Nasour v Director-General, Transport NSW

[2011] NSWADT 91

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Nasour v Director-General, Transport NSW [2011] NSWADT 91
Hearing dates:	8 April 2011
Decision date:	04 May 2011
Before:	Judge K P O'Connor, President
Decision:	The decision of the respondent is affirmed
Catchwords:	PASSENGER TRANSPORT - Taxi Driver Authority - Suspension - Serious Criminal Charges - Decision Affirmed
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990 Passenger Transport Regulation 2007 Road Transport (Driver Licensing) Act 1998
Cases Cited:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Chen v NSW Department of Transport and Infrastructure [2009] NSWADT 285 Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16 Farquharson -v- Director General, Department of Transport [1999] NSWADT 53 Hoballah v Department of Transport and Infrastructure [2010] NSWADT 294
Category:	Principal judgment
Parties:	Ali Nasour (Applicant) Director-General, Transport NSW (Respondent)
Representation:	P Lander (Applicant) A Wozniak (Respondent)
File Number(s):	113077

REasons for decision

1. The review applicant Mr Ali Nasour is the holder of a taxi authority EK4104. On 25 March 2011 a delegate of the Director-General, Transport NSW (the administrator), notified him of his decision to suspend the authorisation immediately in accordance with s 33F of the Passenger Transport Act 1990 (the Act).

1. Section 33F provides: 'Having regard to the purpose of authorisation under this Division, the Director-General may at any time vary, suspend or cancel any person's authority under this Division.'

1. As to the purpose of the authorisation, s 33 provides:

(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. Administrator's Reasons . In the statement of reasons accompanying the notice, the delegate advised that, under data matching arrangements with the NSW Police, Transport NSW had discovered that he had been charged with the following offences:

• Assault occasioning actual bodily harm
• Common Assault, and
• Use etc of an offensive weapon (a tyre lever) with intention to commit indictable offence.

1. It added that advice received indicated that these offences took place whilst he was driving a taxi.

1. The decision to suspend relied on both paragraphs (a) and (b) of s 33(3). He was no longer considered to be of good repute and nor in all other respects a fit and proper person to be the driver of a taxi-cab: para (a). He was considered not to have sufficient responsibility and aptitude to drive a taxi-cab: para (b).

1. As to ground (a), the reasons asserted that '[T]he offences recorded show a betrayal of the confidence the community instils in the driver of a public passenger vehicle and demonstrates that you are not fit to hold a public passenger vehicle driver authority'. They continued: 'In view of the nature of your behaviour, the offences recorded, your failure to notify TNSW of any offence, the delegate ... can no longer attest to you being a fit & proper person for the purpose of the Passenger Transport Act 1990.'

1. The decision stated that the suspension 'would remain in place until such time as the charges are finalised by the court and TNSW assesses the outcome of the matter or the authority expires.'

1. Stay application . The applicant applied to the Tribunal on 1 April 2011 for an interim order under s 60 of the Administrative Decisions Tribunal Act 1997 (ADT Act) lifting the suspension pending the hearing of the criminal charges. I refused the application, but gave directions for an expedited hearing of the application for review itself. The hearing proceeded on 8 April 2011. I reserved my decision, and continued the suspension pending its publication and any further order. At the stay hearing the applicant's lawyer advised that a decision is awaited from the Director of Public Prosecutions as to whether the charges are to be the subject of an indictment; or referred to the Local Court for summary disposal. The applicant's intention is to plead not guilty. It is likely to be several months before any trial occurs.

1. Material before Tribunal . The applicant relies on a number of testimonials going to his fame and character. The administrator has lodged, as required by s 58 of the ADT Act, all relevant material in its possession. It is made up of the Department's file, as well as the Police facts sheet and associated material in relation to the charges. The Department's file includes records of the applicant's traffic offence history.

Outline of Circumstances Giving Rise to Charges

1. The incidents that gave rise to the charges arose in connection with his work as a taxi driver. I will not repeat in detail the material in the facts sheet. There is no dispute on the part of the applicant about the following elements.

1. He picked up three passengers around 2.15 am, 01.03.11. Two alighted at their destination (a BP service station), and gave the remaining passenger $20 for the fare. The total fare was $38. The remaining passenger told the applicant that she would keep the $20 and pay by credit card. The credit card transaction was declined. The applicant was upset, especially as she had received $20 towards the fare.

1. The applicant drove her to a police station, only 150m away, to complain. The police at the desk informed him that they could not accede to his demand that they search her possessions and find the money. The police indicated that a charge could be laid against the passenger in relation to failure to pay the fare. The facts sheet refers to angry behaviour by the applicant. He left the police station. It is at this point that things went awry for the applicant.

1. He proceeded to drive around the area, located the three passengers not far from the police station, got out of his car, and confronted them. One of the passengers rushed to the police station and asked for assistance. The police observed the next stage of the confrontation.

1. The police did not take any further action at the time. The passengers subsequently laid a complaint. On 16.03.11 the police interviewed the applicant, and charges were laid.

Administrator's Submissions

1. The administrator's case at hearing referred to both paragraphs (a) and (b) of s 33(3). The administrator referred to the fact of the laying of the criminal charges; their seriousness; their connection with the regulated occupation; his traffic offence history; and his failure to report the charges and his prior traffic offence history. The administrator's submission is that the charges, and other matters raised, demonstrate that the applicant can not, for the time being, be regarded as a person of 'good repute', or as generally 'fit and proper' to drive a taxi; or as a person with the 'responsibility and aptitude' to drive a taxi.

1. The charges : The charges are serious ones, with the maximum penalty for the most serious charge (assault occasioning actual bodily harm), if tried on indictment, being five years' imprisonment.

1. Traffic offence history . The applicant's traffic offence history includes the following: licence cancellation under the demerit points system for 6 months many years ago (16.04.97-16.10.97); licence suspension for one month (05.04.05-05.05.05) for speeding offence; and recently, a licence cancellation under the demerit points system for 3 months (11.11.2010-10.02.11).

1. The licence has now been restored, conditionally in relation to a further three months (11.02.11-10.05.11) under the 'good behaviour' system. If he infringes relevantly in this period, he would be exposed to the penalty of a six months' suspension.

1. As to the merits points system and the election to stay on the road on a good behaviour basis: see generally, Road Transport (Driver Licensing) Act 1998 , s 16A; and the discussion in Chen v NSW Department of Transport and Infrastructure [2009] NSWADT 285.

1. The Tribunal held in Chen , resiling from a previous interpretation, that it does not follow from that requirement that a driver whose licence becomes conditional during the period of the authority thereby automatically loses eligibility to continue to hold the authority. The relevant law states that an applicant for a taxi driver authority must have an unconditional general driver licence: Passenger Transport Regulation 2007 , cl 29. Accordingly, the Tribunal reasoned that the existence of a restriction only has an automatic disqualifying effect at the point of application for renewal. See further, Hoballah v Department of Transport and Infrastructure [2010] NSWADT 294.

1. Non-notification of criminal charges and prior traffic offences . The driver of a public passenger vehicle must furnish the Director-General with written details within 7 days of the laying of any charge (other than a parking offence) by a police officer, maximum penalty, 10 penalty units: Passenger Transport Regulation 2007 , cl 44.

Applicant's Submissions

1. The applicant filed an affidavit as to his personal circumstances, and filed a number of very positive testimonials as to involvement in his community, church and his children's sports activities. The makers of the statements stated that they were aware of the laying of the charges. He is 37 years old, and was first issued with an authority in 1993. He is a full-time driver. He married in 2000 and has five dependants - his wife and four children aged 9 to 1. He referred to his financial commitments. The applicant will suffer a significant loss of income if he cannot resume using his authority pending the hearing of the charges (unless, of course, he can find alternative work with a similar income).

1. The applicant's lawyer emphasised the difficult situation on the night of the events giving rise to the charges. He submitted that in contrast to some of the other suspension cases to come before the Tribunal based on pending criminal charges, his client had sought to deal with the situation that arose in an appropriate way by bringing the matter to the attention of the police. He also noted that the police had observed many of the events of that evening, and initially had not laid any charges.

Consideration

1. Where the administrator has intervened to suspend an authority upon notice of serious criminal charges against a driver, the administrator has generally relied on the submission that the driver can no longer be regarded as a person of 'good repute' or as having the character (i.e. not 'fit and proper') to be a driver.

1. The administrator, and the Tribunal on review, has often referred to Farquharson -v- Director General, Department of Transport [1999] NSWADT 53, a decision of mine, in support of these conclusions. That case involved a holder of an authority who had been charged with conspiracy to commit murder. He was immediately suspended, a decision affirmed by the Tribunal.

1. Section 33(3)(a), as already noted, brings two perspectives to the consideration of the good standing of a driver. The first perspective is that of 'repute' and the other is that of being a 'fit and proper person'. Case law has treated 'repute' as referring to the public esteem in which a person is held, while 'fit and proper' has been seen as referring to a person's intrinsic character and integrity. In the typical case 'repute' and 'character' will be aligned, either good or lacking. But it is possible that a person may not be of good repute but on deeper examination of their history and background be found to be a person of good character. Equally a person might be of good repute but on deeper examination be found to a person of bad character. In relation to each aspect, the inquiry is not concerned with the general question of the person's general standing or character as a member of the community, but the more particular issue of their standing or character in relation to the particular attributes of the regulated activity, here taxi driver. Consequently, general testimonials of the kind presented in this case, while helpful, should not be treated as determinative.

1. In Farquharson , I said on the 'repute' question:

29 The administrator in this case was entitled, I consider, to have regard to the serious charges laid against the applicant. They may be properly regarded as affecting his "good repute" even though judgment may need to be reserved as to whether any negative conclusion should be formed about fitness and character, pending evidence at committal and trial, and the verdict.

1. I continued:

30 The administrator is entitled to take account of the general circumstances giving rise to the charges, without being called on to examine the strengths and weaknesses of the prosecution case or the nature of any defences. Powers of suspension are, by their nature, designed to provide a temporary form of intervention pending further developments or further consideration or action by the administrator. A power of suspension, as compared to outright cancellation, does carry the (marginal) benefit for the licensee in not placing at risk the licence itself.

1. In that case I went on to look at the question of how then might the administrator go about forming a view as to 'repute and character'. The reasons referred to taking into account the views that might be formed by a reasonable member of the travelling public; and have been read as allowing the views of the travelling public to be used in the assessment of character. The Appeal Panel recently held in Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16 (8 April 2011) that the views of the travelling public are not a relevant consideration when assessing character. What is involved in the assessment of character is an objective evaluation of the person's fitness to continue to undertake the regulated occupation having regard to the relevant material.

1. The Appeal Panel's approach is similar to the one I expressed at para [29] of Farquharson , as extracted above. The preferable approach in dealing with the character question (often expressed in statutes as whether the person is a 'fit and proper' person to undertake the regulated activity), therefore, where one event is substantially relied upon - the laying of serious criminal charges - is to reserve judgment on intrinsic character until more is known.

1. However, 'repute' is a concept very much about what members of the public, and importantly the passenger community, might think (fairly or unfairly). The Act itself, not surprisingly, gives weight to passenger thinking. One of the objects of the Act is to 'encourage public passenger services that meet the reasonable expectations of the community for safe ... passenger transport services' (s 4(e)).

1. A person's reputation is a function of public perception. See for example Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 at [36] per Toohey and Gaudron JJ. The full passage appears in Murray at [16]. The same point is made in the Supreme Court and ACT Supreme Court decisions to which the Appeal Panel refers at [13].

1. A judgement as to the perception of reasonably-minded members of the travelling public remains, in my view, a relevant consideration for an administrator, when considering the 'repute' of a driver, or the driver's 'aptitude and responsibility'.

1. In some recent Tribunal decisions dealing with suspensions and cancellations, the Tribunal has not focussed so much on the 'repute' and 'fitness and propriety' elements of s 33(3)(a), but rather the considerations listed in s 33(3)(b):

(b) ... 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. For example, in Chen , cited earlier, the Tribunal did not enter a negative finding on 'repute' or 'fitness and propriety' but proceeded to affirm the administrator's decision to disqualify the driver by reference to para (b). The Tribunal took into account the applicant's wider traffic offence history and the fact that the general licence was already subject to the good behaviour condition.

1. In my view the approach taken in Chen may offer a better course for dealing with situations where a driver has come to notice as a result of serious criminal charges being laid, especially where the driver has no adverse regulatory history of any significance. This is, in my opinion, such a case.

1. An approach based on paragraph (b) is less vulnerable to the awkward difficulty that can present in cases based on 'repute'. A public perception may be ill-informed, and not be consistent with the person's intrinsic character.

1. Responsibility and Aptitude . The administrator does not dispute the applicant's evidence that he has only ever had one passenger complaint sustained against him. On 3 August 2010 he received a penalty for 'driver of taxi-cab not accepting hiring when offered', fine $150. The administrator's file only shows two other complaints against the applicant, both recent with no further action being taken (July 2010, September 2010). This record, viewed overall, must, I consider, be regarded as a very good one, and stands in favour of the applicant.

1. I have set out earlier in these reasons the applicant's traffic history and the fact of the failure to report.

1. He has spent, on my calculations, around 10 months without a driver licence because of his traffic offence history spread over 19 years. He is presently on a conditional licence and at the risk if he infringes with a demerits points offence of being off the road for a further 6 months.

1. The applicant states that he drives 60-70 hours a week. Using 19 years as the base figure, perhaps 10 months off the road (around 5%) is not exceptional for a professional driver. I have no comparative information as to the extent to which taxi drivers suffer traffic convictions and the amount of time they typically spend off the road, especially since the introduction of the automatic demerits points system. I am therefore reluctant on the basis of this traffic history to make an adverse finding as to his repute, or his responsibility and aptitude.

1. As to his failure to report the criminal charges and his traffic offence history, I note that a driver is obliged to report charges (other than for parking offences). It is a very wide obligation. Even if some allowance is made for the likelihood of non-reporting of minor matters unconnected to driving, I think that a responsible taxi driver would recognise that demerits cancellations or suspensions must be reported. They bear directly on his right to continue to use his authority. While the applicant should have reported the traffic offences and the demerits penalties, I do not think it is a serious enough failure to warrant formation of a negative view in respect to his repute or his responsibility and aptitude to obey the law.

1. The failure to report the criminal charges is a more serious omission. But I doubt whether a breach of the obligation of any significance has been established by the material. The criminal charges came to the notice of the administrator quickly. The administrator took immediate action with the result that the suspension was notified either one or two days after the 7 day period ended. Had the omission continued for some time, it would have been more serious.

1. I now turn to the central matter of concern, what is revealed by the events of the morning of 01.03.11 as to the applicant's responsibility and aptitude to remain a driver.

1. The applicant is strongly of the view that the charges are unfair; he says that he will plead not guilty and he is confident of acquittal. I dealt with a similar submission in Farquharson . As indicated in para [30], extracted above, I held that the Tribunal can not in a disciplinary proceeding of the present kind occurring ahead of the criminal trial proceed to investigate the strengths and weaknesses of the prosecution case. Apart from other considerations, there are clear risks for a driver in ventilating alleged facts or defences outside the environment of the trial. On the other hand, I think it is permissible to have regard to the outline of circumstances recited in the police material as it stands (here the facts sheet) to the extent that are not disputed by the applicant.

1. I will not, therefore, traverse the critical events in dispute (the alleged altercation with the passengers that ensued and its detail). I will take account of the undisputed events recited earlier in these reasons.

1. I refer, in particular, to the applicant's non-acceptance of the initial police response (to issue an infringement notice to the final passenger) and his decision to track down the passengers and press for payment.

1. In my view, these matters manifest a behavioural difficulty that may be seen as raising an issue as to his character and reputation, and the possibility of repetition of the conduct; and may provide proper grounds for suspension pursuant to para (a) of s 33(3).

1. On this occasion, I think it preferable, not to explore this question in detail; but, as already explained, to consider these events in relation to what they say about the applicant's responsibility and aptitude to be a driver (s 33(3)(b)).

1. Those who render services ahead of payment face the risk that they may end up not being paid. Plumbers, electricians, workers in factories facing closure all face this difficulty, as well as taxi drivers. Evasion of fares is a problem that taxi drivers will sometimes face.

1. The applicant's first response to the passenger's refusal to pay was itself debateable. The final passenger tendered neither cash nor an operative credit card. He was, understandably, upset. Though presented by his lawyer as proper and referred to in the police facts sheet in a non-problematic way, in transporting her to the police station he appears to have kept the passenger in the taxi beyond the end of the trip. According to the police facts sheet, she made defiant and abusive statements to the applicant at the police station; and he was very angry and would not let the matter go. Shortly after driving away from the station he located the passengers and confronted them.

1. The behaviour to which I have referred raises considerable doubt as to the applicant's ability to deal appropriately with the difficult situation of fare evasion. In my view, it can not be confidently attested that he displayed the level of responsibility and aptitude reasonably to be expected of a driver in this situation. Before being allowed to return to the road as a taxi driver, he needs to provide assurance that he has a coping strategy for addressing the problem of fare evasion that does not involve resorting to anger and intimidation.

1. If the applicant can provide assurance that he will adopt a better coping strategy for dealing with fare evasion in future, it would be reasonable, I think, to allow him to return to the road pending disposal of the charges, especially given the uncertain length of time it will take for the case against him to come on to trial.

1. First, I will affirm the decision of the administrator. Secondly, I would encourage the applicant to attend an anger management or similar program approved by the administrator, and one that is directed in particular to the problem of dealing with difficult passenger situations especially those involving fare evasion. Once that program is completed successfully, it would be open to the applicant to re-apply to the administrator for lifting of the suspension.

1. While the charges are serious ones, the driver has no wider history of complaint that suggests any significant difficulty in his behaviour towards passengers.

Order

1. The decision of the respondent is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

Registrar/Associate

Decision last updated: 04 May 2011