Stepanyan v Ministry of Transport

[2009] NSWADT 226

CITATION:	Stepanyan v Ministry of Transport [2009] NSWADT 226
DIVISION:	General Division
PARTIES:	APPLICANT Karo Stepanyan RESPONDENT Ministry of Transport
FILE NUMBER:	093038
HEARING DATES:	2 July 2009
SUBMISSIONS CLOSED:	2 July 2009
DATE OF DECISION:	27 August 2009
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Passenger Transport Act - taxi driver - cancellation of authority
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990 Passenger Transport Regulation 2007
CASES CITED:	Health Care Complaints Commission v Litchfield, Matter No. CA40748/96 Maythisathit and Registrar of Motor Vehicles [1996] ACT AAT 165 Saadieh v Director General, Department of Transport [1999] NSW ADT 68
REPRESENTATION:	APPLICANT G Mitchell, solicitor RESPONDENT A Wozniak, solicitor
ORDERS:	The decision under review is affirmed.

1 The Applicant held an authority to drive a taxi-cab under the Passenger Transport Act 1990 (“the Act”). By a Notice of Decision dated 5 February 2009 a delegate of the Director General of the Ministry of Transport (“the Respondent”) 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:

The Ministry relies on the following facts, evidence and material when considering the cancellation of your drivers authority

Complaint History

June 1994

Your Driver Authority AM2442 was cancelled by the Department of Transport due to the inordinate number of passenger complaints which had been submitted against you. The authority was returned to you in 2000.

June 2003

Your Driver Authority AM2442 was cancelled following an admission that you had fraudulently presented Taxi Transport Subsidy Scheme (TTSS) dockets for payment. The Statement of Reasons also included an allegation of larceny (steal from person) and seventeen (17) passenger complaints. Your authority was returned to you in April 2008.

1/7/2008

CF138387 Drive in unsafe manner

A complaint was referred to the TCS Network that the driver of taxi T997 drove dangerously on M2 Motorway almost causing an accident and giving the complainant ‘the finger’. The network identified the driver as Karo Stepanyan, driver authority AM2442

You were interviewed by network officers, the matter was considered justified and recorded on your driver file.

28/7/08

CF138959 Incivility

A complaint was referred to the TCS Network that the driver of taxi T997 had conveyed four passengers, one of whom was disabled, on reaching their destination the driver complained of the short fare, an argument ensued where the driver was rude to the passengers. The network identified the driver as Karo Stepanyan driver authority AM2442.

You were interviewed by network officers and no further action was considered due to conflicting statements.

10/11/08

CF140734 Incivility/Threat

A complaint was referred to the TCS Network that the driver of taxi T997 conveyed an elderly couple from Crows Nest to Northbridge. It is alleged the driver did not appear to know his way and when offered advice by the female passenger she was told to ‘shut up’. During the journey the female passenger informed the driver she intended to complain about his behaviour. Once at the destination the driver told the female if she complained he would return or have somebody attend their address and ‘kill them’. The driver was identified as Karo Stepanyan driver authority AM2442. Due to the seriousness of the complaint the matter was referred to the Ministry of Transport for investigation.

You were interviewed by Ministry Officers and due to the age and frail health of the complainant and her husband further action was deferred. At the time of your interview you were warned that further complaints may lead to action against your driver authority.

26/11/2008

Complaint of Incivility

The Ministry received a complaint from a taxi driver that at about 4.55am, while parked at the St Ives rank, he was approached by the driver of taxi T997 who abused him about an incident which he alleged happened at another time. The following day at the same, rank the driver of T997 again approached the same driver and hurled further abuse at him and threatened to assault him. The incident was witnessed by another taxi driver who was stationary at the rank. The driver was identified as Karo Stepanyan driver authority AM2442.

You were interviewed by Ministry Officers and you denied the allegation claiming you simply spoke to the other driver in a ‘friendly manner’ you further denied using unseemly language and claimed the witness is a friend of the complainant. The evidence supports the complainants version of the incident.

25/11/2008

CF141053 Overcharging

The TCS Network was referred a complaint that the driver of taxi T997 conveyed a male passenger from Mascot to North Sydney at the completion of the journey the driver demanded a fare of $72.93. The complainant believed the fare to be excessive. The driver was identified as Karo Stepanyan driver authority AM2442.

You were interviewed by network officers and claimed the fare was as per the meter. You stated the complainant requested he be conveyed by the fastest most practicable route. The network estimated the fare to be worth approximately $55.00.

…

The Reasoning Process that Led to the Decision

The Ministry of Transport has a continuing obligation under the Passenger Transport Act 1990 and the Taxi Authorisation Standards to ensure only fit and proper persons drive public passenger vehicles.

To be of "good repute and in all other aspects a fit and proper person" to drive a public passenger vehicle the community must have confidence that a driver would behave appropriately in relation to all passengers.

The fact that you accumulated an inordinate number of passenger complaints throughout your driver history and these complaints include allegations of rudeness to passengers, fail to drive by shortest practicable route and overcharging. There was also an admission of TTSS fraud and a further allegation of larceny, these matters cast grave doubts about your fitness to hold an authority to drive public passenger services by means of taxi-cab and your ability to carry out the duties and responsibilities of the position according to law and custom.

The fact that you have been reprimanded, counselled and warned and had your driver authority cancelled on two prior occasions in relation to many of the allegations against you, yet you continue to accumulate complaints which would indicate that you do not have the aptitude or responsibility to be the holder of a driver authority to drive public passenger services.

Your driver authority was returned to you for the third occasion in April 2008 and during the ensuing period you have been the subject of a further five complaints.

You were cautioned by Ministry Officers on 21 November 2008 that further complaints may place your driver authority in jeopardy yet since that date the Ministry has received a further two complaints about your behaviour as a taxi driver.

A number of your complaints are of a similar nature - overcharging and failing to travel by a requested route, this would indicate a degree of dishonesty on your part when dealing with the general public.

There are further complaints of incivility and threatening behaviour towards your passengers, the last two refer to your threatening behaviour towards an elderly couple and later to another taxi driver.

Your driver authority has been cancelled on two past occasions due to your complaints and criminal history, your authority was only re issued in the early months of 2008 yet you persist in accruing passenger complaints.

To attest that you are considered to have sufficient responsibility and aptitude to drive public passenger vehicles, the community must have the confidence that a driver would behave appropriately in relation to all passengers. Your complaints history suggests a pattern of behaviour contrary to this

The seriousness and length of your complaint history cast doubt about your fitness to hold a public passenger vehicle authority and your ability to carry out the duties and responsibilities of the position according to law and custom.

You were afforded the opportunity to make submissions in -relation to the Departments Notice to Show Cause of 9 December 2008, which may have challenged the Ministry’s facts, evidence and material against you. In your reply, which was received at the Ministry on 28 January 2009, you denied each of the allegations made against you.

You further claim that, ‘given the number of passengers I deal with on a regular basis that the complaints are not of a pattern of behaviour on my part- rather they are isolated incidents of a relatively minor nature’. This is a claim which may be contested by the Ministry, the fact is that three of the five complaints which were submitted against you since your authority was returned to you in April 2008 allege incivility/impropriety. Your past complaints history record a large number of allegations of a similar nature therefore indicates a ‘pattern of behaviour’.

In your response to your Notice to Show Cause you provided two passenger references, there is no reference in either of the references to indicate the passengers were aware of the gravity of the current allegations or of action which is being considered by the Ministry.

3 The Applicant has applied to the Tribunal for review of the determination to cancel his driver authority.

4 The Applicant does not dispute that there is a long history of complaints against him, however he denies the most recent allegations. In particular he denies the November 2008 allegations.

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:

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.

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:

“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 subclauses (2)-(4).

(2) The Applicant:

…

(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 …”

7 The decision to cancel the Applicant’s authority was made under section 33F of the Act, which provides as follows:

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.

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 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”).

The Respondent’s case

9 The Respondent filed and served a copy of its file, which comprises 814 pages. The file contains documents in relation to the matters referred to in the determination and noted above and provides evidence of the complaints made against the Applicant. It is not evidence as to the truth of those complaints. 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.

10 In particular Mr Wozniak referred to issues raised in relation to the Applicant in an internal memo dated 2 June 1987. The memo refers to a warning given to the Applicant concerning allegations that in September 1984 and November 1986 he had fraudulently added an amount to the genuine fare. It also referred to an allegation that Cabcharge dockets had been altered increasing the value by approximately $524.25. It was further alleged that in May 1987 the Applicant had retained a wallet that had been left in his taxi.

11 Mr Wozniak also referred to an Electronic Record of Interview that officers of the Respondent conducted with the Applicant on 30 April 2003. The interview concerned an allegation of misuse of Taxi Transport Subsidy Scheme (“TTSS”) vouchers.

12 The allegation was that in February 2003 the Applicant conveyed a woman, who was a TTSS participant, from Roseville Chase to the city and that when they reached the destination she handed the Applicant her TTSS book with some details in it. Without permission, the Applicant pulled out four blank vouchers and those vouchers were subsequently completed for trips that had not taken place and that the Applicant received payment for them.

13 The record of interview is contained in the Respondent’s file at pages 474 – 490. At page 487 - 488 the Applicant is recorded as having had the following exchange with the Respondent’s Senior operations Officer John Lovern:

Lovern: Okay. The allegation is that on that day when you conveyed that woman ah, who was a TTSS participant, from Roseville Chase to the city, the allegation that when you, when you both arrived there she handed her, handed you rather, her TTSS book with some details in it. You’ve then filled out the rest and handed the book back to her. Now, she tells me that before you handed the book back to her, when you filled out the appropriate docket you’ve then also pulled out four dockets behind that docket, four blank dockets, put them on the visor of the car, and given her the book back. She says to me, she said to you, "What are you doing?" and you said, "I didn’t do anything." You denied it then. Those dockets, I’ve since done a check through our TTSS computer system and those four dockets I’ve since received copies of. They’re docket numbers 15565960, 961, 962 and 963, all from the same book. What I’ll do, Mr Stepanyan, is show you um, the photocopies of the vouchers which indicate the dates of travel. The first voucher number 60, was travelled on the 22nd of February 2003, Roseville Chase to Rose Bay. Voucher number 61, which is obviously the following voucher, on the same date, the 22nd of February 2003, from Rose Bay back to Roseville Chase. The next voucher, voucher number 62, on the following date the 23rd of the second, 2003, Roseville Chase to Dural, voucher number 63, again the following voucher in the sequence, on the 23rd of the 3rd, of the 2nd, Dural back to Roseville Chase. So what I’m saying is those four vouchers have all come from the same book, have all been signed, filled out, ah, a trip Roseville to Rose Bay and back, and Roseville Chase to Dural and back. So there were four dockets cover two trips. Do you understand that? You’re familiar with TTSS vouchers?

Stepanyan: Yes.

Lovern: Okay. I’ll then, I’ll now indicate to you on these, on each of these vouchers drivers name S Karo, Authority number AM2442, and taxi number 7827 on each of those vouchers. Would you agree with that?

Stepanyan: Yes.

Lovern: (Pause) ... Now, as I said before, this participant has informed me that these four vouchers are the four that were stolen from her book. What can you tell me about that?

Stepanyan: (Pause) ... I don’t remember, as I said.

Lovern: You can’t remember? Alright, on the day you conveyed the participant from Roseville Chase to the Masonic Club in Castlereagh Street in the city, did you remove any vouchers from her book other than the voucher that was relevant to the trip?

Stepanyan: I couldn’t remember, as I said.

…

14 At page 478-479 the Applicant is recorded shortly afterwards as having had the following exchange with Frank Malone, the Compliance Manager of the Taxi and Hire Car Bureau:

Stepanyan: As I explained I owed the, off record, I got desperate and the lot of money, ah at the time, on my credit cards and I made a stupid mistake. I ah, just, taken those extra dockets from the book and writing dockets.

Malone: Okay, just so I fully understand Karo, because I wasn’t involved in the initial investigations, from what you’ve told me can I take it that you are saying or making an admission that you stole some taxi transport subsidy dockets from a person?

Stepanyan: Yes, and I never done it before and probably never will do.

Malone: Who was the person that you stole the taxi transport subsidy dockets from?

Stepanyan: I don’t have the name, I’m sorry.

Malone: Were they a passenger in your taxi?

Stepanyan: A passenger, yeah.

Malone: Um, would they have been um, a person with disability that belonged to the, that, that was a participant in the Taxi Transport Subsidy Scheme?

Stepanyan: She was an elderly lady, she had the book in her hand and ah, she ah, gave me to take the first docket and I took another four extra, yes.

Malone: So you took an additional four and I take it they were, these dockets, the extra four dockets that you took, they were blank dockets, they hadn’t been filled in?

Stepanyan: That’s right, except that they may have had signature on them.

Malone: They may, or did they or did they not?

Stepanyan: I can’t remember that part because it’s been a while but it, the signature on the dockets on the copies I can see over there, they’re not my signature, or not my handwriting or nowhere near it.

Malone: With the four dockets that you stated that you stole from this person, this passenger in your taxi, the elderly lady, what did you do with those dockets once you took possession of them?

Stepanyan: Ah, wrote the ah, my details on it and ah, one destination to another, for and wrote them out on it.

Malone: Then the details on those dockets that you completed, on the four stolen dockets, were they for journeys that actually took place?

Stepanyan: No.

Malone: So they didn’t take place?

Stepanyan: No.

Malone: And the amount of money that you wrote on those dockets, did you just make those figures up?

Stepanyan: Yes.

Malone: And then when you completed the dockets and you filled in these fictitious journeys, and fictitious amounts of money, what did you do with the dockets then?

Stepanyan: I lodged it for financial ah, benefit into my taxi company.

Malone: When you say you lodged it into your taxi company, where did you present those, did you present those at some later stage for payment?

Stepanyan: Yes, at taxi company, ah, Taxis Combined Services.

Malone: Taxis Combined Services, so you gave these four stolen dockets which you’d entered certain amounts of money on, you then presented them to Taxis Combined Services for payment, is that correct?

Stepanyan: That’s right.

Malone: And did you receive payment for those dockets?

Stepanyan: Yes.

…

Malone: Okay. Why did you do it?

Stepanyan: As I said, ah, I was short of money, my Bankcard and Mastercard bill was high at that stage, nearing $20,000 ah, combined, and I made a stupid mistake that I never done it before, and ah, never do it, never do that before again, um, never will do that again in future. That ah, that’s one off thing which I was scared of all the time, that I did it and I was scared and I regretted it ah, but, it’s getting too late now.

Malone: Okay. You realise that this was virtually stealing or you know, it was ah, receiving money under false pretences or whatever the offence is, but you certainly knew it was wrong?

Stepanyan: I knew it, yeah.

15 Mr Wozniak submits that it is clear from these exchanges that the Applicant had lied to Officer Lovern when he stated that he could not remember the incident.

16 The Respondent also relies on the evidence of a passenger (“the passenger”) who provided a written statement, appeared at the hearing and was subjected to cross-examination. The passenger gave evidence that on 10 November 2008 she and her husband had travelled in a taxi driven by the Applicant and that she had subsequently complained about the Applicant’s conduct towards her. In her statement dated 14 November 2008 she stated in part:

3. When we got into the taxi I told the driver our address. The driver left the hospital and he continually checked his street directory. During the journey the driver didn’t know his way, I kept directing him and he kept telling me to, ‘shut up’.

4. The journey to and from the hospital has been regular for us for then past couple of weeks.

5. When we got into Crows Nest I kept telling him to turn, he became more angry and he started to bang the steering wheel and yelling. He appeared to be a bit out of control, he appeared to be very aggressive.

6. When we were near Crows Nest I told him I was going to report him, he told me on three occasions he was going to send somebody to kill us. When he dropped us off he told me he had my name and address in his wallet.

7. During the journey my husband told the driver to stop. Mt husband is 91 years of age and he suffers from dementia. He’s become a little fragile.

8. I don’t think the driver was going to kill us during the journey but I was

concerned about the threats. I’m a bit concerned he may come back.

17 With minor exceptions, the passenger confirmed this evidence before the Tribunal.

18 The Respondent also relies on the evidence of another taxi driver (“the taxi driver”), who had complained about the Applicant’s conduct towards him. The taxi driver provided a written statement, appeared at the hearing and was subjected to cross-examination. In his statement dated 28 November 2008 he stated in part:

3. Two days ago on Wednesday at about 5 minutes to 5 I was parked at the St. Ives taxi rank. I was in my car looking for address, another driver, the driver of T997 approached my car and tapped on my window aggressively. I wound down the window to speak to this fellow. He spoke to me in an aggressive manner, pointing his finger at me.

[expletive]

6. I wound up my window, he remained next to my car, I decided to move and as I was turning he hit the rear door with his opened hand. I said to him, [expletive], my window was up at this time. I left the area.

7. Yesterday I was on the same rank at 4.30am the same driver was there already, he was parked opposite the rank in T997 along with T693.

8. This driver approached me again as I was preparing my work for the day. This fellow approached from the opposite side of the road. I locked my door and left the window down a little. He yelled at me, ‘hey dickhead get outside if you’ve got any guts’. I didn’t reply.

9. He continued with more language [expletive] I made no response.

10. I don’t know his name but I worked for him years ago when I was a new driver, I worked for him for a couple of weeks.

11. I recognised his photograph from a file given to me by Ministry of Transport Officers driver authority AM2442

12.About 3 months ago I was at the St. Ives rank and I had a conversation with him, this was pleasant and was just passing the time.

13.1 did not provoke this person at any time and I did not instigate the last conversation. The last incident occurred over a number of minutes and I felt intimidated by him.

...

19 With minor exceptions, the taxi driver confirmed his evidence before the Tribunal.

20 The Respondent also alleges that the Applicant had continued to drive after he was notified that his authority had been cancelled.

The Respondent’s submissions

21 Mr Wozniak submits that the Applicant has a long history with the Respondent and that the Tribunal should not just look at the immediate history. He said that the Applicant has previously had his authority cancelled and has been through the appeal process and has on several occasions expressed regret and promised that his misconduct would not be repeated. Mr Wozniak submits that the Applicant has shown that he will say whatever he thinks will make the situations seem better. He accepts that the Applicant’s authority was returned after cancellation but notes that the Applicant was refused an authority several times before it was ultimately granted.

22 Mr Wozniak referred to incidents that suggest that the Applicant has been guilty of dishonesty. These included incidents in which dockets were altered to increasing the amount and an incident in which a wallet vanished and was found hidden in the Applicant’s boot.

23 Mr Wozniak submits that the evidence given by the passenger and the taxi driver should be preferred to that given by the Applicant. He said that the Applicant has given three version of the February 2003 incident concerning the dockets. Therefore, his credibility must be doubted.

24 Mr Wozniak further submits that the Tribunal should be satisfied that the Applicant is unable to control his temper. He says that Dr Davies’ evidence must be seen in the light of the fact that the Applicant has only given her small portions of his history.

25 Mr Wozniak referred to the decision of the Tribunal’s Deputy President in Saadieh v Director General, Department of Transport [1999] NSW ADT 68. At paragraphs [17] – [18] the Deputy President set out several factors that should be considered when determining a person’s fitness and suitability to hold a taxi authority. These include ‘the nature, seriousness and frequency of any complaints made against the Applicant’. Mr Wozniak submits that the Tribunal should note of the numerous complaints that have been made against the Applicant. He said that the Applicant is not prepared to accept that he has done anything wrong and his history suggests that the behaviour will continue.

26 Mr Wozniak opposed the suggestion that the Tribunal should impose conditions that would allow the Applicant to continue to hold his authority. In this regard Mr Wozniak referred to the New South Wales Court of Appeal decision in Health Care Complaints Commission v Litchfield, Matter No. CA40748/96 (8 August 1997). In that matter the Court held that the necessity for imposing a condition on the appellant’s registration (that the doctor only saw female patients with a chaperone) demonstrated he was unfit to practice medicine and in those circumstances the only appropriate orders was one dismissing the appeal.

The Applicant’s case

27 The Applicant relied on his own evidence and that of Dr Michaela Davies, Psychologist.

28 The Applicant lodged a written response to the allegations referred to in the Respondent’s statement of reasons. He addressed the complaints as follows:

As reflected by this letter, I wish to formally advise that I vehemently oppose the cancellation of my Taxi Driving Authority. I have had the opportunity of reviewing the "Statement of Reasons" attached to your letter (referred to above) and in response wish to state the following:

1. Re CF138387 Drive in Unsafe Manner - 1 July, 2008

I unreservedly deny that I drove dangerously, almost caused an accident or gave another driver "the finger" (which I presume to be the extension of the middle finger) on this date. Recalling an incident which occurred on the M2 on that date I confirm that in fact what occurred was that the driver of another vehicle was driving in a manner which I considered to be dangerous to other road users and that when I went past him in traffic, I twitched/waved my little finger at him in the same fashion as the "... No One Thinks Big of You" traffic safety campaign. I do not consider this offensive and can only suggest that this driver’s embarrassment caused him to fabricate a complaint against me.

2. Re CF138959 Incivility - 28 July, 2008

I am unaware of the relevance of the fact that one of the passengers was disabled to this complaint. On this occasion all that occurred was that when the passengers hopped into my taxi, one of them inquired "What sort of day are you having?" I then replied honestly "It’s a slow day and I seem to be getting more short fares like this". One of the passengers seem to take offence to my response and proceeded to get quite agitated and tell me things like "You should be happy that we got in your cab in the first place" and "We are paying you wages". I believe that I asked the passenger to calm down at some stage, at which point I was informed that they were going to make a complaint about me - I responded by telling the passenger making the allegations that he could do whatever he wished.

3. Re CF140734 Incivility/Threat - 10 November, 2008

I am particularly offended by the nature of this complaint. I am aware of the passengers and the circumstances which may have given rise to this complaint. On this date I collected 2 passengers (following a radio booking) from Mater Hospital with a destination of Northbridge. From the moment the lady passenger hopped in the car she appeared extremely agitated and was constantly telling me where to go. Despite knowing the route, I did not take issue with the lady and simply followed her directions (which were correct). Just prior to the destination however, when I was in the middle of changing lanes to avoid getting stuck behind a car turning right (we needed to go straight ahead) the lady screamed at me "Stay in this lane!". This took me by surprise and almost caused an accident and I informed her of this - I remember now her mumbling something about "...you people..." which I can only assume was racially based. As we got closer to the destination I asked the lady "Do you live at (the address)?" For some reason she took my comment to be a threat against her - saying words to the effect of "Why are you going to come bad and rough us up or try and kill us?" I replied "What are you talking about? I have never hurt or killed anyone." It was after I said this that the lady told me that she was going to complain.

4. Re 26/11/2008 Complaint of Incivility

With regard to this allegation I need to explain some of the background. A week or two before the 25 November, 2008, I was waiting in a taxi rank in the city. Taxi 3261 was at the front position in this rank. When he was approached by a passenger for a short fare he told them that he was finishing up North side and therefore wasn’t going their direction. He refused to pick up the passenger and drove off. I recall making a mental note of the Taxi number. The passenger then came into my taxi and explained what had occurred - he was extremely upset by Taxi 3261’s attitude - I took him to his destination. On the 25th November, 2008, I was at the St Ives taxi rank when Taxi 3261 also pulled up. It wasn’t particularly busy at the time and I waited in my car for a job for about 45 minutes. Still with no job I thought I would go and have a chat to the driver of Taxi 3261. I approached him in a non threatening manner asked him if he finished North side and he replied "No". As a result of his response I simply raised with him what the passenger had told me from the previous occasion and I was in the process of telling him he shouldn’t do that in future when he is in the front of a rank - it being simply a case of luck of the draw. While I was telling him this he wound up his window and looked away. I went back to my car and really wasn’t going to give the matter any more thought. It seems that the driver of Taxi 3261 then got a radio booking and drove off. As he was driving past my taxi, he wound down his window and yelled "Fuck Off’. The next day when the driver of Taxi 3261 came to the St Ives rank I was there. When I saw him I said words to the effect of "You gutless coward - why could you abuse me to my face". In response he yelled some words back at me which I can’t remember and then started talking to one of his friends in Pakistani. I can speak some Persian and as a result of some similarities between the languages, I am aware that the driver of Taxi 3261 was making unsavoury and racial comments. No further words were exchanged.

5. Re CF141053 Overcharging - 25 November, 2008

In line with what I have previously represented, I did not overcharge the client on this day. Despite the network estimating the fare to be worth $55.00, I believe from memory that the (meter) fare may have even been slightly less than this. I recall the fare in issue. On the date in question I conveyed a client from the airport to North Sydney in what was fairly heavy traffic - most significantly on Southern Cross Drive. In addition to the meter fare (let us say $55.00) I added $10.50 in toll charges. The passenger then indicated that they wished to pay by credit card. When operating the machine, I only entered the fare and toll charges - as I understand it, Cab Charge (through the machine) then automatically added another 10% service charge plus GST on service charge. The total then came to $72.93 (calculated by the machine not me). I informed the passenger of the total amount and nothing was said by them at the time indicating that they did not agree with the amount charged.

In summary, I submit that I have reasonably and effectively explained the circumstances surrounding the matters which gave rise to your letter of 9 December, 2008. I similarly would submit that given the number of passengers I deal with on a regular basis that the complaints are not reflective of a pattern of behaviour on my part - rather they are isolated incidents of a relatively minor nature (save for item 3 above involving the elderly couple and the clear mistake by the Ministry holding me responsible for item 5) which by the very nature are open to interpretation (and bias) from the individuals involved.

I am particularly concerned by the allegations (and it would seem the Ministry’s unreserved acceptance of same) regarding the alleged threats made to the elderly passengers and my perceived dishonesty in overcharging a passenger on 25 November, 2008. I feel it necessary to advise the Ministry that I have sought legal advice with respect to both of these matters and will seek civil redress should a decision be made to cancel my taxi licence.

I further submit that I have sufficient responsibility and aptitude to drive passenger vehicles and am of "good repute and in all other aspects a fit and proper person" to drive a public passenger vehicle in the community.

I would also draw to the attention of the Ministry the fact that I have been continuously driving since the date of the last allegation (26 November, 2008), through undoubtedly the busiest time of the year, without further complaint to my knowledge.

Further, I feel that despite having been disciplined in the past for perceived improprieties, since having my authority returned to me in January, 2008 (not April, 2008 as stated in your Statement of Reasons), I have upheld a particularly strict code of conduct (sometimes in very trying circumstances) and serviced my passengers to the best of my ability.

In further support of this I have taken the liberty of enclosing 3 personal references - one from a regular client of mine (John Ridge), one from a current client who used me regularly when he was without a licence, and one from my driver (Ernesto Redondo). Each of these people has also indicated a willingness to speak further with the Ministry if required.

I hope the above information has been of assistance to you in your current deliberations regarding whether or not to cancel my authority. Should you require any further information or I can be of any further help whatsoever in providing you with relevant information, please do not hesitate to contact me directly.

I understand that my authority to drive a taxi is a privilege and not a right. I have never ever done anything deliberately to bring our industry into disrepute and would obviously appreciate the opportunity to continue my taxi driving career.

29 The Applicant adopted this response when giving his evidence before the Tribunal.

30 The Applicant conceded that the record of the 30 April 2003 interview is accurate. However, he stated that he was not given the opportunity to obtain legal advice and was not advised that he could decline to answer questions. He also said that he had had an off-record discussion with the officers of the Respondent prior to his discussion with Mr Malone. He agreed that he had not been threatened in that discussion but said the he was given advice that was misleading. He said that he had been advised to take full responsibility for his actions.

31 At the hearing, the Applicant gave a further explanation of the incident. He said that the passenger was suffering financial difficulties and had offered the Applicant extra dockets in exchange for not being charged and offered the Applicant to collect her again later. He said that when she called later, a different driver accepted the booking. She became angry when that driver charged her half the fare for the journey plus the docket.

32 The Applicant accepted that he had not previously given a truthful account of this incident but stated that the version given to the Tribunal was the truth. He stated that he had not intended to bring the industry into disrepute.

33 The Applicant asserted that he had obtained legal advice in regard to the cancellation of his authority but that he had misinterpreted the advice. He stated that it was not until he was no longer able to log into the network that he understood that his authority had been cancelled and that he was no longer authorised to drive a taxi.

34 The Applicant stated that in recent months he has sought assistance from Dr Davies. He has sought that assistance because he has accepted that passengers sometimes misinterpret him when he speaks to them.

35 Dr Davies provided a report for use in the proceedings and also appeared by telephone at the hearing and was cross-examined. In her report dated 1 July 2009 Dr Davies stated that the Applicant first consulted her in April 2009 in an effort to develop better interpersonal skills and conflict resolution alternatives. He has continued to attend fortnightly sessions with her since that time. She stated:

During these consultations I became aware of the allegations levelled at Mr Stepanyan and in turn he described a number of incidents where he experienced difficulties in communication with his customers in his work as a taxi driver. These incidents were of great concern to Mr Stepanyan not only because he wishes to continue driving taxis for work but also because he sees himself as someone who is "friendly" and "likes people".

While Karo denied that he behaved in the specific ways his actions have been portrayed in the complaints he acknowledged that the volume of complaints over his driving history suggest that he could benefit from professional assistance to develop better interpersonal skills, conflict resolution and stress management techniques.

During our consultations we identified potential stressors contributing to these incidents leading to complaints, and discussed the ways in which Mr Stepanyan could have handled the events differently. Mr Stepanyan’s strong desire to address these issues, together with the nature of his presenting problems and reflective personality, made him a good candidate for therapy.

Karo benefited significantly from cognitive behaviour therapy and stress management techniques to deal with these issues. Mr Stepanyan demonstrated clear insight into the way his behaviour may have contributed to the events that took place and acknowledged ways he could foresee and avoid any occurrence of this kind in the future. Over the course of therapy Karo demonstrated a significant shift in his attitudes toward interpersonal communication and reported a significant reduction in his stress levels while driving taxis. Mr Stepanyan has successfully managed conflict and stress in a number of events which have occurred since he commenced counselling. Mr Stepanyan has indicated that he wishes to continue our counselling sessions to consolidate the work we have done in therapy. …

36 Under cross-examination Dr Davies stated that the Applicant had not discussed the details of the complaints made against him. She was not aware of the range of issues that had been raised by the complainants and accepted that she did not know the full history. She said that the Applicant had told her that he had good intentions in regard to his passengers and the other drivers but that he is often misunderstood and arguments have arisen as a consequence of that. He accepts that he needs strategies to deal with his anger.

37 Dr Davies stated that the Applicant has benefited considerably from their sessions but that he would benefit from further assistance.

The Applicant’s submissions

38 Mr Mitchell, solicitor for the Applicant, submitted that the passenger was a difficult witness to assess and that her interpretation of events might have been affected by her advanced age and frailty. He submitted that the weight given to her evidence should take that into account. He said that it is clear that she did not believe that the Applicant would carry through the threat that she alleged he had made. He submitted that if it were not for the taxi driver’s complaint, the Respondent would have only issued a warning following the passenger’s complaint. He said that the incident with the taxi driver was the watershed moment and some doubt surrounds its accuracy.

39 Mr Mitchell referred to variations between the taxi driver’s written statement and his account of the incident before the Tribunal. He pointed to the taxi driver’s concession that he had sworn at the Applicant and submitted that the taxi driver’s evidence is indicative of someone who is prepared to shape his evidence so as to present a scenario that is exaggerated or untrue.

40 With respect to the Applicant’s past conduct, Mr Mitchell points to the fact that the Respondent granted the authority in 2008 and submitted that the Applicant was considered to be a fit and proper person at that time. Mr Mitchell submitted that the Respondent cannot now revisit those issues and it cannot assert that the authority should not have been granted.

41 Mr Mitchell conceded that the February 2003 incident concerning the dockets may have raised doubts about the Applicant’s credibility, however he submitted that the Applicant has recognised the error of his ways and that there have been no incidents of dishonesty since that time. The Applicant has voluntarily undertaken counselling and proposes to continue to do so. Mr Mitchell submitted that the fact that there has been a long period since the last incident involving anger management issues suggests that the Applicant is benefiting from the counselling and he is taking positive steps to avoid similar incidents in the future.

42 Mr Mitchell submitted that there were five incidents raised by the Respondent however it presented no evidence in regard to the alleged overcharging or the alleged incivility other than that of the passenger and the taxi driver. He referred to a number of decisions of this Tribunal that had dealt with issues of complaints against taxi drivers. H in Nikolovski v Ministry of Transport [2009] NSWADT 21, Gomes v Ministry of Transport [2008] NSWADT 303 and Saadieh v Director General, Department of Transport [1999] NSWADT 68 could be distinguished because of the volume and seriousness of the complaints. He submits that none of the Tribunal decisions that could be said to be comparable to this matter resulted in the cancellation of an authority.

Discussion

43 It is not in dispute that the Applicant has a long history of complaints or that he has been the subject of disciplinary action on numerous occasions. He has been reprimanded, counselled and warned and had his driver authority suspended and cancelled.

44 The Respondent’s decision in this matter was based on the view that it can no longer be attested that the Applicant meets the required standards for authorisation as a taxi driver. This view was formed after consideration of the record of complaints made about the Applicant and, in particular, the most recent of those complaints. I am satisfied that the material on which the Respondent relies accurately records those complaints.

45 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:

“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.”

46 In my opinion, the final factor referred to in Saadieh i.e. the likelihood that the Applicant will re-offend or be the subject of further complaints, is of most relevance in this matter. In assessing this likelihood it is relevant to consider the most recent allegations against him.

47 The Applicant has not been arrested or convicted of any criminal offences in recent years however numerous complaints have been made against him during the periods in which he has worked as a taxi driver. Some of those complaints involved allegations of road rage and in my view are extremely serious. The Applicant disputed the allegations made in most of those complaints. I have heard evidence from two recent complainants but I have not heard from any of the earlier complainants. In the circumstances, with the exception of the February 2003 incident concerning the dockets, I am unable to form a view in relation to the earlier allegations that the Applicant has denied.

48 The Applicant denied that he lied in regard to the February 2003 incident concerning the dockets however he conceded that he has provided different versions of the incident. He asserts that the version presented to the Tribunal is the correct version. In my view, the misuse of TTSS dockets is a serious issue. Notwithstanding the fact that a significant period of time has passed since that incident, the Applicant’s preparedness to provide false versions of the incident and his inability to accept that he lied about it on at least two occasions casts doubt as to his credit as a witness.

49 I agree with Mr Mitchell’s submission that the passenger was a difficult witness to assess and that her interpretation of events might have been affected by her advanced age and frailty. It was clear that she did not believe that the Applicant would carry through any threat against her. In my view it is likely that she misinterpreted the Applicant’s intentions. However, in my view it is also likely that the Applicant’s inability to manage his frustrations has contributed to that misinterpretation.

50 I accept the taxi driver’s evidence that he was harassed and threatened by the Applicant. In my view it is the Applicant, rather than the taxi driver, who is prepared to shape his evidence so as to present a scenario that is exaggerated or untrue.

51 I accept that the Applicant has not come to the attention of the authorities for any incidents of dishonesty since the incident concerning the dockets other than for allegations of overcharging. He has denied those allegations. I also agree that the Applicant has, for the first time, taken steps to address his inability to manage his anger in difficult situations. I also accept Dr Davies’ evidence that the Applicant has benefited from the therapy that he has undertaken and that he wishes to continue the counselling sessions to consolidate the work he has done.

52 However, in order for me to allow the Applicant to continue to hold an authority to drive a taxi-cab I must be able to attest that he is considered to have sufficient responsibility and aptitude to drive a taxi in accordance with the applicable conditions and in accordance with law and custom. At this stage I am unable to attest to that fact. I am not satisfied that the Applicant has undergone sufficient rehabilitation to enable him manage his anger in the stressful situations he would encounter as a taxi driver.

53 I agree that the community must have confidence that a taxi driver would behave appropriately in relation to all passengers. It is my view it is likely that a member of the public who might travel in a taxi driven by the Applicant, knowing of the Applicant’s record and what he has done to rehabilitate himself, would still object to the Applicant as the driver of the taxi: Maythisathit and Registrar of Motor Vehicles [1996] ACTAAT 165.

54 I do not agree that any concerns that he public might have could be addressed by imposing conditions that would allow the Applicant to continue to hold his authority.

55 In my opinion, he should continue to work with Dr Davies or another suitably qualified counsellor until such time as the counsellor is prepared to certify that there would be minimal risk to the public should he be permitted to recommence driving a taxi. If he were to continue that approach, and did not re-offend during the intervening period, I would encourage the Respondent to consider those factors favourably if the Applicant were to reapply for an authority to drive a taxi-cab.

56 At this time, however, I am unable to find that the Applicant meets the requirements of the legislation. If follows that the Respondent has made the correct and preferable determination in cancelling his authority. That determination should therefore be affirmed.

Order

The decision under review is affirmed.