MUSA FARAH and DEPARTMENT FOR PLANNING AND INFRASTRUCTURE - [2005] WASAT 24

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: ROAD TRAFFIC ACT 1974 (WA)

CITATION: MUSA FARAH and DEPARTMENT FOR PLANNING AND INFRASTRUCTURE [2005] WASAT 24

MEMBER: MR C RAYMOND (SENIOR MEMBER)

HEARD: 8 MARCH 2005

DELIVERED : 11 MARCH 2005

FILE NO/S: CC 194 of 2005

BETWEEN: MUSA FARAH
Applicant
AND
DEPARTMENT FOR PLANNING AND INFRASTRUCTURE
Respondent

Catchwords:

Road Traffic Act 1974 (WA) - Application for interim order - Stay of decision suspending driver's licence whether reason to believe applicant not of good character

Legislation:

Road Traffic Act 1974 (WA) s 48(1)(a), s 48(2)

State Administrative Tribunal Act 1994 (WA) s 25, s 27

Result:

Application for stay order dismissed

Category: B

Representation:

Counsel:

Applicant: Mr M Hall
Respondent: Department for Planning and Infrastructure

Solicitors:

Applicant:
Respondent:

Case(s) referred to in decision(s):

Farquharson v Director General, Department of Transport (1999) NSW ADT 53 (9 July 1999)
Husqvarna Forest and Garden Ltd v Brydon New Zealand Ltd
re T and Director of Youth and Community Services (1980) 1 NSW LR 392

Case(s) also cited:

Nil

MR C RAYMOND (SENIOR MEMBER):

REASONS FOR DECISION

On 2 February 2005, Anne Mason, Manager, Central Customer Services, Regulatory and Regional Services of the Department for Planning and Infrastructure, advised the respondent by letter of that date that his driver's licence "T" class endorsement was suspended pursuant to the provisions of par (a) subs (1) of s 48 of the Road Traffic Act 1974 (WA) on the grounds that the applicant was not of good character. The "T" class endorsement enables the applicant to carry on his occupation as a taxi driver.
On 15 February 2005, the applicant made a substantive application to the State Administrative Tribunal ("the Tribunal") for an order, in effect, that the suspension be set aside and for an interim order, in effect, for the stay of the order of suspension.
The application for a stay was first heard on 16 February 2005. At that stage, there were no reasons available for the decision to suspend the applicant's driver's licence. The applicant, then represented by his solicitor, Mr Hawkins, outlined briefly that the applicant had been charged with two counts of indecent assault on two female passengers and one charge of committing an indecent act. The applicant denied the charges against him asserting that he was not the driver of the taxi in question and that he had been wrongly identified. At times during the hearing, the applicant proffered information himself to supplement his solicitor's instructions. The applicant informed the Tribunal that he had been driving taxis in Perth for four months; that his family had been in Perth for more than a year but that he had to remain in Sydney where he worked at a department store.
The thrust of the application was based upon the hardship suffered by the applicant and his family and until and unless the allegations against the applicant were proved, he should be allowed to continue his work as a taxi driver.
In the absence of reasons for the decision under review and the record upon which the decision had been based, the Tribunal declined to dispose of the stay application. Directions were issued for the filing and service of copies of the reasons for decision and any other documents or material within the respondent's possession or control relevant to the decision.
The reasons and other documents were filed pursuant to those directions on 24 February 2005.
The reasons for the decision were recorded in a file note dated 22 February 2005 prepared by the said Anne Mason. The file note reflects that Ms Mason acted under delegated authority in making the decision to suspend the applicant's driver's licence. The reasons given for the decision were expressed as follows:
"Taking into consideration the seriousness of the charge, that there were two witnesses involved and with regard to the interest of public safety and the potential risk considering the charge was against a vocational driver, I concurred with the recommendation to suspend the "T" endorsement as per my delegated authority under s 48(1)(a) of the Road Traffic Act 1974 (WA)."
The above conclusion followed Ms Mason's review of all the documents contained in a file provided by Mr Peter Westgate, a Senior Compliance Officer with the Department for Planning and Infrastructure's Passenger Services. The documents provided to the Tribunal, which can be inferred came from the said file, included a signed statement by a young woman to whom I will refer as "W" and an unsigned statement purporting to have been made by a young woman to whom I shall refer as "R"; an email from W and R to Swan Taxis sent on 31 December 2004 at 3.51 am and forwarded to a Mr Rob Chester at 6.42 am on the same day and, amongst others, a complaint form under the heading "Swan Taxis Cooperative Limited".
The incident of which the two witnesses complain was alleged to have occurred in the early hours of the morning of 31 December 2004. The witnesses claim that they entered a taxi outside a nightclub and asked to be taken to an address in Rivervale. The complaint relates to the alleged conduct of the applicant en route to the Rivervale address and outside the taxi when the witnesses disembarked.
Mr Hall, who appeared for the applicant at the resumed hearing on 8 March 2005, referred to Husqvarna Forest and Garden Ltd v Brydon New Zealand Ltd 3 NZ LR 215 at 226 to support his submission that under s 48(1) of the Road Traffic Act 1974 (WA) the Director General could not conclude that the applicant was not of good character, when the information before him could reasonably reflect only that there were grounds for suspecting that the applicant might have committed the alleged offences. It was submitted that s 48(1) requires that the Director General have reason to believe that the applicant was not of good character and that this:
"must involve the concept of knowledge of facts from which a reasonable man would arrive at the relevant belief. Facts from which a reasonable man might suspect the relevant conclusion cannot be enough" - quoting Husqvarna v Brydon (supra) at 226.
Further, Mr Hall submitted that support for this approach was to be found within s 48(2) which, without limiting the operation of s 48(1), enabled the Director General where he suspected that grounds might exist for the suspension or cancellation of a licence to in effect require the licence-holder to show cause why that should not occur.
In response, Mr Nguyen relied on Farquharson v Director General, Department of Transport (1999) NSW ADT 53 (9 July 1999) to support a proposition that it was not necessary for the Director General to form an opinion as to the guilt or innocence of the applicant so that the laying of charges of a serious criminal offence, especially one arising out of circumstances that directly bore on the activity in relation to which the licence has been issued, would permit suspension on public interest grounds. Mr Nguyen was, however, unable to point to any express power to suspend a driver's licence on public policy grounds, although it was submitted that the grounds set out in s 48(1)(a) - (f) were linked to public policy.
In my view, Farquharson v Director General (supra) does not provide a basis for suspension of a taxi driver's licence on the grounds that the taxi driver is not of good character as notified to the applicant. Farquharson v Director General (supra) recognises that there is a distinction between an obligation to show that one is of "good repute" or that one is a "fit and proper character". The former concept was said to go to the way in which a person is regarded by others in the community (fairly or unfairly), while the latter goes to an individual's intrinsic characteristics, whether they are known to others or not (at [27]) and referring as authority also to re T and Director of Youth and Community Services (1980) 1 NSW LR 392. As Mr Nguyen was unable to point to any public interest or "good repute" provision under the Road Traffic Act 1974 (WA) permitting suspension Farquharson v Director General (supra) does not support the proposition for which the respondent contends. However, Farquharson v Director General (supra) may be of some assistance in circumstances in which the stay provisions under the State Administrative Tribunal ("SAT Act") empower by s 25 the issue of an order staying the operation of a decision only if the Tribunal considers that it is desirable to do so after taking into account:
(a)the interests of any persons whose interest may be affected by the order;
(b)any submissions made by or on behalf of the decision-maker; and
(c)the public interest.
In considering a stay application, it is generally not possible, nor is it desirable, to attempt to resolve disputes of fact. Once a public interest factor is introduced, it requires a consideration of at least one criteria which excludes guilt or innocence and places weight on providing an assurance to the travelling public "that they will not unknowingly find themselves travelling with a person suspected of and charged with a serious criminal offence of violence" (Farquharson v Director General (supra) at [36]). This will of course not apply in dealing with the substantive application.
Further, and importantly, the Tribunal is charged by s 27 of the SAT Act to ensure it produces the correct and preferable decision at the time of the decision upon the review, so that it proceeds by way of a hearing de novo, and the hearing is not confined to matters that were before the decision‑maker but may involve the consideration of new material, whether or not it existed at the time the decision was made.
In this case, considering all of the material provided to the Tribunal, there is in my view, a basis upon which it would be open to the Tribunal at a final determination of the substantive application to conclude that there is reason to believe that the applicant is not of good character.
It suffices to note that there is information which was conveyed by witnesses W and R in the joint email dated 31 December 2004 sent at 3.51 am shortly after the alleged incidents, which they could only have known if it was communicated to them by the applicant, namely "that he was from Sydney and had only been here for four months". Further, the witness R noted the taxi plate number 933 which was the number of the vehicle being driven by the applicant.
For the above reasons, I do not accept the submission made on behalf of the applicant, that it is not possible for a reasonable man to arrive at the relevant belief.
Accordingly, and having particular regard to the public interest factor that members of the travelling public should not unknowingly find themselves travelling with a person suspected of and charged with a serious criminal offence, the application for a stay was dismissed.
The Tribunal was informed that the charges laid against the applicant have been set down for hearing on 15 June 2005. In the circumstances, the Tribunal further directed that the substantive application be set down for hearing on 29 June 2005 on the basis that it is most likely that it will be possible to produce the correct and preferable decision after the allegations against the applicant have been properly tested.

I certify that this and the preceding seven pages comprise the reasons for decision of the Tribunal.
______________________________
Mr C Raymond
Senior Member