Succar v Ministry of Transport

[2009] NSWADT 90

CITATION:	Succar v Ministry of Transport [2009] NSWADT 90
DIVISION:	General Division
PARTIES:	APPLICANT Boulos Michael Succar RESPONDENT Ministry of Transport
FILE NUMBER:	083142
HEARING DATES:	5 November 2008
SUBMISSIONS CLOSED:	5 November 2008
DATE OF DECISION:	1 May 2009
BEFORE:	Grotte E - Judicial Member
CATCHWORDS:	Cancellation of taxi authority and fit and proper person
LEGISLATION CITED:	Passenger Transport Act 1990 Passenger Transport Regulation 2007 Administrative Decisions Tribunal Act 1997
CASES CITED:	Saadieh –v- Director General, Department of Transport (1999) NSWADT 68 Lal –v- Director-General of Transport (2001) NSWADT 74
REPRESENTATION:	APPLICANT Mr Austin RESPONDENT A Wozniak, Solicitor
ORDERS:	The decision of the delegate of the Director–General of the Ministry of Transport to cancel Mr Succar’s authority to drive a taxi cab is affirmed.

Background

1 On 17 April 2008 a delegate of the Director-General of the Ministry of Transport determined to cancel the taxi authority held by Mr Succar.

2 Mr Succar applied for an internal review of the decision to cancel his taxi authority. On 23 April 2008 a delegate of the Director-General of the Ministry of Transport (the Ministry) affirmed the original decision to cancel the authority to drive a taxi-cab. The statement of reasons was as follows:

In the period between June 2004 and November 2006, Mr Succar had been subject to 14 customer complaints. The details of these complaints have previously been provided to Mr Succar and, in essence, he claims to have ‘explained them’.

Mr Succar has committed numerous traffic offence (sic). I note that in his response to the show cause notice he states ‘some do not belong to me’. In any event, Mr Succar had his licence suspended for demerit point accrual from 15 September 2005 to 15 March 2006 and from 24 February 2007 to 24 December 2007. Mr Succar explains the offence that resulted in the second suspension as ‘not knowing’ the vehicle he was driving was out of registration.




During the second period of suspension, the Director-General’s delegate required Mr Succar to undergo retraining in knowledge of the ‘regulations’ and ‘quality customer service’. I understand Mr Succar undertook this retraining. On 2 July 2007, Mr Succar was warned not to be the subject of further complaints prior to his authority expiring on 23 February 2008.

Mr Succar is the subject of a complaint made by a female passenger that on 8 February 2008, Mr Succar inappropriately touched and behaved towards the passenger and smoked in the taxi. Mr Succar claims he does not recall the incident.

In applying for renewal of his authority on 20 February 2008 Mr Succar falsely stated that he had not been charged with or convicted of traffic offences since he last renewed his authority. Mr Succar explains this by stating that he thought it meant ‘since he got his licence back’.

Reasoning Process that led to the Decision

Pursuant to s33F of the Act, in determining to cancel a driver authority, regard must be had to the purpose of the authorisation. This requires me, as the internal reviewer. To be able to attest to Mr Succar being of good repute and in all other respects fit and proper to drive a taxi-cab.

The concepts of ‘good repute’ and ‘fit and proper’ require separate consideration. The concept of ‘good repute’ goes to the way in which a person is regarded by others in the community (fairly or unfairly). Mr Succar has not provided any references to support a claim of being in ’good repute’. While I acknowledge the reasoning in the original decision would not have assisted Mr Succar’s understanding of this issue. I am unable to attest to Mr Succar being a person of good repute.

The concept of ‘fit and proper’ is one of the intrinsic nature of a person. Whether the person is possessed of sufficient moral rectitude and character as to permit the person to be safely accredited to the public, without further public inquiry, as a person who is to be entrusted with the responsibility to be a taxi-cab driver.

Mr Succar has a poor complaint record accruing in a relatively short period. Despite retraining and a warning by the Ministry, he has again failed to adhere to appropriate standards of behaviour towards a passenger. Mr Succar does not show remorse for his conduct and attempts to simply explain it away. In my view it is highly likely that Mr Succar will continue to be the subject of customer complaints if he remains authorised to drive a taxi-cab.

Mr Succar has served two periods totalling 16 months of suspension in the past two and a half years. His (sic) was found guilty of driving during the first suspension and has committed three further offences before the second suspension. It is also likely that Mr Succar will continue to be the subject of traffic offences if he remained authorised to drive a taxi-cab.

In his submission on the show cause notice, his responses in the interview by Ministry officers and his application, Mr Succar seeks to evade responsibility for any misconduct and when confronted with a situation he cannot evade simply tries to explain it away. This lessens the weight of his explanations, to the extent that I am not persuaded that that (sic) they have any basis in fact.

Finally, I consider that a member of the public, travelling in a taxi-cab driven by Mr Succar and being aware of all the matters known to me, would object to Mr Succar being authorised to drive a taxi-cab.

On balance, taking all this into account, I cannot attest that Mr Succar is fit and proper to be a person authorised to drive a taxi-cab.

3 On 1 May 2008 Mr Succar applied to the Tribunal for review of the delegate’s decision, claiming that it is “the only job I can do”. The matter was heard by me on 5 November 2008 and I reserved my decision.

4 Section 33 of the Passenger Transport Act 1990 (the Act) provides as follows:

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.

(4) The regulations may create categories or grades of authorities.

(5) Without limitation, the regulations may provide that subsection (2) does not apply in specified circumstances, including, for example, when a taxi-cab is being driven to a place to have it repaired or serviced.

5 Section 33F of the Act provides as follows:

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.

6 Section 52(1) of the Act confers jurisdiction on the Tribunal to review a cancellation of an authority. Section 63 of the Administrative Decisions Tribunal Act 1997 (the ADT Act) provides that in reviewing the 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(2) of the ADT Act provides that for this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.

7 The holder of an authority is also subject to the provisions of the Passenger Transport Regulation 2007 (the Regulations). Relevantly Clause 29 of the Regulation provides:

(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:



(i) may lawfully work in Australia, and

(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.

8 The Respondent filed and served a copy of its file in relation to Mr Succar’s traffic record history and his tax-cab authority history. This file comprised 391 pages. The contents of this file are referred to in detail in the submissions made on behalf of the Ministry by Mr Wozniak.

Tribunal Hearing and Oral Submissions

9 Mr Succar was legally represented by Mr Austin, Solicitor, at the Tribunal hearing. Mr Austin informed the Tribunal that Mr Succar would not be contesting the substance of the allegations contained in the Ministry’s file. In particular in relation to the incident on 8 February 2008 none of the facts as alleged at page 336 of the Ministry’s file was being disputed by Mr Succar.

10 Mr Succar gave oral evidence to the Tribunal. He told the Tribunal that most of his offences were committed during 2006 and 2007, which was a personally difficult time for him. He said that several of his family members had died, he lost his house, he was under pressure and he was suffering financial hardship. He stated that he had previously always behaved well other than his persistent smoking. Mr Succar told the Tribunal that he is 56 years of age and has been driving for 29 years. For many years he did not commit any offence.

11 It was submitted on behalf of Mr Succar that the Tribunal’s jurisdiction is not punitive but is there to protect the public. It was submitted that there is a credible explanation for Mr Succar’s behaviour in 2006 due to family stresses. The incident in 2008 was an isolated incident and there has been no complaint since that time. It was submitted that there are sufficient grounds to revoke the cancellation of the licence. Mr Succar relied on a letter from his Parish Priest, Reverand Monsignor Shore Maree, of Our Lady of Lebanon Church dated 5 November 2008. The Reverand Monsignor states in that letter that Mr Succar has been a member of the Maronite Catholic community of St John’s Parish and that he has known Mr Succar for a period of 12 years. The Reverand Monsignor stated that from his knowledge Mr Succar is “a respected family man from our community”.

12 It was submitted on behalf of the Ministry by Mr Wozniak that, although Mr Succar conceded the matters raised in its file to support the cancellation of the authority, Mr Succar has failed to demonstrate any remorse for his behaviour. The question for the Tribunal is “what is the risk to the public?” Mr Wozniak took the Tribunal through the Ministry file in detail and submitted as follows:

(i)On 14 January 1993 Mr Succar signed a statutory declaration in which he declared that he had read and understood the Standards for Taxi Driver Authorisation outlining the responsibilities and obligations of taxi driver authority holders and agreed to be bound by them. He also declared that he agreed to comply with “all Acts, Regulations and prescribed standards relevant to taxi driving”. He agreed to abide by the NSW Taxi Industry Code of Conduct for authorised taxi drivers.

(ii)On 27 February 2004 Mr Succar received a Penalty Notice for smoking in a taxi-cab.

(iii)On 13 August 2006 Mr Succar received a Penalty Notice for not wearing a proper uniform.
(iv)On 13 August 2006 Mr Succar received a Penalty Notice for failing to display his authority card.
(v)Mr Succar’s driver’s licence was suspended on 12 November 2004 and on 11 August 2005 with good behaviour conditions. The suspension extended from 15 September 2005 to 15 March 2006.
(vi)On 20 March 2006 Mr Succar received a two year good behaviour bond for driving while suspended. There are numerous other traffic offences including disobeying traffic lights and speeding.
(vii)On 20 January 2007 Mr Succar’s driver’s licence was suspended for demerit points with good behaviour conditions to extend from 24 February 2007 to 24 December 2007.
(viii)On 7 February 2007 a Police Report was filed alleging that on 22 September 2006 a driver fitting Mr Succar’s description had inappropriately touched a female passenger on the neck and lightly directed her head towards his groin, suggesting that she pay for her fare with a sexual favour. The complainant was intoxicated but stated “not profoundly so”. She did not take the taxi-cab number at the time of the alleged incident but at a later date she saw the taxi-driver again and on this occasion took his tax-cab number down and reported the incident to the police on 9 January 2007. The complainant did not want criminal proceedings to proceed. The police report was forwarded to the Ministry of Transport, which had also received a complaint about the incident. The Ministry of Transport wrote to Mr Succar on 15 March 2007 requesting that he respond to the allegations. Mr Succar was interviewed in relation to the allegations by a Ministry of Transport Compliance Officer on 11 April 2007. A record of that interview appears at page 145 of the Ministry’s file. Mr Succar denied any knowledge of the incident or of the allegations. The Compliance Officer also questioned Mr Succar about other passenger complaints. He denied any wrongdoing but admitted to not notifying the Ministry of his traffic infringements or the suspension of his licence.
(ix)At page 58 of the Ministry file there appears a list of issues relating to driving a taxi-cab for the period 21 May 2004 to 4 January 2007. The list contains 20 matters of concern including the allegation of sexual harassment set out above in subparagraph (vi) and failing to provide reasonable assistance to a passenger, being rude and uncivil, smoking in the taxi, demanding more than the prescribed fare and improper behaviour.
(x)On 221 May 2007 a delegated officer of the Ministry determined that Mr Succar’s taxi authority should be suspended. He was asked to show cause why it should not be.
(xi)On 8 June 2007 an internal review of the decision was requested and on 11 June 2008 Mr Succar responded denying the complaints set out in the Notice to Show Cause. Mr Succar explained that he had been a heavy smoker, smoking up to two and half packets of cigarettes per day, for the past five years due to family stress. He stated that he had now ceased smoking and that taxi driving had been his only job for 30 years. He stated that he had no other way of making a living.
(xii)On 20 June 2007 the decision was made to immediately cancel Mr Succar’s driver authority, because Mr Succar had failed to address his prior driving history and had failed to explain why he had repeatedly failed to notify the Ministry of his licence cancellations and three licence suspensions. Additionally the criminal matter recorded against Mr Succar was not addressed by him and he failed to provided any references.
(xiii)On 2 July 2007 Mr Succar was asked to attend and complete retraining in the Regulations governing taxi driving and Quality Customer Service. He was advised that failure to comply could result in the cancellation of his authority. Conditions regarding no further customer related complaints and no further penalty infringement notices were imposed on his driver authority. His authority was suspended until he could show evidence of the currency of his driver’s licence and successful completion of the required training by 16 August 2007. As at 18 September 2007 Mr Succar failed to provide this evidence.
(xiv)Mr Succar’s driver’s licence was suspended until 24 December 2007 due to excess demerit points.
(xv)Following reinstatement of his driver authority it was alleged that on 8 February 2008 Mr Succar acted sexually inappropriately towards a female passenger touching her on the breast and making sexual comments. It was also alleged that he was smoking in the taxi-cab.
(xvi)Mr Succar was interviewed by a Compliance Officer of the Ministry on 20 February 2008. Mr Succar denied the legations but on 23 February 2008 it was recommended that Mr Succar’s driver authority be immediately suspended and that he be issued with a Show Cause Notice requiring him to explain why his authority should not be cancelled.
(xvii)On 26 March 2008 Mr Succar wrote to the Ministry and denied the complaints. He admitted his poor driving record and suspension of his authority and licence. Mr Succar admitted that he drove while he was suspended but stated that it was because his cousin was dying in hospital. On 9 April 2008 it was recommended that Mr Succar’s driver authority be cancelled.

Findings

13 Mr Succar did not dispute the contents of the Ministry’s file and the Tribunal is satisfied that the material contained therein accurately records his driving, traffic and taxi authority record. Mr Succar did not contest the content of the Ministry’s file and specifically, did not contest the allegations concerning the incident on 8 February 2008.

14 Deputy President Hennessy in Saadieh v Director General, Department of Transport [1999] NSW ADT 68 at [17] set out several factors which should be considered when determining a person's fitness and suitability to hold a taxi authority as follows:

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.

15 The issue for the Tribunal is whether Mr Succar is a “fit and proper person” to hold an authority to drive taxi-cabs. Applying the test set out in Maythisathit’s case to the present circumstances, it is the Tribunal’s view that a member of the public, knowing Mr Succar’s driving authority record and traffic record as well as the complaints of sexual harassment would object to Mr Succar holding a driver authority, because of the serious breach of trust between the taxi driver and a member of the public, which the complaints demonstrate.

16 The Tribunal places significant weight not only on the complaint of sexual harassment in 2006 but also the complaint of sexual harassment in February 2008. The February 2008 is all the more egregious because it occurred so soon after the reinstatement of Mr Succar’s driver authority. In 2007 Mr Succar had been interviewed about numerous complaints, he had been asked to show cause and warned if there were any more complaints or inappropriate behaviours, action would be taken to cancel his driver authority.

17 Despite Mr Succar denying all of the sexual harassment allegations in past interviews with the Ministry, he did not dispute them at the Tribunal hearing. He did not provide any evidence challenging the contents of the Ministry file. The Tribunal accepts the contents the matters out in the Ministry file as accurately reflecting Mr Succar’s driver authority record and traffic history record.

18 Mr Succar has sought to explain his behaviour, claiming that he has been driving taxis for 30 years and that he had not previously had any complaints against him. He claimed that he was suffering from family stress during 2006 in particular. However this does not explain the very serious complaint of sexual harassment of a female passenger in February 2008 after his licence and authority were reinstated and despite the retraining he undertook prior to being reinstated.

19 Mr Succar has been given many chances to rehabilitate himself and demonstrate that he is a fit and proper person to hold an authority to drive taxi-cabs, but he has failed to do so.

20 The Tribunal notes Mr Succar’s claim of financial hardship. As stated by the Tribunal in Lal –v- Director-General of Transport (2001) NSWADT 74:

Hardship … is not a factor which the Tribunal can take into account in determining whether or not the Director General has made the correct and preferable decision.

21 It is not disputed that Mr Succar is suffering financial hardship and that driving taxi-cabs has been his only way of earning a living, but that fact is not a relevant consideration when determining whether Mr Succar is a fit and proper person to hold a taxi-cab authority. This circumstance does not alter the fact that Mr Succar has been the subject of serious complaints of sexual harassment, which occurred in the course of his activities as a taxi driver. It is simply not acceptable behaviour and amounts to a breach of trust between the member of the public and the taxi-driver.

22 Mr Succar’s driving record is also poor. He lost his licence on at least three occasions. Mr Succar has many other traffic offences, some serious and some not so serious but they all suggest a repeated disregard for the law. His previous behaviour does not inspire confidence that he would not commit further traffic offences and his blatant disregard for the law over many years is not sufficiently explained by his claim of family stress. The Tribunal agrees with Mr Wozniak that Mr Succar has not shown any remorse and the Tribunal is not satisfied that Mr Succar would not re-offend.

23 Mr Succar has only relied on a testimonial from his Parish Priest, who does not refer to Mr Succar’s driving record or the allegations of sexual misconduct. The Tribunal considers such a statement in the absence of reference to the complaints must be given very little weight.

24 The Tribunal finds Mr Succar is not a fit and proper person to hold a taxi-cab authority because of the frequency and nature of the complaints, which suggest a disregard for the law, and his poor driving record and the likelihood that he may reoffend.

25 The decision of the delegate of the Director–General of the Ministry of Transport to cancel Mr Succar’s authority to drive a taxi-cab is affirmed.