Mulligan v Director General, Department of Transport
[1999] NSWADT 126
•1 December 1999
CITATION: Mulligan -v- Director General, Department of Transport [1999] NSWADT 126 DIVISION: General APPLICANT: Francis Mulligan RESPONDENT: Director General, Department of Transport FILE NUMBER: 993118 HEARING DATES: 08/19/1999; 11/18/1999 SUBMISSIONS CLOSED: 11/18/1999 DATE OF DECISION: 1 December 1999 BEFORE:
M B Smith - Judicial MemberPRIMARY LEGISLATION: Passenger Transport Act 1990 APPLICATION: Review of decision to cancel taxi-cab authority - MATTER FOR DECISION: Principal matter REPRESENTATION: Applicant:
Respondent:
In person
A Wozniak, solicitor, Smythe & MallamORDERS: 1. The decision under review is affirmed.
Introduction
1 This is an application filed on 8 June 1999 to review a decision taken on 26 March 1999 and affirmed on internal review on 12 May 1999. The decision cancelled Mr Mulligan’s authority to drive taxi-cabs. This was of great importance to him, since he has held a similar authority for very many years and it was providing a source of income to supplement his disability support pension.
2 The reasons given in the notice of decision refer to records of a number of customer complaints made to Premier Radio Cabs, Taxis Combined Services, the Department and the Police Service since 1996. These included complaints of incivility, failure to display identity card, smoking in the taxi, and driving dangerously. They also included some complaints in which passengers said that he appeared drunk, culminating in an episode on 3 February 1999 when in the vicinity of his taxi he was taken in to custody by police officers under the Intoxicated Persons Act.
3 Before me, the Director-General was represented by a solicitor, who tendered the Department’s file and called no witnesses. He indicated that the chief concern was, naturally, whether Mr Mulligan was unfit to be authorised by reason of a history of driving while being intoxicated.
4 Mr Mulligan appeared for himself, and gave evidence on oath denying most elements of the complaints and that he had ever been in charge of a taxi while intoxicated. In the course of this evidence, he referred to a number of witnesses who could corroborate his account of the events of 3 February 1999 and, as a result of my prompting, applied for an adjournment to allow him to call these witnesses. He was advised that he could obtain witness summonses to assist this.
5 At the resumed hearing, Mr Mulligan produced no witnesses or other material. The Director-General called Constable Karen Grady, who verified and amplified her report concerning the events of 3 February 1999.
6 For reasons which I shall explain, I am persuaded on all the evidence that the decision under review was the correct and preferable exercise of the power in question. In particular, I consider that a finding can be made that on 3 February 1999 Mr Mulligan was in charge of his taxi while in a seriously intoxicated condition. As a result of this finding, and in light of his past and apparently continuing history of alcohol dependency, I have concluded that he should not be considered a fit and proper person to be the driver of a taxi cab and that it is appropriate to cancel his authority.
The legislation.
7 The definitions in s 3 of the Passenger Transport Act 1990 (NSW) include a taxi-cab as a “public passenger vehicle”, and define “public passenger service” to include “the carriage of passengers for a fare … by motor vehicle … along a road”. In relation to taxi-cab services, the following objects of the Act set out in s 4 are relevant:
8 Part 2 Division 2 of the Act provides for the issue of drivers’ authorities, and includes the following provisions:
“(a) to require the accreditation, by the Director-General, of the operators of and drivers involved in public passenger services; and
…
(e) to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services …”
9 The Passenger Transport (General) Regulation 1995, reg 10 prescribes categories of driver authorities including, in relation to taxi-cabs, by reference to transport districts. In the present case, Mr Mulligan was issued with an authority with an area of operation covering the Sydney metropolitan and country districts.
“ Authorities
11. (1) A person who drives a public passenger vehicle is guilty of an offence unless the person is the holder of an appropriate authority under this Division.
Maximum penalty: 100 penalty units.
(2) The purpose of an authority under this Division is to attest:(3) The regulations may create categories or grades of authority.
(a) that the authorised person is considered to be of good repute and in all other respects a fit andproper person to be the driver of a public passenger vehicle; and
(b) that the authorised person is considered to have sufficient responsibility and aptitude to drive
the vehicle or vehicles to which the authority relates:
(i) in accordance with the conditions under which a public passenger service is operated; and(ii) in accordance with law and custom.
Criteria and procedure12. (1) Having regard to the purpose of an authority, the Director-General may grant authorities to persons
Style of authority
applying for them.
(2) Applicants must meet any criteria set forth in the regulations and must satisfy the Director-General as to any matter the Director-General considers relevant.(3) Procedures for the purposes of this section may be settled by the Director-General, subject to any
provision in that behalf made by the regulations.13. (1) An authority is to be given in writing by the Director-General to the person authorised.
(2) The authority must specify the kind or kinds of vehicles for which it is appropriate.
Variation, suspension or cancellation of authority14. Having regard to the purpose of an authority, the Director-General may at any time vary, suspend or cancel
any person's authority.”10 The Passenger Transport (Taxi-cab Services) Regulations 1995 contain detailed regulations governing the procedures and conduct of taxi-cab drivers. Breach of these regulations incurs liability to a penalty. For example, reg 24 provides:
11 From the above, it appears that s 14 gives a discretion to “vary, suspend or cancel” an authority, with that discretion being required to be exercised “having regard to the purpose of an authority”. This is a reference back to s 11(2), which indicates that an authority “attests” that the holder “is considered to be” “of good repute” and “in all other respects a fit and proper person to be the driver of a public passenger vehicle”. In this convoluted way, it therefore appears that an authority may be cancelled if an opinion is reached that a driver is not a fit and proper person to drive a taxi. If this opinion is reached then a cancellation of the authority would be justified, but countervailing considerations and alternatives must be addressed before such a decision is arrived at.
“Dress and conduct of drivers
The driver of a taxi-cab must not fail to do the following:
(a) be clean and tidy and wear clean and respectable clothes,
(b) behave in an orderly manner and with civility and propriety towards any passenger, intending passenger or authorised officer,
(c) comply with every reasonable request of any passenger.
Maximum penalty: 5 penalty units.”
12 The High Court in Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 at 156-7 suggests that the question of whether a person is “fit and proper” to hold a licence “ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances”. It said that a power exercised by reference to such a test “depends on no certain or definite criteria and … in truth involves a very wide discretion.”
13 In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380, Toohey and Gaudron JJ said:
14 I find this passage of assistance because the present context, particularly the language used in s 11(2) to describe “the purpose of an authority”, indicates that central to the power to issue or remove a driver’s authority is the perception of the Director-General, and of this Tribunal on review, of the driver’s fitness based on all material which would properly come to the attention of a government regulator. A driver’s authority carries (“attests”) a continuing public representation that the government regulator has satisfied itself, and remains satisfied, as to fitness. It thereby assists public confidence in the safety, reliability and efficiency of taxi-cab services (c.f. the objective in s 4(e) of the Act). If the Director-General lacks confidence in a driver, then the public should not be mislead by the issuing or maintenance of a driver’s authority.
“The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its
meaning from its context, from the activities in which the person is or will be engaged and the ends to
be served by those activities.
The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or
will be engaging in those activities. However, depending on the nature of the activities, the question
may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed
that it will not occur, or whether the general community will have confidence that it will not occur.
The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides
indication of likely future conduct) or reputation (because it provides indication of public perception as
to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to
undertake the activities in question.”
15 It therefore becomes appropriate for the decision-maker to exercise the power to vary, suspend or cancel an authority when he or she finds cause to lose confidence in the driver’s fitness. Although the Act emphasises that the decision turns on the opinion of the decision-maker, it is appropriate that he or she should seek to apply standards meeting “the reasonable expectations of the community” (c.f. again, the objective in s 4(e) of the Act).
16 Although the above thoughts encourage a broad view of what circumstances might lead to the loss of a driver’s authority, it must still be borne in mind that the decision will deprive a person of an important opportunity to earn a livelihood. A taxi-driver’s authority may be as significant to its holder as a professional person’s registration. Although the power is granted to an administrator and is open to review by an administrative Tribunal given flexibility in what material it takes into account, a proper evidentiary foundation must be found for a decision based on reasonable satisfaction as to relevant circumstances. As with any occupational decision, “in such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. ... weight is given to the presumption of innocence and exactness of proof is expected” (per Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362-3, reaffirmed in M v M (1988) 166 CLR 69 at 77). A state of “comfortable satisfaction on the balance of probabilities” should be achieved (Bannister v Walton (1993) 30 NSWLR 699 at 711-2, also McCarthy v Law Society of NSW (1997) 43 NSWLR 42 at 58). Moreover, as with all disciplinary decision-making, there must be concern at all stages that the driver has been given “adequate notice of the findings which might be made against him and a fair opportunity to respond” (Yung v Adams (1997) 80 FCR 455 at 455E, affirmed on appeal: Adams v Yung (1998) 83 FCR 248 at 297).
17 The decisions of this Tribunal in relation to taxi-cab authorities are consistent with the above principles, and provide further discussion of the relevant considerations (e.g. Farquharson v Director-General, Department of Transport [1999] NSWADT 53; and Khamis v Director-General, Department of Transport [1999] NSWADT 103).
Background findings
18 Mr Mulligan gave evidence that he was born on 1 October 1938. He had been driving for 39 years, and for a period held employment as a salesman and buyer in the motor industry. In 1988 and 1989 he was employed as a driver for the Salvation Army. He had held a taxi licence since 1973, and taxi driving was his full time occupation for most of the time since then. This was interrupted by the periods of other employment, and by some involuntary interruptions.
19 The Departmental file tendered in evidence commences with an application in October 1991 for an authority under the 1990 Act. A fitness check revealed driving offences in the 1980’s but it is unnecessary to examine these. Of greater concern was a PCA conviction in January 1990 leading to disqualification for 12 months. The recommendation in relation to his application for an authority card referred to this and continued:
20 This recommendation was accepted on 12 November 1991. In his evidence Mr Mulligan said that his conviction concerned his use of a private vehicle and not a taxi cab, and that he had admitted himself “for detox” and was some two months at Rozelle Hospital. A letter from a Rozelle Hospital registrar states that he was a patient from 3 May until 15 July 1991 “undergoing a rehabilitation programme for alcohol dependence”.
“Mr Mulligan produced a letter from the Rozelle Hospital informing us that he was an inpatient and was
undergoing a rehabilitation programme for alcohol dependence.
Mr Mulligan has only held a driver’s licence for 10 months out of the 2 years so does not have tenure at this time.
RECOMMENDATION
Although the offence of the 21.11.89 for HRPCA is just under the two year period there is some doubt as to his
suitability to hold an Authority card as the few times when he spoke to us on the phone and at the Office he
appeared to have been drinking.
He has two more months to wait until he has the required tenure and the offence will be well over the two year
period. I recommend that he be given the Authority card.”
21 The file shows that Mr Mulligan was issued with an authority for 1991 and 1992. It appears to have been suspended in 1994 and 1995 due to a failure to lodge a compulsory medical report, and there is correspondence from Mr Mulligan explaining that he had been looking after his parents and himself been hospitalised. The suspension was lifted in August 1995. His authority was again suspended between December 1997 and September 1998 due to the suspension of his driver’s licence for fine default.
22 The file contains records of customer complaints concerning Mr Mulligan’s behaviour as a taxi driver on 8 March 1996, 5 June 1996, 2 August 1996, 4 August 1996, 4 October 1998, 20 January 1999, and 2 February 1999. These were relied upon in the making of the decisions under review, and Mr Mulligan responded to them in the course of giving evidence. I have not found it necessary to examine them closely nor to make findings on their veracity. These complaints were drawn to Mr Mulligan’s attention, and resulted in him being given reprimands and warnings. A notice to show cause was served on 7 August 1996, but it was decided to take no action. In evidence before me, Mr Mulligan admitted that there were times when he had verbally abused a passenger, driven erratically or become agitated, but explained these as being responses to abuse from the passenger, mechanical deficiencies in the car, or other pressures beyond his control. He admitted to smoking in his taxi, but denied complaints that he refused to extinguish his cigarette.
23 A record on 21 January 1999 concerns a complaint of a woman passenger being abused in relation to the use of an infant capsule, and records “Pax honestly believes the driver had been drinking”. However, the complainant is not identified and was not called as a witness. It is impossible to test the basis on which she formed that belief, or to make a positive finding that Mr Mulligan was affected by alcohol on that occasion.
24 A Combined Services customer complaint log form records a complaint at 2.30 on 2 February 1999 that “driver was drunk”. The name and phone number of the complainant was recorded, but he was not called to explain the basis for his opinion. A letter from Paul Fitzpatrick on 4 February, records that following the complaint “the operator of T2804 was contacted and told of the alleged condition of this driver. The operator replied that he was with this particular driver and that he was not drunk.” Mr Mulligan maintained his denial in evidence. In the absence of evidence from either the complainant or the owner, I consider that the evidence does not allow me to make a positive finding that Mr Mulligan was drunk when driving on that day. However, in the context of the evidence of what happened on the next day, including my general dissatisfaction with Mr Mulligan’s evidence as to when and how he became intoxicated, I am left in real doubt as to his sobriety on 2 February 1999 while he was undoubtedly driving his cab.
Events on 3 February 1999
25 It is undoubted from the sworn evidence of Constable Grady, supported by her contemporaneous note, her certificate under the Intoxicated Persons Act, and her report of 6 February 1999 that at 3.30pm she found Mr Mulligan in the vicinity of his taxi cab showing “slurred speech, smelt of intoxicating liquor, wobbly on feet” and very abusive to police when questioned. He was wearing a soiled and crumpled Combined Taxi uniform, and it was apparent that he was in no fit state to drive a vehicle. He was taken to Albion St Lodge, and held there until the following morning. I have no doubt that when taken into custody, Mr Mulligant was seriously intoxicated and in no proper state to drive or otherwise be in charge of a taxi cab.
26 Constable Grady was told by the licensee of the nearby Gaslight bar that Mr Mulligan had entered the bar at 3pm, drunk half a Guiness, and then left. The licensee was concerned as to his sobriety, and that he might be driving a taxi while drunk. He followed Mr Mulligan outside, and saw Mr Mulligan walk towards his taxi. He had his car keys in his hand and was about to get into it when he was stopped by another driver who was trying to travel up the narrow laneway in which it was parked. Another witness told Constable Grady that he had seen Mr Mulligan driving the taxi cab before entering the bar. Although these witnesses have not been called to give direct testimony, in the context of Constable Grady’s own direct observations, I consider that their statements to her have apparent cogency and should be given substantial weight by me.
27 The truth of the suggestion that Mr Mulligan had been driving the taxi while intoxicated on 3 February gains support by something which Constable Grady was told when she returned to Kings Cross Police Station later in the afternoon. She was there told by a colleague that a person had come to the Station to report that earlier during the same day he had been conveyed by a taxi driver who was extremely intoxicated. The passenger had requested the driver to pull over and let him out, as he feared for his safety. The registration of the taxi had been noted as T-2804, which was that of Mr Mulligan’s cab. I accept that a report to this effect was received at the police station, and consider that it is a report with apparent credibility which may be given weight.
28 The operator of the cab has confirmed to the Department, and it is admitted by Mr Mulligan, that he “drove Taxi 2804 on Mon 1st Feb 99, Tues 2 Feb 99, and Wed 3 Feb 99 on a one-out situation”. No other person was authorised to drive the vehicle.
29 Computer sheets indicate that the cab was logged on to the Combined Services operations and active from about 9.30 am until about 7pm on 2 February. He is recorded as “sign off” at 1.22am on 3rd. The computer records a “sign on” and “sign off” at 12.23 pm, and a “sign on” at 2.37pm which is followed by some communicating with (or from) base until 2.48pm. The taxi is logged as “sign off” at 4.46pm followed by some further unclear activity. Without a witness called to explain this record it is difficult for me to draw definite conclusions from it. However, I consider it supports the other evidence that Mr Mulligan’s cab was being operated as a taxi before 3pm on 3rd February. Since Mr Mulligan was the only person authorised to drive the taxi at this time, the computer record supports an inference that he was in charge of its operations and was driving it.
30 Another piece of relevant evidence is in Mr Fitzpatrick’s letter of 4 February 1999, which records:
31 I am persuaded by the above evidence to find that Mr Mulligan did, in fact, drive his taxi cab and probably conveyed passengers while he was intoxicated by alcohol. Although I would be reluctant to draw a conclusion of intoxication on hearsay accounts without examination of the witnesses who formed opinions of drunkenness, there is in this case direct evidence from a totally credible witness of Mr Mulligan’s serious intoxication while attempting to use his taxi and while dressed in his driver’s uniform. The hearsay witness accounts and surrounding circumstances support the inference arising from this evidence and, in combination with it, leave me comfortably satisfied that Mr Mulligan’s intoxication preceded his attendance at the Gaslight bar and was affecting him during a period in which he drove his taxi cab and conveyed at least one passenger.
“I received a phone call from Francis Mulligan on Wednsday 3 February at approx 1230 hrs where he indicated
that he wished to discuss the complaint from the previous day. Due to the obnoxious nature of the call I advised
him that he was suspended until such time as he called in person to discuss the matter.
At approx 1545 hrs a phone call was received from the police requesting that we contact the operator of T2804
and advise him that his driver was in no condition to drive a taxi as he was drunk and to collect his taxi.”
32 I reject Mr Mulligan’s resolute denial of this. He gave a story which was somewhat incomplete and confused. Doing the best I can, it seems to be that he ceased driving the cab on 3rd but “forgot to log out on the computerised radio system”. He said: “I made a pit stop at Diane Mcdonald’s place in Riley Street, Surry Hills and I had a spare uniform there which she was ironing and I was to go back there, have a bit of a rest for about 6 hours and then re-appear. I’d been on the road for about 16, 17 hours prior to that, that’s why my uniform looked a bit untidy.” His friend Jason Pakis drove him in the cab from Riley Street around to Little Oxford Street, and while Jason went and did some shopping, Mr Mulligan paid Ms Mcdonald’s rent and then had one Guiness at the Gaslight. He walked out intending to use his spare set of keys “to switch the kill switch off and log off”, but noticed a driver in a little truck “and he looked like he’s going to scrape the side of the cab out”. When Mr Mulligan objected, the driver “gave me a sharp so that’s when I went bananas.” For most of his evidence he maintained that that he was not at all drunk when taken into custody, and suggested that he might have appeared so because of a slur in his speech resulting from an incident in November 1998 when (“after a couple of drinks at the Crown Hotel and a couple more at the K B Hotel”) he was found lying with head injuries on the footpath of George Street. Under cross-examination, he eventually admitted that he was intoxicated and unfit to drive a cab, but maintained that he was not driving it – this was Jason Pakis. However, he gave no account of when or how he had become intoxicated.
33 I found the content and presentation of this account by Mr Mulligan most unpersuasive. It maintained a picture of his condition which contradicted that of Constable Grady. It had the appearance of unbelievable fiction, at least in its assertion that he was not in charge of his taxi-cab. At the conclusion of Mr Mulligan’s evidence, I indicated that I was concerned about contradictions between his account and the statements of witnesses, and that he should consider whether he wished a further opportunity to call corroborative witnesses or other material. On his application, I adjourned the proceedings to allow him to call Ms Mcdonald and Mr Pakis. However, no additional evidence was produced on the resumption of the hearing. In these circumstances, I feel confirmed in my rejection of Mr Mulligan’s denial that he was in charge of the cab while intoxicated and in my preference for the evidence indicated above.
34 The consequences of my finding are, in my opinion, inevitable. On any view of what the community would expect of a taxi driver, it includes an assurance of sobriety while in charge of his vehicle. Mr Mulligan’s history of alcohol dependence must raise concerns. When these were activated following the incident of 3rd February, the Department required him to produce medical assurances. His general practitioner has certified him fit to drive a public motor vehicle, and provided a certificate from a psychiatrist that “on the basis of his results today, he would be fit to drive”. However, in a report to the general practitioner which was produced to the Tribunal on subpoena, the psychiatrist significantly qualified his opinion when concluding:
“He clearly has a long-term history of excessive alcohol consumption and would be well advised to reduce his alcohol intake. On the basis of his performance at my office I think he is fit to drive a cab but I think a more relevant question is his long-term alcohol use and of course I am not in a position to comment on whether or not he is intoxicated while in charge of his cab. If there were evidence that he was intoxicated while in charge of the cab it would be very reasonable for him to lose his licence and a question of his medical fitness would not arise. On the grounds of his current intellectual function, I believe he is quite capable of driving a cab while sober.”
35 I have now found that this evidence exists. Mr Mulligan has maintained his denial, and has not sought to explain nor minimise its significance for his continuing fitness to hold an authority. In these circumstances, I consider that the decision to cancel his authority was authorised by the legislation and was the preferable exercise of the power in s 14. I have considered but cannot find a less severe sanction which could properly be applied. Mr Mulligan’s evidence leaves no prospect that a temporary suspension or conditional authority would provide an appropriate measure sufficient to produce confidence that he would not again drive a taxi while intoxicated. Nor, in this respect, do the various general written character references tendered by him – all of which I have taken into account. I have also taken into account the hardship which loss of this source of income will produce for Mr Mulligan. However, in all the present circumstances, the public’s entitlement to have confidence in the sobriety of its taxi drivers is the dominant consideration in my mind.
36 I therefore affirm the decision under review.
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