Papadopoulos v Director General, Department of Transport

[2003] NSWADT 46

CITATION:	Papadopoulos v Director General, Department of Transport [2003] NSWADT 46
DIVISION:	General Division
PARTIES:	APPLICANT Theo Papadopoulos RESPONDENT Director General, Department of Transport
FILE NUMBER:	023220
HEARING DATES:	13/12/02
SUBMISSIONS CLOSED:	12/13/2002
DATE OF DECISION:	03/07/2003
BEFORE:	Higgins S - Judicial Member
APPLICATION:	Passenger Transport Act - taxi driver - grant of authority - Taxi driver - grant of authority
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Passenger Transport (Taxi-cab Services) Regulation 1995 Passenger Transport (Taxi-Cab Services) Regulation 2001 Passenger Transport Act 1990
CASES CITED:	Singh v Director General, Department of Transport [1999] NSWADT 9 Farquharson v Director General, Department of Transport [1999] NSWADT 53 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 Maythisathit and Registrar of Motor Vehicles [1996] AATACT 165
REPRESENTATION:	APPLICANT In person RESPONDENT A Wozniak, solicitor
ORDERS:	The decision of the Director General is affirmed.

1 On 2 October 2002, Mr Papadopoulos filed an application for a review of the decision of the Director-General, Department of Transport (“Director-General”) to refuse his application for an authority to drive a taxi-cab.

2 The Tribunal’s jurisdiction to hear Mr Papadopoulos’ application arises from s.52(1) of the Passenger Transport Act, 1990 and s.38 of the Administrative Decisions Tribunal Act, 1997.

RELEVANT LAW

3 The Passenger Transport Act sets out a regulatory scheme for operators and drivers involved in public passenger services. The objectives of the Act are set out in s.4 which provides, so far as is relevant, as follows:

“4. The objectives of this Act are:
(a) to require accreditation by the Director-General, of operators and drivers involved in public passenger services; and
(b) ………
(e) to encourage public passenger services which meet the reasonable expectations of the communityor safe, reliable and efficient passenger transport services; and”

4 Division 5 of Part 4 of the Passenger Transport Act, 1990 sets out the provisions relating to taxi driver authorities. Section 33B makes provision for the grant or refusal of an application for an authority to drive a taxi-cab pursuant to s.33 of the Act. Section 33B(1) of the Act provides as follows:

“33B(1) Having regard to the purpose of authorisation under this division the Director-General may grant an application and authorise the applicant to drive a taxi-cab, or may refuse the application”.

5 The purpose of an authorisation to drive a taxi-cab is set out in s.33(3) of the Passenger Transport Act, 1990. That sub-section provides as follows:

“S.33(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”.

6 The Passenger Transport (Taxi-cab Services) Regulation, 1995 prescribes the following in respect of a taxi driver taking additional passengers, the multiple hiring of taxi-cabs and the operation of a meter by a taxi-cab driver:

“ 38B Multiple hiring of taxi-cabs
(1) The driver of a taxi-cab may accept separate hirings from 2 or more persons concurrently if:
(a) all of the hirers commence the hiring of the taxi-cab at the same time, and
(b) each of the hirers agrees that the driver may accept the other hirings, and
(c) all of the hirers are travelling to destinations in the same general locality or the same general direction
39 Operation of meter by taxi-cab driver
(1) The driver of a taxi-cab to which a taxi-meter is affixed:
(a) must not set the taxi-meter in motion before the taxi cab is hired, and
(b) as soon as the taxi-cab is hired, must set the taxi meter in motion, and
(c) during any hiring must keep the taxi-meter in motion, and ….”

7 A failure to comply with regulation 38B constitutes an offence (see cls 38B(2)). The “authorised fare for multiple hiring is 75% of the amount that would be chargeable for a single fare (cl 3 of the Regulations).

8 Clause 39(2) provides that before receiving payment in respect of any hiring the driver is required to cause the amount recorded on the taxi-meter to be displayed so that it can easily be read by the hirer and he is required to state any extra charges that apply. Again a failure to comply constitutes an offence.

9 The Passenger Transport (Taxi-cab Services) Regulations, 1995 was replaced by the Passenger Transport (Taxi-cab Services) Regulations, 2001 on 1 September 2001. The new regulations contain similar provisions to those contained above. These are to be found in clause 68 and 69.

ISSUES

10 This is an unusual application in that Mr Papadopoulos had been the holder of a taxi driver authority for many years when, in September 2001, his authority was cancelled by the Director-General. The grounds relied on by the Director-General for that cancellation was a series of customer complaints and warnings in relation to them. The Director-General has relied on the same complaints and warnings in refusing to grant Mr Papadopoulos a new authority.

11 Accordingly the issue in this application is whether Mr Papadopoulos’ conduct while he was previously an authorised taxi-cab driver, are sufficient grounds on which his new application for such an authority should be refused.

EVIDENCE

12 Mr Wozniak, on behalf of the Director-General, relied on the material contained in the Department’s file, which had been filed with the Tribunal and served on Mr Papadopoulos.

13 Mr Papadopoulos did not tender any additional material into evidence and did not give any oral evidence. He did not dispute the matters contained in the Department’s file but made certain submissions in respect of some of the documentation contained therein.

14 Accordingly, the facts as they are disclosed in the Department’s file were primarily not in dispute. This material discloses the following:

(a) Mr Papadopoulos has been driving taxi-cabs for over thirty years.

(b) After the enactment of the Passenger Transport Act, 1990, on 14 November 1994, the Director-General issued Mr Papadopoulos with a notice to show cause why his taxi driver authority should not be suspended or cancelled. The basis on which the notice was issued included 2 customer complaints. The first complaint was made in respect of a fare taken by Mr Papadopoulos, on 23 August 1993, from the International Airport to Manly. In this case the complainant alleged that Mr Papadopoulos had refused to activate the meter and made excuses not to use the meter and had charged the complainant $50 for the trip. The second complaint related to a fare taken by Mr Papadopoulos on 28 March 1994 from the International Airport to Chatswood. In this case the complainant stated that Mr Papadopoulos took an additional passenger and charged him $35, which was more than he usually paid. The additional grounds for the issue of the notice were:

(i) Mr Papadopoulos’ traffic record which included thirteen traffic offences and eight taxi offences;

(ii) A conviction by the Downing Centre Local Court on 4 November 1994 for an offence of soliciting for passengers for which Mr Papadopoulos was fined $200.

(c) On 23 November 1994 Mr Papadopoulos responded to the Director-General’s notice to show cause. In the letter he stated:
“I agree that my record – thirteen traffic convictions – is appalling. It is pointed out, however, that these offences have occurred from 1980 to 1993 – over a period of thirteen years…. I can assure you that I will exercise greater prudence to ensure that I will not transgress again. I am aware that as a professional driver, I have a duty to obey the traffic rules and that the observance of them is in my interests, as well as that of other road users”.
(d) He went on to state the following:
“Customer Complaints

It is conceded, even one passenger complaint is one too many and I have always been aware of the necessity of being polite and helpful to customers. …..

Up until my conviction in the Downing Centre Local Court, on 4 November 1994, my record will indicate that the only previous offence for touting, occurred in 1987. I cannot justify these two acts of indiscretion, but can assure you that I have learned my lesson and will not commit such an offence again.

….

I want to assure you that I have carefully considered my position and acknowledged the matters you have drawn to my attention. If allowed to retain my licence, you are further assured that I will observe the requirements of my profession, to ensure that I do not come under notice again”.

(d) On 28 November 1994, the Department wrote to Mr Papadopoulos advising him that no further action would be taken in respect of the Show Cause Notice. The Department also advised Mr Papadopoulos that if he committed any further criminal or traffic convictions or offences under the Passenger Transport Act 1990 consideration would be given to the suspension/cancellation of his driver authority.

(e) On 9 April 1998, the Director-General issued a further notice to show cause to Mr Papadopoulos as to why his driver authority should not be suspended or cancelled, the grounds on which this notice was issued were 11 customer complaints (including those contained in the abovementioned notice to show cause) and Mr Papadopoulos’ driving record (which also included those matters referred to in the earlier notice to show cause). The first complaint related to a fare taken by Mr Papadopoulos on 6 May 1994. The complainant complained that Mr Papadopoulos did not activate the meter and merely quoted a fare and then proceeded to pick up another fare on a bus stop at Anzac Parade without the complainant’s permission. Mr Papadopoulos was interviewed in respect of this complaint and denied the allegations. What action was taken in respect of this complaint is not clear from the material in the Department’s file. In summary, the other complaints related to the following:

(i) 28 February 1995 (date of fare) – in this case the complainant booked the taxi from Dundas to the International Airport and alleged that Mr Papadopoulos failed to drive by the shortest route and demanded more than the fare he had initially quoted. In responding to the complainant the taxi company stated that they had interviewed Mr Papadopoulos who said that he had taken the route requested by the complainant even though he was aware of a shorter route. The letter also states that Mr Papadopoulos should have advised the complainant that he knew of a cheaper route and that he had been counselled in this regard. Mr Papadopoulos was not reprimanded in respect of this fare.

(ii) 12 April 1996 (date of fare) – The complainant had hired the taxi to take her from the Domestic Airport to Castle Hill. She alleges that Mr Papadopoulos asked if she would mind him taking a second passenger. She stated that she said ‘no’ but he waited for ages when she asked him to go. She also alleges that he took a long route and was charged $60 for the fare. Again in responding to the complainant the taxi company stated that it had interviewed Mr Papadopoulos in respect of the incident and that his version of the incident was totally different to the information provided by the complainant. In the letter the taxi company also stated that a fare of $60 was not unreasonable in the circumstances. Again there is no evidence on the Department’s file that Mr Papadopoulos was reprimanded over this complaint.

(iii) 14 October 1996 (date of fare) – In this case the complainant wrote a letter, which gave details of his complaint. The essence of the complaint was that he had joined a very long queue awaiting taxis at the rank outside the Ansett Terminal in Sydney. At this time Mr Papadopoulos was approaching people at the end of the queue and asking them if anyone was heading west. The complainant indicated that he was heading to Parramatta and Mr Papadopoulos said he could take him and directed him towards his cab where he noted another passenger already sitting in the vehicle. As the complainant was settling into the cab Mr Papadopoulos announced that his meter was not working. The complainant indicated his unease but on the assurances of Mr Papadopoulos that there was a standard fare for such a trip he continued on his journey. In responding to the complainant, the taxi company stated that they had interviewed Mr Papadopoulos and that he had been counselled and reprimanded for breaches of operating a taxi-cab not using a meter, multiple hiring without permission, and demand other than a prescribed fare.

(iv) 13 August 1997 (date of fare) – The complainant stated she hired Mr Papadopoulos’ taxi at the Domestic Airport. She states that Mr Papadopoulos had just driven around the corner when he discovered that her destination was Bondi Junction. On discovering this he stated that he had run out of fuel. In its response to the complainant the taxi company stated that it had interviewed Mr Papadopoulos who confirmed that there was a problem with his vehicle on this particular occasion. In its letter to the Department the taxi company stated that no action was taken with the driver in respect of this particular complaint.

(v) 3 March 1998 (date of fare) – This complaint related to an unlawful attempt by Mr Papadopoulos to obtain a multiple hire from the airport. An official at the airport lodged the complaint and issued an infringement notice for a penalty of $150.00.

(f) On 21 April 1998, Mr Mayel, of counsel, responded to the Director-General’s abovementioned notice to show cause. In respect of those complaints dealing with multiple hire without consent Mr Mayel made the following statement:
“In his explanation to me Mr Papadopoulos indicated that at the times when he has been reported for multiple hiring without consent these have occurred when the taxi ranks have been very busy at Mascot Airport and he was of the opinion, or so it may be, that with the consent of the passengers he would be able to attempt multiple hire from that area. Counsel has explained the situation to him that once he has a fare picked up from a rank at Mascot he is required by the Transport Regulations to clear the rank.

Mr Papadopoulos of course has himself to blame from the situation that occurred in respect of this particular issue however he has been counselled in respect to it and one must be hopeful that such counselling may result in a change of attitude”.

In respect of the complaints generally Mr Mayel stated:

“Mr Papadopoulos has assured me that in respect of these matters he would give an undertaking to the Department to ensure that such situations do not occur in the future”.

(g) On 28 April 1998 the Director-General issued a notice of suspension to Mr Papadopoulos in respect of his driver authority. The suspension was for a period of three months.

(h) On 21 August 2001 the Director-General issued a further notice to show cause to Mr Papadopoulos as to why his driver authority should not be cancelled. The grounds on which the notice was issued was set out in an attachment to the notice to show cause and related to the abovementioned complaints and three additional complaints against Mr Papadopoulos. The additional complaints were as follows:

(i) 22 May 2000 (date of fare) – This complaint related to a multiple hire from the Airport to Parramatta. The first passenger was charged $50 and the second passenger (the complainant) was charged $55. The complaint was that the second passenger had been overcharged. There is no material on file to indicate how Mr Papadopoulos was treated in respect of this particular complaint.

(ii) 4 June 2001 (date of fare) – The complainant hired the taxi at the Domestic Airport to go to Darling Harbour. He stated that Mr Papadopoulos asked him how he was paying for the fare to which the complainant responded “Diners Club”. Mr Papadopoulos is alleged to have said that the fare would be $30 in that case. The complainant also stated that halfway through the journey Mr Papadopoulos put his meter off and on arrival at Darling Harbour charged him $30. The complainant made a return journey to the Airport that morning and the cost was $18. According to the Department’s file Mr Papadopoulos was interviewed on 10 July 2002 at the Parramatta office in respect of this complaint and he offered a $10 refund.

(iii) 25 June 2001 (date of fare) – The complainant had hired Mr Papadopoulos’ cab to travel from the Domestic Airport to Silverwater. The complainant shared the taxi with a stranger and the complainant complained that Mr Papadopoulos charged both passengers 100% of the taxi fare. The complainant complained to Taxi Combined Services Pty Limited who interviewed Mr Papadopoulos by telephone and recommended to the Department that no further action be taken.

(i) On 3 September 2001, Mr Mayel of counsel, responded on behalf of Mr Papadopoulos to the Director-General’s notice to show cause. In that response Mr Papadopoulos does not deny the allegations made in respect of the hire of his taxi on 22 May 2000. In respect of the 4 June 2001 fare, Mr Papadopoulos admitted that he had turned the meter off but stated that he did so with the consent of the passenger. He stated that: “this gave him the opportunity to bid for jobs returning to the St George area from Darling Harbour and if his meter was continuously engaged such opportunity would not be there”. Mr Papadopoulos also admitted the allegations in respect of the 25 June 2001 fare. However, he stated that both passengers were only charged 75% of the fare. In the penultimate paragraph Mr Mayel stated the follow:
“Mr Papadopoulos has assured me that he will endeavour to again improve his attitude which has brought about these problems. He accepts that there is reason for him to have his licence cancelled but requests that in light of his age and his condition and the number of shifts which he drives that he be given a further opportunity to continue to supplement his income by being allowed to continue to engage as a taxi driver”.
(j) On 18 September 2001, the Director General issued a Notice of cancellation of Mr Papadopoulos’s driver authority. That letter made reference to his right to seek an internal review and his right to make an application to the Tribunal for a review of the decision to cancel his authority. The Tribunal notes that the material on the file indicates that Mr Papadopoulos’s driver authority was due to expire on 2 December 2001.

(k) On 24 September 2001 Mr Papadopoulos made an application for internal review of the decision to cancel his driver authority. That internal review was completed 4 days later on 28 September 2001 and confirmed the original decision. Mr Papadopoulos was again advised of his rights to make an application to the Tribunal for review.

(l) On or about 21 June 2002, Mr Papadopoulos wrote to the Taxi and Hire Car Bureau requesting the re-instatement of his driver authority. On 24 July 2002, the manager of the Accredited and Licensing section of the Department wrote to Mr Papadopoulos advising him that the complaints received by the Department “indicates that you do not have sufficient responsibility and aptitude to drive a taxi-cab in accordance with the conditions under which the taxi cab service concerned is operated”. The manager also indicated that the Bureau would not entertain an application until 19 September 2003, but in the interim he had a right to make an application if he chose to.

(m) Mr Papadopoulos made such an application on 14 August 2002. The application was refused on 11 September 2002. Mr Papadopoulos made a request for an internal review on 17 September 2002, which was completed on 30 September 2002. The internal review confirmed the original decision.

15 Mr Wozniak, on behalf of the Director-General, submitted that the evidence demonstrated that since the 1990’s Mr Papadopoulos has continually contravened the regulations by failing to keep his meter on, soliciting and inappropriate multiple hirings. Furthermore, on each occasion he has been warned about his contravening conduct, which he has not denied, and which he has continually stated that he would not repeat. Notwithstanding these assurances he has continued to contravene. Accordingly, the evidence establishes that Mr Papadopoulos, at this time, is not fit to hold a taxi-cab driver authority and does not have the ability to carry out the duties and responsibilities of a taxi driver in accordance to law and custom. Mr Wozniak did, however, concede that had Mr Papadopoulos produced evidence to demonstrate that he had undertaken some additional training and if additional time had passed his application may be considered more favourably.

16 Mr Papadopoulos in his submissions did not challenge the material contained in the Department’s file and submitted that he now fully understood where he had contravened. He submitted that he only wanted to drive on a part time basis in order to supplement his income. He also informed the Tribunal that he had not sought review of the decision to cancel his authority as he was unaware of his ability to do so. He went on to state that he only became aware of his right to do so subsequently.

REASONS FOR DECISION

17 In his statement of reasons the Director General has stated that the contents of the complaints made against Mr Papadopoulos were such that he was unable to attest to each of the matters set out in s. 33(3) of the Passenger Transport Act 1990 (e.g. good repute, fit and proper person, sufficient responsibility and aptitude). At the hearing Mr Wozniak relied on the grounds that the Director General was unable to attest that Mr Papadopoulos was otherwise a fit and proper person to be the driver of a taxi-cab. Accordingly, the Tribunal has considered the evidence in light of this requirement.

18 It is well established that an assessment of whether a person is “fit and proper” involves different considerations from those relevant to “good repute”: Singh v Director-General, Department of Transport [1999] NSWADT 9 at 25 to 28, Farquharson v Director-General, Department of Transport [1999] NSWADT 53 at 27.

19 The Tribunal has also considered the meaning of a “fit and proper person” on numerous occasions and has followed the reasoning of Chief Justice Mason in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63] where he stated:

“The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose witness and propriety are under consideration”.

20 The discretion to issue a licence or authority must be exercised keeping in mind the activities in which the person will be engaged if an authority is granted (see Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 at 156 and Bond v Australian Broadcasting Tribunal (1990) 170 CLR 321). In this case the objectives are those set out in s.4 of the Passenger Transport Act 1990.

21 For the purpose of determining whether a person is a “fit and proper” person to undertake the activity for which a licence or authority is sought the Tribunal and the Appeal Panel has cited with approval the test posed by the equivalent ACT Administrative Appeals Tribunal dealing with an equivalent legislative scheme in Maythisathit and Registrar of Motor Vehicles [1996] AATACT 165 per Curtis P:

“One must put oneself, so far as possible, in the position of a member of the public who might travel in a taxi driven by the applicant and ask whether that member of the public, knowing of the applicant’s criminal record and what he has done…to rehabilitate himself, would object to the applicant as the driver of the taxi”.

22 The fact that Mr Papadopoulos wishes to be again issued with a driver authority so that he can supplement his income is not a relevant consideration.

23 The complaints that have been made against him are clearly relevant. However, in the opinion of the Tribunal these must be considered in context and any disciplinary action that was taken in respect of them. In this case the Director-General relies on 10 complaints that were received over a period of 8 years, from 23 August 1993 to 25 June 2001 and an infringement notice issued on Mr Papadopoulos in respect of an attempt to obtain an unauthorised multiple hire on 3 March 1998 from Sydney airport. In respect of 7 of these, the infringement notice and Mr Papadopoulos’s driving record, on 28 April 1998, the Director-General suspended Mr Papadopoulos’s driver authority for 3 months.

24 After this suspension, the Department received 3 more complaints. One was received in May 2000 and the other two were received in June 2001. One complaint related to Mr Papadopoulos turning off his meter and the other two related to unlawful multiple hirings. Although, the Department did not receive any complaints against Mr Papadopoulos for 2 years after his suspension, the complaints that were subsequently received related to the same subject matter of complaints received prior to his suspension. This was so notwithstanding Mr Papadopoulos’s assurances that he understood what the regulations required and he would not contravene in the future.

25 As a consequence his driver authority was cancelled. As noted above, that authority being due to expire 3 months later anyway.

26 The Tribunal agrees with Mr Wozniak’s submission that the complaints received by the Department, demonstrate an ongoing pattern of failing to engage his taxi-meter and unlawful multiple hiring contrary to the provisions of the Passenger Transport (Taxi Cab Services) Regulations 1995.

27 In accordance with the test stated in Maythisathit, on this basis alone, a member of the public who might travel in a taxi driven by Mr Papadopoulos knowing of this pattern of contraventions, in the opinion of the Tribunal, would object to him as the driver of the taxi.

28 However, as that test indicates, what is also of relevance is what steps Mr Papadopoulos has taken to rehabilitate himself. In this case Mr Papadopoulos has not been driving a taxi for almost 1½ years as a result of his contraventions. At the same time he has had many years of driving a taxi without being reprimanded. Mr Papadopoulos relies on this past record, an acknowledgement that he has been wrong, reference from a Mr Sewell who vouches for his good character and an assurance that he would not contravene again. The assurance without more is difficult to accept, particularly as it would appear that Mr Papadopoulos has done nothing to familiarise himself with the requirements of the regulations since his licence was cancelled.

29 Accordingly, for the reasons stated above, in the opinion of the Tribunal, the Director General’s decision is the correct and preferred decision.

30 There are two additional matters, which arise from the material in the Department’s file.

31 The first matter relates to the summary of complaints made against Mr Papadopoulos and which is attached to the Director-General’s reasons for decision. That summary stated that Mr Papadopoulos had been reprimanded in respect of each complaint. As detailed above, the material on the Department’s file did not support this for each and every complaint. As Mr Papadopoulos did not contest the allegations contained in the complaints, this is not an issue of any significance in this case. However, in the opinion of the Tribunal such summaries should correctly reflect what is contained on the Department’s file as this is the document which informs the authorised driver of the material on which the Director-General has relied to make his decision.

32 The second matter relates to the letter sent to Mr Papadopoulos from the manager of the Accreditation and Licensing section of the Department in which he indicated that the Department would consider an application from him after 19 September 2003. That is, 2 years after his licence was cancelled. In the opinion of the Tribunal this is an arbitrary test for determining when Mr Papadopoulos would be entitled to the issue of a new driver authority. Mr Papadopoulos’s cancelled licence expired on 2 December 2001 and he was at liberty to apply any time thereafter. On receiving such an application the Director-General is required to consider the application in accordance with the requirements of the provisions of the Passenger Transport Act 1990. In this case, there is no indication that the Director-General has performed his functions other than in accordance with these requirements. However, the Tribunal is concerned that such a statement was made.

33 The Tribunal orders that the decision of the Director-General is affirmed.