Singh v Ministry of Transport

[2009] NSWADT 74

CITATION:	Singh v Ministry of Transport [2009] NSWADT 74
DIVISION:	General Division
PARTIES:	APPLICANT Kamaljit Singh RESPONDENT Ministry of Transport
FILE NUMBER:	093032
HEARING DATES:	26 March 2009
SUBMISSIONS CLOSED:	26 March 2009
DATE OF DECISION:	3 April 2009
BEFORE:	Handley R - Deputy President
CATCHWORDS:	Public passenger vehicle – suspension of authority
LEGISLATION CITED:	Passenger Transport Act 1990
CASES CITED:	Maythisathit, Sivone and Registrar of Motor Vehicles [1996] ACTAAT 165 Lal v Director-General, Department of Transport [2001] NSWADT 74 Saadieh v Director General, Department of Transport [1999] NSWADT 68 Sara v Director General, Department of Transport [2003] NSWADT 157 Eshaghi v Director General, Department of Transport [2002] NSWADT 3 Ahmadi v Director General, Department of Transport [2002] NSWADT 8 Abawi v Director General, Department of Transport [2003] NSWADT 34 Ratay v Director General, Department of Transport [2003] NSWADT 40 Singh v Director-General, Department of Transport [1999] NSWADT 96 Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
REPRESENTATION:	APPLICANT E Khan, solicitor RESPONDENT A Wozniak, solicitor
ORDERS:	The decision under review is affirmed.

1 This matter involves an application by Kamaljit Singh for the review of a decision of the Director General of the Ministry of Transport (‘the Ministry’) made under the Passenger Transport Act 1990 (‘the Act’) to suspend Mr Singh’s authority to drive a public passenger vehicle.

The Facts

2 Mr Singh is aged 49. He was born in India and migrated to Australia in 1983, becoming an Australian citizen in 1995. He is married with three children aged 17, 13 and 8. In 1998, Mr Singh was granted an authority to drive a public passenger vehicle enabling him to drive taxis, and in 2005 he was granted accreditation as a taxi operator. Initially, Mr Singh worked for Premier Cabs as a taxi driver. From 2005, he leased taxi plates from Cumberland Cabs, and operated his taxi as part of the Premier Cabs network.

3 In 2008, Mr Singh’s father in law suffered a heart attack while visiting Mr Singh and his family in Australia and required heart surgery. Mr Singh had sponsored his father in law’s visit and, because his father in law was uninsured, Mr Singh was liable for the consequent medical bills that totalled approximately $45,000. This caused significant financial pressure on Mr Singh.

4 On 14 November 2008, Mr Singh was interviewed by Premier Cabs in relation to 15 altered ‘Cabcharge’ dockets. Mr Singh admitted that he had altered the dockets, apologised for his conduct, and repaid the money that he had obtained by deception, totalling $3,674.25. Mr Singh was expelled from the Premier Cabs network and required to return his taxi plates to Cumberland Cabs. Premier Cabs notified the Ministry of what had occurred.

5 On 5 February 2009, a delegate of the Director General notified Mr Singh that his authority to drive a public passenger vehicle had been suspended. On 11 February 2009, Mr Singh filed an application for a review of this decision by the Tribunal and for an urgent stay. On 17 February 2009, the President of the Tribunal, O’Connor DCJ, refused the application for a stay and gave directions for the pre-hearing exchange of documents. Mr Singh has not applied for an internal review of the delegate’s decision. Pursuant to s 55(3)(b) of the Administrative Decisions Tribunal Act 1997, I am, nevertheless, satisfied that it is necessary to deal with Mr Singh’s application in order to protect his interests.

6 On 5 March 2009, a delegate of the Director General suspended Mr Singh’s accreditation as a taxi operator. That decision is not the subject of this appeal.

The Relevant Legislation

7 Section 11(2) of the Act states:

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

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

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


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

(ii) in accordance with law and custom.

8 Section 14 states:

Having regard to the purpose of an authority, the Director-General may at any time vary, suspend or cancel any person’s authority.

9 I note that in the statement of reasons for the decision, the delegate cited s 33(3) and s 33F of the Act as the relevant provisions. These provisions apply in respect of an authority to drive a taxi-cab rather than an authority to drive a public passenger vehicle (which includes various categories of vehicle, one of which is taxis), but are otherwise similar in wording.

Mr Singh’s Evidence and Submissions

10 Mr Khan, for Mr Singh, provided the Tribunal with (1) a report from Dr Ishrat Ali, Psychiatrist, dated 5 March 2009, (2) a copy of a letter from Mr Singh to the General Manager of Premier Cabs, dated 14 November 2008, acknowledging his having altered the Cabcharge dockets, (3) a copy of a tax invoice dated 1 December 2008 confirming that Mr Singh had reimbursed Cumberland Cabs for $3,674.25, and (4) copies of invoices from Sydney West Area Health Service for medical services received by Mr Singh’s father in law. At the hearing, Mr Khan also provided four recent references attesting to Mr Singh’s good character.

11 Mr Khan said Police interviewed Mr Singh in relation to this matter in October 2008 but, to date, no charges have been laid. Mr Singh altered the Cabcharge dockets at a time when he was under “enormous financial pressure” as a result of the medical expenses incurred by his father in law. Creditors were pursuing Mr Singh and this is what motivated him to forge the dockets. He has acknowledged his wrongdoing, has apologised for what he did, and has repaid the money to which he was not entitled.

12 Mr Khan noted Dr Ali states in his report that it is “highly unlikely” that Mr Singh will re-offend. Mr Singh informed his referees of what had occurred when he asked them to provide references, and they have provided evidence of his good character. During the ten years of his taxi driving from 1998 to 2008, there is nothing adverse on Mr Singh’s record.

13 Mr Kahn said Mr Singh has now been without a job for four months and this is causing him financial stress because he has a family to support and mortgage repayments to make. It is highly unlikely that he will be able to get another job in the current economic climate.

14 Mr Khan referred to the decision of the ACT Administrative Appeals Tribunal in Maythisathit, Sivone and Registrar of Motor Vehicles [1996] ACTAAT 165 (‘Sivone’), at [12], where the President of that Tribunal, Professor Curtis, said, “What is comprehended by the phrase ‘fit and proper person’ depends on the context in which it is used ... All the relevant circumstances must be taken into account.” Mr Khan submitted that Mr Singh was truthful in admitting to what he had done, for which he has apologised and made redress. The evidence indicates that he would not repeat such misconduct and that he is a fit and proper person to be the driver of a public passenger vehicle.

The Ministry’s Submissions

15 Mr Wozniak, for the Ministry, confirmed that, at this stage, the Police have not taken any action in relation to the matter. Nevertheless, if they do not do so, the Ministry is likely to pursue charges. He noted that the decision under review is a suspension, pending a final determination.

16 Mr Wozniak submitted that the financial hardship Mr Singh is suffering because of the suspension is not a factor the Tribunal can take into account in determining whether the Director General made the correct and preferable decision: Lal v Director-General, Department of Transport [2001] NSWADT 74 (‘Lal’), at [47]. He submitted that Dr Ali’s psychiatric report did not absolve Mr Singh from his misconduct, and questioned whether Mr Singh’s referees were fully informed as to the nature of that misconduct. While Mr Singh has admitted his misconduct, this was a very serious breach of trust, involving 18 dockets. Passengers are entitled to assume that the amount on the Cabcharge docket is what will be paid.

17 Mr Wozniak referred to the factors identified by Deputy President Hennessy in Saadieh v Director General, Department of Transport [1999] NSWADT 68 (‘Saadieh’) as being relevant to the issue of a person’s suitability and fitness to obtain a taxi authority. He also referred to the decision in Sara v Director General, Department of Transport [2003] NSWADT 157, where notwithstanding that Mr Sara had a record of 39 years with no complaints being made against him, the Tribunal found that incidents involving Cabcharge dockets submitted in April/May 1992 for journeys that Mr Sara did not make, were sufficiently serious to warrant cancellation of his taxi driver authority. Mr Wozniak submitted that this sort of fraudulent misconduct goes to the heart of a person’s honesty.

18 Mr Wozniak also referred to the decision in Eshaghi v Director General, Department of Transport [2002] NSWADT 3 (‘Eshaghi’), where Mr Eshaghi fraudulently completed Cabcharge dockets for journeys he did not undertake. Deputy President Hennessy emphasised, at [29], that good faith by both passengers and taxi drivers is critical for the Cabcharge system to operate. In Ahmadi v Director General, Department of Transport [2002] NSWADT 8, a similar and related case, a single incident concerning the fraudulent use of Cabcharge dockets was sufficient to warrant cancellation of Mr Ahmadi’s taxi driver authority. (See also Abawi v Director General, Department of Transport [2003] NSWADT 34, and Ratay v Director General, Department of Transport [2003] NSWADT 40.)

19 Mr Wozniak submitted that a person who alters documents and steals $3,764 cannot be considered a fit and proper person to be the driver of a public passenger vehicle. A reasonable member of the travelling public, knowing of Mr Singh’s misconduct, would object to Mr Singh holding such a licence: Sivone, at [12].

20 Mr Wozniak noted that Mr Singh was convicted of assault in 1990 in respect of which a five year good behaviour bond was imposed. Mr Singh failed to disclose this in his 1998 application for a public passenger vehicle authority. As a result of his not revealing this, the Department asked him to show cause why his application should not be refused. He gave an assurance that he would not re-offend (letter dated 12 June 1998) and, whilst the Department said it would take no further action in respect of his failure to disclose, Mr Singh was warned that should he come “to the adverse notice of the Department of Transport in the future, your Public Passenger Vehicle’s Driver’s Authority may be immediately suspended or cancelled” (letter dated 26 June 1998).

Discussion

21 Pursuant to s 14 of the Act, the Director General is empowered to suspend a person’s authority to drive a public passenger vehicle. The purpose of such an authority, stated in s 11(2), includes attesting “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” (s 33(3)(a)).

22 Deputy President Hennessy discussed the meaning of ‘good repute’ in Singh v Director-General, Department of Transport [1999] NSWADT 96: essentially, a person’s reputation is how the community assesses the person’s moral character. The Deputy President also discussed the factors to be considered when determining a person’s suitability and fitness to obtain a taxi-cab authority, which apply equally to an authority to drive a public passenger vehicle, referring to her earlier decision in Saadieh, where, at [17], she said these factors include:

"the nature, seriousness and frequency of any criminal offences for which the applicant had 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;

the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences."

As Mr Wozniak pointed out, financial hardship is not a relevant factor: Lal, at [47].

23 The meaning of the phrase ‘fit and proper person’ was discussed by the High Court in Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127, at [9], where Dixon CJ, McTiernan and Webb JJ found the word ‘fit’, in relation to an office, to involve honesty, knowledge and ability. The meaning of the phrase ‘fit and proper person’ was also discussed in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, where Toohey and Gaudron JJ said, at [36]:

"The expression ‘fit and proper person’, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities."

24 As their Honours recognised, at [66], whether a person is a fit and proper person involves a value judgement to be made in the context of the particular activity to be licensed.

25 In Mr Singh’s case, the four references he has provided – from his family doctor, Dr Badar Qadri, dated 13 March 2009, from GS Atwal, the President of the Australian Sikh Association Inc, undated but clearly of recent origin, from SS Butter, dated 25 March 2009 (a statutory declaration), and from Dr M Singh, Chairman of the Punjabi Council of Australia, dated 14 March 2009 – all indicate that Mr Singh is well regarded in his community. Two of the referees refer to misappropriation, a third to a docket scam, and the other to a “mistake” and an “unfortunate incident”. In my view, they all had some knowledge of what occurred. Relying on these references, I am prepared to accept that Mr Singh is of good repute.

26 With regard to whether Mr Singh is a fit and proper person, the context is that of an authority to drive a public passenger vehicle, in this case a taxi. I note, as Mr Wozniak pointed out, that in 1998, Mr Singh failed to disclose a previous conviction for (1) assault occasioning actual bodily harm and (2) assault on 23 May 1990, in respect of which Mr Singh was fined and received a five year good behaviour bond. After a submission from Mr Singh’s solicitors who said “the Department ought to be confident that our client is not likely to re-offend again” (letter dated 12 June 1998), the Department decided to take no further action and granted Mr Singh an authority, but in doing so warned him that should he come “to the adverse notice of the Department of Transport in the future, your Public Passenger Vehicle’s Driver’s Authority may be immediately suspended or cancelled” (letter dated 26 June 1998). In my view, Mr Singh was clearly ‘on notice’.

27 The incidents in 2008, which Mr Singh has acknowledged, involved his fraudulently altering approximately 15 Cabcharge dockets (Mr Wozniak referred to 18 dockets) in order to claim additional fares totalling $3,764.25 to which he was not entitled. As Deputy President Hennessy recognised in Eshaghi, the Cabcharge system is one in which trust is an essential ingredient. The fraudulent alteration of Cabcharge dockets should, therefore, be treated as a very serious breach of that trust. The fact that Mr Singh acknowledged his misconduct, expressed remorse and repaid the money to which he was not entitled, while to be commended, does not give him absolution. In similar cases involving Cabcharge fraud to which Mr Wozniak referred (cited above), a single incident has been found sufficient to warrant cancellation of an authority. In Mr Singh’s case, there were a number of incidents.

28 I accept that Mr Singh was under financial pressure at the time, and I note both Dr Ali’s report that it is “highly unlikely” that Mr Singh will re-offend and the references provided by Mr Singh from members of his community. However, in my view, a member of the public knowing of Mr Singh’s misconduct would, at this time, relatively soon after it occurred, object to his holding an authority in circumstances where the misconduct was a fundamental breach of the trust on which the Cabcharge system operates: Sivone, at [12].

29 I am not, therefore, satisfied that Mr Singh is a fit and proper person to hold a public passenger vehicle authority and the decision under review must be affirmed.

Decision

30 The decision under review is affirmed.