Soliman v Roads and Maritime Services (GD)

[2012] NSWADTAP 11

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Soliman v Roads and Maritime Services (GD) [2012] NSWADTAP 11
Hearing dates:	22 February 2012
Decision date:	05 March 2012
Before:	Judge K P O'Connor, President S Montgomery, Judicial Member J McClelland, Non-judicial Member
Decision:	Appeal dismissed
Catchwords:	PASSENGER TRANSPORT - Cancellation - Misconduct towards Passenger and Compliance Officers - Affirmed by Tribunal - Appeal dismissed
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990
Cases Cited:	Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 Devries v Australian National Railways Commission (1993) 177 CLR 472 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Soliman v Director General, Transport NSW [2011] NSWADT 94 Soliman v Director General, Transport NSW (No 2) [2011] NSWADT 223 State Railway Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1990) 160 ALR 588
Category:	Principal judgment
Parties:	Soliman Soliman (Appellant) Roads and Maritime Services (Respondent)
Representation:	In person (Appellant) Mr A Wozniak, solicitor (Respondent)
File Number(s):	119045
Decision under appeal	Jurisdiction: 9108 Citation: Soliman v Director General, Transport NSW (No 2) [2011] NSWADT 223 Date of Decision: 2011-09-16 00:00:00 Before: General Division File Number(s): 113067

REASONS FOR DECISION

1. The appellant is a former taxi driver who has lost his authority as a result of a cancellation by the respondent administrator made on 9 March 2011. He applied to the Tribunal for review of the decision. On 17 March 2011, the Tribunal refused his application for a stay of the decision: Soliman v Director General, Transport NSW [2011] NSWADT 94. The Tribunal heard his review application on 23 June 2011. It issued its decision on 16 September 2011 and affirmed the administrator's decision: Soliman v Director General, Transport NSW (No 2) [2011] NSWADT 223.

1. The appellant now appeals.

1. The power to cancel is given by s 33F of the 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.

1. Section 33 provides in relation to the purpose of an authorisation:

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.

1. The Tribunal found, agreeing with the administrator, that the appellant can no longer be ' 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 no longer had 'sufficient responsibility and aptitude to drive a taxi-cab'.

Immediate Background

1. The immediate background to the administrator's decision of 9 March 2011 involved two events - an incident involving a female passenger that occurred on 14 January 2011, and the way the appellant dealt with compliance officers when he was called in for interview on 8 March 2011.

1. The passenger complained to the administrator over the appellant's temperamental conduct towards her in the course of a short journey to her home from a supermarket in Merrylands where she had bought groceries. She gave an account of verbal abuse by the driver after she queried the route he was following. She said she felt frightened and intimidated. After he declined the opportunity to be interviewed about the complaint, the administrator issued a penalty infringement notice under the regulations for incivility. Subsequently the appellant called a compliance officer, Mr Burns, on 4 March 2011 about the notice. He spoke in an angry way, and in a way that Mr Burns found intimidating. After Mr Burns reported the event to his superiors, the appellant was called in for an interview with senior managers in the compliance unit on 8 March 2011, Mr McIver, Manager Compliance, and Mr Webster, Team Leader, Compliance. In their opinion, he again behaved in an aggressive way in that interview. The obligation to behave in a civil way applies both to a driver's dealings with members of the travelling public and authorised officers such as the people mentioned.

1. The administrator's delegate notified him of the cancellation of his authority on 9 March 2011. The statement of reasons referred to the passenger complaint and the conduct towards the compliance officers, and also to non-disclosure of three traffic offences. We will not set out here the full details of these matters. They are recorded in the decision under appeal.

Further Matter

1. Before the Tribunal the administrator presented further material in support of the decision to cancel. It comprised the police brief in relation to an incident that occurred around 2 am on Saturday 12 February 2011 and led to three charges being laid against the appellant - common assault, assault occasioning actual bodily harm and exceeding the speed limit (120 kph in a 90 kph zone). According to this material, the complainant, a female passenger, had been to a farewell party for a work colleague. She picked up the taxi at a rank in the Parramatta CBD and asked to be taken to Botany. They discussed the route and she suggested he follow King Georges Road from the M4. When he did not take the Homebush Bay exit off the M4, the exit that joins up to King Georges Road, she queried the appellant in relation to the route, as it would now be necessary to go to the end of the M4 and travel to Botany in a longer way via the Sydney city area. He became angry. She asked for his number. She said that he snatched the ID off the screen and hid it under his seat. She said he increased his speed, and she was in fear and called 000. He exited the M4 at Concord, and stopped a short distance later on a side road.

1. According to her statement, he went around to the passenger side door, grabbed her around both shoulders and removed her from the taxi, and threw her onto the pavement.

1. At the review hearing before the Tribunal, the administrator did not lead any evidence in relation to the 12 February 2011 matter. Oral evidence was given by the complainant in respect of the 14 January 2011 matter (referred to as 'Nicole'). There was also evidence from the three officers mentioned, Mr Burns, Mr Webster and Mr McIver. Ms Truong, a friend of the appellant, gave evidence in relation to what she overheard him say to Mr Burns in the phone conversation of 3 March 2011.

1. We have referred in these reasons to the 12 February 2011 matter, as the appellant in the course of the appeal referred to the outcome of the assault charges, and sought to press the view that the outcome showed that the incident was not as serious as it might first have seemed. He said that at the court hearing in November 2011 he had been found guilty only of common assault (and not of assault occasioning actual bodily harm), that no conviction had been entered and he had been placed on a good behaviour bond. We had no formal court records before us. The statements were not disputed by Mr Wozniak for the respondent.

1. We do not see how this information, if accurate, assists the appellant's case. It is a very serious matter for a taxi driver to be found guilty of assault in respect of an incident involving a passenger, even if the evidence accepted by the court may have been less serious than the account given in the police fact sheets, and even if the more serious of the assault charges was dismissed or withdrawn.

1. The appellant had legal representation at the Tribunal hearing. He did not have representation before the Appeal Panel.

Appeal

1. An appeal against a decision of the Tribunal in the review jurisdiction may be made in relation to any 'question of law', and, with the leave of the Appeal Panel, may be extended to the merits: Administrative Decisions Tribunal Act 1997 (ADT Act), ss 112, 113. The appellant applied for leave to extend the appeal to the merits. We deal below with the matters he raised as questions of law.

1. (1) Procedural Fairness . In his notice of appeal, the appellant asserted that the Tribunal failed to conduct its hearing in a way that accorded him procedural fairness. However, his submissions (those attached to the notice of appeal and those made by him at hearing) concentrated on what he saw as the unfair procedures followed by the compliance officers in dealing with him. He did not point to any failing on the part of the Tribunal to accord him procedural fairness.

1. (2) Findings of Fact . The appellant challenged as not justified the findings of the Tribunal adverse to him. On most matters where conflicting versions of events were given, the Tribunal preferred the evidence of the witnesses called by the administrator over the appellant's evidence. The appellant considered that the Tribunal was wrong, and in that sense procedurally unfair to him, in preferring their evidence. He itemised to us the parts of the written witness statements that recorded the evidence that was preferred to which he objected. We will not set them out in detail here. In the case of Nicole, it was the statements that appear at paras [4]-[6], [8] and [17]. He referred to the alternative version he gave, in particular in the statement for the court hearing to be held in relation to the infringement notice which he was contesting (statement for Parramatta court filed in Tribunal on 7 November 2011). In the case of Mr Burns he referred to paras [6], [9] and [16] of his statement; in the case of Mr Webster's statement he referred to paras [18] and [20]; and Mr McIver's at [12] and [20]. He also made general criticisms of the way the compliance branch officers mentioned dealt with him over the complaint and in the interviews.

1. Most of the paragraphs mentioned record the appellant behaving aggressively, shouting and using angry and vulgar language. He disputes these accounts of his behaviour.

1. The finding of facts is the fundamental task of a trial court or a trial tribunal. The tribunal in this case proceeded in a conventional way. It gave considered reasons as to why it preferred one version of events over the other. Importantly, in relation to the passenger complaint, it rejected the appellant's version of events. The appellant had sought to paint the passenger as the person at fault, and the cause of the dispute that arose over the fare and as an explanation for his behaviour which the passenger had regarded as intimidating. He referred at hearing to regulations that require passengers to behave civilly towards drivers.

1. It is unusual for an appeal body to upset a finding of fact made by a trial body. Appeal courts have used a variety of terms to explain the point at which they will intervene and hold that the trial body so misunderstood the material before it as to commit an error of law. The point of intervention has been described, for example, as being 'no evidence' for a finding, where it is 'glaringly improbable', or where 'critical evidence' to the contrary of the finding has not been taken into account. The point of intervention is similarly tightly drawn in relation to assessments of the credibility of a witness. See generally, Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167, Devries v Australian National Railways Commission (1993) 177 CLR 472, State Railway Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1990) 160 ALR 588 and Fox v Percy [2003] HCA 22; (2003) 214 CLR 118.

1. In this case there were no failures of these kinds. The Tribunal dealt with the material before it in an appropriate way.

1. (3) Timing of the Hearings before the Tribunal and the Appeal Panel . The appellant also pressed the view that it would have been fairer had his hearing proceeded after the criminal charges were dealt with. He also referred to the infringement notice which he is challenging.

1. There is no fixed rule that a disciplinary tribunal will wait until after the disposal of related criminal charges before dealing with an application for disciplinary action to be taken against a person subject to the tribunal. In this case, in any event, the proceedings in the Tribunal were initiated by the appellant, and were for review of the action already taken by the administrator. While sometimes disciplinary hearings are delayed pending the outcome of criminal charges, the question of whether to proceed is a discretionary one for the Tribunal. Mr Wozniak advised that the appellant's legal representative had not made any such application before the Tribunal. There is nothing in the Tribunal's reasons to suggest the issue was raised. It may be necessary, in the public interest, that the disciplinary hearing take place before the criminal charges are dealt with.

1. At a preliminary hearing on 20 February 2012, the Appeal Panel (constituted for this purpose by the President) declined the appellant's application for adjournment of the appeal pending disposal of his application for annulment of incivility convictions entered by the local court in his absence, and their anticipated reconsideration. He raised this issue again at the full hearing. The appeal before us relates to the adequacy or otherwise of the Tribunal's decision. There is no need to await the outcome of any further court hearing on related charges in order to discharge that task.

1. (4) The Ultimate Decision . Having made the findings it did, in our view, a strong case existed for the conclusions that the Tribunal reached as to the appellant's fitness to remain a driver. The Tribunal is exercising a broad discretion. It had regard to relevant considerations, did not have regard to any irrelevant considerations, and reached a judgement that was clearly open to it.

1. The question of law appeal fails.

The Application for Extension to the Merits

1. While it is not necessary to demonstrate an error of law in order to obtain leave to extend an appeal to the merits, the absence of any error of law counts against exercising the discretion to grant leave. In this instance, there is nothing else about this case that warrants the grant of leave.

1. The appellant referred to the fact that his livelihood had been taken from him by this decision. That is true, but equally the Tribunal found that his conduct so greatly departed from the standards to be expected of a taxi driver that he should no longer be trusted with an authority.

1. As we noted in comments to the appellant at the hearing, a number of the matters raised against him suggest that he may have difficulties with anger management. We also note that he made a number of remarks during the course of our hearing that might be seen as threatening in relation to the persons who gave evidence against him, and used quite extreme language about them and their integrity ('they all bore false witness under oath', for example). The administrator would, we expect, need to be assured that he has addressed these apparent anger management issues if called upon to deal with any fresh application for an authority.

1. The appeal is dismissed.

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Decision last updated: 05 March 2012