Paulus v Director General, Ministry of Transport

[2004] NSWADT 175

CITATION:	Paulus v Director General, Ministry of Transport [2004] NSWADT 175
DIVISION:	General Division
PARTIES:	APPLICANT Danny Paulus RESPONDENT Director General, Ministry of Transport
FILE NUMBER:	033359
HEARING DATES:	31/03/04
SUBMISSIONS CLOSED:	03/31/2004
DATE OF DECISION:	08/20/2004
BEFORE:	Higgins S - Judicial Member
APPLICATION:	Passenger Transport Act - taxi driver - cancellation of authority - Passenger Transport Act - taxi operator - cancellation of accreditation - Taxi driver - cancellation of authority - Taxi operator - cancellation of accreditation
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Passenger Transport Act 1990
CASES CITED:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Briginshw v Briginshaw (1938) 60 CLR 339 at 360-363 Director-General, Department of Transport v Z [2002] NSWADTAP 37 Farquharson v Director-General, Department of Transport [1999] NSWADT 53 Goody v Oldhams Press Ltd [1967] 1 QB 33 Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 Maythisathit and Registrar of Motor Vehicles [1996] AATACT 165 Singh v Director-General, Department of Transport [1999] NSWADT 9
REPRESENTATION:	APPLICANT P Skinner, barrister RESPONDENT A Wozniak, solicitor
ORDERS:	The Director-General’s decision to cancel Mr Paulus’ taxi accreditation and taxi driver authority be set aside

BACKGROUND

1 This is an application by Mr Paulus seeking review of a decision of the Director-General of the Ministry of Transport (“the Director-General”) to cancel his taxi accreditation and taxi driver authority, which had been issued to him under the Passenger Transport Act 1990 (“the PT Act”). The grounds relied on by the Director-General in making his decision was a complaint alleging that Mr Paulus had picked up a taxi transport subsidy scheme (“TTSS”) participant using a private vehicle, together with an allegation of falsifying TTSS dockets and receiving payment as a result of the presentation of the falsified TTSS dockets. The Notices of Cancellation were dated 19 December 2003. On the same day Mr Paulus filed his application for review with the Tribunal, together with an application for urgent stay of the Director-General’s decision.

2 By consent, on 23 December 2003, the Tribunal granted Mr Paulus his application for a stay of the Director-General’s decision in respect of his taxi accreditation, and refused his application in respect of a stay of the Director-General’s decision to cancel his taxi driver authority. It meant that Mr Paulus could continue to operate his taxi business, but was not able to drive his taxi. Mr Paulus’ application was heard on 31 March 2004. Mr Paulus was convicted by the Parramatta Local Court of the criminal charges, in respect of the TTSS dockets, on 11 February 2004. Mr Paulus appealed his conviction and sentence. That appeal was determined by the Parramatta District Court on 24 March 2004.

3 The Tribunal’s jurisdiction to hear Mr Paulus’ application arises from s52(1) of the PT Act and s38 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”).

4 In this case, an internal review of the Director-General’s decision has not been requested or finalised as required under s53(1) and (9) of the ADT Act. While such an internal review is to be taken to have been finalised under s53(9) in order for Mr Paulus to make an application to the Tribunal for a review of the Director-General’s decision (see s55(1)(b)), I find, on the material before the Tribunal, that Mr Paulus has made his application within a reasonable time following the decision of the Director-General, and that it is necessary for the Tribunal to deal with Mr Paulus’ application in order to protect his interests (see s55(2)(c) ADT Act).

RELEVANT LEGISLATION

5 The PT Act sets out a regulatory scheme for operators and drivers of public passenger services. This includes taxi drivers and taxi operators. 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 community for safe, reliable and efficient passenger transport services; and…”

6 Part 4 of the PT Act sets out the procedure and requirements for the accreditation of a taxi cab operator and the authorisation of a taxi driver.

Accreditation of Taxi Cab Drivers

7 The provisions relating to the accreditation of a taxi cab operator are contained in Division 3 of Part 4 of the PT Act. Section 31F in this Division provides that the Director-General may at any time vary, suspend or cancel a person’s accreditation as a taxi cab operator. That section provides, so far as is relevant, as follows:

“S.31F(1) Having regard to the purpose of the accreditation under this provision, the Director-General may at any time vary, suspend or cancel any person’s accreditation under this division”.

8 The purpose of accreditation under Division 3 of Part 4 of the PT Act is set out in s.31(2). That subsection provides as follows:

“S.31(2) The purpose of accreditation under this division is to attest:

(a) that the accredited person is (or, in the case of an accredited person that is a corporation, the designated directors and managers of the corporation are) considered to be of good repute and in all other respects fit and proper to be responsible for the operation of a taxi-cab service, and that the accredited person has demonstrated the capacity to meet and continue to meet the appropriate requirements with respect to:

(i) financial viability, and

(ii) safety of drivers, passengers and the public, and

(iii) vehicle maintenance,

to the degree and in the manner required in respect of services of the kind specified in the accreditation”.

9 The provisions relating to a taxi driver authority is contained in Division 5 of Part 4 of the PT Act. Section 33F in this Division provides that the Director-General may at any time vary, suspend or cancel any person’s taxi driver authority. That section provides as follows:

s.33F 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.

10 The purpose of authorisation under Division 5 of Part 4 of the Act is set out in sub-s.33(3) of the PT Act. 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) hat 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.

11 Mr Wozniak, on behalf of the Director-General, relied on the material that was contained in the Ministry’s files relating to Mr Paulus’ taxi accreditation and taxi driver authority. He also tendered into evidence copies of six TTSS dockets that were dated between 24 April 2003 and 1 May 2003. Each docket related to the same TTSS participant.

12 From the material contained in the files of the Ministry, it would appear that Mr Paulus has held a taxi driver authority for about 12 years and that he has been an accredited taxi operator for about 9 years.

13 On or about 26 May 2003, the Ministry received the complaint in relation to Mr Paulus’ use of TTSS dockets. Enquiries were then made in respect of this complaint, including a request to the Taxi Combined Services requesting details of who was driving particular taxis on particular dates and times. It would appear that these drivers were subsequently spoken to by an officer of the Ministry, and on 4 September 2003, Mr Paulus contacted the relevant officer of the Ministry and asked if he could come in and see the officer (face to face) and give an explanation to the mistake he had made on the TTSS dockets. Mr Paulus was interviewed the following day, and there is no dispute that he made full admissions to the allegations that he had been conveying TTSS participants in his own private vehicle for about six months. In particular he acknowledged, in respect of dockets shown to him, that he had completed the details in those dockets and that he had presented them for payment. The only payment he received was that portion that was payable under the scheme. That is, he did not receive the TTSS participant’s contribution towards the fare.

14 The facts in respect of the TTSS dockets are not disputed. That is, Mr Paulus acknowledges that between the relevant dates he transported the TTSS participant in his private vehicle for reward. He also acknowledges that this reward was obtained by him completing a TTSS docket and submitting the docket for payment. Mr Paulus acknowledged that he falsely entered the name of one of his taxi drivers and the number of one of the taxis relating to his accreditation details.

15 Mr Wozniak also tendered into evidence, without objection, a handwritten document, which set out the details of the findings of the Parramatta Local Court on 11 February 2004 and the Parramatta District Court on 24 March 2004. It is not necessary to repeat all the details, other than to state that Mr Paulus was charged with six offences under s37(1)(a) of the PT Act (offence of operating a private hire car services without accreditation), six offences under s37(1)(d) of the PT Act (offence of using an unlicensed private hire vehicle service) and six offences under s178BB of the Crimes Act 1900 (offence of obtaining money by false or misleading statements). Each of the offences related to the 6 TTSS dockets completed by Mr Paulus and presented for payment.

16 On appeal to the Parramatta District Court, Mr Paulus was convicted of three offences and in respect of the remaining offences (fifteen in number), the Court made a finding of guilt but did not record a conviction pursuant to s10 of the Crimes (Sentencing Procedure) Act 1999. The offences for which a conviction was recorded, the District Court sentenced Mr Paulus as follows:

(a) For an offence under s 37(1)(a) of the PT Act – fined $1,000.00 and $61.00 Court costs.

(b) S 37(1)(b) – fined $500.00 and $61.00 Court costs.

(c) S 178BB Crimes Act 1900 – convicted and placed on a good behaviour bond for six months.

17 In addition to the abovementioned sentences, the District Court ordered Mr Paulus to pay professional costs of $1,000.00.

18 Mr Sneddon, on behalf of Mr Paulus, tendered into evidence the following affidavits:

a) Affidavit of Colin McGregor, Taxi Service Manager, sworn on 23 December 2003

19 In his affidavit, Colin McGregor states that Mr Paulus operates eight taxis within the Taxi Combined Services network. He also states that he is of the opinion that Mr Paulus would suffer significant financial hardship or loss if he is forced to attempt to dispose of these eight taxis

b) Affidavit of Douglas Lawman, Solicitor, sworn on 22 December 2003

20 Mr Lawman, who is Mr Paulus’ solicitor, gives evidence relating to the basis on which Mr Paulus operates his eight taxis. Some of the taxi plates, which Mr Paulus operates are owned by him and others are leased or are the subject of mortgages. In addition to this, Mr Lawman states that Mr Paulus employs a minimum of sixteen bailee drivers.

c) Affidavit of Colin McGregor, Taxi Services Manager of Combined Communications Network Limited, sworn on 19 March 2004

21 Mr McGregor states that Mr Paulus had been a member of the Taxi Combined Services network for approximately ten years. He also states that he had personally known Mr Paulus during that period and that he has had many dealings with him. He states that he has always found Mr Paulus to be pleasant and honest to deal with, he is well liked by the other taxi operators and that he has never heard anyone criticise or speak ill of him. Mr McGregor states that Mr Paulus had approached him prior to the Local Court proceedings requesting a reference. In making that request, Mr Paulus explained the circumstances, which gave rise to the charges that had been laid against him. He also states that he has known Mr Paulus in a business sense for over ten years, and that he has had ample opportunity to observe the way Mr Paulus conducts himself and his business. In this regard, he accepted Mr Paulus’ explanation that he had transported in his private vehicle an elderly lady who suffered from a disability, as he was sympathetic of her circumstances. Mr McGregor also states that he is of the view that the circumstances surrounding the charges against Mr Paulus would not arise again.

d) Affidavit of Valdis Sermukslis, Customer Services Officer employed by Taxi Combined Services Pty Limited

22 Mr Sermuklis states that he has known Mr Paulus and his family for approximately twenty years. Mr Sermuklis states that in the last four years while he has been in the position of Customer Service Officer, he has dealt with Mr Paulus on numerous occasions in regard to complaints that have been made about the behaviour of his drivers. He states that in all these dealings, Mr Paulus has always been co-operative and has acted in an appropriate manner and had not hesitated admonishing the driver concerned. He also states that Mr Paulus explained the circumstances, which gave rise to the charges that had been laid against him, and that Mr Paulus advised him that he did not carry the passenger for financial reward. In all other respects, Mr Sermuklis states that Mr Paulus is a very professional and competent taxi operator, and that while he is aware that the taxi industry has its fair share of unscrupulous operators and drivers, in his very definite view, Mr Paulus does not fall into this category, and if he were to lose ability to operate and drive taxis, he would be a loss to the industry.

e) Affidavit from Helmy Mitry, Taxi Driver, sworn on 22 March 2004

23 Mr Mitry states that he has been driving taxis for approximately seventeen years. Previously he had been a driver for other taxi operators, but has been a driver with Mr Paulus for several years. He states that Mr Paulus treats his drivers very well and that he has been very understanding in respect of Mr Mitry’s personal and family needs. He states that Mr Paulus advised him, just prior to the Christmas, the circumstances surrounding the charges that had been laid against him. He states that he knows the passenger that Mr Paulus was carrying, that she is a very old lady who walks with the assistance of a walking frame, and that incapacitated elderly passengers did not suit all drivers because it took such a long time for these passengers to enter and exit a taxi. He states that the younger drivers have no patience with such passengers, and will always try to avoid fares of this nature. Mr Paulus, on the other hand, has the necessary patience and care.

f) Affidavit of Jamal Shafeei, Taxi Driver, sworn on 22 March 2004

24 Mr Shafeei states that he has been driving a taxi for approximately eight years and that he has been a driver for Mr Paulus during the last two years. Mr Shafeei states that he has found Mr Paulus to be a decent fellow who will do what he can, within reason, to assist those that work for him and do the right thing by them. He also states that he was very surprised when Mr Paulus explained to him the circumstances surrounding the charges that had been laid against him. He also states that Mr Paulus explained that he had transported the elderly lady because he felt sorry for her. Mr Shafeei states that, notwithstanding the charges that were laid against Mr Paulus, these have not affected his opinion of Mr Paulus and that he continues to enjoy working for him.

g) Affidavit of Tino Tan, Manufacturer, sworn on 22 March 2004

25 In his affidavit, Mr Tan, states that he is based in East Java, however, he regularly travels to Sydney. Attached to Mr Tan’s affidavit is a copy of the reference he wrote in support of Mr Paulus for the purposes of the criminal charges that had been laid against Mr Paulus and which were dealt with by the Parramatta Local Court. In that reference, Mr Tan stated that he had known Mr Paulus for approximately eighteen years. They attended High School together and have retained a close association since those school days. Mr Tan states that in February 2003, he purchased a taxi plate and appointed Mr Paulus as the manager of that plate. In July of that year, he purchased a further plate, which is also managed by Mr Paulus. In making these purchases, together with the purchase of property at Cherrybrook, he entrusted Mr Paulus with the requisite purchase funds. He goes on to state that in all of his financial dealings with Mr Paulus, there have never been any discrepancies, and in his opinion Mr Paulus is an honest and hardworking man who is determined to make a good life for himself and his family in Australia. He also states that Mr Paulus explained the circumstances which gave rise to the charges, and that Mr Paulus advised him that he did not charge any more than what he would have received if he was driving his taxi at that time. He goes on to state that he believes that Mr Paulus is sorry about the incident, and he accepts Mr Paulus’ explanation that he did not drive the passenger for financial gain, but took her because he felt sorry for her due to her age and physical disabilities.

h) Affidavit of Danny Paulus, sworn on 22 March 2004

26 In his affidavit, Mr Paulus states that he is 33 years of age, he first came to Australia as a student from West Timor in 1990. At that time his father was residing in Australia and operating a taxi in Sydney. Mr Paulus and his brother learnt the taxi business from their father, and he commenced operating a taxi business in 1993. Since that time, he has built up his taxi fleet to eight taxis. Of these, he owns 3 taxi plates, two of which are subject to finance.

27 He states that some time around the beginning of 2003 he accepted a radio booking of an elderly passenger who walked with the assistance of a walking frame. He was subsequently informed that this elderly passenger was in excess of 94 years of age, and that she was eligible for the subsidised taxi fares under the TTSS scheme. During the initial fare, the elderly passenger explained to Mr Paulus that another taxi driver had previously driven her when she needed to be transported, and that she found him to be very kind. Mr Paulus states that he was aware that some drivers do not like to carry elderly or disabled passengers because of the time it takes for these passengers to get in and out of the taxi, and that such passengers may fall and hurt themselves, and the driver will be held at fault. With this in mind, together with the elderly passenger’s conversation about the previous taxi driver who had driven her when she needed transportation, Mr Paulus gave the elderly passenger his mobile phone number and said that she could call him any time she needed a taxi and he would arrange to send one of his drivers to pick her up if they were available.

28 Following this initial fare, the elderly passenger rang Mr Paulus on his mobile phone whenever she required taxi transportation. Initially, Mr Paulus tried to get one of his drivers to take the fare, but the elderly passenger would request that Mr Paulus drive her. In response to these requests, Mr Paulus would pick up the elderly passenger if he was driving one of his taxis, however, after some time, he started to pick up the elderly passenger in his own private vehicle. Mr Paulus provided other assistance to the elderly passenger by checking that she had turned off all her electrical and gas appliance before she departed her home in his car. At all times the elderly passenger gave Mr Paulus a TTSS docket as payment for her fare. Under the TTSS scheme, Mr Paulus was required to receive half the fare from the passenger, and the other half was to be paid through the TTS scheme. Mr Paulus states that at no time did he ever receive any contribution from the elderly passenger. The only contribution he received was that which was paid through the TTS Scheme (i.e. half the fare). He goes on to state that he provided assistance because the elderly passenger lived alone and had no one to give her any physical assistance in her day to day life. He then states:

“I realise now that what I did was wrong. However, at the time I felt at my heart that I was assisting [name of passenger] and doing something good for her. I accepted the money from the Taxi Transport Subsidy Scheme only to cover the expenses of using my private car. I did not do what I did to assist [name of passenger] for a financial gain.

Since coming the notice of the Ministry of Transport for my wrongdoing, I feel that I have brought shame upon not only myself, but my father and brother who are also well known within the taxi industry. I am deeply sorry for the trouble that I have caused”.

29 Mr Skinner on behalf of Mr Paulus submitted that the District Court regarded the offences committed by Mr Paulus as being of a low level. This being reflected in the penalty that was imposed. He contended that the conduct when viewed with the circumstances which motivated Mr Paulus to transport the elderly passenger in his private car, the fact that the elderly passenger has not complained and the affidavit references which have been provided do not support a finding that Mr Paulus is not a person of good repute, and otherwise a fit and proper person to be the holder of a taxi operators accreditation and a taxi driver authority. He also pointed out that Mr Paulus has at all times admitted to the conduct the subject of the charges, and voluntarily came forward to the Ministry when he became aware of their enquiries.

30 Mr Wozniak, on behalf of the Director-General, submitted that the Director-General’s decision was the correct and preferred decision, having regard to the long course of unlawful conduct by Mr Paulus. He contended that assistance schemes such a the TTSS required extreme honesty by taxi drivers and taxi operators. Mr Paulus had admitted his dishonesty by falsifying the TTSS dockets and accepting payment on the presentation of those dockets when he was not entitled to the payments. Finally, Mr Wozniak contended that the penalties imposed by the District Court were not low level, having regard to the maximum penalty that could be imposed.

REASONS AND DECISION

31 The Tribunal’s role is to determine whether the Director-General’s decision to cancel Mr Paulus’ taxi accreditation and taxi driver authority is the correct and preferred decision, having regard to the relevant facts and the applicable law: s 63 of the ADT Act.

32 The Tribunal has had regard to all the material that has been filed in this matter. The central facts in this matter are not disputed, in that Mr Paulus did in fact transport the elderly passenger on the days and at the times specified in the TTSS dockets. Nor is it disputed that on some occasions, Mr Paulus used one of his taxis to transport the elderly passenger. Nor does Mr Paulus dispute that on six occasions, which were the subject of the charges before the Parramatta Local Court, he transported the elderly passenger in his own vehicle, and that he completed and submitted TTSS dockets in respect of these trips. It is unclear from the material before the Tribunal whether Mr Paulus transported the elderly passenger in his own vehicle on other occasions. Mr Wozniak in his submissions indicated this to be the case and the record of interview with officers of the Ministry on 5 September 2003 provides some support for this. However, when interviewed on this occasions Mr Paulus was only shown the six dockets that subsequently became the subject of charges that were laid against him. It was in respect of these dockets that Mr Paulus made admissions on this day. Accordingly, on the basis of the test in Briginshaw v Briginshaw (1938) 60 CLR 339 at 360-363 I find that there is not sufficient material on which I can make a positive finding on which days, in addition to the six days the subject of charges, if any, that Mr Paulus used his private vehicle to transport the elderly passenger.

33 It is noted that the contents of Mr Paulus’ affidavit was not challenged. Accordingly, the Tribunal accepts Mr Paulus’ explanation that he transported the elderly passenger because he had a desire to assist her, having regard to her age and disabilities. However, I do not accept that he did this without an intention of monetary gain. While he did not receive payment of a full fare, he did in fact receive half the fare. Accordingly, there was an intention to receive some financial gain in transporting the elderly passenger in his private vehicle.

34 As mentioned above, at issue in this case is whether, having regard to Mr Paulus’ conduct, the Director-General could attest to Mr Paulus being considered a person of “good repute” and in all other respects a “fit and proper person” to be authorised to drive a taxi cab or to be authorised as an accredited operator (see ss.31(2) and s.33(3), PT Act). This means that the Tribunal must assess the evidence as to Mr Paulus’ reputation and whether he is a fit and proper person in the relevant sense. Furthermore, both need to be satisfied.

a) Reputation

35 The Tribunal has often cited the explanation given by Waddell J as to the meaning of “good repute” and how it differs from the requirement to in all other respects a “fit and proper person”: Re T and the Director of Youth and Community Services [1982] 1 NSWLR 392. This explanation was recently followed by the Appeal Panel in Director-General, Department of Transport v Z [2002] NSWADTAP 37.

36 In the decision of Director-General, Department of Transport v Z [2002] NSWADTAP 37 at [38] the Appeal Panel stated:

“Good repute refers to the way reasonably-minded people assess an individual’s current reputation, with reasonably precise knowledge of those matters that put the person’s reputation in doubt. The fact that the person produced evidence from witnesses who vouch in general terms for the person’s reputation can not be conclusive. Equally, care must be taken, as we see it, not to use the “good repute” requirement as a way of bringing into consideration stereotypes or assumptions which offend, for example, against human rights or anti-discrimination standards”.

37 At [20] the Appeal Panel also cited with approval the following statement of Waddell J at 399:

“This definition ‘reputation’ [ Shorter Oxford Dictionary , 1973, 1083] makes it clear, as is the law, that a person’s reputation is to be found in the estimate of his moral character entertained by some specific group of people, such as by those who live in the neighbourhood of his residence, those who work with him, or those with whom he associates in his occupation or profession”.

38 At [21] the Appeal Panel also cited with approval the dicta of Lord Denning in Goody v Oldhams Press Ltd [1967] 1 QB 33 where he said the following in respect of how old convictions are dealt with in ascertaining reputation in defamation law:

“[previous convictions] stand in a class by themselves. They are the raw material upon which bad reputation is built up. They have taken place in open court. They are matters of public knowledge. They are accepted by people generally as giving the best guide to his reputation and standing.
They must of course be relevant, in this sense, that they must be convictions in the relevant sector of his life and have taken place within a relevant period such as to affect his current reputation…”

In this case, Mr Paulus relies on the affidavit references that have been given by those who provided affidavits and which are referred to above. The deponents of these affidavits all refer to the criminal charges that were laid against Mr Paulus and they all state that, notwithstanding these charges, which to their knowledge were admitted to by Mr Paulus, they remain of the view that Mr Paulus is a person of good repute.

39 While the deponents of the affidavit references may not represent the wider group of people who know Mr Paulus, in my opinion they are sufficient for the Tribunal to find that Mr Paulus remains a person of good repute, notwithstanding his criminal convictions in respect of the six TTSS dockets.

b) Fit and Proper Person

40 Even though Mr Paulus is found to be a person of “good repute” it must also be found that he is otherwise “a fit and proper person” to be responsible for the operation of a taxi cab service and the driver of a taxi cab.

41 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.

42 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 fitness and propriety are under consideration”.

43 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.

44 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”.

45 In my opinion, the test proposed in Maythisathit should include not only what the licensed person has done to rehabilitate himself, but also factors such as:

- the previous good conduct of the licence holder;

- the conduct of the licence holder during the investigation of the criminal or improper conduct;

- whether the licence holder has demonstrated genuine remorse for what he has done; and

- the conduct of the licence holder since the date of the criminal convictions or improper conduct.

46 In this case, the nature of the conduct engaged in by Mr Paulus is serious as it constituted dishonesty, which is contrary to one of the fundamental requirements of the fitness and propriety of a person to be accredited or authorised under the PT Act. While Mr Paulus’ sentiment that he wanted to assist the elderly passenger is to be commended, he was clearly not motivated by this alone. He deliberately inserted false details on the TTSS dockets and the TTSS passenger and Mr Paulus received a benefit that they were not entitled to. Government resources are limited and where Government schemes, designed to subsidise those with special needs, are abused through dishonesty, it is those with these special needs who ultimately suffer.

47 If Mr Paulus’ criminal conduct were to be viewed in isolation, then there can be no question that the decision of the Director General that he could no longer attest to the fitness and propriety of Mr Paulus was correct and that his decision to cancel Mr Paulus’ taxi accreditation and driver authority was the correct and preferred decision.

48 However, as stated in Maythisathit, the test is whether, having regard to all the circumstances, the Tribunal placing itself in the position of a member of the public, at this point of time, would object to Mr Paulus being a driver of a taxi or being an authorised accredited operator.

49 In my opinion, on the material before the Tribunal, on balance, a member of the public having regard to the following factors would not object to Mr Paulus being a taxi driver or an accredited taxi operator:

(a) Mr Paulus’ long record of operating in the industry without complaint;

(b) The high regard with which Mr Paulus is held within the industry. In this regard it is noted that the evidence is such that Mr Paulus acted independently in respect of the criminal conduct and did not involve or inform the drivers of the taxi’s which come under his accreditation;

(c) Mr Paulus provided immediate assistance to the Ministry when he became aware of its enquiry. He made full admissions of those matters put to him when interviewed on 5 September 2003;

(d) Mr Paulus has acknowledged that what he did was wrong and that he is deeply sorry;

(e) Mr Paulus has not been the subject of any complaint since he was charged with the offences; and

(f) Mr Paulus, through his criminal conduct has not been driving a taxi for almost eight months.

50 Accordingly, I find that Mr Paulus, as at the date of this decision, is a fit and proper person to be the holder of a taxi driver authority and to be an accredited taxi operator. However, should he again come to the attention of the Ministry for alleged dishonesty or any other relevant improper conduct that reflects on his reputation or fitness and propriety, the facts relating to the criminal convictions that are the subject of this application may again be considered by the Director-General in light of the new improper conduct.

51 For the reasons stated above, in my opinion the Director-General’s decision is not the correct and preferred decision.

52 The Tribunal orders that the Director-General’s decision to cancel Mr Paulus’ taxi accreditation and taxi driver authority be set aside.