Salhab v Roads and Maritime Services
[2014] NSWCATAD 107
•23 July 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Salhab v Roads and Maritime Services [2014] NSWCATAD 107 Hearing dates: 5 September 2013, 18 November 2013, 20 December 2013, 13 February 2014 Decision date: 23 July 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery, Senior Member Decision: (1) The decision under review is affirmed.
(2) This decision is to take effect 28 days from the date of these reasons.
Catchwords: Overcharging, Good repute, fit and proper person, responsibility and aptitude, allegations of dishonesty Legislation Cited: Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Passenger Transport Act 1990Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Caska v The Director General of the New South Wales Department of Transport [2001] NSWSC 205
Chowdhury v Department of Transport and Infrastructure [2010] NSWADT 199
Department of Transport and Infrastructure v Murray (GD) [2011] NSWADTAP 16
Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409
Maythisathit and Registrar of Motor Vehicles [1996] ACT 165
Nasour v Director-General, Transport NSW [2011] NSWADT 91
Re T and Anor and the Director of Youth and Community Services [1980] 1 NSWLR 392
Saadieh v Director General, Department of Transport [1999] NSWADT 68Category: Principal judgment Parties: Bill Salhab (Applicant)
Roads and Maritime Services (Respondent)Representation: M Jools, Agent (Applicant)
A Wozniak, Smythe Wozniak Legal (Respondent)
File Number(s): 133124
reasons for decision
This matter was commenced in the General Division of the Administrative Decisions Tribunal ("the ADT") pursuant to the Administrative Decision Tribunal Act 1997 ("the ADT Act"). On 1 January 2014, the ADT was abolished and its functions were taken over by the Civil and Administrative Tribunal of New South Wales ('NCAT'). The present decision is therefore a decision of NCAT. However, because the proceedings to which it relates are 'part heard proceedings' as defined in clause 6(1) of Schedule 1 of the Civil and Administrative Tribunal Act 2013, they are to be determined as if that Act had not been enacted (see clause 7(3)(b) of that Schedule).
This is an application by Mr Salhab, the Applicant, for review of the decision of the Respondent, Roads and Maritime Services ("RMS"), to cancel the Applicant's authority to drive a taxicab, pursuant to section 33F of the Passenger Transport Act 1990 ("the Act"). The Applicant has been a taxi driver since 2005. His authority to drive a taxicab was cancelled in April 2013. On 30 April 2013 the Tribunal made an order granting a stay of the decision until final determination of the application for review.
Prior to the determination to cancel the Applicant's authority, the Respondent issued a Notice to Show Cause in which it detailed a complaint that had been lodged in regard to overcharging for a journey from the Sydney International Airport to Randwick on the 2 July 2012 ("the 2 July 2012 journey"). The Notice to Show Cause allowed the Applicant to make submissions as to why his authority should not be cancelled.
The Notice to Show Cause stated:
- On 2 July 2012 a female complainant reported to GM Cabs that she was charged $199.80 for a $45 fare. The journey was from International Airport to her home at Randwick. At the destination the complainant used her credit card to pay for the fare. You swiped the card through the eftpos machine and said that it didn't work; you swiped it a second time and charged a fare of $199.80. The complainant stated that she received a cash receipt for $45.00. On checking her bank statement later she discovered that an amount of $199.80 was deducted. The complainant noted at the time that the taxi number was 880 and was a white Legion taxi. RMS has investigated the matter and found the following;
- On 19 July 2012 Legion Taxi Network supplied vehicle logon/logoff report showing that you were logged onto taxi T880 on 2 July 2012 from 5.50 am to 10.20 am.
- GPS records show for 2 July 2012 vehicle T880 was stopped at Bridge Lane Belmore, (Canterbury Leagues Club) at 10.20 am and does not move from there until 12.39 pm and then returns to your address at Rose Street Punchbowl. The vehicle does not move from there until approximately 3.07 pm when you go to the International airport. GPS records show that there were no other movements for that vehicle until you pick up the complainant from the airport at around 4.30pm and drop her off at Randwick. After dropping off the complainant, GPS records shows you returning to the International Airport, there are no meter movements and you don't leave the airport until 6.06pm. You then travel to Canterbury Leagues Club you remain there until 6.26 pm and you return to Rose Street Punchbowl. There are no more log ins for that vehicle until you log in on 5 July 2012.
- The complainant has provided RMS with a statement and in that statement she has positively identified you as the driver and has identified the taxi.
- A statement has been obtained from employees of GM Cabs where you obtained $185.40 cash for your falsified GM Cabs docket. These employees have identified you as the person presenting the docket and receiving cash for that docket.
- The operator of taxi T880 has confirmed that you had control of that taxi covering the period of the 2 July 2012.
Mr Jools made submissions on behalf of the Applicant in response to the Notice to Show Cause, denying the allegation. The Applicant has maintained that denial throughout these proceedings. Mr Jools wrote:
Discussions with Mr. Salhab about the events of that date, and records from the Legion Network indicate to us that an error is in process.
Mr. Salhab had logged off with the Network at 10.20am on 2nd July, and returned to his home in the taxi, at 12.39pm and did not again log-on until 5.50am on July 5th.
GPS records obtained by R&MS would appear to establish that the vehicle left the Rose St, Punchbowl address at 3.07pm, going to the International Airport, vacant. A pick-up at 4.30pm goes to Randwick, and the passenger gets a "cash receipt" for $45. It is not clear whether she paid that fare in cash or by card. Subsequently she noted a charge of $199.80 on her card statement.
The vehicle goes back to the International and stays there until 6.06 pm and thence to Canterbury Leagues Club at 6.26 pm and later back to Punchbowl. No movements are noted until 5th July.
The first issue is that there is no evidence that Mr. Salhab himself drove the vehicle that afternoon. It was parked outside his home, with the key on the front tyre, ready for the next driver. It was there, full of gas, when he logged in again at 11.46 am on July 5th.
The passenger is recorded as having positively identified Mr. Salhab as the driver. We would require a little more detail. Mr. Salhab also has a supporting witness prepared to state that he was at home that afternoon and through the night.
The Statement of Reason makes no mention of any taxi movements from 2nd July until 5th July. It was not logged-on, but were there movements? What information can be obtained by kilometre readings from worksheets retained by the Operator?
Mr. Salhab is quite meticulous about logging on and off, and very much appreciates the safety factors involved. He also completes his worksheets. He was not at that time a user of the GM Cabs eftpos systems, and did not have a device able to process payments other than the Cabcharge device fitted to Taxi 880.
That is the second issue. Mr. Salhab absolutely denies having the means to process a payment, or of having presented any such docket for encashment. ...
The Respondent was not satisfied that the Applicant had provided sufficient reasons to alter its decision to cancel the driver authority. Mr Jools' submissions did not address the Respondent's assertion that employees of GM Cabs had identified the Applicant as the person presenting the falsified docket and receiving cash for that docket. Nor did he address the assertion that Mr Antoryne El Azzi, the operator of taxi T880, had confirmed that the Applicant had control of that taxi on 2 July 2012.
The statement of reasons issued by the Respondent noted that the reasons for cancelling the Applicant's authority included:
The fact that you have deliberately misused a passenger's credit card to gain an extra benefit to which you are not entitled for a taxi journey from the International Airport to Randwick casts grave doubts about your fitness to hold an authority to drive a public passenger vehicle and of your ability to carry out the duties and responsibilities of the position according to custom and law.
The fact that enquiries made with Legion Taxi Network reveal that the journey from the International Airport to Randwick did take place and that GPS records show you returning to your home after the journey took place. Network records show that nobody else was logged into your taxi on 2 July 2013.
The fact that the passenger has identified you and has identified the taxi used for that journey.
The fact that employees of GM Cabs where you obtained payment have identified you as the person presenting the end of shift docket for payment.
The fact the operator of taxi T880 gave you full control over taxi T880 for the period covering the 2 July 2012.
Applicable legislation
Section 4 of the Act provides:
4 Objects
The objects of this Act are:
(a) to require the accreditation or authorisation, by [the Respondent] of the operators of and drivers involved in public passenger services (other than ferry services), and
...
(e) to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services, and
(f) to encourage co-ordination of public transport services.
Section 33 of the Act provides:
33 Authorities
(1)The Director-General may, by the issue of authorities under this Division, authorise persons to drive taxi-cabs, subject to and in accordance with this Division. A person authorised under this Division is referred to in this Part as an "authorised taxi-cab driver".
(2) A person who drives a taxi-cab is guilty of an offence unless the person is an authorised taxi-cab driver. Maximum penalty: 100 penalty units.
(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.
Section 33F of the Act provides:
33F Variation, suspension or cancellation of authority
Having regard to the purpose of authorisation under this Division, the Director-General may at any time vary, suspend or cancel any person's authority under this Division.
The decision under review in the current proceedings is a decision to cancel the Applicant's taxi driver authority. Section 33F clearly provides that in making a cancellation decision regard is to be had to the purpose of the authority. The purpose of an authority is to attest to the matters set out in subsections 33(3)(a) and 33(3)(b) of the Act, namely, to attest that the authorised person is:
- of good repute; and
- a fit and proper person (to be so authorised); and
- considered to have sufficient aptitude and responsibility to drive a taxi cab in accordance with -law and custom; and in accordance with the conditions under which the taxi service is operated.
Section 63 of the ADT Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the respondent, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.
A frequently used phrase is that, when conducting a review, the Tribunal 'stands in the shoes of the decision maker' and exercises the same functions and powers. The Tribunal is therefore constrained in its powers to those held by the decision maker.
Section 63(3) of the ADT Act provides that 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.
A useful review of the authorities was provided in the case of Chowdhury v Department of Transport and Infrastructure [2010] NSWADT 199:
7........The purposes of a taxi drivers authority are set out is s 33(3).....
8.The meaning of "fit and proper" is dependent on the nature and purpose of the activities which the person will undertake. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Chief Justice Mason explained that, at 380:
'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.'
9. The Tribunal and the Appeal Panel have frequently cited with approval the test posed by the equivalent ACT Tribunal dealing with an equivalent legislative scheme in Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 per Curtis P:
'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.'
...
12. In contrast to character, reputation as Waddell J explained in Re T and Anor and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 389:
"...is to be found in the estimate of his moral character entertained by some specific group of people, such as by 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. The importance of a person's reputation is that it is an estimate of his character, or some aspect of his character, upon which the persons in such a group are generally, although not necessarily unanimously, agreed. It is this essential nature of reputation which makes it a reliable guide to a person's character. See, generally, Wigmore on Evidence, 3rd ed., vol 5, p 486 et seq, pars 1615, 1616; p 479 et seq, par 1610. As is pointed out by Wigmore, a person might not have a general reputation in the neighbourhood where he lives, but may have established a reputation in another group of persons: p 472 etseq, par 1606. It is, I suppose, possible that a person might not have any reputation at all, simply because he does not participate in the activities of any group of people who have any necessity to form an estimate of his character.
...
14. In Re T Waddell J (at 399) discussed how reputation is to be proved by evidence from those who know the person well, and who know how the person is generally regarded in the community in which he lives. At 401, his Honour said that:
...evidence of particular acts of conduct on the part of the person whose reputation is in issue is not admissible to prove the nature of that reputation."
In the case of Saadieh v Director General, Department of Transport [1999] NSWADT 68 the Tribunal cited Waddell J in Re T and the Director of Youth and Community Services at 393:
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.
A decision of the Appeal Panel of the Tribunal: Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 also provides useful guidance:
38 Good Repute: The approach to be adopted in considering 'good repute' is well explained by Waddell J in Re T. The Appeal Panel also considers it in a forthcoming decision, Lo -v- Director-General, Department of Transport [2002] NSWADTAP 39.
'Good repute' refers to the way reasonably-minded people assess an individual's current reputation, with reasonably precise knowledge of those matters that put the person's reputation in doubt. The fact that the person produces evidence from witnesses who vouch in general terms for the person's reputation can not be conclusive. Equally, care must be taken, as we see it, not to use the 'good repute' requirement as a way of bringing into consideration stereotypes or assumptions which offend, for example, against human rights or anti-discrimination standards.
...
42 The question which the Director-General must ask, as we see it, is whether the travelling public would be prepared to place their trust in a driver with Z's background, and past and recent offence history, even if satisfied that there is no longer a significant risk of sexual reoffence?
43 In the past, the Tribunal and the Appeal Panel has cited with approval the test posed by the equivalent ACT Tribunal dealing with an equivalent legislative scheme in Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 per Curtis P ...:
The Appeal Panel in Department of Transport and Infrastructure v Murray (GD) [2011] NSWADTAP 16 reviewed relevant authorities and concluded:
When deciding whether a person is a 'fit and proper person', the question of whether the community would have confidence that any improper conduct will not re-occur is relevant: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; 94 ALR 11. Otherwise, the determination of fitness and propriety is a question of fact for the decision maker to determine objectively on the basis of the all evidence. That question is not to be determined through the eyes of a reasonable member of the travelling public. Nor is it correct, as was suggested in Farquharson, to take account of the likely perceptions of the travelling public as one of the relevant factors in deciding whether an applicant is a fit and proper person. The Tribunal decided that Mr Murray is a fit and proper person to be the driver of a hire car taking into account relevant factors. It did not err by failing to determine Mr Murray's fitness and propriety through the eyes of a reasonable member of the travelling public
The decision in Murray was subject of comment by the President in the case of Nasour v Director-General, Transport NSW [2011] NSWADT 91:
In that case [Farquharson] I went on to look at the question of how then might the administrator go about forming a view as to 'repute and character'. The reasons referred to taking into account the views that might be formed by a reasonable member of the travelling public; and have been read as allowing the views of the travelling public to be used in the assessment of character. The Appeal Panel recently held in Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16 (8 April 2011) that the views of the travelling public are not a relevant consideration when assessing character. What is involved in the assessment of character is an objective evaluation of the person's fitness to continue to undertake the regulated occupation having regard to the relevant material.
The Appeal Panel's approach is similar to the one I expressed at para [29] of Farquharson , as extracted above. The preferable approach in dealing with the character question (often expressed in statutes as whether the person is a 'fit and proper' person to undertake the regulated activity), therefore, where one event is substantially relied upon - the laying of serious criminal charges - is to reserve judgment on intrinsic character until more is known.
However, 'repute' is a concept very much about what members of the public, and importantly the passenger community, might think (fairly or unfairly). The Act itself, not surprisingly, gives weight to passenger thinking. One of the objects of the Act is to 'encourage public passenger services that meet the reasonable expectations of the community for safe ... passenger transport services' (s 4(e)).
A person's reputation is a function of public perception. See for example Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 at [36] per Toohey and Gaudron JJ. The full passage appears in Murray at [16]. The same point is made in the Supreme Court and ACT Supreme Court decisions to which the Appeal Panel refers at [13].
A judgement as to the perception of reasonably-minded members of the travelling public remains, in my view, a relevant consideration for an administrator, when considering the 'repute' of a driver, or the driver's 'aptitude and responsibility'.
In Saadieh v Director General, Department of Transport the Tribunal offered further guidance as to assessing a person's fitness to be authorised to drive a taxi-cab. The Tribunal observed:
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.
18. In assessing the last factor, several considerations are relevant. These include: the length of time since the offence/s were committed or the complaint/s made; the circumstances in which those offences or complaints occurred or are alleged to have occurred; whether the Applicant admits responsibility for the offences or complaints and shows genuine remorse; the efforts the Applicant has made to rehabilitate himself or herself during that time and; any change in the Applicant's circumstances such as increased support from friends, family or professional service providers.
in Caska v The Director General of the New South Wales Department of Transport [2001] NSWSC 205 Simpson J considered the assessment of whether the applicant was a "fit and proper person" and stated:
42 By s 11(2)(a) the holder of an authority is required to have two attributes: he/she is to be 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". The magistrate was conscious of the concession that Mr Caska's "good repute" was not challenged and was not in issue. The question he correctly identified for himself was whether he was "in all other respects a fit and proper person to be the driver of a public passenger vehicle". He in fact enunciated this test explicitly.
The Respondent's evidence
The Respondent relies on the material considered relevant to the determination to cancel the Applicant's authority. In particular it relies on evidence of Ms Fleur Mortimer, the complainant in regard to the 2 July 2012 incident ("the complainant"). It also relies on the evidence of Mr Joseph Burns, an Officer of RMS who had conduct of the investigation into the incident, officers of GM Cabs and a number of individuals involved in some way with taxi T880..
The Respondent subsequently raised other issues in relation to the Applicant. One allegation concerned tampering with eftpos terminals issued to other drivers. Another allegation concerned cashing of stolen vouchers.
Evidence of Ms Mikhael
In an interview with an officer of the Respondent conducted on 2 December 2013, Ms Minerva Mikhael, GM Cabs Customer Service Manager, said that she also knows the Applicant by the name Doctor Nabil. Ms Mikhael explained the issue in regard to the alleged tampering with eftpos terminals and the background to the stolen vouchers allegation. In regard to the eftpos terminals she said:
I had, on occasions drivers came in to exchange the terminals cause it was not working. Once I came to swap the terminal in the system I realised the terminal they are returning to me was not the terminal that was issued to them, so I asked them, this is not the terminal you, we issued you. Where is the terminal that originally it was issued to you by us? First they said they didn't know. I said to them somebody must have taken it out of your taxi or swapped it cause also fraudulent charges had occurred on those terminals that was issued to those customers. So then they did realise and go back and memory, by memory and say that they had, the guy known by Dr Nabil was in their taxi and must have swapped their actual terminal. ...
[The terminal] wasn't working. It was tampered with, the actual terminal he returned to me, so we sent it to Melbourne and we asked them to get the serial number that this terminal belongs to and it was not his, that terminal was listed under somebody else which was stolen from his car. So that his, his original terminal was taken by Dr Nabil and Nabil had given him another terminal which was tampered that didn't belong to him, it belonged to someone else, I don't know how he got his hands on it. [The driver was telling me that Dr Nabil stole his original terminal and substituted it with a broken, one then he returned that broken terminal to me. I sent it to Melbourne and replaced it.]
The same issue [arose in regard to a second driver]. I said to him when he returned his terminal did, that didn't belong to him and I said to him this is not your terminal. He said it can't be I haven't swapped my terminal. I said somebody must have been in your taxi or swapped it with another driver or you must go and find out where is your terminal, cause the terminal I issued him had fraudulent charges on it and then he went back and remembered that Dr Nabil was with him in the, in the taxi and must have swapped his terminal. No other explanation. ...
[I]t started between May and July 2012. ... There's an average of 25 transactions that occurred. Each one was above the two hundred margin. ... All of these were disputed by passengers in the taxis and were charged back to our accounts. ... [GM Cabs lost] Around $5,000.00 from [the first driver]. ... [The second driver] was similar as well. ... [H]is terminal had 13 transactions on it. Times, around, averaging about 2,500.
... When I said to them this is what's had, has happened on their terminal they were furious and they were very angry with, with Dr Nabil for swapping those terminals and then they just went off. I told them you must find your original terminal and get him to come in and fix this problem but he didn't come in.
Ms Mikhael said that GM Cabs issued a terminal to the Applicant on 1 January 2009 and she collected it from him on 26 November 2013.
Ms Mikhael said that the terminal used for the 2 July 2012 journey was issued to another driver, not the Applicant. There had been fraud in relation to the use of that terminal but the other driver had made the allegation that the terminal had been swapped.
In regard to the stolen vouchers she said:
In ... around August 2011 one of our staff ... left a bag of cash dockets at the end of his shift worth of $18,000.00, left it on the bench. We realised that bag was actually stolen from the office after he had gone home, so what we did we investigated the transactions that were cashed during that shift. Later on during that week we found, we found them being used, being cashed again at one of our sites at the Haberfield store and what we said, we took video footage of the guy and what we did we printed his photo. We didn't know who it was at that time. We printed the photo and put it up against our branches. He must have taken notes, or drivers must have told him his photo was there. He came in the office and asked us to put the photo down and I said to him this is what you've done, these dockets were stolen and they've ended up with you. You need to be investigated or this is, this matter will go to the Police. He said like you have no proof. I did not do anything. He like sort of, started speaking in a loud voice and saying I'm going to sue you, take my photos down or, just things like that and he left.
[W]e sent out a ... warning bulletin for the dockets that were stolen from our international branch. [The staff at the GM Office at Haberfield] recognised him by trying to exchange that docket at their branch. ... [W]e went back to the actual docket, we went back to the video footage that, when he cashed that docket or we found him cashing the docket that was stolen from the international.
...
I was unable to locate that photo and I was unable to locate his whole file. ... [W]e moved offices just recently within the last four months and they've been misplaced. I can't find them anywhere. I've lost his whole file.
... We [interviewed Bill Salhab over the stolen dockets] when he did come in but he just denied and ... left saying you can't do anything about it, I'm gonna sue you, take my photo down and, and just left.
... Mark, he was in charge of the case ... I'm not sure if he did report [the matter to Police] or not.
No further evidence was presented in regard to those issues.
Evidence of the complainant
The complainant attended the hearing, gave evidence and was cross-examined. The complainant gave a statement to the Respondent on 7 August 2012 in which she outlined her compliant as set out above. During the interview she was shown a photo board consisting of twelve drivers. She positively identified the Applicant as the driver of the taxi relevant to the 2 July 2012 incident. She signed and dated the photograph of the Applicant. She also identified the Applicant at the hearing.
She said that she travels quite a bit and that she has done the journey from the airport to her house regularly. The fare is generally between $25 and $40, depending on traffic, time of the day etc. She said that the time taken for the journey from the airport to her home varies. It can be as short as 20 minutes but on 2 July 2012 it would have taken in between half an hour and 40 minutes.
She said that she became suspicious mostly at the end of the journey when the driver took her credit card and the transaction didn't go through the first time. She said that he asked for the credit card again and he was just fumbling around with it a little bit. When she was getting out of the taxi she noticed that the driver gave her a cash receipt for something she had put on a credit card and she thought that was really weird. The cash receipt he gave her was about $45.
Because she felt suspicious she electronically checked her credit card statement about an hour later and saw that $199.80 had been taken out. She then made her complaint.
Under cross-examination she agreed that she had described the driver as being a short person, that he was wearing shorts and a short sleeved blue shirt, that he was balding, had reddish brown hair and that he didn't wear glasses. She said that the Applicant's facial features left her in no doubt that the Applicant is the same man who was driving the taxi on 2 July 2012. She said that she recognised him by his largish facial features and he had an accent.
She said that she took notice of the driver because of the route that he took. She said that she usually goes down General Holmes Drive or Southern Cross. This taxi driver said that he wanted to take her the quick way and he tried to go through Botany or Eastlakes. She doesn't think that is the quick way, and she doesn't usually go that way.
She said that she usually talks to taxi drivers. During the trip she was sitting behind the driver and not looking at his face for the majority of this time. She saw the front of his face when he grabbed her bags at the airport and put them in the taxi. At that stage she noticed that he was wearing shorts and also saw his height. She again saw his face during the journey when he was turning around talking. She again saw him when she was leaning into the middle when he was taking her card and was very close to him at that stage. She accepted that her alertness could have been heightened became she had already become suspicious of the driver.
Evidence of Mr Burns
Mr Burns, an Officer of the Respondent gave evidence in regard to GPS tracking of the taxi relevant to the 2 July 2012 incident. His evidence is that the tracking system, called the MT data system, is continuous GPS. The, the computer sends a signal to the receiver approximately every 30 seconds unless there is other intervention by the driver, such as engaging the meter or doing something with the vehicle, it will then send another signal. Even when the taxi is turned off, the MT data system will still send a message. It will only stop sending messages after about two hours of no activity. It is not a complicated process to disable the system. Whoever has control of the taxi can put in a kill switch, but it is illegal.
Mr Burns also gave evidence that every taxi driver is issued with an individual PIN. When they get into a taxi the driver is supposed to 'PIN in' so that the network has a record of who is driving that vehicle. However, in his role as an investigator for many years he has seen numerous occasions where drivers have not pinned in. There are various reasons for a driver to not pin in. The taxi will still work even without the meter running or without the driver pinning in. If the driver has not pinned in they are not able to get network bookings off the radio. They have to rely on street hiring or queuing up at ranks.
Mr Burns also gave evidence that the Applicant 'pinned in' in taxi T880 on the morning of 2 July 2012 but nobody 'pinned in' in the taxi on that afternoon.
By reference to maps that are in evidence Mr Burns indicated that the GPS records show that at 9:30am on 2 July 2012 taxi T880 was at the international airport. At 10:20 the taxi was at Canterbury Leagues Club in Bridge Road Belmore and remained there until 12:39:01.
Mr Gregory Swiderski, General Manager Security and Surveillance at Canterbury Leagues Club provided a statement in which he stated that the Applicant entered the club at 10.23am on 2 July 2012 and used his driver's licence as a source of identification to gain admission. He further stated that once a person has entered the club for the day they are permitted entry at any time during that day.
Mr Burns indicated that the taxi travelled to Rose Street Punchbowl and at 13:05:32 the taxi was stationary at Rose Street. At 15:42 it was back at the International Airport. The taxi was moving again at 16:27. At 16:44 it was travelling past the Lakes Golf Club and at 16:58 it was in the complainant's street at Randwick. At 17:26 the taxi stopped in O'Riordan Street Mascot and was back at the airport at 17:42. It left the airport at 18:06 and arrived back at Canterbury Leagues Club at 18:26. It left the Leagues Club at 19:16 and returned to Rose Street at 19:26. The Applicant did not log in again until 5 July 2012.
Under cross-examination Mr Burns accepted that the GPS records indicate that when the taxi travelled from the airport to the complainant's street at Randwick it did in fact go down the expressway and not the back way through Eastlakes.
Mr Burns said that a request was made of the operator of the vehicle, Mr Antoine El Assi, to supply worksheets for the use of the taxi and he had indicated that the Applicant did not give him worksheets for 2, 3 or 4 July but did provide one for 5 July 2012. Mr Antoine El Assi was overseas at the time and he had transferred the operator's accreditation to Pierre El Casi to operate it for him, and he had his son-in-law, Mr Roy Azzi collecting pay-ins.
Other GPS records for taxi T880
GPS records for taxi T880 show that the taxi left the Applicant's home address at 7.57 am on 3 July 2012 and travelled to the international airport arriving there at 8.51 am. The records show various trips from the airport throughout the day. At 19.41 the vehicle was located at Canterbury Leagues Club and remained there for the remainder of the day.
Records obtained from Canterbury Leagues Club in response to a Notice to Produce Business Records made under section 46M of the Act show that the Applicant signed in at the Club at 19.44 on 3 July 2012 i.e. three minutes after taxi T880 arrived at the Club.
Cashing of the docket relating to the 2 July 2012 journey
The Respondent relies on evidence from two GM Cabs employees in regard to the cashing of the docket relating to the 2 July 2012 journey. GM Cabs determined that the docket was cashed at the Unigas petrol/gas depot at the International Airport. A copy of the docket is in evidence. The words "Dr Nabil" are written on the docket.
Evidence of Mr George Azzi
Mr George Azzi runs the Unigas /gas depot. Mr Azzi provided an electronic statement on 20 August 2012 and also gave evidence at the hearing. His duties selling fuel and food and cashing dockets. The cashed dockets are mostly GM Cabs dockets. Drivers present their end of shift docket to get paid. An end of shift docket is the summary of all credit card transactions put through a GM Cabs eftpos terminal for that shift.
He stated that a person who he knows as "Dr Nabil" presented an end of shift docket on the morning of 3 July 2012. He said that he referred to "Dr Nabil" by that name as that is what his friends call him. He could not remember what time the docket was presented but it was when the cashier, Mr Nawaf, was not present. Mr Nawaf started work at 7 am but as he was not present Mr Azzi cashed the docket for "Dr Nabil". Mr Azzi wrote on the top right hand corner the name "Dr Nabil" so he would know later who cashed that docket.
In relation to the words "Dr Nabil" that are written on the docket Mr Azzi said:
I'm authorised from GM Cab to cash the docket, GM Cab dockets, and this person is Dr Nabil, well he has - gone -came with these dockets and he gave it to me because he filled up the gas, so he paid with this dockets, (as said) I took this dockets and before - because it's the first page it's not that clear, the details is not that clear, I put his names here, so I know who this docket's for, if it didn't get - it goes through the system, I can give it back to him.
Mr Nawaf normally cashes dockets. He was not at the depot at the time that Mr Azzi received the docket from "Dr Nabil" but arrived while "Dr Nabil" was still there. Mr Azzi gave the docket back to "Dr Nabil" so that Mr Nawaf could process it.
Mr Azzi was shown a photo board consisting of twelve photographs. He identified the photograph of the Applicant as "Dr Nabil" and signed and dated that photograph.
Evidence of Mr Nawaf
Mr Nawaf provided an electronic statement on 20 August 2012 and also gave evidence at the hearing. He stated that he does cashing work at the Unigas depot. He normally starts work at 7 o'clock and works until about 4 o'clock.
Mr Nawaf said that he cashes 3-400 dockets per day and does not recall this particular docket. He stated that he did not write ""Dr Nabil" on the docket. His normal procedure is to scan the docket through his computer and if there is money owing, he processes the docket and gives the driver cash. Mr Nawaf is familiar with "Dr Nabil" as someone he sees around the depot but does not know him personally.
Mr Nawaf was shown a photo board consisting of twelve (12) photographs. He identified the photograph of the Applicant as "Dr Nabil" and signed and dated that photograph.
Evidence of Mr El Azzi
Mr El Azzi, the operator of T880, said that he was overseas from 26 June to 22 August 2012. As far as he is aware, with the exception of a weekend driver - Abu Sala, the Applicant was the only driver of taxi T880 while he was overseas. No-one else had access to the taxi to drive it. While Mr El Azzi was away the accredited operator of taxi T880 was Pieree El Kazzi. Mr El Azzi's son-in-law, Roy Azzi, took the driver's daily pay-in from the Applicant.
Evidence of Mr Sukkarieh
In a record of interview given by Mr Sayeh Sukkarieh on 31 August 2012, Mr Sukkarieh stated that he had driven taxi T880 on Saturday 30 June 2012 and Sunday 1 July 2012. He said that he only ever dealt with the Applicant and that he collected the taxi from the Applicant's address at Punchbowl and returned it to that address. When he collected the taxi the key was on the front wheel and he left the key in the same place when he returned the taxi. He denied that he had driven the taxi on 2 July 2012. He said that he has never driven a taxi on a Monday and only drives on Saturday and Sunday.
Mr Sukkarieh's worksheets for 30 June 2012 and Sunday 1 July 2012 were provided.
Evidence of Mr Roy Azzi
Roy Azzi stated that the Applicant had not provided any other Driver's worksheets for the period 28 June to 5 July 2012. He did not provide a worksheet for the morning of 2 July 2012.
Mr Azzi stated that he had full time employment as a real estate agent and worked in that capacity on 2 and 3 July 2012. He said that he did not drive taxi T880 on either of those days.
The Applicant's criminal record
The Respondent also points to the Applicant's criminal record which shows a May 2006 conviction for a false representation resulting in police investigation. In April 2006 the Applicant reported that he had been robbed by two males who produced flick knives, manhandled him, ripped his shirt pocket and stole $1450. The Applicant was interviewed and a police investigation was commenced. The Statement of Facts relating to the offence indicates that GPS positioning and timing did not reflect the version of events given by the Applicant. In addition, the car video showed that the Applicant did not have any in the hour and a half prior to his pressing of the emergency button.
The Applicant subsequently admitted to having fabricated the incident because of financial problems and he provided a retraction statement.
The 9 September 2013 investigation report
The Respondent also points to an investigation report dated 9 September 2013 which recommended that the Applicant be issued an infringement for carry on taxi-cab service without accreditation, under section 30(1 )(a) of the Act. The recommendation arose following an investigation into an alleged false declaration made as a result of a penalty notice being issued to the Applicant for a speeding offence at 8:26am on 26 December 2012. The Applicant denied that he was driving at that time and indicated that the taxi was driven by Mr Roger Hedwan. The Respondent contends that Mr Hedwan was not an authorised taxi-cab driver at the time of the offence on 26 December 2012. The Respondent contends that during an interview with officers of the Respondent, the Applicant said that allowed Mr Hedwan to drive the taxi for three shifts at that Mr Hewan paid him $80 per shift. The Applicant did not hold an accreditation to carry on taxi-cab service.
The Applicant's evidence
The Applicant relies on his own evidence and that of his partner Ms Sandra Joseph.
The Applicant denied that he was the driver of the taxi during the 2 July 2012 journey. He also denied that he cashed the docket at the Unigas depot on 3 July 2012. There is no record of any network login for taxi T880 on 3 July 2012. He stated that he was driving the taxi in the morning of 2 July 2012 but that he didn't drive on that afternoon. He said that he gave the worksheet for that morning to Roy Azzi.
He said that he picked Ms Joseph up from Canterbury Leagues Club at around midday, then went home and stayed at home with her until the following morning. As was his habit, he left the key to the taxi on the front tyre.
The following morning Ms Joseph asked him to drive her home but he was unable to do so as the taxi was no longer at his premises. He stated that he was at home the morning of 3 July. Ms Joseph's daughter picked her up sometime in the morning on 3 July 2012.
The Applicant stated that he does not have a private car and so could not go to the airport to cash dockets on that day. He said that he understood that Mr Roy Azzi was driving taxi T880 on 3 and 4 July 2012. He said that Mr Azzi is a taxi driver and a member of the Canterbury Leagues Club and that sometime they change over at the Leagues Club.
The Applicant denied that he filled the taxi with fuel at the airport in the morning on 3 July 2012 or that he presented dockets to the depot or received cash from the depot. He said that the morning driver refuels in afternoon and the night driver fills it up in the morning. He denied that he had been paid for the value of the docket.
He conceded that he and Mr George Azzi know each other well. He could not explain why Mr Azzi would have written the Applicant's name on the docket on the morning of 3 July 2012. He suggested that it could have been a mistake.
The Applicant points to the GPS record obtained from Legion cabs, which indicates that on 3 July 2012 taxi T880 left the Applicant's house at 7.59 am and travelled to the international airport arriving at about 8.47 am. He submits that this contradicts the GM Cabs employees' evidence that the docket was tendered at 7 am on 3 July 2012.
In regard to the conviction for falsely representing to Police that he had been robbed, the Applicant said that he was owed money by the operator and the operator would not pay him. He conceded that he pleaded guilty to that charge and was put on a good behaviour bond for three years. He also conceded that he had forgotten to tell the Respondent about the conviction.
The Applicant denied the allegations in regard to tampering with eftpos machines or cashing of stolen vouchers.
Evidence of Ms Joseph.
Ms Joseph stated that on 2 July 2012 she had been in the Club between 9.30 and 10.00am and after that she met the Applicant there. They remained at the Club for about an hour or one and a half hours then went to the Applicant's house. They remained at the house for the rest of the day and night. She said that she and the Applicant spent the whole of the time together and that the Applicant did not leave the house.
The following morning she was preparing herself to go home. The Applicant was intending to take her home but he was unable to drive her because the taxi was no longer at the house. Ms Joseph stated that she called her daughter at around 8.30 and she picked her up and took her home.
Ms Joseph accepted that she made here statement more than a year after the 2 July 2012 incident but she said that she remembers the day because the Applicant was very upset and he told her that he had the problem that he couldn't find the taxi. He thought the taxi may have been stolen.
Consideration
As noted, the Applicant was the subject of a complaint that he overcharged for a journey from the Sydney International Airport to Randwick on the afternoon of 2 July 2012. The complainant passenger identified the Applicant from a photo board as the driver of the taxi for that journey. GPS records for 2 July 2012 show that taxi T880 undertook that journey.
GPS records for the morning of 2 July 2012 show that taxi T880 was stopped at Canterbury Leagues Club at 10.20 am. The taxi remained there until 12.39 pm and then returned to the Applicant's home at Punchbowl. The vehicle remained there until approximately 3.07 pm when it travelled to the International airport. At around 4.30pm taxi T880 travelled to Randwick. It then returned to the International Airport then travelled to Canterbury Leagues Club and then to the Applicant's home at Punchbowl. There are no more log ins for that vehicle until the Applicant logged into the network on 5 July 2012.
The operator of taxi T880, Mr El Assi, confirmed that the Applicant had control of that taxi covering the period of the 2 July 2012. The Applicant conceded that he drove taxi T880 on the morning of 2 July 2012. He denies that he drove the taxi on that afternoon.
Mr El Assi indicated that the Applicant did not give him worksheets for 2, 3 or 4 July 2012 but did provide one for 5 July 2012. The Applicant asserted that he provided the worksheet by fax to Mr Roy Azzi. Roy Azzi stated that the Applicant did not provide a worksheet for 2 July 2012. Roy Azzi also denied driving taxi T880 on 2 July 2012. Mr Sukkarieh provided worksheets for 30 June 2012 and 1 July 2012 but denied driving the taxi on 2 or 3 July 2012.
A GPS record for taxi T880 shows that the vehicle was at the airport at approximately 8.41 am on 3 July 2012.
A GM Cabs docket relating to the 2 July 2012 journey was presented at the Unigas depot at the International Airport in the morning of 3 July 2012. Mr George Azzi stated that a person who he knows as "Dr Nabil" presented the docket on 3 July 2012 and that he wrote the words "Dr Nabil" on the docket. Both Mr George Azzi and "Dr Nabil" know each other well. Mr Azzi did not remember the time at which the docket was presented but he said it was in the morning. Mr Azzi identified a photograph of the Applicant as "Dr Nabil". He identified the Applicant as the person presenting the docket and receiving cash for that docket.
The Applicant's evidence was that he was at home with Ms Joseph on the afternoon of 2 July 2012 and that he did not leave the house. Ms Joseph confirmed that to have been the case. The Applicant also denied that he was driving taxi T880 on 3 July 2012.
The Applicant also gave evidence that Mr Roy Azzi also drives taxi T880 and that they often change over at Canterbury Leagues Club. He alleged that Mr Roy Azzi was probably driving the vehicle on the afternoon of 2 July 2012.
The Applicant did not require Mr Roy Azzi for cross-examination. Mr Roy Azzi's evidence that he did not drive taxi T880 on the afternoon of 2 July 2012 or on 3 July 2012 has not been challenged. Nor was the Applicant's assertion that Mr Roy Azzi drove taxi T880 on the afternoon of 2 July 2012 put to him.
I note the GPS record that indicates that taxi T880 was at the airport on the morning of 3 July 2012. The record show that the taxi was at Canterbury Leagues Club at 19.41 on 3 July 2012 and that the Applicant signed into the Club a few minutes later. In my view it is probably that the Applicant drove taxi T880 to the Club at that time. That being the case I do not accept his evidence that he did not drive taxi T880 on 3 July 2012.
It is also my view that the Applicant probably drove the vehicle throughout the day on 3 July 2012, leaving home at 7.57 am and driving to the airport. I accept the evidence given by Mr George Azzi that he received the end of shift docket from the Applicant on 3 July 2012 and wrote the words "Dr Nabil" on the docket. The docket relates to the 2 July 2012 journey from the Sydney International Airport to Randwick. In my view it is probable that the Applicant was the driver of taxi T880 during the 2 July 2012 journey.
I accept the evidence given by the complainant in relation to the overcharging for that a journey.
I note that a number of allegations have been made in relation to the Applicant's swapping of eftpos machines and associated credit card fraud and also in relation to cashing of stolen vouchers. I have insufficient evidence to make findings in relation to those allegations. However, the evidence suggests that the overcharging carried out on the afternoon of 2 July 2012 was through the use of an eftpos machine that was not issued to the Applicant. This raises questions in regard to how he was able to obtain that eftpos machine.
There is some discrepancy in the evidence given by the complainant for example in regard to the route taken on the 2 July 2012. There is also discrepancy in the evidence of the GM Cabs employees at the Unigas depot in regard to the time the docket was cashed. In my view these discrepancies can be explained by memory failure due to the passage of time.
Nevertheless, I am satisfied that there is ample evidence to support the conclusion that the Applicant overcharged the complainant for the 2 July 2012 journey. It is also my view that in the Applicant's evidence in these proceedings has not been truthful. As a result of the position he adopted, the Respondent has been put to considerable expense in prosecuting the matter.
It is central to the relationship between a taxi driver and passenger that the passenger can be satisfied that the legal fare is charged by the driver - set fares/tariffs and taxi cab metres provide for this. The Applicant breached that relationship. The evidence suggests that the Applicant deliberately misused a passenger's credit card to gain an extra benefit to which he was not entitled.
Throughout these proceedings he has attempted to avoid accountability for his act of dishonesty. It is also apparent the he failed to log in to the network on the afternoon of 2 July 2012 or on 3 July 2012. This failure aided him in his attempt to avoid accountability.
As noted above, the purpose of an authority is to attest that the authorised person is:
- of good repute; and
- a fit and proper person (to be so authorised); and
- considered to have sufficient aptitude and responsibility to drive a taxi cab in accordance with -law and custom; and in accordance with the conditions under which the taxi service is operated.
In the circumstances, I am unable to attest that the Applicant possesses those attributes.
On the evidence before me I cannot be satisfied that the Applicant is a fit and proper person to be authorised to drive a taxi cab. I do not consider that he has the requisite knowledge of the duties and responsibilities owed by him as the holder of a taxi driver authority, nor do I consider that he is possessed of sufficient honesty so as to permit him to be accredited as a person authorised to drive a taxi. Further, I am not satisfied that the Applicant has sufficient responsibility and aptitude to drive a taxicab in accordance with law and custom, and on that basis I am satisfied that his driver authority should be cancelled.
For these reasons I find that the correct and preferable decision is that the Applicant's driver authority be cancelled and that the decision of the Respondent be affirmed.
I note that the Applicant has had the benefit of a stay of the determination. I am not aware of any further issues having arisen during the period of the stay. In the circumstances, it is my view that this determination should take effect 28 days from the date of this decision.
Orders
(1) The decision under review is affirmed.
(2) This decision is to take effect 28 days from the date of these reasons.
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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
Decision last updated: 23 July 2014
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