Nielsen v Director General, Department of Transport

[2000] NSWADT 80

CITATION:	Nielsen v Director General, Department of Transport [2000] NSWADT 80
DIVISION:	General Division
PARTIES:	APPLICANT Ken Nielsen RESPONDENT Director General, Department of Transport
FILE NUMBER:	003111
HEARING DATES:	15/06/00
SUBMISSIONS CLOSED:	06/15/2000
DATE OF DECISION:	06/21/2000
BEFORE:	Hennessy N (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
CASES CITED:
REPRESENTATION:	APPLICANT In person RESPONDENT Director General, Department of Transport
ORDERS:	1. The decision of the director General of the Department of Transport to cancel Mr Nielsen’s taxi drivers authority is affirmed.

Introduction

1 On 17 April 2000 Mr Nielsen applied to the Tribunal for a review of a decision of the Director General, Department of Transport, to cancel his authority to drive taxi cabs.

2 The basis of the Director General’s decision to cancel Mr Nielsen’s authority was his driving record, complaint history and failure to disclose any convictions or charges in relation to criminal, traffic or any other kind of offence.

Jurisdiction

3 Pursuant to s 52(1) of the Passenger Transport Act 1990 (the Act) a person whose application has been refused or whose accreditation or authority has been varied, suspended or cancelled, may apply to the Administrative Decisions Tribunal for a review of that decision.

Issues and Legislation

4 Section 14 of the Act gives that Director General power to cancel a licence:

Having regard to the purpose of an authority, the Director-General may at any time vary, suspend or cancel any person's authority.

5 The purpose of an authority is set out in s 11(2) which provides that:

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 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.

6 The issue in this case is whether the Director General made the correct and preferable decision in cancelling the applicant’s taxi authority.

Evidence

7 The Department relied on three complaints from passengers in its statement of reasons. The first was an incident which allegedly took place on 23 March 1995. Mr Nielsen said that he had no recollection of this incident and was never notified that a complaint had been made.

8 A complaint letter dated 24 March 1995 set out allegations of “pushing in”, “clipping a side mirror” and having a “smug look”

9 Mr Wozniak showed Mr Nielsen a copy of the complaint letter, which Mr Nielsen said he had never read before. Mr Wozniak advised the Tribunal that he had handed Mr Nielsen a copy of the Department’s file at the last directions hearing. When questioned about this, Mr Nielsen said, “I haven’t got a copy of the file.” I adjourned the proceedings to enable Mr Nielsen to view the file.

10 Mr Wozniak showed Mr Nielsen a letter dated 28 March 1995 from Taxi Combined Services Pty Limited to the Department of Transport which states in part, that:

The driver was reprimanded over this incident, and advised that this type of behaviour will not be tolerated by Taxis Combined services. We have warned him that future complaints of this nature may affect his authority to drive a Taxi cab in Sydney.

11 Mr Nielsen denied that he had ever been spoken to about this incident.

12 The second complaint relates to an alleged incident on 18 April 1995 when Mr Nielsen was involved in a car accident with a van. A letter of complaint was written by D Kolsque, Constable at Waverley Police Station. It said, in part, that he witnessed an minor accident between Mr Nielsen and suggested that both drivers move their car so as not to hinder the traffic flow. The letter of complaint then said:

It was at this time that Nielsen became very offensive toward me. He rudely asked me who I was to tell him what to do. I then produced my Police identification and announced my office to him. I then explained to him that it did not matter who I was, but the fact remained that he could move his vehicle to exchange particulars with the other driver. Nielsen then became very aggressive and said to me, “Get fucked, you’re not working, I don’t have to listen to you.”

13 As a result of this complaint the Department of Transport sent Mr Nielsen a letter on 11 July 1995 asking him to show cause as to why his licence should not be cancelled. Mr Nielsen admits not responding to this letter.

14 On 25 August 1995, the Department suspended his taxi driver authority and requesting that he attend for an interview.

15 Mr Nielsen did not deny continuing to drive after receiving this letter and a note on the file dated 21 September indicates that Taxi Combines Services had advised the Department that Mr Nielsen drove on 12 September 1995, 18 days after he was suspended.

16 On 20 September 1995 Mr Nielsen was convicted of using offensive language and fined over this incident in the Local Court. Mr Nielsen then attended the Department and returned his taxi driver authority.

17 On 9 October 1995 Mr Nielsen made a statement to the Department setting out his version of what happened on 18 April 1995. In brief, Mr Nielsen denied being abusive to the police officer and concluded that “the whole affair was a set up.” In oral evidence Mr Nielsen said that the man who said he was a police officer, tried to incite violence and that the van hit him deliberately.

18 The third complaint was made on 27 July 1998 and related to an incident at Fox Studios:

Driver stopped at security inside Fox Studios and when asked whether he knew where he was going he said Yes but wouldn’t reveal where it was. Security asked again and was about to give him a map when this driver swore at them and said you could forget about TCs cars coming to pick up at Fox Studios.

19 Mr Nielsen denied any recollection of this incident and said he was never interviewed about it.

20 Following completion of three courses, the Department agreed to re-issue Mr Nielsen with a taxi driver’s authority on 19 October 1995.

21 On 15 June 1999 the Roads and Traffic Authority (RTA) advised Mr Nielsen that his driver’s licence had been suspended for 4 months from 20 July because of the number of demerit points he had accrued. After telephoning the RTA and advising them that the RTA’s records were not accurate, Mr Nielsen received a confirmatory letter on 23 July 1999. That letter stated in part that:

Following investigations into the matters we discussed, your traffic record has been adjusted. As a result, the suspension of your driver’s licence has been lifted pending further enquires.

22 On 24 July 1999, the RTA wrote to Mr Nielsen again advising that his demerit points do exceed the prescribed limit and advising him that his licence will be suspended on and from 28 August 1999 for a period of 3 months. Mr Nielsen denies ever receiving this letter.

23 On 1 November 1999, Mr Nielsen received a letter from the RTA referring to the Notice of Suspension and advising that since one of the offences on his record has been removed from his driving record, the suspension of his licence has been lifted from 1 November 2000. Mr Nielsen claims that this is the first he knew of the fact that his licence had been suspended. He continued driving throughout this period. He said if he had received the 24 July 2000 letter he would have taken the matter up with the RTA straight away to avoid losing his licence.

24 On 1 February 2000 the Department received a phone call from Snr Constable Matt Dickinson saying he had been involved in a motor vehicle accident with Mr Nielsen and that he was not happy with Mr Nielsen’s attitude. After receiving this advice, the Department checked with the RTA and Taxis Combined Network and found that Mr Nielsen’s licence had been suspended on 28 August 1999 until 1 November 1999 for the accumulation of demerit points but that Mr Nielsen had continued to drive during that period.

25 On 14 March 2000 the Department wrote to Mr Nielsen advising him that they were considering cancelling his authority and that he should make submissions to the Department. After endeavouring to contact Mr Nielsen by phone on several occasions, Mr Nielsen made it clear that he was not prepared to make himself available for interview.

26 On 19 October 1993 and 10 October 1994 Mr Nielsen signed a document entitled Country Taxi Driver Authorisation Declaration which states, in part, that:

I have read and understand the standards for Taxi Driver Authorisation outlining the responsibilities and obligations of taxi driver authority holders and agree to be bound by them.

27 The Taxi Driver Authorisation Standards, state at paragraph 1.2 that:

The driver must immediately report any conviction or charge in relation to criminal, traffic or any other kind of offence (other than parking offences) in NSW or elsewhere, to the Department of Transport.

28 Mr Nielsen agreed that he understood that he was bound by these standards but he had a different version of the Standards which was given to him at a training course in 1993. That document states that:

A person seeking to renew an existing taxi driver authority must complete a declaration providing full details of any:
· conviction or charge pending in relation to criminal, traffic or any other type of offence (other than parking offences) in NSW or elsewhere incurred since the existing driver authority was issued;
· disqualification from holding a licence to drive a motor vehicle in NSW or elsewhere since the existing driver authority was issued

29 Mr Nielsen said that he did not know about his obligation to inform the Department of convictions. He does not have access to the relevant documents as they are not on the internet. He was relying on the document given to him during his training course in 1993.

30 Mr Nielsen first obtained a taxi authority in New South Wales in 1975 and has driven in this state for a total of between 10 and 11 years. He has also driven in other states during that time.

31 Mr Nielsen was convicted of having custody of an offensive weapon in the Local Court on 15 July 1998. He appealed against this conviction to the District Court but was unsuccessful.

Findings

32 There are considerable discrepancies in the evidence between Mr Nielsen’s view of events and those recorded in the Department’s file. However, before dealing with these discrepancies I should consider identify certain matters which I do not consider are appropriate or relevant to be taken into account in any adverse sense against Mr Nielsen.

33 Mr Nielsen did not disclose his convictions to the Department as required by the Taxi Driver Authorisation Standards. Mr Nielsen said he had never received a copy of these standards and he was unable to obtain them on the internet. He produced another version of his responsibilities which he says was given to him at a training course in 1993. In these circumstances, no adverse inference should be drawn against Mr Nielsen for failing to notify the Department of his convictions.

34 Secondly, Mr Nielsen has been convicted for having in custody an offensive weapon. The fact of this conviction is relevant and will be taken into account but the circumstances of the offence are not sufficiently clear to me to justify drawing any inferences as to the seriousness of that conviction. Mr Nielsen provided his version of the circumstances surrounding this conviction, but I do not feel able to make any findings about these circumstances either favourable or adverse to Mr Nielsen in the absence of any evidence such as the transcript of the proceedings or the Magistrate’s findings.

35 In relation to the discrepancies in the evidence between what Mr Nielsen says and what the file discloses, I prefer the evidence contained in the file. I did not find Mr Nielsen to be a credible witness. His evidence directly contradicted the complaints of three independent people who had no reason to make false statements. His evidence also directly contradicted the account from the officer from Taxis Combined Services who said Mr Nielsen was reprimanded over the first complaint.

36 I do not accept that Mr Nielsen failed to receive a letter dated 24 July 2000 sent to his address when he admitted receiving a letter sent the previous day to the same address. This letter suspended Mr Nielsen’s licence. I think that this explains why Mr Nielsen denies receiving this letter.

37 Mr Nielsen did not respond to the Department’s show cause letters and did not make himself available for interview when his authority was in jeopardy. He clearly decided not to co-operate with the Department.

38 In addition, Mr Nielsen drove on at least two occasions when his licence was suspended.

Decision

39 Mr Nielsen has been convicted of using offensive language and having in custody an offensive weapon. He has been the subject of four complaints, the most recent being from a police officer complaining about Mr Nielsen’s behaviour after a motor vehicle accident. These complaints contain allegations of offensive language, rudeness and inappropriate behaviour.

40 Mr Nielsen has demonstrated that he is not willing to co-operate with the Department in terms of providing responses to show cause letters. Mr Nielsen’s oral evidence and the material on the file indicates that he is under the mistaken impression that when people complain about him, or he is charged with an offence, there is some kind of conspiracy, set up, or corruption involved and that he is not responsible. These matters in combination demonstrate that he does not have sufficient responsibility and aptitude to be the holder of a taxi authority.

41 The decision of the Director General to cancel Mr Nielsen’s taxi driver authority is affirmed.