Soliman v Director General, Transport NSW

[2011] NSWADT 94

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Soliman v Director General, Transport NSW [2011] NSWADT 94

Hearing dates:

17 March 2011

Decision date:

17 March 2011

Jurisdiction:

General Division

Before:

P. H. Molony, Judicial Member

Decision:

1. Pursuant to s 55(3)(b) dispense with the requirement for internal review.

2. Stay refused.

Catchwords:

Passenger Transport Act - cancellation of authority - stay

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Passenger Transport Act 1990

Cases Cited:

Farquharson -v- Director General, Department of Transport [1999] NSWADT 53.

Category:

Interlocutory applications

Parties:

Soliman Soliman - Applicant
Director General, Transport NSW - Respondent

File Number(s):

113067

Publication restriction:

Nil

REasons for decision

Introduction

1. Mr Soliman has requested written reasons for the decision I made on 17 March 2011 to refuse his application for a stay of the decision to cancel his authority to drive a public passenger vehicle (taxi-cab) issued under the Passenger Transport Act 1990. These are those reasons.

Background

1. On 9 March 2011 a delegate of the respondent determined to cancel Mr Soliman's taxi authority with immediate effect on the ground that Mr Soliman is not a fit and proper person with sufficient responsibility and aptitude to drive a taxi-cab. In making that assessment the delegate relied on the following facts which were set out in the notice of decision -

- Complaint received from a female passenger about a journey in T7428 on 14/01/11 that the driver, Soliman Soliman, the holder of driver authority GC 6575, called her a 'fucking liar' numerous times all the way to her destination. The driver was very aggressive, intimidating and the passenger was concerned for her safety. You declined the opportunity to be interviewed about the complaint and Transport NSW subsequently issued you with a penalty infringement notice for not complying with Clause 35(b) of the Passenger Transport Regulation 2007- Driver not behave in orderly/ civil manner.

- Infringement 3060138382 issued to you for the offence of Driver not behave in orderly/ civil manner for an alleged offence on 14 January 2011 while the driver of T7428.

- Telephone call received by Compliance Officer Joseph Burns on 04 March 2011 from you about the issue of the infringement. You started to raise your voice during the call and although you were warned a number of times about your behaviour, the call was eventually terminated by Officer Burns. You rang the officer again, and raised your voice calling Officer Burns a racist. You became more aggressive and made comments that you would physically hurt Officer Burns. The call was again terminated.

- Meeting at Transport NSW office at 16-18 Wentworth Street, Parramatta, on 8 March 2011 between Mark McIver, Manager, Compliance and Craig Webster, Team Leader, Compliance, and yourself to discuss your behaviour during a telephone conversation with Officer Burns on 04 March 2011. The requirements of Clause 43(b) of the Passenger Transport Regulation 2007 were read out to you outlining your obligation to behave in an orderly manner and with civility and propriety towards any passenger, intending passenger, driver of another public passenger vehicle or authorised officer. You became very aggressive and agitated towards the end of the meeting, standing approximately six inches from the face of one of the officers and screaming `I'm not gonna fuckin' discuss it' a number of times while the door to the meeting room was open. You continued this intimidating and unwarranted behaviour until you were told to leave the office or the Police would be called to remove you.

- Failure to comply with Clause 44 of the Passenger Transport Regulation 2007 by not furnishing the Director-General with written details of any alleged traffic offence. A warning letter was issued to you about this requirement dated 29 April 2009. Since the warning letter was issued, you have not furnished the Director-General with written details of the following traffic infringements:

...

1. On 14 March 2011 Mr Soliman applied to the Tribunal to review the decision to cancel his taxi-drivers authority. He also sought a stay of the cancellation pending a hearing of the review by the Tribunal.

1. The stay application was listed before me on 17 March 2011. Mr Soliman was unrepresented, while the respondent was represented by Mr Wozniak.

1. There was agreement that the Tribunal should dispense with the requirement for internal review under s 55(3)(b) of the Administrative Decisions Tribunal Act 1997 in order to protect Mr Soliman's interest, and enable his stay application to be heard. There was, however, no agreement that a stay should be granted.

Submissions

1. Mr Wozniak submitted that a stay should not be granted given the allegations made against Mr Soliman. These involve aggression, intimidation and abuse of a sole female passenger in Mr Soliman's cab, and aggressive and threatening behaviour towards the respondent's compliance officers following up the incident. The complaints of aggression and intimidation, he argued, pointed to a worrying pattern. He submitted that members of the public knowing of the allegations would have a real concern if Mr Soliman were to continue to drive a taxi-cab.

1. Mr Soliman denied the allegations made against him. He said that he depended on his authority for his livelihood. He said that the respondent had not taken his viewpoint into account when it issued him with the penalty notice. He denied all of the allegations made with respect to his behaviour towards the female passenger. He said that the female passenger had been rude to him, and had refused to pay the metered fare.

1. Mr Soliman agreed that he had called Officer Burns a racist, but denied the other allegations about his conduct towards the respondent's compliance officers. Mr Soliman said that the compliance officers had not listened to his point of view.

1. When I asked Mr Soliman how the a reasonable member of the public might feel about him continuing to drive a cab before a final decision was made on his appeal, he did not answer, but told me how unreasonable his female passenger had been.

Consideration

1. The Tribunal's power to grant a stay is found in s 60 of the Administrative Decisions Tribunal Act 1997. It provides -

(1) Subject to this section, an application to the Tribunal for a review of a reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision.

(2) On the application of any party to proceedings for an application for a review of a reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application.

(3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account:

(a) the interests of any persons who may be affected by the determination of the application, and

(b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and

(c) the public interest.

(4) While an order is in force under this section (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on application by a party to the proceedings, vary or revoke the order by another order.

1. In hearing an application for a stay the Tribunal is not conducting a merits review hearing of the decision under review, but determining whether to stay or otherwise affect the operation of that decision. Thus where criminal charges have led to the suspension of a taxi-authority, the Tribunal, when considering a stay does not inquire into the strengths and weaknesses of those charges: Farquharson -v- Director General, Department of Transport [1999] NSWADT 53.

1. In Mr Soliman's case a stay is necessary to enable him to continue driving a cab pending the determination of his application for review, and is, from that perspective, necessary. Not granting a stay will leave him unable to drive until the review is determined. It would not result in him being unable to drive thereafter, if his appeal is successful.

1. Being unable to drive a cab would deprive Mr Soliman of his usual source of income, with resultant adverse effects on himself and his family. There is no prior history of aggressive or intimidating behaviour alleged by the respondent.

1. However, as Mr Wozniak's pointed out in submission, the allegations made against Mr Soliman involve aggression towards and intimidation of a sole female passenger in Mr Soliman's cab, and towards compliance officers investigating that event. These allegations are very serious, and all occurred in the regulated environment to which Mr Soliman's authority relates. They raise real concerns as to his responsibility and aptitude for his role as a taxi driver, and put his fitness, propriety and repute in question.

1. In terms of the public interest, it is my view that the primary public interest here is that of ensuring that taxi-cab services are safe, and that passengers and regulatory staff are not subject to abuse, aggression or intimidation by authority holders. As already noted the allegations made against Mr Soliman involve a series of such incidents. In my opinion they point to a public interest in having the issues properly determined on the merits before exposing the travelling public to the potential for similar behaviour on Mr Soliman's part.

1. While Mr Soliman denies the allegations, they are, as I pointed out to him in the hearing, very serious. They raise concerns for the welfare of the public should he continue to drive a taxi before his appeal is heard and determined.

1. Ultimately I concluded that, on balance, a stay should be refused. I did not consider it desirable to do grant a stay. I considered that the harm Mr Soliman suffers as a result of his being unable to drive could be best addressed by listing the matter for hearing as soon as possible. This I endeavoured to do.

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Decision last updated: 03 May 2011