Taylor-v-Director General, Department of Transport

[2000] NSWADT 63

CITATION:	Taylor-v-Director General, Department of Transport [2000] NSWADT 63
DIVISION:	General Division
PARTIES:	APPLICANT Geoffrey Taylor RESPONDENT Director General, Department of Transport
FILE NUMBER:	003041
HEARING DATES:	15/05/00
SUBMISSIONS CLOSED:	05/15/2000
DATE OF DECISION:	05/19/2000
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	Bus driver - suspension of authority - Long Distance Service driver - suspension of authority - Passenger Transport Act - bus driver - suspension of authority - Passenger Transport Act - long distance service driver - suspension of authority - Passenger Transport Act - private hire vehicle driver - suspension of authority - Passenger Transport Act - taxi driver - suspension of authority - Passenger Transport Act - tourist service driver - suspension of authority - Private hire vehicle driver - suspension of authority - Taxi driver - suspension of authority - Tourist Service driver - suspension of authority
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Passenger Transport Act 1990
CASES CITED:	Saffron v FCT (No 2) (1991) 102 ALR 19 Ridley v Secretary, DSS (1993) 29 ALD 726 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 Saadieh v Director General, Department of Transport [1999] NSWADT 68
REPRESENTATION:	APPLICANT M O'Callaghan, solicitor RESPOPNDENT A Wozniak, solicitor
ORDERS:	1. The decision to suspend Mr Taylor’s authorities to drive regular passenger buses and long distance and/or tourist buses, taxis and private hire vehicles is set aside.

1 On 14 February 2000 Mr Taylor applied to the Tribunal for a review of the Director General’s decision to suspend his authority to drive passenger buses, long distance/tourist buses, taxis and private hire vehicles. In summary, the decision to suspend Mr Taylor’s licence was based on his conviction in a matter under the Passenger Transport (Taxi Cabs Services) Regulation 1995 (the Regulation).

2 The conviction involved an incident on 31 December 1998 when Mr Taylor picked up two passengers. After proceeding some distance he asked them to get out of the taxi and drove off before the female passenger had a chance to move out of the way of the taxi. The precise circumstances of this incident are the subject of conflicting evidence.

3 On 21 December 1999, the Director General affirmed the original decision to suspend Mr Taylor’s authority.

Jurisdiction

4 Under the Passenger Transport Act 1990 (the Act) s 52(1) a person whose application has been refused or whose accreditation or authority has been varied, suspended or cancelled, may apply to the Administrative Decisions Tribunal for a review of that decision.

Issues and Legislation

5 Section 14 of the Act gives that Director General power to vary, suspend or cancel any person’s authority. That section states that:

Having regard to the purpose of an authority, the Director-General may at any time vary, suspend or cancel any person's authority.

6 The purpose of an authority is set out in s 11(2) which provides that:

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 public passenger vehicle; and
(b) that the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates:
(i) in accordance with the conditions under which a public passenger service is operated; and
(ii) in accordance with law and custom.

7 The issue in this case is whether the Director General made the correct and preferable decision in suspending the applicant’s taxi and other authorities having regard to the material then before it including any relevant factual material and any written or unwritten law. (See s 63 of Administrative Decisions Tribunal Act 1997 (ADT Act))

8 The Tribunal has the power to look behind the conviction and come to its own view of the facts. Merits review cases at the federal level have found that ". . . where the exercise of the power is not founded on a criminal conviction, then even if the conviction be relevant, a challenge may be made to the essential facts on which it was based." (Saffron v FCT (No 2) (1991) 102 ALR 19; Ridley v Secretary, DSS (1993) 29 ALD 726 at 731

Evidence and Findings

9 The Local Court convicted Mr Taylor of the following offences in relation to the incident on 31 December 1998:

• fail to carry out hiring punctually -convicted and fined $200;
• behave with incivility towards passenger- convicted and fined $300; and
• negligently start taxi with a risk of injury to passenger -convicted and fined $500.

10 Mr Taylor pleaded not guilty and still maintains that he did not behave with incivility towards the passengers and that he was not negligent. The incivility conviction related to swearing and the negligence incident related to driving off before a female passenger had a chance to fully alight from the taxi.

11 Although I have the power to go behind the facts found by the Magistrate in this case, I do not intend to do so. The Magistrate had the opportunity to see both passengers and Mr Taylor give evidence. He came to certain conclusions on the criminal standard of proof, on the basis of that evidence. I do not have the benefit of seeing the passengers give evidence and as there is no fresh evidence I accept the findings of the Magistrate. In brief, these findings were that:

• Mr Taylor undertook the journey as required by the passengers but he didn’t keep to that particular journey;
• Mr Taylor acted in an uncivil way because of his language on this occasion; and
• Mr Taylor pulled out with one passenger half in and half out of the vehicle and he did so negligently with the risk of causing her injury.

12 The Magistrate acknowledged the fact that Mr Taylor had slipped down some stairs and injured his foot prior to the shift in question and that various other circumstances on that night went some way to explaining his actions.

13 Mr Taylor’s solicitor submitted a report from Diane Bull, a registered psychologist and lecturer in Theory and Practice of Human Memory at the University of Newcastle. The report questioned the accuracy of the statements given by the two passengers. Mr O’Callaghan acting for Mr Taylor, did not rely on this report and I have not taken it into account in reaching my decision.

14 Mr Taylor has been driving heavy vehicles and passenger vehicles for approximately 20 years. For the last 6 years he has been driving taxis on a part time basis. He says that he has never had a complaint lodged against him in that time. As there was no evidence to contradict this claim, I accept it.

15 Mr Taylor submitted several references as to his good character and involvement with community groups. John Saley, Director of Central Coast Taxis, stated that he has known Mr Taylor for 10 years and he has always found him to be reliable and honest. There were also several references from welfare and religious organisations attesting to Mr Taylor’s involvement in community and religious activities including crisis counselling with the Wayside Chapel and membership of the Kincumber Community Action Group.

Application of law and decision

16 The provisions of s 14 of the Act, so far as they relate to this case, require that the applicant be of good repute and in all other respects a fit and proper person to drive a taxi. They also require that the applicant has sufficient responsibility and aptitude to drive a taxi.

17 As to the meaning of fit and proper person, Chief Justice Mason in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63] said that:

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.

18 The concept of “reputation” was discussed by Waddell J in Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 393 in the following terms:

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.

19 In Saadieh v Director General, Department of Transport [1999] NSW ADT 68 at [17], I set out several factors which should be considered when determining a person’s fitness and suitability to hold a taxi authority. These were:

• 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.

20 Applying these factors to the present case, Mr Taylor has been convicted of three offences in relation to a single trip on 31 December 1998. While two of those offences (incivility and failing to carry out hiring punctually) are not serious offences, the third offence of negligently starting the taxi with a risk of injury to passengers is of serious concern. It is also significant that it occurred while Mr Taylor was engaged in driving a taxi. If the offence had occurred in another context it may not reflect as badly on Mr Taylor’s fitness to drive a taxi. While I accept that Mr Taylor’s foot was causing him some pain at the time of the incident, neither that nor any other factors such as the alleged aggression shown by the male passenger, provides any excuse for his behaviour.

21 There was no evidence that Mr Taylor had been convicted of any other offences, that any complaints had been made against him or that he had an unsatisfactory driving record.

22 Mr Taylor’s reputation in the community is strong. He has participated over many years in a voluntary capacity to assist welfare, religious and community organisations.

23 In my view there is very little likelihood that Mr Taylor will re-offend. This is his first and only conviction. While it is a serious matter to drive off, leaving the door open, in circumstances where there was a risk of injury to a passenger, Mr Taylor admitted at the hearing that he deliberately accelerated, and said that if the passenger suffered an injury and he was the cause of it, then he is sorry. I find that despite Mr Taylor’s reluctance to admit to causing injury to the female passenger, he understands the seriousness of what he did.

24 Mr O’Callaghan’s submission was that the fact of the convictions appears to have been the sole basis for the decision to suspend Mr Taylor’s licence. No consideration was given to the circumstances of the offence, his past record and his good character. Mr Wozniak for the Director General agreed that evidence of past good character and reputation in the community is relevant.

25 I appreciate that a decision to suspend an authority must sometimes be made quickly and without waiting for all the available evidence. In this case Mr Taylor’s licence was suspended on 10 November 1999, less than a month after he was found guilty of the offences. The letter of that date asked Mr Taylor to “show cause” within 14 days as to why his authorities should not be cancelled. It also advised him of his review rights in relation to the decision to suspend.

26 It appears that rather than responding to the invitation to “show cause” Mr Taylor pursued his review rights immediately. The Department conducted an internal review armed with the additional information submitted by Mr Taylor. However, apart from a statement that “Your statements and those attaching to the Application for Review have been considered during the process of reviewing the Facts and the Decision” there is no indication that the administrator did in fact take that information into account in his reasoning process. In conducting the internal review the administrator should have specifically referred to relevant facts as put by Mr Taylor and demonstrated in the reasoning process how those facts were weighed in the decision making process.

27 On the basis of this reasoning, I am satisfied that the Director General has not made the correct and preferable decision in suspending Mr Taylor’s authorities. The administrator should have looked at all the circumstances available to him or her at the time before deciding to suspend Mr Taylor’s authorities. He did not adequately take into account all the information available, particularly the fact that this was Mr Taylor’s only conviction or complaint and other evidence of his good character and reputation. If he had done so, he should have come to the view that Mr Taylor’s authority should not have been suspended.

28 Pursuant to s 63 of the ADT Act the Director General’s decision to suspend Mr Taylor’s authorities to drive regular passenger buses and long distance and/or tourist buses, taxis and private hire vehicles is set aside.