Singh v Director General, Department of Transport

[1999] NSWADT 96

CITATION:	Singh -v- Director General, Department of Transport [1999] NSWADT 96
DIVISION:	General
APPLICANT:	Yoga Singh
RESPONDENT:	Department of Transport
FILE NUMBER:	993115
HEARING DATES:	09/02/1999
SUBMISSIONS CLOSED:	09/02/1999
DATE OF DECISION:	12 October 1999
BEFORE:	N Hennessy - Deputy President
PRIMARY LEGISLATION:	Passenger Transport Act 1989
APPLICATION:	Review of decision to cancel taxi-cab authority -
MATTER FOR DECISION:	Principal matter
REPRESENTATION:	Applicant: M Newman, Newman & Associates Respondent: A Wozniak, Smythe & Mallam
ORDERS:	1. The Director General's decision to cancel the applicant's taxi cab authority is affirmed.

1 On 24 March 1999 the Department issued Mr Yoga Gurinder Singh with a Notice to Show cause why his application to renew his taxi driver authority should not be refused. No response was received and a Notice of Decision notifying Mr Singh that his authority had been cancelled was sent to him on 23 April 1999.

2 The reasons for the Department’s decision were as follows:

The Department relies on your criminal convictions and traffic record to make the decision to refuse your application. Regarding your traffic Record is the attached extract from the Roads and Traffic Authority Drives Computer System.

In view of your failure to reply to the Department’s Show Cause Notice, it was not possible to consider any facts, evidence or material that would explain or justify your criminal and traffic history.

Your Traffic history indicates an tendency to disregard the law relating to driving vehicles. As such, that tendency could affect the safety of passengers and the public.

3 Mr Singh requested an internal review on 4 May 1999 arguing five points:

• he did not receive the Notice to Show cause;
• his criminal charges involved his wife in a personal dispute;
• he has had no traffic offences since 1996;
• he has no customer complaints recorded against him; and
• he has been a taxi operator for 4 years.

4 An internal review was conducted and on 11 May 1999 the original decision was affirmed. On 4 June 1999 Mr Singh lodged an application for review with the Tribunal.

5 The Tribunal has jurisdiction to hear this matter pursuant to section 38 of the Administrative Decisions Tribunal Act 1997 and section 52(1) of the Passenger Transport Act 1990 (NSW) ('the Act').

Evidence

6 Apart from the Department’s file, the only evidence presented in these proceedings was oral evidence from Mr Singh. On the basis of the documents in the file and his evidence, the following facts are not in dispute.

7 Mr Singh is 32 years of age and migrated to Australia from India in 1986. He became a citizen in 1994. He was in a de facto relationship with a woman for eight years and they have two children. Mr Singh was a professional wrestler and represented Australia in the Oceania Games in Melbourne in 1994 where he won a gold medal. Australia Post, his former employer, sponsored him and to attend the Atlanta Olympic Games but he could not attend because of a shoulder injury.

8 Mr Singh has a number of convictions for assault and for breaching an apprehended violence order. The first conviction was on 12 August 1992 for assault occasioning actual bodily harm. Mr Singh said this offence related to a fight he got into with another man when they were both drunk. He was fined $500.00 and sentenced to a good behaviour bond for 12 months.

9 On 12 September 1997 an Apprehended Violence Order was made against Mr Singh for a period of two years in relation to his former de facto partner.

10 On 24 September 1997 Mr Singh was convicted of common assault, driving a vehicle when his licence was cancelled and contravening the apprehended domestic violence order. He was sentenced to two months in prison. He was not represented on that occasion and says he went to visit his wife to sort out their troubles and that she was the one who telephoned him.

11 On 3 March 1998 Mr Singh was convicted of contravening an apprehended violence order on three occasions namely 28 December 1997, 14 January 1998 and 19 January 1998. The contraventions involved telephoning his former partner, visiting her home and approaching her outside her home. It was found that he used threatening and abusive language, including saying “You will care when I cut your throat” and “I will get a fucking knife and then you will care.” Mr Singh maintained that drinking alcohol makes him behave violently.

12 Mr Singh was convicted of these offences and remanded in custody for 34 days. He was sentenced to a two year good behaviour bond in the sum of $2000 and ordered not to approach, assault, molest or harass his former partner and not to enter the Manly Warringah area. The period of this bond expires on 3 March 2000.

13 Mr Singh said that if he did get his taxi authority he would just have to ignore the restriction on him entering the Manly Warringah area because he could not refuse a customer’s request.

14 Mr Singh has numerous traffic offences dating from 2 March 1989 to 6 March 1999 including at least seven speeding offences, not wearing a seat belt, driving while cancelled, disobeying traffic lights and failing to pay fines.

15 In relation to his traffic offences, Mr Singh said that now that he has more experience and knows where the speed cameras are he would be unlikely to commit further offences. He said that one of the offences involving disobeying a red light was on an occasion when a passenger was giving birth in the back of his taxi. He said that he was either overseas or did not have enough money to pay his fines.

16 Mr Singh admitted that when he filled in the Transport District Taxi Driver Authorisation Declaration on 20 November 1992 he failed to disclose that he had been convicted of an offence on 12 August 1992. Although he said that he didn’t understand the question and that he had appealed against the conviction I find that Mr Singh knew he was not disclosing his full criminal history when filling out that form.

17 In his application for internal review on 4 May 1999 Mr Singh said that he had no traffic infringements since 1996. When shown a record of a speeding fine on 6 March 1999 Mr Singh said that he had not received a ticket for that offence until after he completed the application for internal review. I do not accept Mr Singh’s evidence on this point. The record displays the initial “TI” denoting that a ticket was issued on 6 March 1999.

18 Mr Singh agreed with Mr Wozniak, the solicitor representing the respondent, that his licence was cancelled for 17 of the 21 months from 2 August 1996 to 23 May 1998. Mr Wozniak submitted on the basis of this evidence that his driving record improved during this period because he was off the road most of the time, not because his driving had improved.

Procedural submissions

19 Mr Newman, solicitor for the applicant, submitted that there were defects in the way the respondent had made its decision in relation to Mr Singh’s application for renewal of his authority. He pointed out that in a memorandum from Mr Apfelbaum to the Regional Manager dated 6 May 1999 Mr Apfelbaum commented that:

The decision to cancel the driver authority was substantially determined within the Customer Service section. Mr Peter De Luca who made the decision to cancel Mr Singh’s authority did not consult with other delegated officers within this region or in other regions during the decision making process.

20 Mr Newman submitted that this comment meant that the original decision was flawed or that there was some “uncertain protocol” surrounding the decision because the decision maker did not consult with other delegated officers.

21 Mr Wozniak pointed out that the comment about consultation does not imply that the failure to consult was a defect in the process.

22 There is no statutory obligation nor, according to Mr Wozniak, any policy requirement, for the person conducting an internal review to consult with other officers. Consequently Mr Newman’s submission on this point is rejected.

23 I also reject Mr Newman’s submission that Miss Aldred, should have “approved” or “not approved” Mr Hickman’s internal review decision. The memorandum setting out that decision dated 10 May 1999 allows for Miss Aldred to approve, note, or not approve any recommendation. In this case the recommendation was noted. As the person conducting the internal review is the ultimate decision maker, it would have been inappropriate for Miss Aldred to have “approved” or “not approved” that decision.

Application of law and decision

24 Section 12 of the Act gives the Director General a discretion to grant authorities, having regard to the purpose of that authority. Sub-section 11(2) sets out the purpose of an authority in the following terms:

The purpose of an authority under this Division is to attest:

(a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle; and

(b) that the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates:

(i) in accordance with the conditions under which a public passenger service is operated; and

(ii) in accordance with law and custom.

25 The issue in this case is whether, in the light of the responsibilities and expectations of a taxi driver, the applicant is a "fit and proper person" to hold a taxi authority. Being a "fit and proper person" includes being of "good repute" but the concepts involve different considerations.

26 The High Court in Hughes and Vale Proprietary Limited and Anor v The State of NSW and Ors (No.2) (1955) 93 CLR 127 at 156 said that:

"Fit" (or "idoneus") with respect to an office is said to involve three things, honesty knowledge and ability: "honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it" - Coke.

27 The presence of dishonesty was taken very seriously by the Supreme Court of South Australia in McNamara v Arnold (unreported decision of the Supreme court of South Australia, 26 October 1995 BC9502405 at 10). Matheson J said that:

In this matter, even if the Tribunal merely looks at the [appellant’s] dishonest answer on the application form, this conduct brings into question the honesty of the [appellant]. Honesty is a quality implicit in the notion of a fit and proper person.

28 But it has been recognised that being a “fit and proper person” is not capable of any objective definition. Chief Justice Mason in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63] said that:

"The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration."

29 The meaning of being of “good repute” was discussed by Wadell J in Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 393. Wadell J defined reputation in the following terms:

A person's reputation, in fact and in law, is to be found in the estimate of his moral character entertained by some specific group of people, such as those who live in the neighbourhood of his residence, those who work with him or those with whom he associates in his occupation or profession. . . Evidence of conviction for a criminal offence is, however, admissible as evidence, indeed, most cogent evidence of bad reputation.

30 However a person’s reputation and character is not immutable. In Stasos v Tax Agents' Board of NSW 90 ATC 4950 the Court considered the meaning of "fit and proper" in the general context of persons holding specified offices or vocations as well as in the specific context of Tax Agents (at 4,957) the Court noted that:

“(w)here the issue is whether a person who has been

guilty of misconduct is at a time somewhat after

that misconduct a fit and proper person to exercise

a particular occupation carrying with it privileges

and responsibilities, it will be relevant whether

that person has understood the error of his ways."

31 In Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 the ACT Administrative Appeals Tribunal Professor LJ Curtis, President put the test to be applied in relation to "fit and proper character" in the case of taxi driver licensing in this way, at [12]:

"One must put oneself, so far as possible, in the position of a member of the public who might travel in a taxi driven by the applicant and ask whether that member of the public, knowing of the applicant's criminal record and what he has done in the past year to rehabilitate himself, would object to the applicant as the driver of the taxi."

32 In Saadieh v Director General, Department of Transport [1999] NSWADT 68, I set out a number of factors, based on the terms of the legislation and the case law interpreting similar provisions, that need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. These factors were:

• 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.

33 I also noted in that case that 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.

34 The main offences with which the Tribunal is concerned in this case are those relating to breaches of an apprehended violence order including threats of violence. The applicant has been before the court several times for breaches of this order and has been sentenced to 2 months in prison and to a bond which expires on 3 March 2000. The regularity of his offences indicates that he does not appear to have learnt from these experiences. The fact that the breaches of the order relate to his personal life does not mitigate their severity in any way. Knowing of the applicant's criminal record and what he has done, or not done, to rehabilitate himself I believe passengers would object to the applicant as the driver of their taxi.

35 Similarly, his traffic infringements which include several speeding infringements and driving without a licence, have continued despite losing his licence.

36 The applicant’s dishonesty is apparent in the fact that he failed to disclose a criminal offence on a departmental form in 1992 and again when he put forward his arguments prior to the internal review. On that occasion he dishonestly stated that he had no traffic offences since 1996. His dishonesty was again apparent in his comment that he would take a passenger to the Manly Warringah Area even though a condition of his bond is that he not go into that area.

37 No independent evidence was brought of the applicant’s reputation. The applicant submitted that he has demonstrated self discipline through training for wrestling. Unfortunately this discipline has not enabled him to succeed in complying with court orders. The fact that he was a skilled wrestler does not overcome the poor reputation that his criminal convictions and driving record bring about.

38 While I agree with the applicant’s submission that his record should not necessarily be a permanent stamp on his character I did not see any evidence of contrition or rehabilitation. He appears to be unaffected by his court appearances, term of imprisonment and bond. He still blames alcohol and the fact that his wife telephoned him as justifications for his behaviour.

39 On the basis of all the evidence, the respondent’s decision to cancel Mr Singh’s taxi authority is affirmed.