Nehma v Director General, Department of Transport

[2002] NSWADT 242

CITATION:	Nehma v Director General, Department of Transport [2002] NSWADT 242
DIVISION:	General Division
PARTIES:	APPLICANT Mario Nehma RESPONDENT Director General, Department of Transport
FILE NUMBER:	023182
HEARING DATES:	13/11/02
SUBMISSIONS CLOSED:	11/13/2002
DATE OF DECISION:	11/21/2002
BEFORE:	Hennessy N - Magistrate (Deputy President)
APPLICATION:	Passenger Transport Act - taxi driver - cancellation of authority - Taxi driver - cancellation of authority
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Passenger Transport Act 1990 Administrative Decisions Tribunal Act 1997 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Re T and Anor and the Director of Youth and Community Services [1980] 1 NSWLR 392 Melbourne v The Queen (1999) 198 CLR 1 at 15 Caska v The Director General Department of Transport [2001] NSWSC 205 Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11 McKenzie -v- Director General, Department of Transport [2000] NSWADT 126 Brown -v- Director General, Department of Transport [2000] NSWADT 153
REPRESENTATION:	In person A Wozniak, solicitor
ORDERS:	1. The Director General's decision to cancel Mr Nehma's taxi driver's authority is affirmed.

1 On 5 June 2002, the Director General, Department of Transport (the Director General) cancelled Mr Nehma’s taxi authority. The reason for the cancellation was that Mr Nehma had been convicted of assault with an act of indecency on a female passenger.

2 The question for the Tribunal is whether or not the Director General made the “correct and preferable decision” in cancelling Mr Nehma’s taxi authority. The Tribunal’s decision must be made on the basis of all relevant factual material. (See s 63 of the ADT Act.)

Statutory provisions

3 Section 33 F of the Passenger Transport Act 1990 (PT Act) provides that:

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.

4 Under s 33(3) of the PT Act:

(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.

5 In essence, for the purposes of these proceedings, I must be satisfied that Mr Nehma is of good repute and that he is in all other respects he is a fit and proper person to be the driver of a public passenger vehicle.

Evidence

6 Mr Nehma has been driving taxis full time for more than nine years. In that time, he has only had three relatively minor complaints made about him.

7 Mr Nehma provided several references including one from his wife, from Peter Spathos, Secretary of the Greek community of Mascot and George Mikhail. Mr Mikhail is the owner of the taxi that Mr Nehma has been driving for the last 5 years. He said that Mr Nehma is of good character, reliable and dedicated to his family. Mr Mikhail would have no hesitation in re-hiring Mr Nehma if his application to the Tribunal is successful.

8 On 12 April 2002 the Local Court found the offence for which Mr Nehma had been charged, assault with act of indecency, proved. The brief details of the offence were that on 9 January 2002 Mr Nehma was dropping a 23 year old female passenger off at her home. When she gave Mr Nehma her credit card, he said “Zoe is a Greek name” and touched her on the check with his finger. He said, “You’ve got a beautiful smile.” He then reached over with his right hand and grabbed her on the left breast. He leant over and licked her on the right side of the face from her jawline to her temple. He then put her hand between her legs. The passenger escaped from the vehicle and went inside.

9 Prior to sentencing, the Magistrate obtained a Report from a Probation and Parole Officer dated 22 May 2002. That report stated in part, that:

Mr Nehma vehemently denied his involvement in these offences and indicated his intention to lodge an all grounds appeal.

Of concern to the author was Mr Nehma’s attempt to manipulate the assessment process of this Service, when he advised that he would admit to the offences, if his admission would secure him a supervised Bond.

10 Mr Nehma denied that he had told the probation and parole officer that he would admit the offences if that meant that he would obtain a bond.

11 On 27 May 2002 the Magistrate convicted Mr Nehma and sentenced him to imprisonment for 6 months. However, under s 12 of the Crimes (Sentencing Procedure) Act 1999, the court suspended the execution of the sentence on Mr Nehma entering into a bond to be of good behaviour for 6 months.

12 Mr Nehma denied that he committed the offence. He reported that an appeal to the District Court had been dismissed on 5 November 2002. Mr Nehma said that he intended to appeal to the High Court.

Findings of fact

13 Mr Nehma has been convicted of the offence of assault with act of indecency in relation to a 23 year old female passenger in his taxi. That conviction was upheld by the District Court. Mr Nehma has no other criminal record and there are no significant complaints against him from passengers in the nine years he has been driving. He has the support of the owner of the taxi which he has been driving for the last five years, as well as other members of his community.

Reasons and Decision

14 Being a "fit and proper person" and of "good repute" are distinct concepts which must both be satisfied before an authority can fulfil its purpose. (Re T and Anor and the Director of Youth and Community Services [1980] 1 NSWLR 392; Melbourne v The Queen (1999) 198 CLR 1 at 15.) This proposition was endorsed by the Supreme Court in Caska v The Director General Department of Transport [2001] NSWSC 205.

15 The meaning of the terms "fit and proper person" and "good repute" have been considered in several cases decided by this Tribunal. The Tribunal has frequently quoted the following passage from Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11):

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. (per Toohey and Gaudron JJ at 65)

16 It is a fact that Mr Nehma has been convicted of an assault, with an act of indecency on a female passenger. Although he denies that he committed this offence, it was upheld on appeal to the District Court. It is not appropriate for me took look behind the circumstances of that offence and come to my own view as to whether the offence was committed or not. The Magistrate in the Local Court had the benefit of hearing the evidence first hand and comparing the respective versions of events given by Mr Nehma, the passenger and other witnesses.

17 Mr Nehma mentioned the cases of McKenzie -v- Director General, Department of Transport [2000] NSWADT 126 and Brown -v- Director General, Department of Transport [2000] NSWADT 153 . In McKenzie, the Tribunal set aside a decision of the Director General to cancel the applicant’s taxi authority. In that case the applicant was convicted of a common assault on a passenger. The Magistrate found that ‘the grabbing of the hand with such force that a bag was ripped and the contents fell to the ground', amounted to an assault. The facts in the present case are far more serious than those in McKenzie. In Brown, On 4 January 1996 Mr Brown had a lengthy traffic and criminal history. He had been convicted of assault occasioning actual bodily harm on his de facto partner and was sentenced to 150 hours of community service. Despite these offences Mr Brown had successfully rehabilitated himself and the Tribunal found that he was a fit and proper person to drive a taxi.

18 Mr Nehma’s offence relates directly to his activities as a taxi driver. Indecent assault on a passenger is an extremely serious matter. In my view Mr Nehma’s situation can easily be distinguished from the cases of McKenzie and Brown. Mr Nehma agreed that any person who had committed such as offence would be unfit to drive a taxi. Given Mr Nehma’s conviction, he is not a fit and proper person to drive taxis. It would be totally unacceptable to the travelling public for a person convicted of such an offence to be permitted to drive a taxi.

19 On the basis of all the evidence, including Mr Nehma’s references, I am satisfied that the Director General made the correct decision in cancelling Mr Nehma’s taxi authority because he could not attest that Mr Nehma is a fit and proper person to have such an authority.