Mohamed v Roads and Maritime Services

[2013] NSWADT 122

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Mohamed v Roads and Maritime Services [2013] NSWADT 122
Decision date:	31 May 2013
Jurisdiction:	General Division
Before:	S Frost, Judicial Member
Decision:	Decision under review affirmed
Catchwords:	Taxi driver authority - fit and proper person - responsibility and aptitude to drive a taxi-cab
Legislation Cited:	Passenger Transport Act 1990 Passenger Transport Regulation 2007
Category:	Principal judgment
Parties:	Mahad Abdi-Hashi Mohamed (Applicant) Roads and Maritime Services (Respondent)
Representation:	JurisAustralia (Applicant) Smythe Wozniak Legal (Respondent)
File Number(s):	133022

reasons for decision

1. GENERAL DIVISION (S FROST, JUDICIAL MEMBER): Mr Mohamed has been driving taxis in New South Wales since about 2001. Earlier this year the Respondent notified him that it had cancelled his taxi-cab driver authority. He has applied to the Tribunal for review of that decision.

Background to the decision under review

1. On 7 January 2013 the Respondent sent Mr Mohamed a "Notice to Show Cause" in relation to his taxi-cab driver authority. The Notice was in the following terms:

As delegate for Transport for NSW (TfNSW), Roads and Maritime Services (RMS) is considering cancelling your public passenger vehicle driver authority to drive a taxi-cab for the reasons set out in the attached Statement of Reasons.

If you wish to make submissions, you must do so within 21 days of the date of this Notice. After 21 days (or sooner if your submissions are received earlier than that) a decision will be made about your application. If you do not reply or if your submissions are not sufficient to prevent the decision being made, your authority may be cancelled based on the matters set out in the attached Statement of Reasons.

...

1. The Statement of Reasons notified Mr Mohamed that the Respondent was concerned about his driving record. In particular, it noted a number of traffic offences during the period June 2007 to January 2012, including exceeding the speed limit, failing to obey traffic lights and failing to give way. It also noted that he had been charged with eleven counts of driving while unlicensed over a period of 17 days in December 2011 and January 2012.

1. The Statement of Reasons went on to explain the circumstances of the unlicensed driving:

1

On 12 December 2011 RMS sent you a Notice of Suspension as your driver licence had expired on 9 December 2011.

On 24 December 2011 you were approached by RMS compliance officers at Maroubra taxi rank. An inspection of your taxi driver authority was conducted. It was established that your taxi driver authority has been suspended by RMS on 12 December 2011 due to your expired driver licence.

On 3 February 2012 the suspension on your taxi drivers authority was lifted as your driver licence was renewed on 11 January 2012. The investigation into driving whilst suspended was still ongoing.

On 25 September 2012 you appeared at Parramatta Local Court for 'Drive taxi-cab without an appropriate authority'. Records show that even though you had been advised by RMS compliance officers not to drive you continued to do so and you drove taxi T845 between 24 December 2011 and 6 January 2012 whilst your driver authority and driver licence was suspended.

As a result you were convicted and fined $660 with a moiety to Transport for NSW for driving without a current driver authorisation and fined $330 for driving unlicensed. You were placed on a Section 10A bond for the additional offences.

On 14 January 2013 RMS received your application to renew your taxi driver authority expiring 22 January 2013.

1. On 11 January 2013 Mr Mohamed applied for renewal of his taxi driver authorisation which was about to expire on 22 January 2013. In addition to that, on 16 January 2013 he responded to the Notice to Show Cause. However, on the following day, 17 January 2013, a delegate of the Respondent made a decision described by the delegate as a "Refusal to renew", noting that the decision was "based on traffic". Notice of the decision, although said to be a "Refusal to renew" decision, was communicated to Mr Mohamed on 22 January 2013 as a "Notice of Cancellation" of his taxi driver authority.

1. I have concluded that the decision to cancel Mr Mohamed's taxi-cab driver authority is the correct and preferable decision. My reasons for coming to that view follow.

The relevant legislation

1. The relevant legislation is the Passenger Transport Act 1990 (the Act) and the Passenger Transport Regulation 2007 (the Regulations).

1. Section 33F of the Act provides as follows:

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

1. The purpose of authorisation, referred to in that section, is exposed in s 33(3) of the Act in the following terms:

(3) The purpose of an authority under this Division is to attest:

(a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a taxi-cab, and

(b) that the authorised person is considered to have sufficient responsibility and aptitude to drive a taxi-cab:

(i) in accordance with the conditions under which the taxi-cab service concerned is operated, and

(ii) in accordance with law and custom.

1. This case turns on the question whether Mr Mohamed meets the standards set out in paragraphs (a) and (b) of s 33(3).

History

1. References in the following paragraphs to page numbers are to the corresponding page numbers in the documents lodged with the Tribunal by the Respondent under s 58 of the Administrative Decisions Tribunal Act 1997.

1. Mr Mohamed says he first became a taxi driver in New South Wales in 2004, but it seems that he actually first obtained a taxi-cab driver authority in early 2001 (pp. 411-415). Prior to that he had been a taxi driver in New Zealand for about two years.

1. He says in his statement dated 18 March 2013, and the Respondent appears to accept, that no complaints were lodged against him in New Zealand during his 2-year career as a taxi driver.

1. He also says in his statement:

[39] I submit that the reasons upon which subject Cancellation notice issued are based on disobeying traffic rules. It should be noted that not a single complaint made by any passenger relied upon (sic) by the [Respondent] in this cancellation notice.

1. His solicitor submitted during the hearing that there were in fact no complaints from members of the public about Mr Mohamed but that is not quite right. There are complaints on his file, at pages 395, 402 and 404, but I accept they are very minor complaints. They are all dated 2001 and are about minor overcharging as a result of Mr Mohamed's apparent lack of familiarity with the Sydney road network. There are other complaints against Mr Mohamed in 2011 (pages 290, 292 and 294) but they were found to be not justified.

1. Plainly enough, it is Mr Mohamed's record of traffic offences that concerns the Respondent. His contraventions (aside from the "drive while unlicensed" offences in December 2011/January 2012 referred to in the Statement of Reasons, and quoted in [4] above) are itemised at pages 76 to 90 of the s 58 documents, as follows:

• Exceed speed limit by more than 10 km/h but not more than 20 km/h (10 December 2011, p. 76);
• Disobey traffic lights - camera detected - 2 offences (14 December 2010, p. 77, and 18 November 2006, p. 82);
• Failing to give way (18 May 2009, p. 78);
• Exceed speed limit by not more than 15 km/h - 2 offences (18 September 2008, p. 79, and 7 May 2008, p. 80);
• Exceed speed limit by not more than 15 km/h whilst driving a motor vehicle - camera detected - 5 offences (11 December 2008, p. 81, 9 October 2008, p. 81/82, 1 August 2002, p. 87, 7 January 2002, p. 88, and 13 April 2001, p. 90);
• Unlicensed driver/rider - other state license - NSW resident for more than 3 months (18 December 2005, p. 83);
• Unlicensed driver/rider - wrong class - 2 offences (19 August 2004, p. 85, and 18 October 2001, p. 89);
• Failing to give way (19 August 2004, p. 86);
• Exceed speed limit by more than 30 km/h but not more than 45 km/h whilst driving a motor vehicle - camera detected (22 July 2003, p. 86);
• Disobey traffic lights (18 October 2001, p. 89).

1. Some of those offences led to the loss of sufficient demerit points as to trigger the suspension or cancellation of Mr Mohamed's driver's licence on more than one occasion. Indeed, the s 58 documents indicate that his licence was suspended during the following periods:

• 12 April 2002 to 7 September 2004 (p. 88);
• 27 July 2005 to 22 December 2005 (p. 84);
• 17 May 2006 to 6 September 2006 (p. 83);
• 23 May 2007 to 7 January 2008 (p. 82);
• 16 January 2009 to 12 March 2009 (p. 80); and
• 6 January 2011 to 3 February 2011 (p. 78).

1. Clause 31(5) of the Regulations explains what happens when a driver's licence is cancelled, suspended or expired:

A person's authority to drive public passenger vehicles and driver authority card do not have any effect, either for the purposes of the Act or for the purposes of this Regulation, while the person's driver licence is cancelled, suspended or expired, or while the person is otherwise disqualified from driving a motor vehicle.

1. Although Mr Mohamed's solicitor indicated to me from the bar table that his instructions were that his client had never driven during periods of suspension, those instructions are at odds with Mr Mohamed's own written statement in which he said:

[10] In or about 2004, I got NSW Taxi Driving Authority after completion of prescribed course and driving taxi on full time permanent basis since.

1. I consider it highly likely that Mr Mohamed continued to drive, and in particular that he continued to drive taxis, during these periods of suspension. In fact, at page 296 of the s 58 documents there is a complaint recorded against Mr Mohamed that indicates he was driving a taxi on 15 January 2011, which was during one of his periods of suspension.

1. In addition to that, there is no doubt that Mr Mohamed continued to drive a taxi-cab in December 2011 and January 2012 even after he had been notified by transport compliance officers that his driver's licence had expired. The "Fact Sheet" at page 159 of the s 58 documents includes this:

Mr Mohamed attended RMS offices on 19 January 2012 where he was cautioned and interviewed by two (2) officers in relation to continuing to drive a public passenger vehicle after he had been advised on 24 December 2011 that his taxi authority had been suspended. Mr Mohamed denied that he continued to drive.

1. That denial was despite the RMS officers having previously confirmed with the operator of the cab that Mr Mohamed usually drove that Mr Mohamed had indeed driven the cab on 13 occasions between 24 December 2011 and 16 January 2012.

1. I accept that Mr Mohamed had been experiencing personal difficulties in late 2011/early 2012 because of the illness of his mother, who has since died. He explained in his written statement that her illness had required him to provide day-to-day care to her and to drive her to hospital for frequent medical treatment. He was understandably distracted and distressed by her circumstances and that may have had something to do with his (as he claims, inadvertent) failure to renew his driver's licence in December 2011. But it is hard to accept that it also accounts for his failure, on 24 December 2011, to attend an RTA office immediately upon being told by the transport compliance officers that his licence had expired. Indeed, according to the officers, that is what he told them he would do.

1. I am satisfied that Mr Mohamed is not a fit and proper person to be the driver of a taxi-cab, and furthermore, that he does not have "sufficient responsibility and aptitude" to drive a taxi-cab: see s 33(3) of the Act. I base that conclusion on the following factors:

• His numerous driving offences, as outlined earlier in these reasons;
• The fact that he continued to drive a taxi in December 2011 and January 2012 although he had been notified that he was not to do so because of the expiry of his driver's licence;
• The fact that he has continued to drive taxis while his driver's licence has been suspended;
• His failure, on at least one occasion (page 390), to notify the regulator of his driving offences, in breach of clause 44(1) of the Regulations.

1. Through his solicitor Mr Mohamed indicated that he would be willing to rectify things by taking a further education course. He did not indicate what type of course may be appropriate, and by the time of the hearing he had not taken any steps to undertake any such course. It may be that further education would equip him with a keener understanding of his obligations as a taxi driver. That may count in his favour if he were to apply again for a taxi driver authority.

Decision

1. The decision under review is affirmed.

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Decision last updated: 31 May 2013