Smith v Ministry of Transport
[2008] NSWADT 136
•13 May 2008
CITATION: Smith v Ministry of Transport [2008] NSWADT 136 DIVISION: General Division PARTIES: APPLICANT
Peter Neville SmithRESPONDENT
Ministry of TransportFILE NUMBER: 073378 HEARING DATES: 10 April 2008 SUBMISSIONS CLOSED: 10 April 2008
DATE OF DECISION:
13 May 2008BEFORE: Montgomery S - Judicial Member CATCHWORDS: Passenger Transport Act - taxi driver - cancellation of authority MATTER FOR DECISION: Principal matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Passenger Transport Act 1990
Passenger Transport Regulation 2007CASES CITED: Saadieh v Director General, Department of Transport [1999] NSWADT 68 REPRESENTATION: APPLICANT
RESPONDENT
In person
A Wozniak, solicitorORDERS: The decision to cancel the applicant’s authorisation to drive a taxi-cab is affirmed.
REASONS FOR DECISION
Background
1 The applicant held a driver authority under the Passenger Transport Act 1990 (the Act). By a Notice of Decision dated 14 December 2007 a delegate of the Director General of the Ministry of Transport advised the applicant that the respondent had determined to cancel his driver authority.
2 In the statement of reasons provided to the applicant the delegate stated that the determination was made on the basis of the following:
3 The applicant has applied to the Tribunal for review of the determination to cancel his driver authority and applied for a stay of the decision under section 60(2) of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”).
“You were issued with a Notice to Show Cause on 11 May 2000 due to your traffic record and extensive complaints history.
You were issued with a Notice to Show Cause on 10 November 2003 as a result of further complaints, including two relating to the sexual harassment of female taxi-cab passengers.
You have incurred a further complaint in relation to the sexual harassment of a female taxi-cab passenger on 25 August 2007.
11 May 2000 - you were issued with a Notice to Show Cause why your driver authority should not be cancelled as a result of your failure to declare several traffic offences and your extensive history of complaints. You were permitted to retain your driver authority, however, on 22 June 2000 you were advised that the (then) Department of Transport would take into consideration any known complaints, arrests, convictions, proven offences and/or traffic history when deciding any future action against your authority.
1 November 2001 - you were interviewed by authorised officers in relation to complaints of abusive conduct towards the Tamworth Radio Cabs network operator and improper radio use. Following this interview you were sent a written reminder of your obligations regarding network rules and by-laws.
13 June 2003 - a female passenger who travelled by herself in taxi TC279 at about 11.30 pm claimed that the driver behaved inappropriately towards her by placing and leaving his left arm on the passenger headrest behind her head, asking personal questions of her, continuously referring to her as either 'Blossom' or 'Sweetheart' and touching her hair. The passenger further alleged that the driver travelled in the wrong direction towards her destination and only reluctantly changed direction when she challenged him. You were identified as the driver of TC279 at the time of the incident.
7 September 2003 - a female passenger who travelled by herself in taxi TC279 at about 8.50 pm claimed that the driver behaved inappropriately towards her by placing and keeping his left arm over the rear of the front passenger seat near her legs. The passenger further alleged that the driver failed to travel by the shortest route and as a result she paid a higher fare than usual. You were identified as the driver of TC279 at the time of the incident.
You were interviewed by authorised officers in relation to these complaints on 23 October 2003. You stated at the time that you had incurred an elbow injury in July 2002 and undergone an operation on the elbow in August 2002 and that at that time you still suffered from chronic pain. You further stated that you stretched your arm along the back of the front passenger seat in an effort to obtain pain relief, however, you had not been aware that this practice was causing any problems with passengers. Upon becoming aware that this did indeed cause problems, you provided an undertaking to cease this practice while you had passengers in your taxi.
10 November 2003 - you were issued with a Notice to Show Cause why your driver authority should not be cancelled as a result of the complaints of sexual harassment. In your response to this notice you reiterated your undertaking to cease your 'habit' of stretching your left arm sideways 'in an effort to relieve pain' whilst you had passengers in your taxi. As a result of this action you were issued with a written advice that your behaviour towards passengers and some members of Tamworth Radio Cabs was considered to be unacceptable. Further, you were advised that in the event that the Ministry received further complaints of this nature action may be taken to suspend or cancel your authority to drive public passenger vehicles.
25 August 2007 - a female passenger who travelled in taxi TC279 claims that the driver behaved inappropriately towards her by commenting on her physical appearance, touching her on the head and placing and keeping his left arm near her legs. The passenger further claims that the driver failed to engage the meter at the commencement of the journey and estimated the fare to be $20 upon arrival at the destination. You were identified as the driver of TC279 at the time of the incident. On 17 October 2007, in company with your solicitor Andrew O'Halloran, you met with authorised officers of the Ministry of Transport in Tamworth. At this time you agreed that you were the driver of the vehicle but denied all allegations of inappropriate behaviour.”
4 The matter came before me on 24 December 2007. On that date I decided that the matter could proceed in the absence of internal review, under section 55(2)(c) of the ADT Act, and granted a stay of the decision to cancel the applicant’s authority. The matter was ultimately heard on 10 April 2007 and I reserved my decision.
Relevant legislation
5 Division 5 in Part 4 of the Act makes provision for authorisation to drive taxi-cabs. The purpose of authorisation is set out in section 33 of the Act:
6 The holder of an authority is also subject to the provisions of the Passenger Transport Regulation 2007 (“the Regulations”). Clause 29 of the Regulations provides:
33 Authorities
…
(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.
7 The decision to cancel the applicant’s authority was made under section 33F of the Act, which provides as follows:
“29 Criteria for authorisation to drive public passenger vehicles
(1) For the purposes of sections 12(2), 33B(2) and 40B(2) of the Act, the criteria that an applicant for an authorisation to drive a public passenger vehicle must meet before the application is granted are the criteria set out in sub-clauses (2)-(4).
(2) The applicant:
…
(b) must hold a driver licence that is not a learner licence, probationary licence, provisional licence, restricted licence, driver licence receipt or conditional licence (other than a conditional licence the sole condition of which is that the holder must wear corrective lenses at all times while driving), and
…
(e) must satisfy the Director-General that he or she:
…
(ii) is of good repute and in all other respects a fit and proper person to be the driver of the vehicle concerned, and
(iii) has sufficient responsibility to drive the vehicle concerned in accordance with law and custom.
(4) In the case of an application for authorisation to drive taxi- cabs, the applicant must also:
(a) have successfully completed a taxi-cab driver training course approved by the Director-General and conducted by a registered training organisation (or must have such competence as a driver of a taxi-cab as the Director- General considers appropriate), and
…
(iii) knowledge of this Regulation in so far as it relates to taxi-cabs and the driving of taxi- cabs, and …”
8 Section 52(1) of the Act confers jurisdiction on the Tribunal to review a decision to cancel an authority. In reviewing this decision, the task of the Tribunal is to determine what is the correct and preferable decision, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law: section 63 ADT Act.
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 respondent’s case
9 The respondent filed and served a copy of its file comprises 481 pages. Mr Wozniak, the respondent’s solicitor, referred to a number of documents in the file that relate to complaints made against the applicant and the steps taken by the respondent in relation to those complaints. He also referred to correspondence from Mr Brian O'Sullivan, Secretary of Tamworth Radio Cabs, in which Mr O'Sullivan had advised the respondent of incidents involving the applicant, which were of concern to his organisation. He also referred to advice received from Mr O’Sullivan that the security footage from taxis linked to Tamworth Radio Cabs is only kept for 36 hours and then fresh footage is recorded over it. Mr O’Sullivan had advised that it had not occurred to him to obtain the footage in relation to the trip undertaken on 25 August 2007 that was the subject of the complaint (“the 25 August 2007 incident”).
10 It is apparent that the chronology set out by the respondent in the statement of reasons, and referred to above, is an accurate account. It is also apparent that the applicant disputed the complaints and that while no action was taken in relation to the earlier complaints, the applicant was advised that in the event that the Ministry received further complaints, action might be taken to suspend or cancel his authority.
11 Mr Wozniak also referred to the applicant’s traffic record, and in particular to material that indicates that the applicant’s unrestricted drivers licence had been suspended between September 2005 and September 2006. The applicant conceded that he had not advised the respondent of that suspension and that he had continued to drive during that period. This is contrary to Clause 29 of the Regulations.
12 The respondent also relies on the evidence of Ms Kowhai Drummond who appeared by telephone and was subjected to cross-examination. Ms Drummond gave evidence that on 25 August 2007 she had travelled in a taxi driven by the applicant and that she had subsequently complained about the applicant’s conduct towards her. On 19 September 2007 she sent an email in regard to the 25 August 2007 incident to an officer of the respondent. She wrote:
13 In her evidence to the Tribunal Ms Drummond restated her assertion that the applicant had commented on her physical appearance, touched her on the head and that he had failed to engage the meter at the commencement of the journey. She could not recall whether or not the applicant had stretched his arm along the back of the front passenger seat.
“Saturday 25 August 2007 3:30 pm
I caught a Taxi (station wagon) from the taxi rank across the road from the central pub in Tamworth’s main shopping street heading towards the airport to fly home to Brisbane. When I sat in the front seat the taxi driver complimented me saying "aren't you pretty, your a beautiful girl" etc which I just let fly over my head and told him my destination. As soon as we took off driving he wound all the windows up (electric windows) which made it hard for me to breath as the car smelt like a mixture of some weird stench and deodorant so I wound it down. He kept staring at me while driving and talking. At first I was polite and gave him eye contact but after a couple of minutes I picked up a sleazy vibe and kept facing forward. He constantly spoke and kept using hand gestures with his left hand which he kept swaying over my side approximately 20cm above my legs. This happened the whole trip. At one point of the trip he was talking about the horses in Tamworth and pointed out my window and as I looked out his hand touched my head near my right ear, not in a stroking way although I moved my head that quick I’m not sure on his intention. I said" oui" or "watch it" as I moved my head and he just kept talking and doing his hand gestures over my side. As we got probably 100m odd away from airport he told me the fare will cost me $20 and that he forgot to turn the metre on because my beauty had got the better of him and made him forget all about it and he continued to say more sleazy talk but I interrupted him and said “ok that’s just gross now. You’re old enough to be my father" which he replied "I’m probably old enough to be your grandfather but that doesn't matter". I just shook my head disgusted and had an angry and disgusted look on my face and I think he realised to leave it alone. At this point we were just pulling into the airport and I paid and got out without saying a word. I rang my mother straight afterwards as I was annoyed I’d even paid for the trip after that incident. She was disgusted also and agreed with my decision to make a complaint.”
14 Mr Wozniak submits that the Tribunal should be satisfied by Ms Drummond’s account of the 25 August 2007 incident and that the cancellation of the applicant’s authority is warranted. He further submits that even if the Tribunal is not satisfied that cancellation of the applicant’s authority is warranted by the 25 August 2007 incident, it should be satisfied that cancellation is justified by the totality of the incidents that are identified in the respondent’s file. Accordingly he says that the respondent’s determination should be affirmed. However, he submits that if the Tribunal is not satisfied that cancellation of the applicant’s authority is warranted, it should order that the authority be suspended for a long period.
The applicant’s case
15 The applicant relies on a number of references, an affidavit and submissions provided to the respondent in relation to the 25 August 2007 incident and the earlier complaints and on his own evidence. The applicant gave oral evidence at the hearing and was cross-examined.
16 The applicant disputed the complaints. He denied any wrongdoing or inappropriate behaviour towards passengers in his taxi. His case is consistent with that presented in his affidavit in which he stated:
17 The applicant asserts that the security footage from his taxi should have been obtained to either support or disprove the allegations. He disputes the advice that Mr O'Sullivan gave to the respondent that the footage is only kept for 36 hours. The applicant asserts that the security footage is kept for 48 hours before being recorded over and he relies on a brochure provided by the manufacturer of the recording equipment in which it is suggested that it can record for ‘up to 3 days’. He states that the two days that elapsed between the 25 August 2007 incident and Ms Drummond’s complaint was a 'significant delay', and that Mr O’Sullivan’s failure to obtain the security footage removes his only avenue to disprove Ms Drummond’s allegations. The applicant suggests that the failure to obtain the security footage may have been a consequence of the acrimonious relationship between himself and Mr O’Sullivan.
“5. On 17 October 2007, I was interviewed by two members of the Ministry of Transport. I understand a customer of my Taxi had made some type of complaint. I emphatically deny any wrongdoing or inappropriate behaviour as a result of taking a customer from the Taxi Rank in Brisbane Street to the Airport on the subject day. I completely deny using words referring to the customer as beautiful or pretty. I did not at any time use any inappropriate hand gestures. I did not use my left hand and place same above her left leg or near her head. I was using both my hands to drive the Taxi. At no time, and indeed I emphatically deny, having a conversation about being old enough to be the customer's father or grandfather. I am fully aware that I am in a position of responsibility and accordingly my behaviour has always been disciplined. I was focusing on the road.
6. I did not at any time physically touch the passenger. I have never at any time inappropriately touched or spoken to a customer whilst they have been seated in my vehicle. I have always been very careful with my behaviour. I do recall failing to turn the meter on for the journey. I had a short conversation with the customer indicating that it was my fault and I would reduce the fare. I charged the customer $20 for the ride to the Airport.
7. The Taxi I drive does have CCTV footage, which I would normally call upon in support of my version. Regrettably, my understanding is that the footage goes back to a database and is recorded only for a period of 48 hours. Upon the expiration of 48 hours the tape is then erased. I did not receive notice about any allegation/complaint during the 48 hour period.
8. When the customer left my Taxi there was no sign of any complaint and the customer made no mention of any inappropriate behaviour by myself. The customer handed myself the $20 and left without any adverse remarks.
9. At no time did the customer call "Watch Out". I had no reason to use my left hand and my left hand used for driving purposes. I have never physically touched any customer whilst I drive a cab because I know my responsibilities in relation to driving, safety and matters of propriety at all times.”
18 Mr Bruce Walters, the operator of the taxi that the applicant drives, has provided a reference in support of the applicant's good character. He stated that he has always found the applicant to be an honest, competent, reliable and professional operator. He also stated that he suspected that the underlying basis of problems that the applicant has experienced with others in the local industry may be traced to the applicant’s previous employment with a business which operated in direct competition with Tamworth Radio Cabs and that the applicant’s higher takings appeared to have created an element of jealousy amongst other drivers.
19 The applicant also relies on references from Mr Tony Windsor MP, Federal Member for New England. Mr Windsor stated that he has always found the applicant to be a person whose honesty and integrity is beyond reproach and that the allegations made against the applicant are certainly most out of character. He stated that he believes that it would be highly unlikely that he would be required to answer similar allegations in the future. Ms Anna Rose, a Freelance journalist/publicist, stated that she knows the applicant to be ‘a man of impeccable personal and professional demeanour’ and that she has no hesitation whatsoever in commending him to anyone as a man of unquestionable character.
20 The applicant asserts that there is no basis on which the Tribunal could conclude that his authority should be either suspended or cancelled and accordingly the determination under review should be set aside.
Findings
21 The respondent’s decision was based on the view that it can no longer be attested that the applicant meets the required standards for authorisation as a public passenger vehicle driver. This view was formed after consideration of the record of complaints made about the applicant and his traffic record. I am satisfied that the material on which the respondent relies accurately records those complaints and the applicant’s traffic record.
22 In Saadieh v Director General, Department of Transport [1999] NSW ADT 68 at [17] – [18] the Tribunal’s Deputy President set out several factors which should be considered when determining a person's fitness and suitability to hold a taxi authority as follows:
23 The applicant has not been arrested or convicted of any criminal offences however several serious complaints have been made against him. The applicant disputed the allegations made in those complaints. The applicant's driving record is not good, albeit at the lower end of the scale in comparison with that of many taxi-drivers. Of most significance is that fact that he continued to drive during a period of suspension. As a consequence of the suspension his authority was also suspended. He failed to bring this suspension to the respondent’s attention and continued to drive without a current authority.
“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.
24 Though untested, the applicant's references suggest that he is well regarded by some in the community. However, the question of the likelihood of his re-offending or be the subject of further complaints is not so clear.
25 I note that the applicant disputed the allegations of inappropriate behaviour towards passengers in his taxi. I have heard evidence from Ms Drummond but I have not heard from any of the earlier complainants or from Mr O’Sullivan. In the circumstances I am unable to form a view in relation to the earlier complaints. However, I accept Ms Drummond’s account of the 25 August 2007 incident. In my view it is probable that the applicant acted in a manner that was inappropriate.
26 I accept that the applicant is most effusive in his enthusiasm for his work and his attempts to provide his passengers with ‘an entertaining ride’. However, this does not alter the fact that his behaviour towards Ms Drummond was inappropriate. Given the history of complaints against him and the warning previously given by the respondent it would be reasonable to expect that the applicant would have adapted his behaviour to avoid the possibility that passengers might consider his behaviour inappropriate. If he has attempted to adapt his behaviour in this way he has not succeeded.
27 It is also my view that the applicant’s failure to advise the respondent of the fact that his unrestricted drivers licence had been suspended and that he had continued to drive during the period in which his authority was suspended is a clear indication the applicant does not have a clear understanding of the obligations imposed on a taxi driver. In my view the applicant should not be permitted to continue to drive a taxi until he can satisfy the respondent that he has that understanding.
28 In my view the nature and seriousness of the applicant’s conduct outweighs the factors that are in the applicant’s favour. It cannot be attested that the applicant meets the required standards for authorisation as a taxi driver. For this reason the decision to cancel his authority should be affirmed.
29 Nevertheless, I am confident that the applicant is capable of overcoming these barriers. If he were to satisfactorily complete training modules on Customer Care and Regulations the respondent may well take a different view should he choose to reapply in the future. However, for now the decision to cancel his authority should be affirmed.
Orders
The decision to cancel the applicant’s authorisation to drive a taxi-cab is affirmed.
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