 42 read with reg 25, which permits either suspension or cancellation of the T extension to his driver's licence.
The primary objective of any such decision must be the protection of the public and the reputation and standards of the taxi industry. Like any vocational regulation, the purpose is not to punish the licensee. Those standards have in recent time attracted a great deal of attention and the concern of both the public and government is so well known that it is something of which I can take notice.
Cancellation, is nevertheless a course which should be followed, only where the above objectives cannot be achieved by way of a suspension. In this case Mr Mohamed has effectively been unable to ply his trade as a taxi driver since 15 August 2009. It is evident that his driving standards have improved and he says, and I accept, that he has learned his lesson.
The consequences to Mr Mohamed of his previous disregard of road traffic and taxi regulations will have been obvious to those to whom he is known in the industry. It stands as a lesson for all taxi drivers that a breach of the standards expected of them can have serious consequences. As was emphasised in Mohamed 1 hardship is not a consideration to be taken into account in determining the disposition of these matters and taxi drivers should take heed that they could face severe financial and personal consequence if they do not take their obligations as taxi drivers seriously. Mr Mohamed has paid that price. I consider that suspension of his T extension endorsement to his driver's licence would have been justified for a period of six months based on that history of traffic infringements and consequently a conclusion that he was then not of good character but for the automatic suspension of his driver's licence for that period. In considering the appropriate sanction upon review that history should be taken into account.
In all the circumstances, I consider that a period of suspension for a period of one year is an appropriate penalty and that in accordance with s 29(5)(b) of the SAT Act the decision is to be regarded as having effect from the time when the decision reviewed would have effect, namely 10 December 2009.
The practical effect of this decision is that the period of suspension has expired.
Mr Mohamed should be left under no misapprehension about the conduct required of him in future. If he displays any further propensity to ignore the law, he is likely to face cancellation of his T extension.
Order
The Tribunal will cause an order to issue as follows:
1.The decision under review is varied to one determining that the endorsement of the applicant's motor vehicle driver's licence to include an extension T is suspended for a period of one year from 15 December 2009.
I certify that this and the preceding [109] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR C RAYMOND, SENIOR MEMBER
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