Soliman v Director General, Transport NSW (No 2)
[2011] NSWADT 223
•16 September 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Soliman v Director General, Transport NSW (No 2) [2011] NSWADT 223 Hearing dates: 23 June 2011 Decision date: 16 September 2011 Jurisdiction: General Division Before: C Huntsman, Judicial member Decision: The decision is affirmed
Catchwords: Taxi driver authority, fit and proper person, cancellation of authority Legislation Cited: Sections 33 and 33F of the Passenger Transport Act; clause 35 Passenger Transport Regulation 2007 Cases Cited: Department of Transport and Infrastructure v Murray (GD) 2011 NSWADTAP 16; Chowdhury v Department of Transport and Infrastructure [2010] NSWADT 199;Saadieh v Director General, Department of Transport [1999] NSWADT 68;Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37;Caska v The Director General of the New South Wales Department of Transport [2001] NSWSC 205 Category: Principal judgment Parties: Solimon Solimon (Applicant)
Director General Transport NSW (Respondent)Representation: Ghobrial Legal (Applicant)
Smythe Wozniak (Respondent)
File Number(s): 113067
Reasons for decision
Background
On 9 March 2011 the respondent, Transport New South Wales, made a decision to cancel Mr Soliman's authority to drive a taxicab. This decision was notified to Mr Soliman, the applicant, by letter dated 9 March 2011. Internal review of this decision was requested on 11 March 2011 and on internal review the decision was affirmed. The applicant sought review by the tribunal.
The statement of reasons issued by the respondent indicates that the respondent received a complaint about the applicant's behaviour and conduct towards a female passenger during a journey on 14 January 2011. It is alleged by the female passenger that the applicants swore at her, was aggressive and intimidating, throughout the journey. The respondent states that the officer of the respondent investigating the complaint, invited the applicant to the office to discuss the complaint, but the applicant declined. A penalty infringement notice for not complying with clause 35 (b) of the Passenger Transport Regulation 2007 - driver not behave in orderly/civil manner, was issued to the applicant. It is said that on 4 March 2011 the applicant contacted the investigating officer by telephone, and that during the telephone conversation the applicant threatened physical harm to the officer. The respondent states that on 8 March 2011 the applicant attended the offices of the respondent for a scheduled meeting with senior compliance officers about his behaviour during the phone conversation with the officer (Mr Burns) on 4 March 2011. It is said that during this meeting the applicant became aggressive, stood over an officer (Mr Webster) swearing at him and that his behaviour was intimidating and threatening, and that he was asked to leave the office. The respondent's view is that the applicant is not a fit and proper person to be authorised to drive a taxicab. The respondent further states (in the internal review decision statement of reasons) that the complaints history bears upon the applicant's reputation and raises questions as to whether he has sufficient responsibility to drive a public passenger vehicle in accordance with the law and custom.
In his application the applicant states that he has been unfairly treated, he was not given an opportunity to show his side of the story, he was misled into believing that the paperwork will indicate the passenger's claim, instead he received an infringement notice. He said he was not permitted to offer his side of the story the second time around. At the hearing the applicant provided further material and submissions in support of his application for review, this is discussed further below.
The evidence at the hearing
The respondent provided evidence in the form of the departmental file relating to the applicant, and further material filed by the respondent under cover letter dated 24 May 2011 (being statements by a female passenger known in the proceedings as Nicole; a statement of Mr Burns, compliance officer; statement of Mr Webster, team leader at compliance; statement of Mr McIver, manager, compliance; statement of Mr Barnier, compliance officer; e-mail correspondence by John Costa, compliance officer). Oral evidence was given in the hearing by the following witnesses for the Respondent: Nicole, Mr Burns, Mr Webster, Mr McIver, Mr Barnier. The tribunal was advised that Mr Costa was unavailable due to illness. Further material filed by the respondent, under cover letter of 1 June 2011, included a letter from the insurance services unit of New South Wales Police attaching a COPS event reference for an incident of 12 February 2011. Material obtained by a summons issued by the respondent returnable on the day of the hearing, was also submitted into evidence (being the Police Facts Sheet and brief of evidence relating to charges before the Burwood Local Court, in relation to the applicant, for offences allegedly occurring on 12 February 2011: Assault Occasioning Actual Bodily Harm, Common Assault, exceed speed ).
The applicant provided a written statement and gave oral evidence at the hearing. In his oral evidence he specifically stated that the contents of his written statement were true and correct. The applicant also provided a written statement by a witness, Ms Truong, and she gave oral evidence at the hearing. The applicant provided character references from Mr Roche, Mr Kapoor, Mr Kamal and Father Bishoy Botros.
A female passenger, Nicole, gave evidence about events in the applicant's taxi on Friday, 14 January 2011. She detailed a discussion with the applicant, over his alleged failure to make an appropriate turn, and a discussion that the usual fare is six dollars. She states the applicant then asked her to get out of the taxi, and when she asked why, she was told that the taxi driver thought she had said that she would only pay six dollars. She asked if he could just take her to her destination. She said there was another missed turn and that the driver (the applicant) started to scream at her, repeatedly and very aggressively, "you're a fucking liar, a fucking liar, why are you lying, fucking liar, liar, you're a fucking liar why fucking lie" while pointing a finger aggressively at her. She says she felt frightened and intimidated, and that if she had not had groceries in the boot of the taxi, she would have jumped out of the taxi. She says repeated verbal abuse from the driver continued throughout the entire journey. She wrote down the drivers' authority number. On arriving at her destination the fare was paid and she says that the driver said "Sorry". She said she suffered stress and trauma due to this behaviour. The witness, Nicole, was cross examined, and the applicant's version of events was put to her under cross examination, however she maintained her evidence as set out in her written statement and oral evidence, and disagreed with the applicant's account when it was put to her.
The applicant provided evidence as to his version of events, in his written statement of 2 April 2011, and oral evidence to the tribunal. In summary, the applicant states that there was some confusion about the proper direction to the female passenger's destination, and problems with the navigation device in the taxi. He says the passenger said she was not paying more than six dollars and he told her that if she would not pay the full farethen she should get out of the taxi. After an argument she agreed to continue the journey and pay what was on the meter, and so the journey continued. He said that there was a $7.50 fare payable and he discounted the fare by one dollar, asking her to pay $6.50, which she paid. In his oral evidence the applicant denied the version of events detailed by the witness, Nicole. He denied swearing at her and being aggressive.
Evidence by the respondent's witnesses was to the effect that Mr Burns contacted the applicant about a complaint lodged by the female passenger, Nicole. Mr Burns offered the applicant an opportunity to participate in a record of interview which was declined. A decision was made to issue an infringement notice for incivility towards the female passenger. The infringement notice was sent to the applicant by letter. Mr Burns states that on 4 March 2011 he received a telephone call from a male identifying himself as the applicant, who stated that he wished to discuss the infringement. He says that he was yelled at by the applicant for issuing the infringement notice without hearing the applicant's side of the story. Mr Burns said he referred to the opportunity which he had offered to the applicant to discuss the complaint previously. He said because of verbal abuse he decided to terminate the call. He says he received a second phone call from Mr Solomon during which the applicant became aggressive and said to Mr Burns "I'm going to hurt you" and "I'm going to come at you" and "I'm going to physically hurt you". Other witnesses for the respondent (Mr Webster, Mr McIver and Mr Barnier) gave evidence of an interview arranged with the applicant on 8 March 2011 to discuss the behaviour towards Mr Burns. The witnesses state that during this interview the applicant became very agitated, moved close to Mr Webster, and when standing within 6 inches of Mr Webster's face, repeatedly yelled in a loud and threatening manner "I'm not going to fucking discuss that".
In his evidence the applicant denied this version of events and states that during the phone call with Mr Burns, Mr Burns abused him racially and swore at him. He says that during the interview with Mr Webster nobody wanted to listen to his side of the story, instead they threatened to cancel his licence. In his oral evidence the applicant rejected the version given by the respondent's witnesses of the applicant's behaviour during the interview at the respondent's offices. The respondent's witnesses, Mr Webster, Mr McIver, and Mr Barnier, when the applicant's version was put to them, in particularthat he did not yell or swearduring the interview, disputed the applicant's version and maintained their versions as set out in the written statements.
All witnesses agreed that a female person was present with the applicant during the interview at the respondent's offices. This person was Ms Truong.
Ms Truong supplied a written statement and also gave oral evidence at the hearing. Her oral evidence was not consistent with the written statement and as the sworn oral evidence was detailed the Tribunal has focused on what Ms Truong stated to the Tribunal in her oral evidence. Ms Truong stated that she overheard some of the telephone conversation between the applicant and Mr Burns because she was present at the house and the telephone was on speakerphone. However she said she was sitting at the table and was thinking about other things at the time and so did not hear a lot of what was said. She did not hear the person on the telephone (Mr Burns) swear at the applicant. She says she heard that person say "don't tell me what to do". She said that the applicant looked upset hearing what was being said to him on the telephone. She initially said there was one telephone conversation and later stated there were two telephone conversations. She said she did not hear the person on the other end of the telephone from the applicant (Mr Burns) swearing. She remembers hearing the applicant say " just be careful what you say because someone may harm you" .
Ms Truong gave evidence that she was present during the interview at the respondent's offices on 8 March 2011. She said she heard the applicant swearing, during the interview with Mr Webster at the respondent's offices. She said she heard him saying "fucking"; she said he talked loudly to them, she said he was standing close to them, past the person's personal space. She said the applicant was speaking loudly, in a louder voice than Mr Webster, and maybe the compliance officers felt intimidated because she recalls them saying something about calling the police. Under re-examination she was asked whether the other gentleman, to whom the applicant was speaking, was speaking in a raised voice and she said it was a bit of a loud voice but the applicant was raising his voice louder.
The respondent also relies on the departmental file and referred to documents within that file. The applicant was asked during cross-examination whether he recalled signing the taxi driver authorisation declaration on 11 August 2000 whereby he agreed to comply with legal requirements relating to his taxi driver authorisation and standards for taxi driver authorisation. He indicated awareness of the requirement to advise the respondent if he was charged with any offence. He agreed that he had received a warning letter dated 29 April 2009 which referred to his obligation to advise the respondent of details of any alleged offence and that he had failed to advise the respondent of offences in 2009. He was then shown his traffic record for a number of traffic offences in respect of which he was convicted in 2010, and it was put to him that he had not advised the respondent of those offences, despite having received the warning letter about this very issue, in 2009. The applicant responded that he did not see why he should advise the respondent of offences that they would already know about.
The applicant was questioned about the offences with which he was charged in February 2011. It was put to the applicant that subsequent to being charged with those offences he had appeared at scheduled hearing dates at the tribunal in this matter, in particular a stay application hearing, as well as attending a previous hearing date of this matter, which was adjourned, and he had not mentioned being charged with these offences. The applicant agreed that he had not disclosed both the traffic offences in 2010 and the criminal offences with which he had been charged in 2011. However, he noted that he was pleading not guilty to the 2011 criminal offences. In relation to the requirement to report such matters, he indicated that he did not believe he should be required to report matters which the Department would already know about, and he also indicated his view that it was "bad law".
In relation to the criminal charges for an incident occurring on 12 February 2011 the applicant noted that he was pleading not guilty to those matters. The respondent's representative put to the applicant that the police brief indicated that the recording by the closed circuit cameras of the taxi, and the taxi's GPS system, supported the victims' version of events. The applicant indicated he was pleading not guilty to that matter. The respondent's representative noted that the facts, as alleged in relation to the criminal charges, also involved a sole female passenger, and the allegation involved speeding with the passenger in his taxi, a disagreement about the fare, an allegation that he was going to eject the female passenger on the middle of the motorway, and an allegation that he physically dragged her out of the passenger seat of the taxi. The applicant stated that he denies the allegations, and has pleaded not guilty, and the charges are yet to be determined in the court of law.
Both parties' legal representatives made oral submissions at the close of the hearing and the tribunal has had regard to those submissions in determining this matter.
Findings of fact
The tribunal finds that the evidence of the applicant's witness, Ms Truong, conflicted with the account given by the applicant on various points. Ms Truong in her evidence supported, in part, the evidence of the respondent's witnesses in relation to the interview at the respondent's offices on 8 March 2011: the applicant states he did not swear, however Ms Truong states that the applicant swore at one of the officers close to his face - Ms Truong says that the applicant swore close to the compliance officer's face" in his personal space ". Ms Truong also states that the applicant was raising his voice and maybe the officers were intimidated. The applicant states that he did not yell, swear or intimidate the officers but that he was upset that they would not listen to his side of the story.
In this matter there is conflict between the version given by the female passenger, Nicole, and the applicant. She states that he swore at her throughout the journey, the applicant denies this. The evidence of the female passenger, Nicole, was not impugned during cross-examination, the witness adhered to her story. The tribunal has no basis, on any of the evidence presented, for not accepting her testimony - there is no evidence indicating that her evidence was unreliable nor was it inconsistent with any of the other evidence before the tribunal. Further, her evidence that she was distressed is consistent with other evidence - the complaint record for the report by Nicole records "When I spoke to her she was very emotional about this ordeal". The complaint recorded is also consistent with the statement and evidence provided in the proceedings (complaint record is at page 031 of the respondent's file, dated 7 February 2011). There was no evidence presented in the hearing to indicate that the testimony given by Nicole was in any way lacking in credibility. The tribunal cannot make the same finding about the applicant's evidence - the applicant denied swearing/raising his voice during the interview at the respondent's offices yet his own witness says this did occur. The tribunal therefore finds that the applicant's evidence was inconsistent with the evidence of other witnesses who gave sworn evidence to the tribunal - being the respondent's witnesses, and the applicant's own witness, Ms Truong. Due to such inconsistency the tribunal must find the applicant's evidence to be unreliable. Such unreliability does not attach to the evidence of the witness, Nicole, and therefore the tribunal must prefer the evidence of Nicole over the evidence of the applicant, in relation to what happened in the taxi on 14 January 2011. Therefore the Tribunal finds that the applicant swore at the female passenger throughout the journey, in a manner which the passenger found aggressive, on 14 January 2011.
On the same basis the tribunal prefers the evidence of Mr Webster over the evidence of the applicant, in relation to what occurred at the interview at the respondent's offices: the evidence of Mr Webster was consistent with the evidence of other witnesses while the evidence of the applicant was inconsistent with other witnesses.
In relation to the telephone call with Mr Burns, the applicant also gave a different account from other witnesses including his own witness, Ms Truong. The applicant states that Mr Burns was racist in his behaviour and indicates that his words that Mr Burns may be harmed by someone should be viewed in this context. Ms Truong did not hear any racist words by Mr Burns but did not hear everything said. Mr Burns states that he did not make racist remarks but does state that the applicant called him a racist during the phone call. He very clearly states that the applicant became aggressive and stated "I'm going to hurt you...I'm going to come at you". "I'm going to physically hurt you" The evidence of Ms Truong, the applicant and Mr Burns, all indicates that the applicant said words indicating that someone may harm Mr Burns, during this conversation, although the details of how this was said differ slightly, all agree something to this effect was said by the applicant to Mr Burns. The Tribunal prefers the evidence of Mr Burns as to the words said for the following reasons: Ms Truong stated she was not paying close attention and was thinking of other things, accordingly her recollection of words used may not be accurate; Mr Burns wrote a file note immediately after the phone call which records the words used, this is a contemporaneous note which is more likely to accurately record the actual words; further, as detailed above, the applicant's evidence is considered by the Tribunal to be unreliable given that his evidence is inconsistent with the evidence of other witnesses in the hearing on many points.
Accordingly the Tribunal finds that the applicant did threaten to harm Mr Burns during the phone call on 4 March 2011, and the applicant used the words as detailed by Mr Burns in his evidence.
For the reasons detailed above the tribunal finds that the applicant verbally abused the female passenger, Nicole, in the manner detailed by Nicole to the tribunal in her evidence. The tribunal also finds that the applicant threatened Mr Burns in the way alleged. The tribunal also finds that during the interview with Mr Webster at the respondent's offices, the applicant raised his voice, and swore at Mr Webster "within his personal space" and as such the tribunal is satisfied on the evidence that the applicant's behaviour was aggressive and intimidating.
The tribunal also finds that the applicant failed to report traffic offences to the respondent in 2010, although he had been warned by letter in 2009 of the importance of reporting such matters. The tribunal also finds that during the current proceedings, including appearances at the tribunal in relation to his taxi driver authority, the applicant did not disclose to the respondent, as required, the fact of being charged with criminal offences in February 2011. It is worth noting that those criminal offences relate an allegations arising from an incident in the course of the applicant's occupation as a taxi driver.
Legal provisions and discussion of evidence
The Passenger Transport Act 1990, and the Passenger Transport Regulation 2007 provide:
Section 33, Passenger Transport Act 1990
33 Authorities
(1)The Director-General may, by the issue of authorities under this Division, authorise persons to drive taxi-cabs, subject to and in accordance with this Division. A person authorised under this Division is referred to in this Part as an "authorised taxi-cab driver".
(2) A person who drives a taxi-cab is guilty of an offence unless the person is an authorised taxi-cab driver. Maximum penalty: 100 penalty units.
(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.
Passenger Transport Act 1990 -
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.
Passenger Transport Regulation 2007
35 Dress and conduct of drivers
The driver of a public passenger vehicle must:
(a) be clean and tidy and wear clean and tidy clothes (including enclosed shoes) when driving the vehicle for the purpose of providing a public passenger service, and
(b) behave in an orderly manner and with civility and propriety towards any passenger, intending passenger, driver of another public passenger vehicle or authorised officer, and
(c) comply with every reasonable requirement of an authorised officer or passenger.
Maximum penalty: 10 penalty units.
The decision under review in the current proceedings is a decision to cancel the applicant's taxi driver authority. Section 33F clearly provides that in making a cancellation decision regard is to be had to the purpose of the authority, therefore, regard must be had to the purpose of the authority in s33 of the Act (set out above).
The Tribunal has also had regard to prior decisions of the Tribunal discussing the legislative requirements. A useful review of the authorities was provided in the case of Chowdhury v Department of Transport and Infrastructure [2010] NSWADT 199:
7........The purposes of a taxi drivers authority are set out is s 33(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."
8.The meaning of "fit and proper" is dependent on the nature and purpose of the activities which the person will undertake. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321,Chief Justice Mason explained that, at 380:
'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.'
9. The Tribunal and the Appeal Panel have frequently cited with approval the test posed by the equivalent ACT Tribunal dealing with an equivalent legislative scheme in Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 per Curtis P:
'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 ... to rehabilitate himself, would object to the Applicant as the driver of the taxi.' .......
12..In contrast to character, reputation as Waddell J explained in Re T and Anor and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 389:
"...is to be found in the estimate of his moral character entertained by some specific group of people, such as by 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. The importance of a person's reputation is that it is an estimate of his character, or some aspect of his character, upon which the persons in such a group are generally, although not necessarily unanimously, agreed. It is this essential nature of reputation which makes it a reliable guide to a person's character. See, generally, Wigmore on Evidence, 3rd ed., vol 5, p 486 et seq, pars 1615, 1616; p 479 et seq, par 1610. As is pointed out by Wigmore, a person might not have a general reputation in the neighbourhood where he lives, but may have established a reputation in another group of persons: p 472 etseq, par 1606. It is, I suppose, possible that a person might not have any reputation at all, simply because he does not participate in the activities of any group of people who have any necessity to form an estimate of his character.
.....
14.In Re T Waddell J (at 399) discussed how reputation is to be proved by evidence from those who know the person well, and who know how the person is generally regarded in the community in which he lives. At 401, his Honour said that:
...evidence of particular acts of conduct on the part of the person whose reputation is in issue is not admissible to prove the nature of that reputation."
In the case of Saadieh v Director General, Department of Transport [1999] NSWADT 68 the Tribunal cited Waddell J in Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 393:
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.
A decision of the Appeal Panel of the Tribunal: Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37also provides useful guidance:
38 Good Repute:The approach to be adopted in considering 'good repute' is well explained by Waddell J in Re T. The Appeal Panel also considers it in a forthcoming decision, Lo -v- Director-General, Department of Transport [2002] NSWADTAP 39. 'Good repute' refers to the way reasonably-minded people assess an individual's current reputation, with reasonably precise knowledge of those matters that put the person's reputation in doubt. The fact that the person produces evidence from witnesses who vouch in general terms for the person's reputation can not be conclusive. Equally, care must be taken, as we see it, not to use the 'good repute' requirement as a way of bringing into consideration stereotypes or assumptions which offend, for example, against human rights or anti-discrimination standards....
42 The question which the Director-General must ask, as we see it, is whether the travelling public would be prepared to place their trust in a driver with Z's background, and past and recent offence history, even if satisfied that there is no longer a significant risk of sexual reoffence?
43 In the past, the Tribunal and the Appeal Panel has cited with approval the test posed by the equivalent ACT Tribunal dealing with an equivalent legislative scheme in Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 per Curtis P:
"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 ... to rehabilitate himself, would object to the applicant as the driver of the taxi."'
Further guidance was offered by the Tribunal in the case Saadieh v Director General, Department of Transport [1999] NSWADT 68 as to assessing a person's fitness to be authorised to drive a taxi-cab. The Tribunal then observed:
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;
theApplicant's driving record;
theApplicant'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.
18. 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.
The assessment of whether the applicant is a "fit and proper person" was also considered in the case of Caska v The Director General of the New South Wales Department of Transport [2001] NSWSC 205 (Simpson J):
42 By s 11(2)(a) the holder of an authority is required to have two attributes: he/she is to be 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". The magistrate was conscious of the concession that Mr Caska's "good repute" was not challenged and was not in issue. The question he correctly identified for himself was whether he was "in all other respects a fit and proper person to be the driver of a public passenger vehicle". He in fact enunciated this test explicitly.
The Appeal Panel of the Tribunal in a recent case considered the role of the "perception of the public" in decisions about whether an applicant is a "fit and proper person". The Appeal Panel of the Tribunal in the case of Department of Transport and Infrastructure v Murray (GD) 2011 NSWADTAP 16 reviewed relevant authorities and concluded:
When deciding whether a person is a 'fit and proper person', the question of whether the community would have confidence that any improper conduct will not re-occur is relevant: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; 94 ALR 11. Otherwise, the determination of fitness and propriety is a question of fact for the decision maker to determine objectively on the basis of the all evidence. That question is not to be determined through the eyes of a reasonable member of the travelling public. Nor is it correct, as was suggested in Farquharson, to take account of the likely perceptions of the travelling public as one of the relevant factors in deciding whether an applicant is a fit and proper person. The Tribunal decided that Mr Murray is a fit and proper person to be the driver of a hire car taking into account relevant factors. It did not err by failing to determine Mr Murray's fitness and propriety through the eyes of a reasonable member of the travelling public
The respondent submits that the tribunal would not be satisfied that the applicant is a fit and proper person to be the driver of a taxi. The purpose of an authority is to attest 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.
The tribunal has considered the nature, seriousness and frequency of the complaints against the applicant, and notes that the complaint made by Nicole, and the complaint made by the victim in the criminal proceedings, are relatively close together in time (14 January 2011 and 12 February 2011) and both involve allegations of aggression against a female passenger. The Tribunal notes that the applicant has pleaded not guilty to the criminal charges arising from the incident of 12 February 2011. The Tribunal has focused in this matter on the evidence of the witnesses in the current proceedings about the applicant's behaviour in the taxi on 14 January 2011 to the female passenger, and the applicant's behaviour to Mr Burns and Mr Webster. The Tribunal has focussed on those matters as the Tribunal heard direct evidence from witnesses in the hearing in relation to those matters. The Tribunal did not hear any witness testimony in relation to the criminal charges of February 2011 (although documents were provided). The tribunal has also considered the applicant's driving record and in particular the applicant's record of not disclosing traffic offences and criminal charges to the respondent as required. The tribunal has considered the evidence about the applicant's compliance with laws and regulations applicable to his holding an authority: and considers that the applicant does not seriously comply with those laws and regulations - this was revealed by his attitude whilst giving evidence in the current proceedings, specifically that he knew of his obligation to report charges and convictions, whether the traffic or criminal matters, to the Respondent, he was aware of the warning letter sent to him in 2009 drawing his attention to this obligation, yet he did not report traffic convictions in 2010, or the criminal charges in 2011, because he believed the authority would know anyway, and he further thought it was " bad law ". Given the applicant's failure to comply with his obligation as an authorised taxi driver to disclose charges/convictions to the respondent, and given his view that this obligation is "bad law" so it is valid for him not to comply, the tribunal would have difficulty having confidence in the applicant complying with legislative requirements imposed upon him as a taxi driver. As such the Tribunal would have difficulty finding that the applicant has sufficient responsibility to drive a taxi cab in accordance with law and custom.
The tribunal has had regard to the applicant's written references. The tribunal notes that at least one of the referees (Mr Roche) appears to have some understanding that the applicant's behaviour is in issue in the proceedings, although it is not completely clear that all matters before the tribunal are known to the person who provided the reference. Mr Roche states that he knows the applicant as a member of a chess club, he considers him a personal friend and that the applicant holds Christian values. Mr Roche states that he understands there are allegations made against the applicant in relation to an incident in his taxi involving a woman whom the applicant claims misled him into believing she was going to show him the way and then changed her mind and was not willing to pay the full fare. Mr Roche notes he did not witness the incident but believes the applicant's version of what took place is correct. A reference by Mr Kapoor , a taxi operator for six months and taxi driver for 27 years, states that he has known the applicant for three months when the applicant drove one of his taxis in that period. The reference testifies to Mr Kapoor's experience of the applicant operating his taxi and taking good care of his taxi. He believes the applicant to be one of the best taxi drivers he has ever hired, and believes "he is of good character and repute based on my dealings with him". He also states his belief "that by unjustly treating our good drivers over frivolous claims, you are hurting us as operators also and hurting the industry as a whole". Mr Kapoor does not indicate any awareness of the nature of the allegations before the tribunal in his reference. Further, he has known the applicant for some three months.
Mr Kamal provides a reference as a taxi operator for nine years and a taxi driver for one and a half years. He states that the applicant is one of his best taxi drivers so far and that the reference is provided in relation to the cancellation of his driver authority (he does not indicate awareness of the nature of the allegations against the applicant). He states he has known the applicant for three months as during that period the applicant drove his taxi on the weekends. Mr Kamal also states that he has considers the applicant one of the best taxi drivers he has ever hired and believes "he is of good character and repute based on my dealings with him". Mr Kamal also states that he believes "that by unjustly treating our good drivers over frivolous claims, you are hurting us as operators also and hurting the industry as a whole". The wording in parts of the references of Mr Kapoor and Mr Kamal is identical and this causes the Tribunal some concern that Mr Kapoor and Mr Kamal did not independently write their own references. The identical wording is particularly concerning as the identical words occur in the parts of their references where they state their belief that the applicant is of good repute - suggesting that Mr Kamal and Mr Kapoor have not used their own words in relation to their opinion of the applicant's repute. Because the wording of these two references suggest that the writer of the reference may not have used his own words in stating his belief of the applicant's good repute, the Tribunal must give those statements of belief less weight.
The applicant also provided a reference by Father Botros, Parish Priest, which states that he has known the applicant for one year and has been his confession father for that period. He states the applicant is of good reputation and kind nature, generally courteous and peaceful in dealing with others. However Father Botros does not state in the reference, that he has any awareness of the allegations before this tribunal.
Given that it is not clear the referees know of the allegations before the Tribunal, including recent criminal charges, the tribunal cannot be satisfied that the referees have "reasonably precise knowledge of the matters that put a person's reputation in doubt" (per Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37). As such it is difficult for the tribunal to conclude, on the basis of the character references provided, that the applicant is of good repute. This is particularly so when two of the references attract less weight due to their identical wording (as discussed above). Further, most of the referees have not known the applicant for a lengthy period (Father Botros for one year and another two referees for three months) and so cannot give evidence of repute over any substantial period of acquaintance.
Even if the t ribunal is wrong on the finding about the applicant's repute, the tribunal must have regard to the purpose of an authority, which is to attest that the applicant is, amongst other matters, a fit and proper person to be the driver of a taxi cab. The tribunal must consider all the evidence, which included sworn evidence during the hearing by various witnesses about the applicant's behaviour and conduct, and the tribunal must consider, on the evidence overall, whether the applicant is a fit and proper person to drive a taxicab.
The tribunal must also be satisfied that the applicant has sufficient responsibility and aptitude to drive a taxi cab in accordance with law and custom. The tribunal is not satisfied, given the applicant's evidence indicating his lack of regard to the requirement to report his traffic convictions and criminal charges to the regulating authority (as discussed at paragraph 33 above) that the applicant has sufficient responsibility to drive a taxi cab in accordance with the law and custom.
The tribunal is also concerned that the complaints in evidence before the tribunal, and in particular the complaint of the witness Nicole, which, as discussed above, the tribunal found on the evidence in the current proceedings to be proved, indicates behaviour by the applicant which is aggressive to a female passenger who is alone. The Tribunal finds that the evidence of the respondent's witnesses about the applicant's behaviour in the respondent's offices also demonstrates that the applicant behaved in an aggressive and intimidating way.
The applicant's behaviour to Mr Burns, of threatening to harm Mr Burns during a conversation by telephone, also indicates threatening, aggressive and improper behaviour. Further, the applicant's threatening and aggressive behaviour to Mr Burns over the telephone, and to Mr Webster at the office interview, when considered in the light of the evidence of the witness, the female passenger, Nicole, that she was yelled at and sworn at by the applicant when she was alone in his taxi, indicates a course of conduct by the applicant which is intimidatory and frightening to others, and which indicates to the tribunal that the applicant is not a fit and proper person to be the driver of the taxicab.
The tribunal has considered whether members of the public, knowing of this behaviour, would have confidence that this improper behaviour would not reoccur. The tribunal considers on the evidence overall in this matter, (which includes evidence of a course of conduct as discussed at paragraph 41 above) that members of the public would not be confident that the applicant would not repeat such improper behaviour.
The applicant's behaviour to the officers of the Respondent (Mr Burns and Mr Webster) - who have responsibilities in relation to the regulation of those holding taxi driver authorities - causes the tribunal significant concern that the applicant is unable to respect the authority of those charged with responsibility for regulating the taxi industry. Implicit in a licensing and regulation system is a requirement on licence holders to respect the functions which must be performed under the licensing scheme by those responsible for regulatory/compliance duties. The evidence in this matter indicates that the applicant was unable to accept that authority, and acted with aggression when asked to explain his conduct. In the tribunal's view, when this inability to accept regulatory authority is viewed in the context of the evidence overall in this matter, which includes evidence of aggressive and intimidatory conduct towards a female passenger, and threats to harm an officer who issues an infringement notice for that behaviour, the tribunal is satisfied that the applicant is not a fit and proper person to be the driver of the taxicab.
For all the above reasons the tribunal finds that the applicant is not a fit and proper person to drive a taxi cab. Accordingly, having regard to the purpose of an authority, the tribunal is satisfied on the evidence in this matter, that the correct and preferable decision, according to the law and evidence, is that applicant's authority should be cancelled. Accordingly, the tribunal affirms the decision under review.
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Decision last updated: 16 September 2011
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