Reddy v NSW Department of Transport and Infrastructure
[2010] NSWADT 200
•13 August 2010
CITATION: Reddy v NSW Department of Transport and Infrasfructure [2010] NSWADT 200 DIVISION: General Division PARTIES: APPLICANT
RESPONDENT
Shessa Reddy
New South Wales Department of Transport and InfrastructureFILE NUMBER: 093078 HEARING DATES: 27 April 2010 SUBMISSIONS CLOSED: 26 May 2010
DATE OF DECISION:
13 August 2010BEFORE: Grant Y - Judicial Member LEGISLATION CITED: Crimes Act 1900
Passenger Transport Act 1990
Administrative Decisions Tribunal Act 1997
Passenger Transport (Taxi-Cab Services) Regulation 2001
Passenger Transport Regulations 2007CASES CITED: Haideri v Director-General, Department of Transport [1999] NSWADT 61
Mohammed v Director-General, Department of Transport [2000] NSWADT 47
Nehma v Director-General, Department of Transport [2002] NSWADT 242
Smith v Ministry of Transport [2008] NSWADT 136
Re T & Anor v the Director of Youth and Community Services [1980] 1 NSWLR 392
Melbourne v The Queen (1999) 198 CLR 1
Caska v The Director General, Department of Transport [2001] NSWSC 2005
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Saadieh v Director-General Department of Transport [1999] NSWADT 68REPRESENTATION: APPLICANT
RESPONDENT
In person
A Wozniak, solicitorORDERS: The decision to refuse the application for authorisation to drive a taxi cab is affirmed.
REASONS FOR DECISION
Background
1 On 4 February 1992, the Applicant was issued with a Taxi Cab Driver Authority.
2 On 29 January 2007, a complaint was lodged concerning the Applicant’s behaviour towards a female passenger on 24 January 2007. It was alleged that the Applicant acted with incivility and impropriety in making numerous sexually explicit comments, and assaulted the passenger on several occasions, including touching her once on the breast.
3 On 7 March 2007, a Notice of Decision to Suspend the Applicant’s Driver Authority was issued and three Court Attendance Notices were issued to the Applicant for the offences of:
Indecent Assault (s.61L of the Crimes Act 1900 ),
Incivility/Impropriety (clause 45(b) of the Passenger Transport (Taxi Cab Services) Regulation 2001 .Assault (s.61 of the Crimes Act 1900 ), and
4 The matters were set down for hearing on 29 June 2007 at Parramatta Local Court, but the Applicant failed to appear before the Court and warrants were issued for his arrest.
5 On 26 July 2007, the Applicant’s Driver Authority, DY 0923, was cancelled.
6 The Applicant was apprehended and placed on bail and after several court appearances, an application pursuant to Section 4 of the Crimes (Local Court)Appeal and Review Act 2001 was granted and the matter was again adjourned.
7 On 6 February 2008, the Applicant’s Driver Authority, DY 0923, expired.
8 On 13 June 2008, the matter was heard at Parramatta Local Court before Magistrate Miszalski. The Magistrate could not be satisfied, beyond a reasonable doubt that the Applicant was guilty of the offences with which he was charged and accordingly, the charges were dismissed; however, he made comments in his judgment to the following effect:
1.The conversation between the accused and his passenger was inappropriate, and
2.If the matter was to be determined on a different standard of proof, then a different result would have occurred.
9 The Applicant lodged an appeal to the Administrative Decisions Tribunal regarding the cancellation of his licence and, after a number of appearances, including an appearance before Judicial Member Molony (affirming the decision to cancel his authority to drive a taxi cab on 8 May 2007), a determination was made on 18 August 2008 by Tribunal Member Montgomery. Mr Montgomery set aside the decision to cancel and substituted it with a suspension for the balance of the period until the Applicant’s authority was to expire.
10 On 12 August 2008, the Applicant made application for an authority to drive a taxi cab or private hire vehicle (“the Application”).
11 On 27 November 2008, the Delegate of the Director-General of the Ministry of Transport refused the Application.
12 The Applicant applied for an Internal Review of the decision to refuse his application for authorisation to drive taxi cabs and, on 15 January 2009, the Internal Reviewer confirmed the decision of the Delegate of the Director General to refuse the Application.
13 On 23 March 2009, the Applicant applied to the Administrative Decisions Tribunal for a review of the decision to refuse his Application.
14 On 12 June 2009, the matter was set down for hearing before the Administrative Decisions Tribunal but the Applicant failed to attend.
15 The matter was again listed for hearing before the Administrative Decisions Tribunal on 14 September 2009, but the Applicant sought to have the matter heard by a different Member of the Administrative Decisions Tribunal and, accordingly, the matter was adjourned for re-listing.
16 The matter was set down for hearing before the Administrative Decisions Tribunal on 3 December 2009, on which occasion the Applicant requested a Fijian Indian interpreter and asked that the matter be considered by another Member and that such Member be required to read the transcript of the Local Court proceedings against the Applicant, which was tendered at the hearing of 3 December 2009.
17 The matter was again listed before the Administrative Decisions Tribunal on 24 February 2010, at which time the Applicant failed to attend, providing a medical certificate by facsimile, on the afternoon of the hearing date.
18 On 27 April 2010, the matter came before the Administrative Decisions Tribunal for hearing and the Applicant attended in person and the Respondent was represented by Mr Wozniak.
19 The applicant provided further submissions (consisting of 8 hand-written pages) on 26 July 2010, in response to an invitation from the judicial member of the Tribunal, to provide submissions which address what he had done and his circumstances since his license was first suspended on 7 March 2007, by reference to the requirements of Clause 29 (2) (e) of the Passenger Transport Regulations 2007.
20 On 3 August 2010 the respondent indicated that he did not wish to respond to these further submissions.
Relevant Legislation
21 Section 33(3) of the Passenger Transport Act (“the Act”) provides as follows:
“Authorities
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 law and custom.c)in accordance with the conditions under which the Taxi-Cab Service concerned is operated, and
…”
22 Section 33B of the Act provides as follows:
“Section 33B – Grant or Refusal of Application
2)Before an application is granted, the applicant must meet any criteria set forth in the Regulations and must satisfy the Director-General as to any matter the Director-General considers relevant.1)Having regard to the purpose of authorisation under this Division, the Directors-General may grant an application and authorise the applicant to drive a taxi-cab, or may refuse the application.
…”
23 Clause 29 of the Passenger Transport Regulation 2007 (“the Regulations”) states:
“Clause 29 – Criteria for Authorisation to Drive Public Passenger Vehicles
1)For the purposes of s.12(2), 33B(2) and 40B(2) of the Act, the criteria that an applicant for an authorisation to drive a public passenger vehicle must meet, before the application is granted are the criteria set out in subclauses (2)-(4).
…2)The applicant:
e)must satisfy the Director-General that he or she:i)may lawfully work in Australia, and
iii)has sufficient responsibility to drive the vehicle concerned in accordance with law and custom …”ii)is of good repute and in all respects a fit and proper person to be the driver of the vehicle concerned, and
Applicant’s Submissions
24 Material relied upon by the Applicant included:
i)Submissions made orally at the hearing on 27 April 2010;
iii)Further submissions received on 26 July 2010, in response to a request from the Judicial Member in this matter, inviting the Applicant to provide further submissions which address what he has done and his personal circumstances, since his licence was first suspended on 7 March 2007 by reference to the requirements of clause 29(2)(e) of the Passenger Transport Regulations 2007 .ii)Hand-written documents, together with noted copies of the Local Court decision and ADT decisions relating to this matter; and
25 The Applicant criticised the decision of the Administrative Decisions Tribunal dated 18 August 2008, where the Judicial Member stated:
I do not know what it was, but it is obvious that something happened and that is the view that the Magistrate formed.”“It is obvious from the evidence that was given by the Complainant and the people at her workplace that something occurred in the taxi that caused her distress.
26 It was the Applicant’s submission that the Ex tempore decision was compromised by the excessive use of “buts” and “maybes”.
27 The hand-written submissions by the Applicant predominantly address what the Applicant believes to be the failings in the previous decisions of the Administrative Decisions Tribunal, even though they do not/cannot govern the outcome of this application; that is, this is not an “appeal” from any of those decisions.
28 In particular, the Applicant expressed the opinion that the fact that the Judicial Member had said “I do not know what took place in the taxi” precluded him from subsequently saying “Whatever it was, is most likely to have been conduct that is not in keeping with the standard that is required of a taxi driver”. The Applicant expressed difficulty with the use of the word “conduct” and its relationship to the subject matter of the complaint.
29 The Applicant further had difficulty with the use of the term “interchange” with reference to the communication between the Applicant and the Complainant travelling in his taxi cab. The Applicant was critical of the Judicial Member’s use of the word “distress” and preferred the term used by the Magistrate, that the passenger was “upset”.
30 The Applicant was critical of the Judicial Member’s use of the term “in all these circumstances” believing this to be inconclusive in terms of decision-making. The Applicant further expressed concern with respect to a payment he had made to the Ministry of Transport of $100 by way of an application for renewal and which sum had not been refunded. The Applicant felt that the characterisation of the complaints as serious was inappropriate as the charges had been dismissed pursuant to the criminal standard by the Local Court.
31 The Applicant was also critical of the Judicial Member’s references to the likelihood of the instance occurring again, being probably higher than it might otherwise be.
32 The Applicant expressed difficulty in understanding the distinction between “cancellation” of his taxi cab authority and its suspension for the same period.
33 The Applicant was also critical of the judicial language employed, finding it to be unclear and indecisive. The Applicant further felt that the Tribunal had not paid sufficient regard to the fact that he had no record for any criminal offence. The Applicant was concerned that insufficient regard had been paid to his good character and accordingly, the weight that should be given to his testimony and the reduced likelihood of his conduct.
34 The Applicant submitted that “the evidence for the prosecution is not convincing to a point, where it’s beyond a reasonable doubt (comment by Magistrate)”.
35 The Applicant provided a marked-up copy of the Ex tempore decision of Judicial Member Montgomery of Monday 18 August 2008 in support of his submissions.
36 The Applicant also provided a marked-up copy of the transcript of the proceedings before the Local Court, together with annotations. The Applicant also provided a marked up copy of the transcript of the Complainant’s record of interview with the Department of Transport officers. The Applicant made reference to that portion of the transcript of the Local Court proceedings where he admitted that the photograph identified by the Complainant as him was in fact the Applicant. In this regard the Applicant cited this as an example of his inexperience and suggested that he would have been better served had he had a “counsellor” to defend him.
37 The Applicant suggested that if you know a person it’s hard to use vulgar language and if you don’t know a person it’s unlikely that you could even use any bad language at all.
38 The Applicant itemised the complaints made by the Complainant as contained in the transcript of the Court case in his own handwriting.
39 The Applicant referred to various questions of detail about which the Complainant was uncertain and suggested that these detracted from the force of her evidence. The Applicant challenged the Complainant’s failure to get out of the car immediately, suggesting that this was inconsistent conduct by a person who was in fear of her safety.
40 The Applicant further provided detailed commentary/criticism on the transcript of the record of interview between himself and the officers of the Department of Transport, enquiring into the incident. The Applicant made reference to the fact that the Complainant had been assisted in identifying the number of the taxi vehicle that had delivered her to her place of work. The Applicant suggested that this meant that the Department of Transport had failed to follow and protocol and accordingly “were unable to prove beyond doubt that I was the driver and the case should have been dismissed there and then”.
41 The Applicant submitted that the incivility/impropriety were simply back-up charges and once the other charges of indecent assault were dropped, so too should have been the charges concerning incivility/impropriety, in breach of clause 45(b) of the Passenger Transport (Taxi-Cab Services) Regulation 2001.
42 The Applicant made reference to the fact that he was not represented before the Local Court and accordingly was disadvantaged. The Applicant further commented that he had “a different culture, tradition and values in my community, and a well-versed respected gentleman”.
43 The Applicant was also critical of the Ministry of Transport for its failure to “give me an opportunity to discuss about the alleged offence, face to face, so that I could show them where they made mistakes when reaching their decision”.
44 The Applicant further made reference in his submissions to the fact that he had provided seven character references to Judicial Member Montgomery. A search of the materials in evidence before this Tribunal failed to locate these character references and accordingly, I presume that these must have been provided to the Magistrate and not to the Tribunal.
45 The Applicant complained he had wasted $100 for renewal of the application. . The Applicant was critical of his retention in gaol pursuant to a warrant on 10 July 2007, which resulted in the Applicant being apprehended for some 4 hours 35 minutes. The Applicant made further submissions concerning the issue of his identification, making reference to the fact that as the taxi booking was a Premier Company’s fixed customer radio booking, all the details were contained in the company’s computer.
46 The Applicant made further submissions with respect to his compliance with the taxi company policy and the rules of the road when driving the Complainant to her destination.
47 The Applicant made reference to the traumatic effect of the incident on his life and his subsequent withdrawal from a number of activities, including sport, music and outings. He made reference to the fact that he was “a changed man now, poor and depressed”. The Applicant made further reference to the impact his poverty had had on his inability to give family and friends gifts on occasions such as birthdays. The Applicant further itemised other consequences of his poverty in respect of his inability to maintain or purchase necessities.
Applicant’s Further Submissions dated 26 July 2010
48 In further submissions filed by the Applicant on 26 July 2010, in response to an invitation from the Judicial Member of the Tribunal to provide submission which address what he had done and his circumstances since his licence was first suspended on 7 March 2007, by reference to the requirements of clause 29(2)(e) of the Passenger Transport Regulations 2007, the Applicant provided a further eight pages of hand-written notes.
49 The Applicant stated that he had looked for suitable jobs through Centrelink, employment agencies and an organisation by the name of “Breakthrough”, stating that he had been to them 10 to 15 times but that they had been unable to find him a suitable job. He has been in receipt of a Centrelink payment every fortnight and his time had been largely occupied by undertaking extensive household duties. The Applicant noted that his wife was the only income earner in his household and that this placed great stress on him.
50 The Applicant noted his 33 year old daughter was also without a job and that she resided with he and his wife, together with her 5 month old baby. The Applicant further stated that his son, who is 22 years of age, also resides in the family home.
51 The Applicant stated his inability to obtain work had caused him great distress, stating:
“I feel restricted and tired as I am unable to see anything in a clear perspective. I am undergoing a mental conflict due to this crisis and therefore I am under severe stress.”
52 The Applicant noted a number of charities to which he had previously contributed. The Applicant noted the many ways in which he had been deprived as a consequence of his inability to find employment. The Applicant further noted his current level of indebtedness to various members of his family, friends and business debts. The Applicant stressed that unlike a number of applicants in the cases cited by the Respondent, he had not been convicted of any offences.
Respondent’s Submissions
53 The documents relied upon by the Respondent included:
ii)Further submissions, consisting of one page, filed on 12 May 2010, together with copies of four cases cited as relevant to the issue before the Tribunal, namely:i)A copy of the Ministry of Transport’s file comprising some 368 pages filed on 12 May 2009; and
Haideri v Director-General, Department of Transport [1999] NSWADT 61, paragraphs [11] and [24].
Mohammed v Director-General, Department of Transport [2000] NSWADT 47, paragraph [40].
Smith v Ministry of Transport [2008] NSWADT 136.Nehma v Director-General, Department of Transport [2002] NSWADT 242, paragraph [18].
54 The Respondent referred to the Incident Report dated 24 January 2007 prepared by the Complainant, and, in particular, drew the Tribunal’s attention to statements made by the Complainant as follows:
“He then told me to find him if I were to ever end things with my boyfriend and he would show me what a real man is about …
… he then said “Don’t be offended but when you smile and the way you look makes my dick get hard”. …
He continued with the comments, stating that he knew I was having sex because of the size of my breasts, he then reached over and touched my breast and I reacted and pushed his hand away and told him not to touch me. He became quite rude, saying that he knows they get licked and sucked etc, while performing the actions at the same time. …
He was really rude again, making comments such as “I can imagine your beautiful pussy and how good it looks with your colour skin etcetera”.
At this point I was a street away from my destination so I ignored what he said and gave him directions as to where exactly I wanted to be dropped off. …
I was in shock and pulled my arm away, closed the door and ran into the office.”I grabbed my bag and proceeded to exit the vehicle but he grabbed my arm, holding it very tightly and threatening that he would make sure that I would see him again and that he knows that he will definitely see me again.
55 The Respondent then referred the Tribunal to the Notice of Decision to Suspend the Applicant’s driver authority, DY 0923, dated 7 March 2007.
56 The Tribunal’s attention was further drawn to the Court Attendance Notice outlining the offences with which the Applicant was charged, before the Local Court, being:
i)that the Accused did assault the Complainant and did then beat or otherwise ill-treat the Complainant, in breach of s.61 of the Crimes Act 1900 .
iii)that the Applicant did assault the Complainant and that he, at the time of such assault, did commit an act of indecency on the Complainant, in breach of s.61L Crimes Act 1900 .ii)that the Accused, being the driver of a taxi cab did fail to behave in an orderly manner and with civility and propriety towards a passenger, in breach of clause 45(b) Passenger Transport (Taxi-Cab Services) Regulation 2001 ;
57 The Respondent referred the Tribunal to the transcript of the audio-taped record of interview between Officer Emma Reedy and the Complainant, on 30 January 2007, in which the Complainant particularised the circumstances giving rise to the Incident Report of 24 January 2007, in particular, referring to her immediate complaint to fellow office workers and subsequently her boss, after the incident in the Applicant’s taxi vehicle.
58 The Respondent further referred to the transcript of audio-taped record of interview between Officer Giovanna Matheson and Officer Jim Hallahan, and the Applicant, dated 15 February 2007; in particular at page 179, where Officer Giovanna Matheson said to the Applicant:
To which the Applicant responded: “Yeah, something like that”.“Yeah, but did you make any comments about their morals? Like, you know how you said that in Fiji women don’t have sex before marriage and here in Australia they do?”
59 And also, at page 176, where Officer Jim Hallahan asked the Applicant about the Complainant’s allegations that the Applicant had said that the way she smiled made his dick hard; saying:
To which the Applicant responded: “I don’t remember”.“JH: What, you’re saying you don’t remember it or it didn’t take place?”
60 The Respondent drew the Tribunal’s attention to the ex tempore decision of Judicial Member Molony of the Administrative Decisions Tribunal, dated 8 May 2007, in which he stated:
As a result, I conclude that the correct and preferable decision is to affirm the decision to suspend your taxi driver’s authority.”“Now the allegations against you involve very serious matters. These are allegations that they are allegations not only of sexually inappropriate and racist language, but there is also an allegation of unlawful touching of a passenger’s breast. Given those circumstances, I do not believe that a reasonably informed member of the public would consider it appropriate that you continue to drive a taxi until such time as the Criminal Courts have determined your guilt or otherwise of the charges laid against you.
61 The Respondent noted that on 18 August 2008, the matter returned before the Tribunal, and reference was made to the statements made by Judicial Member Montgomery, in his ex tempore decision in the following terms:
… It seems to me that whatever has gone on in the taxi would be sufficient to prevent the Ministry from attesting that Mr Reddy is able to meet that standard.”“I do not know what took place in the taxi but it is my view whatever it was is most likely to have been conduct that is not in keeping with the standard that is required of a taxi driver.
62 The Respondent concluded that this supported the view that Judicial Member Montgomery had accepted the evidence in the transcript and whilst he could not be satisfied there had been touching, he was satisfied that there was certainly inappropriate conduct inside the vehicle.
63 This led Judicial Member Montgomery to decide to vary the decision so that it was a suspension of Mr Reddy’s Authority, rather than a cancellation, noting that the suspension would coincide with the expiration of the Authority, on 6 February 2008.
64 The Respondent further drew attention to the decision of Magistrate Miszalski, of 13 June 2008
65 The Respondent then drew the Tribunal’s attention to the further decision of the Ministry of Transport to refuse the applicant’s application for authorisation to drive a taxi-cab, dated 27 November 2008, and attaching a Statement of Reasons.
66 The Delegate of the Minister of Transport stated that while Magistrate Miszalski could not be satisfied beyond a reasonable doubt, and as such he dismissed the charges, he nevertheless made comments to the following effect in his judgment:
1)The conversation between the accused and his passenger was inappropriate, and
2)If the matter was to be determined on a different standard of proof, then a different result would have occurred.
67 This, together with the Applicant’s complaint history, was cited in support of the decision to refuse the Application. The Delegate of the Minister of Transport concluded that the Applicant could not be said to be of good repute and in all other respects, a fit and proper person to drive a public passenger vehicle.
68 The Respondent further noted the letter, by way of Notice of Internal Review, dated 15 January 2009, in which the Delegate of the Ministry of Transport confirmed the original decision to refuse the Applicant an Authority to Drive a Public Passenger Vehicle.
69 In the Respondent’s further submissions dated 12 May 2010, reference was made to the above submissions and the following additional points were made:
i)While the Applicant had filed a fresh Application for an Authority to Drive a Public Passenger Vehicle, he had not provided fresh evidence and simply sought to re-agitate the earlier hearing of the matter, and criticise the evidence given by the various witnesses.
iii)The Respondent drew the Tribunal’s attention to a number of past decisions of the Administrative Decisions Tribunal, in which a “very dim view of such conduct” has been taken.ii)The Respondent submitted that the Tribunal would be satisfied with the evidence against the applicant on the standard that applies to the Tribunal.
70 On 3 August 2010 the Respondent informed the Tribunal that he did not wish to respond to the Applicant’s further submissions of 26 July 2010.
Findings
71 The issue to be determined by the Tribunal is whether the decision of the Delegate of the Director-General of the Ministry of Transport on 27 November 2008, to refuse the Applicant’s authorisation to drive a taxi cab was the correct and preferable decision in all the circumstances. The Tribunal’s decision must be made on the basis of all relevant factual material (see subsection 63 of the Administrative Decisions Tribunal Act (“the ADT Act”).
72 The reason why the Delegate of the Director-General of the Ministry of Transport has refused Mr Reddy’s application for authority to drive taxi cabs is the belief of the Delegate that the Applicant does not meet the requirements for the purposes of ‘authorisation’ pursuant to s.33(3) of the Act, namely that he is a “fit and proper person” including being considered to be of good repute; and is considered to have sufficient responsibility and aptitude to drive a taxi vehicle.
73 This belief was based on the complaint history as a taxi driver together with the serious nature of the complaint made against the Applicant arising from the incident which took place on 24 January 2007 when the Applicant drove the Complainant to her place of work and it was alleged that he acted with incivility and impropriety, made numerous sexually explicit comments, and assaulted the passenger on several occasions, including once on the breast. The Delegate of the Director General of Transport stated, in his Reasons for Decision as follows:
“Mr Reddy has not expressed any remorse for his conduct and there is no satisfactory evidence that Mr Reddy has rehabilitated his behaviour. …
As Mr Reddy cannot satisfy the Director General that the criteria in clause 29(2)(e)(ii) can be met, in turn the requirement of s.33B(2) of the Act cannot be met and the Application for Authorisation must be refused.”I am not satisfied that Mr Reddy is a fit and proper person to be the driver of a taxi cab.
74 This matter has had a long and protracted history and has resulted in the Applicant appearing on at least six occasions before the Administrative Decisions Tribunal and on at least three occasions before the Local Court. In the course of these appearances, the Applicant has acquired some familiarity with legal process but at all times has not had the benefit of legal representation.
75 Through the course of the hearing before the Tribunal the Applicant demonstrated that he was able to understand what was being said but it was not always easy to understand what the Applicant was saying. The transcript of the Local Court proceedings demonstrates that the Applicant was able to conduct his defence and maintain an exchange of communication with the Magistrate such that it was evident that for the most part the Applicant understood what was being said to him, albeit not the legal significance of all of it.
76 The Applicant, at one stage in the hearing (and in the proceedings before the Magistrate) indicated he had difficulty hearing and the Tribunal indicated that the Applicant should not hesitate to inform the Tribunal if, at any stage throughout the course of the proceedings, he had not clearly heard what was said. On a few occasions, throughout the course of the hearing, parties repeated what had been said.
77 It is evident in the Applicant’s hand written submissions of some 33 pages, that he does not appreciate the distinction between the burden of proof required in criminal proceedings in the Local Court, being that of beyond a reasonable doubt and the burden of proof required in civil proceedings such as before the Administrative Decisions Tribunal, where it is on the balance of probabilities.
78 The Applicant has repeatedly made reference to the fact that his charges were dismissed by the Local Court and he is confused (or does not accept) why this is not sufficient in itself, to result in a rejection of the findings of the Delegate of the Director General or by the Administrative Decisions Tribunal. A significant proportion of the Applicant’s submissions have been directed towards his criticism of the previous proceedings before the Administrative Decisions Tribunal and his belief that a dismissal of charges by the Local Court should automatically result in a corresponding finding in his favour by the Administrative Decisions Tribunal in this (new) matter.
79 Because the Applicant did not seek to adduce any fresh or further evidence in this matter and in his handwritten submissions of 12 May 2010 and simply sought to re-agitate the issues before the Tribunal on earlier occasions, he was invited to provide the Tribunal with further submissions which address any relevant events and his circumstances since his license was first suspended on 7 March 2007, by reference to the requirements of clause 29(2)(e) of the Passenger Transport Regulations 2007.
80 Chief Justice Mason in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (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.”
81 The issue in this case is whether or not Mr Reddy can be said to be “of good repute and in all other respects, a fit and proper person” to be the driver of the vehicle concerned and has “sufficient responsibility to drive the vehicle concerned in accordance with law and custom …”. It was noted by the Deputy President of the Administrative Decisions Tribunal in the case of Nehma v Director General, Department of Transport [2002] NSWADT 242 that:
“Being a “fit and proper person” and of “good repute” are distinct concepts which must both be satisfied before an authority can fulfil its purpose. ( Re T & Anor v the Director of Youth and Community Services [1980] 1 NSWLR 392; Melbourne v The Queen (1999) 198 CLR 1 at 15). This proposition was endorsed by the Supreme Court in Caska v The Director General, Department of Transport [2001] NSWSC 2005.”
82 The concepts of “fit and proper” and “good repute” were also discussed in Saadieh v Director-General Department of Transport [1999] NSWADT 68 (“Saaadieh”) where the Deputy President set out a number of factors based on the terms of the legislation and case law that need to be taken into account in determining a person’s suitability and fitness to obtain an authority. These factors were:
The nature, seriousness and frequency of any criminal offences for which the Applicant 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.
83 Considering each of these factors in the context of the circumstances of the Applicant I say as follows.
The nature, seriousness and frequency of any criminal offences for which the Applicant has been arrested or convicted
84 The Applicant has no history of criminal offences, save in the context of the incident of 24 January 2007, when the Applicant failed to appear before the Court and warrants were issued for his arrest and he was subsequently retained in gaol for a period of some 4 hours and charged with assault in breach of s.61 of the Crimes Act 1900, failure to behave in an orderly manner and with civility and propriety towards a passenger, in breach of clause 45(b) of the Passenger Transport (Taxi-Cab Services) Regulations 2001 and assault in the course of which he did commit an act of indecency in breach of s.61L of the Crimes Act 1900.
Seriousness and frequency of any complaints
85 There is no doubt that the complaints concerning the incident on 24 January 2007 are serious but apart from this complaint, the Applicant has also faced a number of other matters arising from the use of his taxi cab. These include:
8 January 2007 – Uniform and eating/drinking while conveying passengers.
A complaint was received from a man who said that the driver of T-1308 was eating a banana and was spitting out the core bits whilst he was driving. He further stated that the driver of the taxi cab did not have any shoes on at the time of the incident. The Applicant was identified as the driver of the taxi cab at the time and made full admissions to the allegations.
4 July 2005 – Driving in an unsafe manner.
A complaint was received by a male who stated that he was using a zebra crossing in Ultimo when the driver of a taxi zoomed through, failing to give way. He managed to pull his daughter back but his briefcase was clipped by the taxi. The Applicant was identified as the driver of the taxi cab at the time of the incident and made full admissions to the allegations.
7 October 2004 – Failed to drive by shortest practicable route.
The complainant asked the driver to go via Rocky Point Road. When they approached an intersection on the highway he accelerated and went via the Princes Highway. The complainant stated the driver did not turn off at Port Hacking Road and he went the longest way. There was an argument concerning the additional payment arising from not taking the shortest route. The Applicant was identified as the driver of the taxi cab at the time of the incident and admitted that he did not follow the passenger’s instructions.
Applicant’s driving record
86 The following sets out the Applicant’s traffic record:
14/6/2008 Demerit points warning letter issued
17/5/2008 Fine default suspension of licence (11/6/2008 – 14/6/2008)
8/4/2008 Demerit points warning letter issued
1/12/2007 Exceed speed by not more than 15 kilometres per hour
24/11/2007 Fine default suspension of licence (7/12/2007 – 11/3/2008)
17/7/2007 Demerit points warning letter issued
16/10/2006 Exceed speed limit by more than 15 kms per hour
30/8/2006 Demerit points warning letter issued
18/5/2006 Exceed speed limit by not more than 15 kms per hour
2/11/2004 Demerit points warning letter issued
20/7/2004 Negligent Driving
18/1/2004 Exceed speed limit by more than 15 kms per hour
26/11/2003 Exceed speed limit by more than 15 kms per hour
18/10/2001 Demerit points warning letter issued
23/7/2001 Exceed speed by not more than 15 kms per hour
1/11/2000 Excess speed suspension from 06/12/200 to 16/01/2001
15/6/2000 Exceed speed by not more than 15 kms per hour23/8/2000 Exceed speed by more than 30 kms per hour
87 I note that in the Applicant’s Application for an Authority to drive a Taxi Cab or Private Hire Vehicle, dated 29 August 2008, while the Applicant had ticked “Yes” in response to the question whether he had ever had his licence suspended, cancelled or disqualified for any reason in New South Wales or elsewhere and had provided particulars of the 2007 suspension, but in respect of Question 22, which asked if the Applicant had, in the last five years, been issued with a Traffic Infringement Notice (fined or been before a Court for any traffic offence/s OR had any Court action pending against him in relation to a traffic offence, the Applicant had ticked “No”. This is inconsistent with the traffic record provided by the Ministry of Transport.
88 Apart from the suspensions of the Applicant’s licence due to non-payment of fines in 2007 and 2008, the most recent offence was on 1 December 2007, of exceeding the speed limit by not more than 15 kms per hour. However the number of ‘warning letters’ issued is of some concern.
Applicant’s reputation in the community
89 The Applicant indicated that he had provided seven character references to an earlier hearing of the Administrative Decisions Tribunal in this matter. I have been unable to locate these references in the material provided to the Tribunal and can only conclude that they were provided to the Local Court. No up to date references have been provided in respect of the proceedings before the Tribunal on this occasion. Nor did the Applicant in his first written submissions of 12 May 2010 provide any information concerning his activities since the cancellation of his licence and subsequent application for authorisation to drive a taxi cab.
90 The Applicant’s response to the invitation from the Tribunal for further submissions was provided on 26 July 2010, has been summarised above. However, those additional submissions do not, in my view, assist the Applicants application for review of the refusal of authorisation to drive a taxi cab by the Director General’s delegate.
Likelihood that the Applicant will re-offend, or be the subject of further complaints or commit further traffic offences
91 Throughout the hearing the Applicant vigorously disputed there was any basis for the original complaints and this leads me to conclude that the Applicant is unable to appreciate that his conduct, which gave rise to the cancellation and subsequent suspension of his taxi driver authority was unacceptable. It is in those circumstances that I agree with Judicial Member Montgomery’s concern that this leaves open the likelihood or at least the real prospect of similar behaviour happening again.
92 The Applicant has not demonstrated that the circumstances in his life have altered such as to give the Tribunal confidence that he is now a fit and proper person and of good repute, and considered to have sufficient responsibility and aptitude to drive a taxi vehicle today, some three years and five months after the incident.
93 I note that the Applicant has contrasted his circumstances with those of the applicants in the cases referred to the Tribunal by the Respondent, in which the applicants had been convicted of various offences. Unlike Mr Brown in the case of Brown v Director General, Department of Transport (2000) NSWADT 153 ( “Brown”), where the applicant had a far more serious criminal history, and where the applicant had been convicted of assault occasioning actual bodily harm and subsequently convicted of maliciously destroying or damaging property, one year prior to his application, he nevertheless was able to demonstrate that he had now “turned the corner” and was attending Church and had completed training to be a taxi driver and doing a training course on computers. More importantly, he provided references from a member of his Church, who said that he “acknowledged he had made mistakes but was now sincerely determined to do well, not only in his work but also as a father and a Christian”.
94 Mr Brown provided several references from various charitable organisations with whom he had been involved. In that case the Applicant presented as a concerned and caring parent who impressed the Deputy President, as a truthful witness, stating:
“Although it is only 12 months since he was convicted of malicious damage to property, since that time he has conducted himself in a way which demonstrates his commitment to a responsible life-style and to providing for his son. This is supported by several character references. In addition, he has made considerable efforts` to retrain himself and has not been involved in any criminal activity.”
95 Mr Brown also demonstrated that it had been over 6 years since he had committed any traffic offences.
96 Having paid due regard for the factors set out in Saadieh, and to the evidence given by the Complainant and the Applicant himself in the local court proceedings, I am satisfied that the delegate’s decision was the correct and preferable decision in all the circumstances.
97 I share the views expressed by Magistrate Miszalski and by Judicial Member Montgomery about the Applicant’s inappropriate behaviour in the January 2007 incident and indeed see no reason for disbelieving the Complainants specific account of it.
98 In such circumstances, given the Applicant’s complete and consistent refusal/failure to accept that he did misconduct himself in that January 2007 incident, this case is readily distinguishable from Brown v Director General, Department of Transport (2000) NSWADT 153. The Applicant lacks insight about his own behaviour and hence will not accept any responsibility for it.
99 Furthermore, having assessed the Applicant’s credit both by reference to his sworn testimony in the Local Court and the oral and written submissions he advanced in the Tribunal, I did not find him to be a creditworthy and reliable person.
100 Accordingly, the application is dismissed.
Orders:
The decision to refuse the application for authorisation to drive a taxi cab is affirmed.
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