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

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).

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.'

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.

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.

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

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).

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] NSWADT 91
Decision Date: 04 May 2011

CaseChat Overview and Summary

The case of Nasour v Director-General, Transport NSW was before the Court of Appeal. The appellant, Mr Nasour, is a taxi driver, and the respondent is the Director-General of Transport NSW. The matter before the court concerned the respondent's decision to suspend the appellant's taxi driver authority following the appellant's conviction for serious criminal offences. Mr Nasour sought to appeal the respondent's decision, arguing that the suspension of his taxi driver authority was unreasonable and disproportionate. The central issue for the court was whether the respondent's decision to suspend Mr Nasour's taxi driver authority was lawful and reasonable, given the seriousness of the criminal charges for which he was convicted.

The court examined the relevant statutory provisions and considered the principles of administrative law that applied to the respondent's decision-making process. The court noted that the respondent had the authority to suspend a taxi driver's licence where there were serious concerns about the driver's fitness to hold such a licence. The court also considered the nature and seriousness of the criminal offences for which Mr Nasour was convicted, and whether those offences warranted a suspension of his taxi driver authority. Ultimately, the court found that the respondent's decision to suspend Mr Nasour's taxi driver authority was lawful and reasonable, given the seriousness of the criminal charges for which he was convicted.

The court rejected Mr Nasour's argument that the suspension of his taxi driver authority was disproportionate to the offences for which he was convicted. The court found that the respondent had carefully considered the relevant factors in making the decision to suspend, and that the decision was not irrational or Wednesbury unreasonable. The court also rejected Mr Nasour's argument that the respondent had failed to consider relevant mitigating factors, finding that the respondent had given proper consideration to all relevant factors in making the decision. The court concluded that the respondent's decision to suspend Mr Nasour's taxi driver authority was lawful and reasonable, and therefore affirmed the decision of the respondent.

Orders

Orders of the court

The decision of the respondent is affirmed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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