Reda v Director General, Department of Transport

[1999] NSWADT 97

CITATION:	Reda -v- Director General, Department of Transport [1999] NSWADT 97
DIVISION:	General
APPLICANT:	Ibrahim Reda
RESPONDENT:	Director General, Department of Transport
FILE NUMBER:	993142
HEARING DATES:	10/05/1999
SUBMISSIONS CLOSED:	10/05/1999
DATE OF DECISION:	14 October 1999
BEFORE:	G Fleming - Judicial Member
PRIMARY LEGISLATION:	Passenger Transport Act 1990
APPLICATION:	Review of decision to cancel taxi-cab authority -
MATTER FOR DECISION:	Principal matter
REPRESENTATION:	Applicant: R McCrudden of counsel Respondent: A Wozniak, Smythe & Mallam
ORDERS:	1. The Tribunal sets aside the decision under review. 2. The Tribunal substitutes a decision that the Applicant's authority to drive taxi-cabs is suspended until 8 October 1999. 3. The Tribunal recommends that the Applicant not be issued with a further authority to drive taxi-cabs until on or after 4 November 1999.

The Application

1 This is an application by Ibrahim Reda (‘the Applicant’) for review of a decision by the Director General, Department of Transport (‘the Respondent’), to cancel his authority to drive taxi cabs. This decision is made under section 14 of the Passenger Transport Act 1990.

2 The decision was made on 25 June 1999 and the Applicant lodged the application for review with the Tribunal on 1 July 1999.

3 The Applicant applied for a stay of the decision and the Tribunal granted that application until 30 July 1999 when the matter was originally listed for hearing. The hearing was vacated at Mr Reda’s request as he had to travel overseas for family reasons. The Tribunal file indicates that Mr Reda requested a further stay of the decision and the Respondent indicated no objection to the grant of same. It appears however that the Tribunal did not actually grant the stay and no further order was made. The cancellation of Mr Reda’s authority thus took effect from 31 July 1999. For some of the time between 31 July and 5 October Mr Reda was overseas. He has not driven a taxi since his return and has thus had no income. The Tribunal granted a further stay of the decision on 5 October 1999, effective until the date of this decision.

4 The primary issues in this case are whether the Applicant is a person of ‘good repute’; is in all other respects a ‘fit and proper person’ to be the driver of a taxi-cab, and is considered ‘to have sufficient responsibility and aptitude to taxi-cabs.

The Relevant Law

5 The Tribunal has jurisdiction to hear this matter pursuant to section 52(1) of the Passenger Transport Act and section 55 of the Administrative Decisions Tribunal Act 1997.

6 Section 14 of the Passenger Transport Act provides that ‘Having regard to the purpose of an authority, the Director General may at any time vary, suspend or cancel any person's authority’. The purpose of an authority to drive taxi cabs is set out in section 11 of the Passenger Transport Act 1990 as follows:

(2) 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.

7 Section 4 of the Passenger Transport Act 1990 sets out the objectives of the Act which include “(e) to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services”.

8 A consideration of whether a person is ‘fit and proper’ concerns the decision maker with weighing factors such as the seriousness of particular conduct and other matters which may be favourable to the person. (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Haining v Commissioner of Police [1999] NSW ADT 6.). It must be made in the context of the particular activity that is being regulated. In this case the context will include community expectations and responsibilities of taxi drivers. The issue of the Applicant’s ‘good repute’ concerns his reputation and estimation in the eyes of others known to him and in the general community.

9 This Tribunal has previously considered the operation of these provisions in the matter of Armani v Director General, Department of Transport [1999] NSWADT 20. The Tribunal, standing in the shoes of the Director General, has a wide discretion to grant or refuse a taxi authority. It must decide whether the Director General's delegate made the correct and preferable decision in the instant case and has the power to affirm, vary or set aside the decision. (Administrative Decisions Tribunal Act 1997 s 63).

Evidence

10 The Tribunal had in evidence before it the ‘Notice of Decision’ and attached ‘Statement of Reasons’ of the Respondent. There has been serious deficiency in this case in terms of the documents provided to the Tribunal pursuant to section 58 of the Administrative Decisions Tribunal Act 1997. The Respondent did not provide the Tribunal with a copy of the relevant file in response to a written request. Certain extracts from the file were provided to the Tribunal, and to the Applicant, only at the hearing which was held on 5 October 1999. This is a matter which the Tribunal brings to the attention of the Director General in relation to future Tribunal proceedings. The Applicant in this case claimed, justifiably in the Tribunal’s view, that he was subject to some disadvantage because of this late disclosure of relevant documents. Ultimately however the Applicant elected to proceed with the hearing in the interests of having the matter quickly resolved.

11 Both the Applicant and the Respondent were represented at the hearing. The Applicant attended in person and gave oral evidence. The Tribunal was assisted by an interpreter in the Arabic language. The Tribunal heard evidence for the Respondent from Mr Bruckner, who was one of the persons who had lodged a complaint against Mr Reda.

12 Mr Reda is a thirty four year old married man who lives in Sydney with his wife and three children, aged between eight and fifteen years. He has been a taxi driver since 1987 and he owns his own taxi. He has financial commitments in terms of a mortgage on his home and responsibilities for his family.

13 The Respondent in deciding to cancel the Applicant’s authority relied on a history of fourteen complaints about the Applicant, made since June 1992. These are set out in detail in the primary decision and are not repeated in detail here. In summary the complaints concern allegations that Mr Reda repeatedly drove his taxi in a dangerous manner, smoked in his taxi, accepted multiple hire without the consent of the passengers, failure to display his taxi authority card, did not immediately accept a hire, did not travel by the most direct route, overcharged passengers, was soliciting for hire, was rude and abusive to passengers and behaved in an improper manner.

14 On several occasions Mr Reda was called to an interview by RSL Taxis to discuss complaints and did not respond to the request. He was interviewed about his behaviour on other occasions and was reprimanded on at least four occasions.

15 On 28 November 1995 Mr Reda was issued with a “Show Cause’ notice as to why his taxi authority should not be suspended or cancelled. He was interviewed by departmental officers in the company of his wife and gave assurances that he would comply with his obligations in future. He was issued with a warning that if further adverse matters came to the attention of the Department then suspension or cancellation action would be taken.

16 On 11 June 1997 following further complaints, the Respondent issued a ‘Show Cause’ notice to Mr Reda as to why his authority to drive taxis should not be cancelled. Mr Reda replied to this notice however the authority was cancelled on 23 July 1997. Mr Reda appealed against this decision in the Local Court and on 25 August 1997 the appeal was dismissed. The Magistrate also recommended that Mr Reda be issued with an authority to drive taxis on or after 1 October 1997 upon his making an application. It was also recommended that any authority issued after this date be cancelled if Mr Reda came to further adverse notice by the authorities.

17 On 8 October 1998 Mr Reda was issued with an authority to drive taxis, valid for one year. On 17 March 1998 and on 5 February 1999 complaints were made to the Respondent about Mr Reda. The first concerned alleged soliciting for hire and refusing fares. The second concerned multiple hire without consent and abusive and threatening behaviour. Mr Reda was interviewed by departmental officers in relation to this second complaint, was reprimanded and advised that this type of behaviour could lead to suspension or cancellation of his licence.

18 Mr Bruckner gave evidence to the Tribunal in relation to the first of these complaints. He told the Tribunal that on 17 March 1998 he had been in the queue for a taxi at the rank in front of the Regent Hotel. Mr Reda pulled up in his cab and called out for passengers travelling to the airport. Mr Bruckner told the Tribunal that Mr Reda refused to take any passengers who were not going to the airport. He then sped off in his cab without any passengers and had stuck his fingers up to him as he left. Mr Bruckner denied, under cross-examination, that he had been angry at being refused carriage and that this had caused him to complain. The written record of Mr Bruckner’s complaint to the Department of Transport dated 17 March 1998 was before the Tribunal.

19 Mr Reda gave evidence to the Tribunal concerning the above history. He told the Tribunal that he had not been informed of the complaint of 17 March 1998 until the decision to cancel his licence. He denied that he was interviewed about the complaint. He told the Tribunal a different version of the incident. Mr Reda said that he had been driving his cab in the city when he realised he had to return a mobile phone to the airport from a previous fare. He said that he pulled up at the rank and called out that he was going to the airport. He collected two passengers for the airport and left. He denies sticking up his finger at Mr Bruckner.

20 As to the alleged incident of 5 February 1999 the Tribunal had before it the written complaint of a Mr Wardrop dated 9 February 1999. Mr Wardrop alleged that Mr Reda collected four passengers to go to the airport on the afternoon of 5 February 1999, of which he was the first to enter the cab. At the airport he claims that Mr Reda charged the full fare for each of the four passengers and that this was, in his view, unreasonable. He also alleged that Mr Reda verbally abused him for his Scottish accent.

21 Mr Reda told the Tribunal that he carried only three passengers to the airport on 5 February 1999. He picked up a fare at Grosvenor Place for the airport and, with the passenger's consent, proceeded to the Regent Hotel where he picked up another passenger for the airport. En route he collected another passenger in the city. He said that one passenger had disputed the fare and that he had phoned the base to confirm that it was the practice, when multiple hiring, for the driver to collect the full fare from each passenger. The base had confirmed this but the passenger did not listen to the response. In the end he charged each of his three passengers $20 which was lower than the metered fare for the trip. He denies being abusive to anyone. He was interviewed about this incident one week later by John Costa of the Department of Transport.

22 Mr Reda relied on three documents, which he had earlier submitted to the Respondent to support his claim to be of ‘good repute’. These were; an undated letter from Hussein Saab, pharmacist in Arncliffe, who has known Mr Reda for eight years and views him as ‘honest, trustful & hardworking’, a ‘responsible and caring father and husband’; an undated letter from Dr Ghannoum which states that he has known Mr Reda as a patient for 5 years and that he is ‘well mannered’, ‘honest and hard working’ and an undated letter from Irene Razak which states that Mr Reda has been her permanent cab driver for ‘the past two years’ and that he has always been ‘friendly, honest and considerate’ and has taken her to her destination by the shortest possible route.

23 Mr Reda told the Tribunal that he is prepared to undertake to the Respondent to keep a daily diary of his trips and to submit this weekly or fortnightly if required. He said that he needed his licence to maintain his income and support his family.

Findings

24 The Tribunal has carefully considered the matters set out above in the context of the purpose of an authority to drive taxi-cabs. As President O’Connor, J said in the matter of Farquharson -v- Director General, Department of Transport [1999] NSWADT 53:

In exercising its responsibilities for passenger transport regulation, the administrator must take account of likely perceptions of the travelling public.

25 Mr Reda has had a total of fourteen complaints against him since 1992. His licence was cancelled in 1997 on the basis of twelve of those complaints. The Tribunal is of the view that Mr Reda has already suffered the consequences of these complaints. They nonetheless provide the background to the current cancellation and are relevant to the issues of both ‘good repute’ and whether Mr Reda is a ‘fit and proper’ person to hold a taxi authority. In relation to the earlier complaints Mr Reda lost his licence for about three months.

26 The evidence that has been presented of Mr Reda’s ‘good repute’ is poor. The references are undated and give little indication of the relative standing in the community of the referees or of Mr Reda. The fact that Mr Reda has had his licence cancelled is relevant to this issue.

27 The Tribunal has paid particular attention to the complaints of 17 March 1998 and 5 February 1999. The Tribunal accepts Mr Reda’s evidence that he was not informed of the complaint of 17 March 1998 until the cancellation decision. No copies of correspondence to Mr Reda were submitted by the Respondent that would suggest that he was informed in writing of the complaint. However the Tribunal does not accept Mr Reda’s account of the incident and prefers that of Mr Bruckner. The Tribunal does not accept that Mr Bruckner complained simply because he was angry at not obtaining a taxi at that time. The record of his complaint, made at the time of the incident, when Mr Bruckner used his mobile phone to complain about Mr Reda, includes a reference to Mr Reda ‘gesturing with his fingers’ to Mr Bruckner who was standing at the taxi rank. This was repeated in oral evidence at the hearing. The Tribunal accepts that this occurred and that it is conduct which would not be acceptable to a reasonable member of the travelling public who was seeking to hire a taxi.

28 As to the incident of 5 February 1999 the substance of the file note of the complaint which appears in the Respondents file was untested at the hearing because both the Tribunal and the Applicant had not been provided with a copy of it. Consequently the complainant was not called to give evidence in relation to the complaint. The Tribunal accepts Mr Reda’s evidence that he requested, and was entitled to, the payment of the metered fare from each of his passengers. The Tribunal accepts Mr Reda claims that there were three, not four, passengers. However as to the allegation that Mr Reda was abusive to one of the passengers, the complainant, the Tribunal notes that similar complaints have been made against Mr Reda on four previous occasions. The Tribunal accepts that in the context of the heated dispute over the correctness of the fare and the passengers refusal to pay, that Mr Reda did become abusive to Mr Wardrop as is alleged in the written complaint.

29 These complaints must be considered in view of both Mr Reda’s past complaints history and the large number of the passengers which Mr Reda would have carried in the relevant period. The complaints do not reflect well on Mr Reda however the Tribunal accepts that they are not at the most severe end of the scale in terms of unsatisfactory conduct. The Tribunal finds that they are not sufficient to sustain a cancellation of his authority and permanent denial of his sole source of income.

30 The Tribunal is of the view that a suspension of Mr Reda’s authority would be perceived by the community as reinforcing the purpose for which an authority is granted. Namely to ensure that community expectations of the standards of skill and behaviour of taxi drivers are met.

31 In relation to the time that Mr Reda has already been ‘off the road’, he told the Tribunal that he had been unable to drive for four months. He said that he did not understand that he had been granted a stay by this Tribunal, effective until 30 July 1999. The Tribunal does not accept this. The Tribunal notes that Mr Reda was represented and was present when the stay was granted.

32 Mr Reda has also been out of Australia for some weeks and would not have been driving his taxi at this time in any event. The Tribunal does accept that Mr Reda did not have a stay of the decision, and was not permitted to drive his taxi, from 30 July to 5 October 1999 - a total of about nine weeks.

33 The Tribunal finds that the ‘correct and preferable’ decision in this matter is that Mr Reda’s authority to drive taxi-cabs be suspended for a period of three months. There are two factors, which complicate this decision. Firstly, the Tribunal has taken into account the nine weeks that Mr Reda has already been effectively ‘off the road’. This leaves a further period of three weeks from the date of this decision where the Tribunal would intend that Mr Reda not be permitted to drive. However Mr Reda’s authority was only issued until 8 October 1999. Thus it will expire prior to the running of the intended period of suspension. In these circumstances the Tribunal can only sensibly order that Mr Reda’s authority to drive a taxi-cab be suspended until 8 October 1999. However the Tribunal recommends that Mr Reda not be issued with an authority to drive taxi- cabs prior to 4 November 1999, which is three weeks from the date of this decision. The effect of this is to suspend Mr Reda’s authority to drive taxi-cabs for a period of three months.

Decision

1. The Tribunal sets aside the decision under review.

2. The Tribunal substitutes a decision that the authority to drive taxi-cabs held by Ibrahim Reda be suspended until 8 October 1999.

3. The Tribunal recommends that Ibrahim Reda not be issued with a further authority to drive taxi-cabs until on or after 4 November 1999.