Rasheed v Director General, Department of Transport

[2000] NSWADT 5

CITATION:	Rasheed -v- Director General, Department of Transport [2000] NSWADT 5
DIVISION:	General Division
PARTIES:	APPLICANT Haroon Rasheed RESPONDENT Director General, Department of Trasnport
FILE NUMBER:	993202
HEARING DATES:	14/10/99
SUBMISSIONS CLOSED:	10/14/1999
DATE OF DECISION:	01/11/2000
BEFORE:	Skinner PM - 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 Act 1990 Crimes Act 1900
CASES CITED:	Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 393 Sakellis v Officer in Charge of Police, Paddington (1968) 88 W.N. 541 Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
REPRESENTATION:	APPLICANT D Lawman, Peter R Murphy & Co, Solicitors RESPONDENT A Wozniak, Smythe & Mallam, Solicitors
ORDERS:	1. The decision of the Director General, NSW Department of Transport refusing the applicant's application for authority to drive taxi cabs is set aside.; 2. A Decision that pursuant to Division 2 of Part 2 of the Passenger Transport Act 1990 an authority to drive taxi cabs be granted to the applicant is substituted.

Reasons for Decision

Application

1 This is an application by Mr Rasheed for review by this Tribunal of a decision by the Director General, NSW Department of Transport to refuse to grant him an authority to drive taxi-cabs under Division 2 of Part 2 of the Passenger Transport Act 1990 (‘the Act’).

2 The application for the authority was lodged by the applicant with the respondent on 24 May 1999. The application was for a renewal of the authority which the applicant then held, expiring on 26 June 1999.

3 By letter dated 19 August 1999 the applicant was notified of a decision by the respondent to not grant him an authority. Although expressed as a decision to cancel the authority, the previous authority of the applicant had by then expired and the decision under review was really a refusal of his application for a new authority. The parties and the Tribunal proceeded on that basis.

4 The respondent refused the application on the ground that:

‘On the basis of the facts, it cannot be attested that Mr Rasheed has sufficient responsibility and aptitude to hold an authority nor that he is considered to be of good repute and, in all other respects, a fit and proper person for the purposes of section 11 of the Passenger Transport Act 1990’.

5 The applicant sought an internal review by the Department of the decision on 27 August 1999 and on 17 September 1999 he was notified that the decision was affirmed.

6 On the same day that he applied for an internal review, 27 August 1999, the applicant applied to this Tribunal for review of the decision.

7 No issue was taken by the respondent with this situation, under s 55 of Administrative Decisions Tribunal Atc 1997 (‘the ADT Act’), and in any event I hold that by the time of the hearing of the application to this Tribunal, 14 October 1999, the provisions of s 55(2) of the ADT Act were satisfied.

Relevant Facts

8 On 14 January 1997 the applicant was convicted upon a plea of guilty in North Sydney Local Court of four charges of ‘make false instrument’ contrary to s 300(1) of the Crimes Act 1900 and three charges of ‘obtain benefit by deception’ contrary to s 178BA of the Crimes Act.. All of the charges arose from a course of dealing by the applicant with two friends and co-offenders with whom he shared a flat at the relevant times.

9 He was sentenced in the Local Court to 12 months imprisonment, with a minimum term of 9 months and an additional term of 3 months, and ordered to pay compensation.

10 He appealed against the sentence to the District Court. On 20 May 1997 his Honour Judge Craigie of that court confirmed the conviction but varied the sentence to 12 months periodic detention and imposed a good behaviour bond upon the applicant, one condition of which related to his continuing to make compensation payments as ordered. At that time he had repaid $4,000 and owed $5,400.

11 There have been various developments since in relation to the applicant’s performance of his bond conditions, disclosed on the District Court file which was tendered in the hearing by the respondent. The applicant has been dealt with by the District Court for breaches in failing to make the compensation payments as and when scheduled. However he gave evidence to the District Court and confirmed that to me that he was unable to make all the payments because he was unable to work as a taxi driver and had not been able to find other work, and as a result has not been able to keep up the payments.

12 The District Court dealt with the matter by varying the repayments schedule, ordering ‘no action on the breach at this stage’ (per Judge Williams, 11 May 1999).

13 The applicant was unable to drive taxis because of the refusal by the respondent to renew his authority to drive under the Act. There would be a degree of circularity unfair to the applicant if I were to rely upon those breaches, which I accept were largely caused by the decision under review, as justifying the decision.

14 The District Court file does reveal to the applicant’s credit that he has made genuine efforts to repay the money.

15 The applicant did not reveal his conviction to the Department of Transport until he applied for renewal of his authority.

16 In a letter to the applicant dated 25 June 1999 the Department served a Notice to Show Cause advising him that it was considering cancellation of his authority and inviting submissions as to why that should not happen. The applicant lodged submissions and references as to his character and etc on 14 July 1999. As noted above, by that time his existing authority had expired in any event.

Issue for decision

17 Division 2 of Part 2 of the Act, containing ss 11 to 14, regulates the grant of authorities to drive taxi cabs.

18 s 12 gives the Director General a discretion to grant authorities, having regard to the purpose of such an authority. 19 Sub-section 11(2) sets out the purpose of an authority in the following terms:

‘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.

20 The issue in this case is whether considering his conviction, and failure immediately to disclose same to the Department, the applicant should be granted an authority attesting the matters set out in s 11(2) of the Act.

Applicable law

21 This Tribunal has jurisdiction to hear this matter pursuant to s 52(1) of the Act and ss 38(1) of the ADT Act.

22 This Tribunal has now handed down several decisions dealing with authorities to drive taxi cabs and assessments under s 11(2) – see Armani v Director General, Department of Transport [1999] NSWADT 20; Bedi v Director General, Department of Transport [1999] NSWADT 51; Farquarson v Director General, Department of Transport [1999] NSWADT 53; Haideri v Director General, Department of Transport [1999] NSWADT 61; Saadieh v Director General, Department of Transport [1999] NSWADT 68; Ismail v Director General, Department of Transport [1999] NSWADT 79; Ybasco v Director General, Department of Transport [1999] NSWADT 85; Singh v Director General, Department of Transport [1999] NSWADT 96; Reda v Director General, Department of Transport [1999] NSWADT 97; Abdou v Director General, Department of Transport [1999] NSWADT 98; Khamis v Director General, Department of Transport [1999] NSWADT 103; Lloyd v Director General, Department of Transport [1999] NSWADT 101; Mulligan v Director General, Department of Transport [1999] NSWADT 126; and Husain v Director General, Department of Transport [1999] NSWADT 136.

23 These cases were all applications for review of decisions by the respondent to refuse, suspend or cancel an authority to drive taxis. In all but the cases of Armani and Reda the applicant was wholly unsuccessful, and in the case of Reda the applicant was only partly successful. Division 2 of Part 2 of the Act charges the administrator, and this Tribunal in a merits review, with substantial responsibility in relation to protection of the public in taxis, and gives appropriately wide powers to discharge that responsibility.

24 Several of those decisions, as a result of similar arguments put on behalf of the applicant as were put to me, cite Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 393), per Waddell J, in the following terms:

‘A person's reputation, in fact and in law, is to be found in the estimate of his moral character entertained by some specific group of people, such as 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. . . Evidence of conviction for a criminal offence is, however, admissible as evidence, indeed, most cogent evidence of bad reputation’.

25 Sakellis v Officer in Charge of Police, Paddington [(1968) 88 W.N. 541 is also noted in several decisions as having been cited, and it was cited to me, in support of the proposition that:

‘It would be difficult indeed to hold that a man who was convicted of breaking, entering and stealing could be regarded as a man of good character, even if it could be said that he was of good character at the present time (at p 545, quoting Herron J in Ex parte Davis (1949) 50 SR (NSW) 158 at 167)’

26 However in Saadieh, above, after noting submissions from the respondent citing these two authorities, Deputy President Hennessy stated at [14]-[17]:

‘14 If the respondent is submitting that once a person has committed a dishonesty offence such as breaking, entering and stealing, he can never again be regarded as a person of good character (or in this case, "good repute") then I reject that proposition. If it were otherwise any conviction for a dishonesty offence would automatically prevent a person from re-applying for a taxi authority. The Director General has not interpreted the legislation in this manner, nor do I think it correct to do so.

15 Furthermore, I do not accept the respondent's submission that the applicant is not of good repute merely because his criminal record indicates bad repute and there is no other evidence of repute. Many applicant's before the Tribunal are unrepresented. They do not understand, nor should they be expected to understand, that references or other evidence of their repute in the community would be useful in counteracting any evidence of bad repute which can be assumed on the basis of a criminal conviction. A person's criminal record alone is not necessarily evidence of bad repute which is sufficient to disqualify that person from holding a taxi authority. All the circumstances of the case must be taken into account in assessing a person's suitability to be obtain or retain such an authority.

16 Chief Justice Mason in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63] said that:

"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."

17 Taking into account the terms of the legislation and the case law interpreting similar provisions, there are a number of factors that need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. These factors include:

· the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted;
· the nature, seriousness and frequency of any complaints made against the applicant;
· the applicant's driving record;
· the applicant's reputation in the community; and
· the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences.’

27 I propose to adopt these comments.

28 Further, in making the value judgment referred to by Mason CJ in the quotation above, I propose to adopt the approach of the ACT Administrative Appeals Tribunal in Maythisathit and Registrar of Motor Vehicles [1996] ACT 165, that was cited with approval by President O’Connor in Farquarson, above, at [37]:

‘In the course of its decision the Tribunal (Professor L J Curtis, President) put the test to be applied in relation to "fit and proper character" in the case of taxi driver licensing in this way, at [12]:

"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."’

29 In my opinion, a reasonable member of the public knowing:

· the applicant's criminal record;
· the facts of the offences as accepted by the parole officer who prepared the pre-sentence report, in turn accepted by the sentencing judge, that he was influenced into committing the crime by others and that was a function of his lack of sophistication;
· what was accepted by those persons and upon which I also heard sworn evidence which I accept that he expressed and felt genuine remorse;
· his full cooperation with the police; and
· what he has done to rehabilitate himself and repay the proceeds of the crimes,
would not object to being driven by the applicant.

30 Unlike the applicants in Ismail, Singh and Mulligan above, this applicant’s conviction is not in relation to something going to his ability to drive and obey the traffic laws. Unlike the applicants in Bedi, Farquarson and Singh the facts of this conviction do not involve proof or allegation of violence. Unlike the applicants in Haideri, Ybasco, Reda, Abdou, Khamis, Mulligan and Husain the facts of this conviction do not involve proof or allegation of misbehaviour as a taxi driver. Unlike the applicant in Lloyd, there is only the one isolated conviction for dishonesty.

31 Finally, unlike in the cases of Saadieh and Singh, in my opinion the respondent cannot in this case establish dishonesty by the applicant in his failure to disclose his convection to the Department. True he failed to disclose his conviction immediately to the Department as he was obliged by the ‘Taxi Driver Authorisation Standards’ that were Exhibit A before me, but I am not convinced that he did so dishonestly – i.e. being fully aware of his obligations and consciously deciding to ignore them. He did after all disclose the conviction upon his application for renewal.

32 On the positive side for the applicant, unlike the impressions formed by the Tribunal as then constituted of several of the applicants the subject of the above judgments, as can be gleaned from those judgments, Mr Rasheed impressed me as a candid witness and someone who was genuinely contrite for his one conviction.

33 Further, in contrast to e.g. the applicant in Saadieh as noted in the quotation above, Mr Rasheed has tendered references of some substance as to his good reputation and character.

34 Mr Rasheed had until his former authority expired on 26 June 1999 been driving taxis full time as his sole paid occupation since 1991. There are no complaints recorded against him on his file. Indeed, on the specific issues as to his honesty and character as a taxi driver, he has tendered glowing references from the operators for whom he has been driving, and it is apparent that despite their knowledge of this conviction he is held in high regard by them.

35 Further, I note that the applicant has been unable to drive taxis since 26 June 1999 and, similarly to the approach of the Tribunal in Reda, I take this into account. To a real extent Mr Rasheed has already suffered some consequences of his conviction upon his right to engaged in a regulated occupation. I am of the view that what is effectively a suspension of his authority to drive for in excess of six months would be perceived by the community as being sufficient to reinforce the purpose for which an authority is granted under Division 2 of Part 2 of the Act as set out in s 11(2).

36 Finally, it was submitted to me by Mr Wozniak for the respondent that the fact that the applicant will remain under a bond until 20 May 2000 prevents a finding under s 11(2) of the Act that he is ‘of good repute’. I do not accept this. The sentence for the conviction cannot be looked at separately, nor can it elevate the facts of the offence into something more severe. It is the offence itself, confirmed as it is by the conviction, that must be assessed under s 11(2).

37 Accordingly the Tribunal makes the following orders:

(a) the decision of the Director General, NSW Department of Transport refusing the applicant’s application for an authority to drive taxi cabs is set aside; and
(b) a decision that pursuant to Division 2 of Part 2 of the Passenger Transport Act 1990 an authority to drive taxis cabs be granted to the applicant is substituted.