Rida v Roads and Maritime Services

[2013] NSWADT 18

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Rida v Roads & Maritime Services [2013] NSWADT 18
Decision date:	29 January 2013
Jurisdiction:	General Division
Before:	S Frost, Judicial Member
Decision:	Decision to cancel licence affirmed
Catchwords:	Transport - licensing - private hire vehicle licence - breach of provisions of Passenger Transport Regulation - breach of conditions of licence
Legislation Cited:	Passenger Transport Act 1990 Passenger Transport Regulation 2007
Category:	Principal judgment
Parties:	Nader Rida (Applicant) Roads & Maritime Services (Respondent)
Representation:	N Rida (Applicant in person) Smythe Wozniak Legal (Respondent)
File Number(s):	123299

reasons for decision

1. GENERAL DIVISION (S FROST, JUDICIAL MEMBER): The applicant, Nader Rida, has been driving hire cars for 12 years. Before that he was a taxi driver. He has applied to the Tribunal for review of the decision of the respondent, made on 17 October 2012, to cancel his hire car licence. (He has continued to conduct his hire car activities because on 23 October 2012 the Tribunal granted a stay of the cancellation decision.)

1. I have decided to affirm the decision to cancel the licence. My reasons follow.

The licensing of private hire vehicles

1. Mr Rida's hire car is licensed as a "private hire vehicle" (PHV) for the purposes of the Passenger Transport Act 1990 (the Act). The licence has several conditions attached to it. Condition 3, apparently a standard condition imposed on PHV licences, is as follows:

The private hire vehicle must not ply or stand for hire on any road or road related area and must not carry out a hiring other than a pre-booked hiring.

1. Clause 189 of the Passenger Transport Regulation 2007 (the regulations) imposes a similar restriction on any driver of a PHV, as follows:

The driver of a private hire vehicle must not:

(a) ply, stand or park the vehicle for hire on any road or road related area, or

(b) use the vehicle to carry out a hiring other than a pre-booked hiring, or

(c) ...

Maximum penalty: 50 penalty units.

1. Those conditions and restrictions have the effect of drawing a stark distinction between a PHV and a taxi. In simple terms, a PHV cannot pick up passengers at random on the street; passengers must pre-book a journey and pre-agree with the driver how much the journey will cost. The distinctions must be well known to a person such as Mr Rida, with his many years of experience as both a PHV driver and a taxi driver. He can also be expected to be acutely aware of the fact that taxi plate licences are much more expensive than PHV licences.

Mr Rida's contraventions

1. In August 2012 Mr Rida was convicted of offences under clause 189 of the regulations in relation to events that occurred in Kings Cross in December 2011, in that he plied or parked his vehicle for hire, and he carried out a hiring other than a pre-booked hiring. The offences were witnessed by compliance officers of Transport for NSW (the licensing authority for PHVs and taxis) who, together with local police, were undertaking compliance activities in the Kings Cross area.

1. Mr Rida originally denied any breach of the regulations. He said that the passengers he was carrying had pre-booked the journey. He said that one of them was a regular client. However, he was unable to produce, at the scene, any evidence that a pre-booking had been made. There were inconsistencies between his version of events and that of one of the passengers.

1. Mr Rida decided to defend the charges in the Local Court. The compliance officers gave evidence in relation to the events in Kings Cross and the Magistrate accepted that evidence. That involved a rejection of some of Mr Rida's evidence. Of particular significance is the following extract from what the Magistrate said in the Local Court:

... He was then asked, "Look, do you, can you provide me with your hiring details?" The defendant didn't, couldn't. "She's going to Woolloomooloo." Well that corroborates what the Officer heard. He was then asked, "Can you please provide me with the name and contact number of the booking?" The defendant said, "Look, you can go and ask her." Now his evidence is, "Look I had it on the phone. She'd only just called me minutes before." Certainly available to provide to the Officer. Certainly I can accept it was made minutes before that he wouldn't have time to perhaps write it in any book. "You can go and ask her." Now that's just not disputed. The Officer said to him, "Look you should have those details." The Defendant did not reply. ...

1. Mr Rida was convicted of offences under paragraphs (a) and (b) of clause 189 of the regulations and fined $500 for each offence.

The cancellation of the licence

1. As a result of Mr Rida's convictions, a delegate of Transport for NSW (TfNSW), the licensing authority, cancelled the licence relating to Mr Rida's PHV. That action was taken under s 39G of the Act, which provides relevantly:

(1) TfNSW may at any time vary, suspend or cancel any licence if:

(a) owing to the default of the licensee, or the agents or employees of the licensee:

(i) the provisions of this Act or the regulations, or

(ii) the terms and conditions of the licence,

have not been or are not being complied with, or

...

Should the licence be cancelled?

1. Mr Rida is the licensee of the licence. It was owing to his default that the provisions of the regulations, and the conditions of the licence, have not been complied with. Clearly, the discretion in s 39G of the Act to vary, suspend or cancel the licence has been enlivened.

1. The next question is: should the discretion be exercised and, if so, which sanction is appropriate?

1. In my view, this is a clear case requiring some sanction. The licence conditions relating to plying for hire, and prohibiting any hiring other than a pre-booked hiring, are at the very heart of the policy underpinning the licensing of PHVs. PHVs are not taxis, and they are not allowed to do what taxis are allowed to do. Drivers of PHVs - and most importantly, licensees - are not allowed to operate a PHV as if it were a taxi. Instead, those who wish to operate a taxi must submit themselves to the licensing regime for taxis, must comply with all the requirements for the operation of taxis, and must pay the fees and meet all other regulatory obligations relating to the operation of taxis.

1. Mr Rida's contraventions are very serious ones. They are all the more so because, in my view, Mr Rida knew at the time that he should not be acting as he was. That is evident from the way he responded to some of the questioning by the compliance officers - see [8] above. In fact, with his many years of experience, I could hardly conclude otherwise.

1. Mr Rida told the Tribunal that he did not think that his actions would cost him his PHV licence. That statement, taken together with my finding that he knew his actions were wrong, suggests that he was prepared to take the risk of contravening the conditions of the licence because, on his assessment, the reward outweighed the risk.

1. In the circumstances, and given the seriousness of the contraventions, I consider cancellation of the licence to be the appropriate action. No purpose would be served by varying the licence. Suspension might be appropriate in the case of minor or technical breaches but not in a case such as this. As I have noted, the breaches here relate to fundamental conditions of the licence, and to the legislative provisions that support those fundamental conditions.

1. The decision to cancel the licence is affirmed.

**********

Decision last updated: 29 January 2013