Sipple v Director General, Department of Transport

[2001] NSWADT 132

CITATION:	Sipple -v- Director General, Department of Transport [2001] NSWADT 132
DIVISION:	General Division
PARTIES:	APPLICANT John Andrew Sipple RESPONDENT Director General, Department of Transport
FILE NUMBER:	013035
HEARING DATES:	24/04/2001
SUBMISSIONS CLOSED:	04/24/2001
DATE OF DECISION:	04/24/2001
BEFORE:	Fox R - Judicial Member
APPLICATION:	Passenger Transport Act - taxi driver - cancellation of authority
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Passenger Transport Act 1990
CASES CITED:
REPRESENTATION:	APPLICANT B McInerney, solicitor RESPONDENT A Wozniak, solicitor
ORDERS:	1. Bus authority due to expire 23 March 2003, issued on receipt C273295, suspended ; 2. Matter adjourned for further hearing (by telephone link-up) on a date in July to be fixed by the Registrar, and I indicate that on the Appellant at that time proving that:- (i) He has completed all attendance and other requirements for the PCA Offender program to commence on 23 May conducted by the New England Area Health Service at Inverell, and (ii) That he has satisfactorily completed the examination and other requirements for the Part B Regulations Refresher Module conducted by Taxi Training Australia (or an appropriate equivalent module by another authorised trainer) I would propose at that time to vary the cancellation of both the taxi and bus authorities to suspension for a period of one year dating from the date of commission of the PCA offence.

1 In this Appeal Mr Sipple, the Appellant, seeks a review pursuant to Section 55 of the Administrative Decisions Tribunal Act of the decision of the Director General of the Department of Transport to cancel his taxi driver’s authority.

2 The facts are that Mr Sipple is a 53 year old married man who has (apparently) lived in Inverell for the whole of his life. He has been married for more than 30 years and he and his wife have five children, the youngest two of whom, being aged 16 or 17 years, are still at home engaged in studies at TAFE.

3 Mr Sipple has always been employed in rural and country labouring work, his last job having been in the Inverell abattoirs where he was seriously injured in the right shoulder in 1993. He was rendered incapable of heavy use of the shoulder and was off work on worker’s compensation until 1997 when his matter was settled. He had some further year or so off work when he saw the local opportunity for a taxi driver, undertook the training and was issued with an authority on 14 December 1999. A bus driver’s authority followed on 20th March 2000.

4 As I understand the evidence, until the incident which triggered these proceedings, Mr Sipple drove a taxi for three shifts per week in and around Inverell, without coming under notice in any way. That of course is not surprising, Mr Sipple has held a motor vehicle driver’s licence since before the statutory age and has an entirely unblemished traffic and general record. Mr Sipple did, to his credit, orally, on oath before me, disclose a “speed” traffic infringement notice which he paid some two or three years ago in Queensland, but that matter did not find its way to his formal driver’s record.

5 However, all of that excellent provenance fell into a heap when he was random breath tested at 8:15am in Inverell on 30th September 2000, driving a taxi from the rank to the gas filling station en route to his first fare for the morning. The roadside breath test proved positive and subsequent breath analysis came up at 0.09.

6 Of course, the Police immediately suspended Mr Sipple’s driver’s licence and he did not again drive either as private motorist, or as taxi driver until the Local Court hearing on 16th December 2000. The full record of that hearing was in evidence before me but the Magistrate’s reasons for the decision were not. I assume that the Magistrate, in view of Mr Sipple’s excellent driving record, and in view of the strong references which were before him, and in view of the facts and circumstances of the matter, found the offence proven but did not proceed to conviction and dismissed the charge without imposing bond.

7 The facts before the Magistrate were that Mr Sipple had, together with his wife, attended at the local Bowling Club for a family birthday function the night before, having arrived at the club at about 6:00pm, and having left there at about 9:15pm. In that time, as well as a meal, Mr Sipple had eight or nine middies of full strength and light beer. The amount of alcohol actually consumed was not a matter of concern to him, because he was not scheduled to commence driving again until 3:00pm or 4:00pm on the following afternoon. Mr and Mrs Sipple took a taxi home, but in the morning were contacted by the taxi proprietor from whom he usually bailed his taxi and was asked to drive because the usual driver for that morning shift was not available, and there was no one else to drive the taxi. It seemed clear from the Appellant’s statement which appears to have formed part of the material before the Magistrate, and in any event, was certainly part of the material upon which the Director made his decision, that it did not on that morning occur to the Appellant that he might still have the proscribed concentration of alcohol in his bloodstream.

8 Of course, a blood alcohol concentration of 0.09 is “high range” when regarded in terms of a public vehicle driver’s licence, because the permissible reading is 0.02 instead of the 0.05 maximum which applies to “normal” driver’s licences. Whilst the Magistrate’s decision may have been appropriate as regards the driver’s licence in view of the Appellant’s long unblemished record as a driver of motor vehicles, the Director’s concern (and my concern) relates to an entirely different “licence” and that is the taxi cab authority, an authority which the Appellant had held for less than a year at the time of the offence, and (it transpires) his bus driver’s authority which he had held for just on six months at the time of the offence. Again, whatever may be the task of the Magistrate in relation to the driver’s licence, be it punishment, protection of the public or whatever, the Director’s task, and my task is to ensure that a person holding an authority is a person whose driving meets “the reasonable expectations of the community for safe, reliable and efficient passenger transport services” and that that is done by persons who fulfil the requirements of Section 11(2) of the Passenger Transport Act being a person:- “considered to be of good repute and in all other respects fit and proper to be the driver of a public passenger vehicle… and is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates in accordance with the conditions which a public passenger service is operated and in accordance with law and custom”.

9 I am satisfied from the material which was before the Director, being the material before the Magistrate, that Mr Sipple was at the time of the commission of the offence (and is still now) a person of good repute and that he has the appropriate aptitude to drive a passenger vehicle. However I am also satisfied that the material before the Director established a very strong doubt that Mr Sipple was in all other respects a fit and proper person to be the driver of a public passenger vehicle or that he had sufficient responsibility. In any event, he had failed to drive in accordance with law and custom, because the law which applied to him was that he should not have in his bloodstream more than 0.02 by way of alcohol concentration. It follows that I am also satisfied that the Director on the evidence before him made the correct decision in cancelling the taxi authority, and, had the Director’s mind been turned to it, would also have been justified in cancelling the bus driver’s authority.

10 The evidence before me was the same as that was that which was in the hands of the Director, but in addition, both Mr Sipple, and his wife gave oral evidence and that gave me the opportunity of considering at first hand both the circumstances of the commission of the driving offence, and them as persons.

11 I accept that Mr Sipple is a witness of truth, and am satisfied that he fully disclosed his drinking habits to me. He is a man who will usually have a couple of stubbies of beer with his evening meal, and on special occasions, will drink a lot more than that, but always, when that involves going outside of his home, makes arrangements to be driven home privately or by taxi. I am also satisfied that on the night in question he had had a substantial amount of drink at the club, and subsequently, when he and his wife got home, that there was more beer consumed, and, consequently, the breath analysis on the following morning correctly reflected the amount of alcohol in the blood at that time, and was not due to some other extraneous or inexplicable cause.

12 I am also satisfied that it genuinely did not occur to either Mr or Mrs Sipple on the following morning, in the relatively rushed circumstances of the unexpected 7:45am phone call, that he might still have the proscribed concentration of alcohol in his bloodstream.

13 I accept Mr Sipple’s evidence when he says that he felt alright and fit to drive.

14 I am satisfied that there was no conscious or wanton disregard of the drink driving requirements, and in this regard take note of both the fact that the Sipples caught a taxi home from the club, and of Mrs Sipple’s evidence of Mr Sipple’s strong views on drink driving generally, and specifically by reference to a family tragedy which involved the death or serious injury of a child relative in drink driving circumstances.

15 However, the oral evidence also satisfied me that Mr Sipple does not fully appreciate the length of time which it may take for alcohol consumed to pass out of his system to the point where his blood is at the permissible alcohol concentration level, and that he was not aware of the fact that the regulations required him to notify the Director General of the Police proceedings raised against him from the moment of his being charged, instead of waiting to see what happened at Court.

16 Now that all the facts and circumstances of the events leading up to the offence are known, I am satisfied that all of the requirements of the Passenger Transport Act will be met if, instead of cancellation (which by its very nature is indefinite) Mr Sipple’s authority is suspended for a finite period, he in the interim to undertake further education in relation to alcohol on the one hand, and the regulations regarding the driving of taxis on the other hand. It is for these reasons (to allow Mr Sipple to undertake the courses detailed hereinafter) that I propose to formally adjourn the hearing instead of making final orders at this time.

17 I should also advert to the bus driver’s authority. By apparent oversight, no steps have been taken in regard to this authority, and, technically speaking, a decision should be made, and Mr Sipple should be formally notified of it, he should then have the opportunity to fully exercise his rights of rehearing and appeal. Instead of all of that, in order to achieve what is clearly the spirit of the legislation, and I note this to be with Mr Sipple’s consent, I propose to simply suspend his bus driver’s authority as well.

18 My orders are:-

1. Bus authority due to expire 23rd March 2003, issued on receipt C273295, suspended.
2. Matter adjourned for further hearing (by telephone link-up) on a date in July to be fixed by the Registrar, and I indicate that on the Appellant at that time proving that:
(i) He has completed all attendance and other requirements for the PCA Offender program to commence on May 23rd conducted by the New England Area Health Service at Inverell; and
(ii) That he has satisfactorily completed the examination and other requirements for the Part B Regulations Refresher Module conducted by Taxi Training Australia (or an appropriate equivalent module by another authorised trainer)
I would propose at that time to vary the cancellation of both the taxi and bus authorities to suspension for a period of one year dating from the date of commission of the PCA offence.