Picon v Director General, Department of Transport
[2002] NSWADT 96
•06/06/2002
CITATION: Picon -v- Director General, Department of Transport [2002] NSWADT 96 DIVISION: General Division PARTIES: APPLICANT
Richard Picon
RESPONDENT
Director General, Department of TransportFILE NUMBER: 023044 HEARING DATES: 05/04/2002 SUBMISSIONS CLOSED: 04/05/2002 DATE OF DECISION:
06/06/2002BEFORE: Montgomery S - Judicial Member APPLICATION: Passenger Transport Act - taxi driver - suspension of authority - Taxi driver - suspension of authority MATTER FOR DECISION: Principal matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Passenger Transport (Taxi-cab Services) Regulation 1995
Passenger Transport Act 1990CASES CITED: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
McDonald v Director General of Social Security (1984) 1 FCR 354REPRESENTATION: APPLICANT
K Poulos, solicitor
RESPONDENT
A Wozniak, solicitorORDERS: The decision of the Director-General of the Department of Transport is varied. The Taxi Driver Authority No. DY3403 held by Mr Richard Picon is suspended for the period to 21 November 2002. If prior to 21 November 2002 Mr Picon provides the Department of Transport with documentary evidence that he has successfully completed the Rules & Regulations module of an approved taxi driver training program, the suspension is to be lifted from the date that the documentary evidence is provided.
Background
1 These proceedings relate to a determination made by the Director General, Department of Transport (“the Director General”) to suspend the Taxi Driver Authority No. DY3403 held by Mr Richard Picon (“Mr Picon”). The Director General’s decision was to suspend Mr Picon’s authority to drive taxi-cabs for the period 22 February 2002 to 21 August 2002 inclusive. Mr Picon was advised of the decision by letter dated 15 February 2002, signed by Mr Frank Malone, Manager Compliance with the Taxi & Hire Car Bureau.2 Mr Picon is a taxi driver. He is 35 years of age, has dependants and has no other source of income. He works as a taxi driver for around 12 hours per day, 6 days per week. He has a long career as a taxi driver and is understandably concerned to ensure that the decision by the Director General to suspend his authority is the correct preferable one having regard to all the relevant material and law.
3 The Director General's decision was made following the issue of a Notice to Show Cause on 29 November 2001. Mr Picon made submissions in relation to the matters by letter dated 6 December 2001. The Director General provided written reasons for the decision. Those reasons outlined a series of complaints against Mr Picon which had been recorded between December 1998 and September 2001. The subject matter of those complaints included soliciting for passengers, demanding more than the prescribed fare, refusing to accept a hire, and unauthorized multiple hire.
4 In February 1999 Mr Picon was interviewed by officers of the Department of Transport. He was warned that any future indiscretions may result in the Department taking action against him. On 8 February 1999 a letter was sent to Mr Picon in reference to a complaint against him concerning an incident on the 10 January 1999. That letter stated:
5 No further complaints were recorded against Mr Picon during 1999 however in May 2000 an infringement notice was issued after an officer of the Department of Transport observed Mr Picon soliciting for passengers. Further complaints were received in July 2000, October 2000 and June 2001.
"Due to the seriousness of the complaint, consideration has been given to the suspension and/or cancellation of your Taxi Drivers Authority No DY3403.
In view of your previous good record as a driver of public passenger vehicles, no action will be taken against your Taxi Driver Authority No DY3403 on this occasion.
However, you are warned that should the Department receive further complaints of a similar nature or you breach the Passenger Transport Regulations, the Traffic Act or a criminal conviction is recorded, the Department will suspend and/or cancel your Taxi Driver Authority."
6 On 13 June 2001 a further letter was sent to Mr Picon. That letter was clearly identified as a "Final Warning Letter". That letter provided:
7 Notwithstanding the final warning letter of 13 June 2001, two further complaints were recorded against Mr Picon. On 30 August 2001 a complaint that Mr Picon had demanded more than the prescribed fare was recorded, and on 2 September 2001 a complaint that Mr Picon had multiple-hired without consent was recorded.
"On Thursday 7 June 2001 at 9:13pm whilst driving taxi T3490 you were observed and spoken to by officers of the Taxi & Hire Car Bureau, at the Qantas Domestic Terminal, Shiers Ave Mascot for soliciting for passengers for a taxi.
Clause 23 of the Passenger Transport (Taxi-cab Services) Regulations 1995 states the driver of a taxi-cab must not do any of the following:
On this occasion the Bureau has determined a reprimand to be a suitable course of action in this instance. However, I also note that a previous warning letter was issued to you on the 8 February 1999 for a similar incident. Given this, you are hereby warned that should you again be observed breaching the Passenger Transport (Taxi-cab Services) Regulations 1995, an infringement notice will be issued and action may be taken to suspend or cancel your authority to drive a public passenger vehicle.”
(b) solicit for passengers or for hiring.
8 On 20 November 2001 Mr Picon was interviewed by officers of the Department of Transport in relation to the most recent complaints. As stated above, a Notice to Show Cause was issued to Mr Picon on 29 November 2001. A decision was subsequently taken to suspend Mr Picon's driver’s authority and Mr Picon was notified of that decision by letter dated 15 February 2002.
Reviewable decision
9 The reviewable decision is that of the Director General to suspend Mr Picon’s authority to drive a taxi-cab, advised to Mr Picon by letter dated 15 February 2002.10 On 20 February 2002 Mr Picon lodged an application with the Tribunal for a review of the Director General's decision. He also sought an urgent stay of the decision. The matter of the stay came before the Deputy President of this Tribunal on 25 February 2002. The stay was granted and remains in force pending the outcome of this matter.
Nature of proceedings
11 The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all the material first considered, together with any further relevant material, so as to either confirm the original decision, vary it, or set it aside and substitute another. “The duty of the tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view was objectively the right one to be made” (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77).12 These are not adversarial proceedings in which the applicant carries an onus of proof. The applicant, by making the application, triggers a process of merits review by the Tribunal. The applicant does not take on the responsibility of having to prove a case, nor does an applicant cause an administrator to have to prove a case. The applicant and the administrator are before the Tribunal as parties by virtue of section 67(2) of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”).
13 Section 63(1) of the ADT Act provides:
14 The Tribunal makes its own decision in place of the administrator’s, and “there is no presumption that the decision of the administrator is correct” ( McDonald v Director General of Social Security (1984) 1 FCR 354 at 357).
“63 Determination of review by Tribunal
(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:
(a) to affirm the reviewable decision, or
(b) to vary the reviewable decision, or
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or
(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.”
15 When there is a fact in issue as to the existence of which the Tribunal must be satisfied, it must be satisfied to the civil standard of proof, that is, on the balance of probabilities (McDonald at 357).
Requirements to be met
16 The issue for this Tribunal is: what is the correct and preferable decision? The Act sets out the applicable law. Section 33F of the Act enables the Department to suspend or cancel an authority to drive a public passenger vehicle, having regard to the purpose for which the authority is held.17 Section 33 (3) of the Act provides:
18 The decision to be made is whether Mr Picon can be considered “have sufficient responsibility and aptitude to drive a taxi-cab in accordance with the conditions under which the taxi-cab service concerned is operated; and in accordance with law and custom” such that an authority can attest to that status.
“(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.”
19 It is clear from the correspondence and the Department’s file that the Director General decided that an authority would attest to neither Mr Picon’s sufficient responsibility nor aptitude to be the driver of a taxi-cab.
Evidence
20 The Department’s file was put in evidence and the Director General relied on the documents contained within that file.21 Mr Picon presented evidence on his own behalf. A written testimonial was also provided in support of Mr Picon’s application.
The Director General’s case
22 The Director General relied on the chronology of events outlined above as justification for the action that has been taken. Mr Wozniak submitted that the Director General would have been justified in cancelling Mr Picon’s authority. Prior to 1999, Mr Picon had a good driving record. The Director General had not cancelled the authority because of Mr Picon’s previous good record.23 It is not disputed that complaints were made on five separate occasions by five separate complainants where the complaints related predominantly to overcharging and multiple hiring. Mr Picon admitted that he had picked up passengers from a bus stop contrary to permitted procedures, and that he knew it was wrong.
24 The Director General argued that this raises doubt as to Mr Picon’s fitness to be the driver of a taxi-cab. Further, the fact that he was issued infringement notices and given two separate warning letters indicates that he does not have sufficient responsibility to drive a taxi-cab in accordance with law and custom.
25 It would've been reasonable to expect that Mr Picon would have done something in response to the final warning letter. He should at least have read the Regulations that set out the conditions under which he is to operate.
26 Mr Picon has to show that he has the aptitude to drive a taxi-cab in accordance with law and custom. He appears to be confused about what restrictions are imposed by the Regulations, particularly with respect to soliciting and multiple hiring.
Mr Picon’s case
27 As noted above, the Director General issued of a Notice to Show Cause on 29 November 2001. Mr Picon made submissions in relation to the matters referred to in the Notice by letter dated 6 December 2001. His case before the Tribunal, while it dealt with issues not referred to in his letter of 6 December 2001, was of a similar nature.28 Mr Picon conceded most of the items raised in the notice to show cause, however he challenged the accuracy of some of the facts relating to some of those matters.
29 Mr Picon invited the Tribunal to consider his driving record over a long period of time. He stated that he had been driving for twelve years and had received no complaints during the first nine years. He indicated that the change in his driving record was brought about by financial pressures. In his submissions to the Director General he stated:
30 Nevertheless, he conceded that he has made mistakes and that there are many things that he is still learning in regard to driving a taxi. He expressed regret and remorse in regard to those mistakes. He stated that when the mistakes had been pointed out to him, he did not reoffend in the same way. He agreed that his offences are serious however he argued that when compared with other offences committed by taxi drivers those that he has committed are in the less serious category.
"Throughout all these years I have received compliments from many passengers, even off-duty police officers that have congratulated me for my safe and pleasant driving. I now have a wide range of regular passengers whom I look after … I've had a good driving record since 1995."
31 Mr Picon stated that multiple hiring has been the main cause of the problems. He has taken measures to address that issue. He continues to multiple-hire but tries to do so within the provisions provided by the Regulations. He now carries a calculator and has affixed stickers throughout his taxi to inform passengers of their rights when sharing a cab. Since then, he has had no problems.
32 Mr Picon also agreed that he had committed offences in relation to soliciting. He submitted that this was because of confusion in regard to what is permitted by the Regulations.
33 Mr Picon conceded that in 1992 he had completed a declaration in the following terms:
34 He also conceded that he has failed to "comply with all Acts, Regulations and prescribed standards relevant to taxi driving". He argued that this failure was a consequence of misunderstanding the conduct which is permitted by the Regulations. In order to address his lack of knowledge, Mr Picon indicated that he is willing to undergo re-education. Mr Picon submitted at the hearing that if a suspension is warranted, then such a suspension should be limited to a period of one month. In his submissions to the Director General in response to the Notice to Show Cause, Mr Picon stated:
"I declare 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.
I will comply with all Acts, Regulations and prescribed standards relevant to taxi driving."
35 In support of his argument that he was a person of good repute, Mr Picon referred the Tribunal to a testimonial provided on his behalf by Fr. Jan Chrzczonowicz, Chaplain with the French Roman Catholic Chaplaincy. In his testimonial, Fr. Chrzczonowicz stated:
"I believe I need to be disciplined for my past mistakes. One of your fellow officers mentioned going to school. I feel that this option will allow me to finepolish my knowledge governing the rules and regulations of the Taxi Industry."
Finding
"As a chaplain for the French speaking community, I have known Mr Richard Picon … personally for the last 7 years and would describe him to be of good repute. I know him as a good young husband and caring father for his family.
I am aware of Mr Picon’s Notice of Suspension and its annexure to suspend his Driving Authority for six months. I have read through the documents and have talked to him about these allegations. He has expressed deep regrets for any incident where he was in the wrong.
Mr Picon has made it clear that it will be extremely difficult for him if he were made unable to work. His daughters are still very young and his wife does not work.
I strongly believe that Mr Picon will never commit any more offences because he does not want to let his family down. "
36 In this application, I have considered all of the evidence including the oral evidence presented before the Tribunal. In particular I have had regard to the following issues:37 The evidence shows, and Mr Picon has accepted, that there are serious deficiencies in Mr Picon’s knowledge of conduct which is permitted and prohibited by the Regulations. In my opinion, it was reasonable for the Director General to determine that Mr Picon’s licence should be suspended on the basis of the material which was available to the Director General, the obligations on the Director General to make decisions in the public interest and for the protection of the travelling public, and the relatively serious nature of the allegations.
· the seriousness of the offences which lead to the Director General's decision;
· the interim nature of the decision to suspend;
· Mr Picon’s previous good driving record, character and the testimonial provided on his behalf;
· Mr Picon’s admission of the offences and his expression of regret and remorse; and
· Mr Picon’s acceptance that the offences warranted some action to be taken against his licence.
38 There is no evidence to suggest that Mr Picon’s is not a person of good repute or that he is not a fit and proper person to be a taxi driver. Nor is there any evidence to suggest that Mr Picon presents any danger to the travelling public. In my opinion the deficiencies in Mr Picon’s knowledge could be addressed by his completion of an appropriate educational course. Mr Picon has indicated that he is prepared to take steps to address those deficiencies. It is regrettable that he has not already taken those steps. Nevertheless, I am prepared to allow him the opportunity to limit the period of his suspension by undertaking appropriate training. The Director General's decision is varied accordingly.
39 In my opinion it is appropriate that Mr Picon’s licence be suspended for the period determined by the Director General. If, however, Mr Picon is able to satisfy the Director General that he has successfully completed the Rules & Regulations module of an approved taxi driver training program, the period of suspension should be lifted.
Orders
The decision of the Director-General of the Department of Transport is varied. The Taxi Driver Authority No. DY3403 held by Mr Richard Picon is suspended for the period to 21 November 2002. If prior to 21 November 2002 Mr Picon provides the Department of Transport with documentary evidence that he has successfully completed the Rules & Regulations module of an approved taxi driver training program, the suspension is to be lifted from the date that the documentary evidence is provided.
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