Tehrani v Director General, Department of Transport

[2003] NSWADT 31

CITATION:	Tehrani -v- Director General, Department of Transport [2003] NSWADT 31
DIVISION:	General Division
PARTIES:	APPLICANT Amir Nakhaiee Tehrani RESPONDENT Director General, Department of Transport
FILE NUMBER:	023163
HEARING DATES:	18/10/2002
SUBMISSIONS CLOSED:	10/22/2002
DATE OF DECISION:	02/21/2003
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Passenger Transport Act - private hire vehicle operator - cancellation of accreditation - Passenger Transport Act - taxi operator - cancellation of accreditation - Private hire vehicle operator - cancellation of accreditation - Taxi operator - cancellation of accreditation
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990
CASES CITED:	Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 McDonald v Director General of Social Security (1984) 1 FCR 354 Lal -v- Director-General, Department of Transport [2001] NSWADT 74 Ghachame -v- Director General, Department of Transport [2000] NSWADT 113 Singh -v- Director General, Department of Transport [1999] NSWADT 96
REPRESENTATION:	APPLICANT D Burwood, barrister RESPONDENT A Wozniak, solicitor
ORDERS:	The decision of the Director General, Department of Transport to cancel the accreditation as an operator of a hire car service and the taxi-cab operator accreditation held by Amir Nakhaiee Tehrani is affirmed.

Background

1 These proceedings relate to two determinations made by a delegate of the Director General, Department of Transport (“the Director General”) to cancel the accreditation as an operator of a hire car service and the taxi-cab operator accreditation held by Amir Nakhaiee Tehrani (“Mr. Tehrani”). The decision to cancel those accreditations was taken on 22 July 2002.

2 Mr. Tehrani is 35 years of age. Until recent times he has operated a taxi-cab and hire car business. He held accreditation in his own right and through Monica Hire Cars Pty Ltd (“Monica Hire Cars”) of which he is a sole director.

3 On 2 May 2002 Mr. Tehrani and Monica Hire Cars appeared in the Parramatta Local Court where both entered pleas of guilty to charges brought against them.

4 Monica Hire Cars was convicted of offences of Operate Public Passenger Service Without Being Accredited on 10 March 2001 and 17 May 2001 and fined $50.00 in relation to each charge. Mr. Tehrani was convicted of offences of Knowingly Authorise or Permit Monica Hire Cars Pty Ltd to Operate Public Passenger Service Without Being Accredited on 10 March 2001 and 17 May 2001 and fined $500.00 and $58.00 Court costs in relation to each charge. Mr. Tehrani was also ordered to pay professional costs of $2,000.00.

5 On 24 June 2002 the Director General issued Notices to Show Cause in relation to Hire Car Operator Accreditation 20382 and Taxi Accreditation 17978 and afforded Mr. Tehrani the opportunity to show cause as to why those accreditations should not be cancelled. Mr. Tehrani provided submissions on the issue shortly thereafter.

6 On 22 July 2002 the Director General's delegate made the decision to cancel the accreditations. Detailed reasons for the decision were given and Mr. Tehrani was notified of the decision and those reasons. On 29 July 2002 Mr. Tehrani’s solicitor requested an internal review of the decisions and at the same time filed an Application for Urgent Stay of Decision with this Tribunal. That application was limited to the decision to cancel Taxi Accreditation 17978.

7 The Stay Application came before the Tribunal’s President on 2 August 2002 at which time he granted the application to stay the Director General's decision pending the determination of the matter; made directions for the filing of documents; and listed the matter for hearing on 18 October 2002. It appears that as a consequence no further action was taken with respect to the requested internal review of the decisions.

Reviewable decision

8 The reviewable decision is that of the Director General to cancel Hire Car Operator Accreditation 20382 and Taxi Accreditation 17978. Those decisions were advised to Mr. Tehrani by letter dated 22 July 2002.

9 On 29 July 2002 Mr. Tehrani lodged an application with the Tribunal for a review of the Director General's 22 July 2002 decisions. The matter came before me for hearing on 18 October 2002 and proceeded on that day. Further time was allowed for Mr. Wozniak to file a copy of a relevant authority with the Tribunal. That authority was received on 22 October 2002.

Nature of proceedings

10 The issue for this Tribunal is: what is the correct and preferable decision? The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all the material first considered, together with any further relevant material, so as to either confirm the original decision, vary it, or set it aside and substitute another. “The duty of the tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view was objectively the right one to be made” (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77).

11 These are not adversarial proceedings in which Mr. Tehrani carries an onus of proof. Mr. Tehrani, by making the application, triggers a process of merits review by the Tribunal. Mr. Tehrani does not take on the responsibility of having to prove a case, nor does he cause the Director General to have to prove a case. Mr. Tehrani and the Director General are before the Tribunal as parties by virtue of section 67(2) of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”).

12 Section 63(1) of the ADT Act provides:

“63 Determination of review by Tribunal
(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) 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.
(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:
(a) to affirm the reviewable decision, or(b) to vary the reviewable decision, or(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.”

13 The Tribunal makes its own decision in place of the Director General’s, and there is no presumption that the decision of the Director General is correct: (McDonald v Director General of Social Security (1984) 1 FCR 354 at 357).

14 When there is a fact in issue as to the existence of which the Tribunal must be satisfied, it must be satisfied to the civil standard of proof, that is, on the balance of probabilities: (McDonald at 357).

Applicable Legislation

15 The Passenger Transport Act 1990 (“the Act”) sets out the applicable law. Division 3 in Part 4 of the Act makes provision for accreditation as a taxi-cab operator. Section 31 of the Act provides:

“Accreditation
31. (1) The Director-General may accredit persons for the purpose of carrying on taxi-cab services, subject to and in accordance with this Division. A person accredited under this Division is referred to in this Part as an ``accredited taxi-cab operator''.
(2) The purpose of accreditation under this Division is to attest:
(a) that the accredited person is (or, in the case of an accredited person that is a corporation, the designated directors and managers of the corporation are) considered to be of good repute and in all other respects fit and proper to be responsible for the operation of a taxi-cab service, and
(b) that the accredited person has demonstrated the capacity to meet and continue to meet the appropriate requirements with respect to:
(i) financial viability, and
(ii) safety of drivers, passengers and the public, and
(iii) vehicle maintenance,
to the degree and in the manner required in respect of services of the kind specified in the accreditation.
(3) The appropriate requirements are:
(a) such requirements as may be prescribed by the regulations, and
(b) the standards determined under section 31E.”
16 Section 31F of the Act states:
“Variation, suspension or cancellation of accreditation
31F. (1) Having regard to the purpose of accreditation under this Division, the Director-General may at any time vary, suspend or cancel any person's accreditation under this Division.
(2) Without limiting subsection (1), the Director-General may vary, suspend or cancel a person's accreditation under this Division:
(a) for failure to comply with a service requirement imposed by the taxi-cab network with which the operator is affiliated, but only if the Director-General is satisfied that the requirement is reasonable and necessary to enable the network to comply with its obligations imposed by or under this Act, and
(b) for failure to comply with a service standard requiring compliance with the applicable contract determination, and
(c) for failure to pay a financial sanction imposed under the standards under this Division.
(3) The accreditation of a corporation is automatically cancelled when there is no designated director or manager.”
17 Division 3 in Part 4A of the Act makes provision for private hire vehicle operators’ accreditation. Section 38 of the Act provides:
“Accreditation
38. (1) The Director General may accredit persons for the purpose of carrying on private hire vehicle services, subject to and in accordance with this Division. A person accredited under this Division is referred to in this Part as an ``accredited private hire vehicle operator''.
(2) The purpose of accreditation under this Division is to attest:
(a) that the accredited person is (or, in the case of an accredited person that is a corporation, the designated directors and managers of the corporation are) considered to be of good repute and in all other respects fit and proper to be responsible for the operation of a private hire vehicle service, and
(b) that the accredited person has demonstrated the capacity to meet and continue to meet the appropriate requirements with respect to:
(i) financial viability, and
(ii) safety of drivers, passengers and the public, and
(iii) vehicle maintenance,
to the degree and in the manner required in respect of services of the kind specified in the accreditation.
(3) The appropriate requirements are such requirements as may be prescribed by the regulations.”

18 Section 38E of the Act provides for variation, suspension or cancellation of an accreditation. Section 38E states:

“Variation, suspension or cancellation of accreditation
38E. (1) Having regard to the purpose of accreditation under this Division, the Director-General may at any time vary, suspend or cancel any person's accreditation under this Division.
(2) The accreditation of a corporation is automatically cancelled when there is no designated director or manager.”

19 The decision to be made is whether Mr. Tehrani can be considered to be of good repute and in all other aspects a fit and proper person to operate a Hire Car Service; and of good repute and in all other respects fit and proper to be responsible for the operation of a taxi-cab service and whether he has sufficient fitness, responsibility and ability to carry out the duties and responsibilities of these positions according to law and custom.

20 It is clear from the correspondence and the Department’s file that the Director General decided that he would not attest that Mr. Tehrani is considered to meet the required standards for accreditation as an operator of a hire car service or as an operator of a taxi-cab service.

Evidence

21 The Department of Transport’s files relating to each of the authorities were put in evidence and the Director General relied on the documents contained within those files. The Director General called Mr. Jamie Hinton and Mr. David McKerral, Officers with the Department as witnesses in support of his case.

22 Mr. Tehrani presented evidence on his own behalf. He also presented several testimonials prepared on his behalf.

The Director General's case

23 The Director General’s case is essentially that set out in the reasons provided following the decision to cancel the authorities. An additional basis relates to allegations that 29 September 2002 Mr. David McKerral and Mr. Jamie Hinton observed Mr. Tehrani at Sydney Airport and that on that occasion Mr. Tehrani was working as a hire car without an authority.

24 The reasons provided following the decision to cancel the authorities are in similar terms. The reasons in relation to the Hire Car Operator Accreditation stated:

“Facts, Evidence and Material
The Department relies on the following facts, evidence and material to make the decision to cancel your operator accreditation 20382.
On 2 May 2002 at the Parramatta Local Court Monica Hire Cars which you are the sole Director was convicted of two counts of 'Operate Public Passenger Vehicle Without Being Accredited for offences on the 10 & 17 March 2001.
On 2 May 2002 at Parramatta Local Court you where convicted for two counts of Knowingly Authorise or Permit Monica Hire Cars Pty Ltd to Operate a Public Passenger Service Without Being Accredited for offences on the 10 & 17 March 2001.
On 10 March 2001 you authorised or permitted an unregistered vehicle to be used to convey passengers for a wedding on two separate occasions.
Evidence of the above facts is in the form of:
- Department of Transport records.
- Roads and Traffic Authority records
…
The Reasoning Processes that lead to the Decision
To be of 'good repute and in all other aspects a fit and proper person' to operate a Hire Car Service the community must have confidence that an operator would show responsibility in all aspects of their business. The fact that you were convicted of 'Knowingly Authorise or Permit Monica Hire Cars to Operate a Public Passenger Service without being accredited'. This casts grave doubts about your fitness and responsibility to operate a Hire Car Service and of your ability to carry out the duties and responsibilities of the position according to law and custom.
The fact that the company which you are the sole Director of 'Monica Hire Cars' was convicted of 'Operate Public Passenger Service without being Accredited' on two occasions also casts grave doubts about your fitness and responsibility to operate a hire car service and of your ability to carry out the duties and responsibilities of the position according to law and custom.
The fact that you permitted or authorised an unregistered vehicle to be used on 10 March 2001 to convey passengers on two separate occasions indicates that you show no regard for law and custom.
You were afforded the opportunity to make submissions in relation to the Department's Notice to Show Cause, which could have challenged the Department’s facts, evidence and material against you. Submissions received by you were not sufficient to constitute any reason to vary or substitute the original decision.
Based on the above facts and law it can no longer be attested that you are considered to meet the required standards for accreditation as an operator of a hire car service.”

25 Evidence with respect to the events of 29 September 2002 was in the form of a statement by Mr. Jamie Hinton dated 30 September 2002 and oral evidence from Mr. Jamie Hinton and Mr. David McKerral. Their evidence is that on 29 September 2002 at approximately 1845hrs, they were conducting taxi and hire car operations at Sydney Airport, Mascot. Whilst conducting these duties they approached a hire car driver and asked him for his driver's authority. The driver was identified as Mr. Tehrani but he was unable to produce an authority. Mr. Tehrani initially indicated that he held an authority but did not have it with him. He subsequently indicated that this Tribunal had given him a stay of the cancellation until 18 October 2002. Mr McKerral then advised Mr. Tehrani that the Tribunal stay only applied to the operation of the Hire Cars and Taxis, and that the Tribunal stay did not authorise him to drive a hire car. Following that discussion, it was suggested that Mr. Tehrani take the car home. Mr. Tehrani made a mobile phone call before climbing in to the car and drove off.

26 Mr. Wozniak submitted that by his conduct, Mr. Tehrani has demonstrated that he is not a fit and proper person to hold these accreditations because he considers himself above the law. Mr. Tehrani’s authority had been suspended because he had failed to pay the fine that had been imposed upon him. The fine was not paid until 30 September 2002 yet Mr. Hinton and Mr. McKerral spoke to him on 29 September 2002. At that time he was driving a hire car even though his authority remained suspended.

27 In applying for accreditation to operate a hire car service Mr. Tehrani had undertaken to ensure that all drivers working in his service were authorised. Notwithstanding that undertaking Mr. Tehrani had himself driven without the appropriate authority.

28 Mr. Tehrani had argued in relation to the incident of 10 March 2001 that the licensing requirements for the tourist vehicle TV 2819 worked under the authority of an accreditation in the name of Mr. Sargit Singh. With respect to that assertion Mr. Wozniak referred to correspondence from Mr. Singh dated 1 October 1999 in which Mr. Singh advised both Mr. Tehrani and the Department of Transport that he had withdrawn management of the vehicle TV 2724 from his accreditation. A file note recording a conversation between a Departmental Officer and Mr. Singh notes that Mr Singh had advised that originally he managed TV 2724 but he withdrew as designated manager in October 1999. When asked whether he had ever managed TV 2819 on behalf of Mr Tehrani Mr Singh stated that the only vehicle he ever managed was TV 2724.

29 Mr. Wozniak submitted that the Tribunal should not take account of Mr. Tehrani’s evidence regarding the financial consequences of the decision to cancel the authorities, that is, that Monica Hire Cars is his sole source of income and that the business will be forced to close terminating the employment of three full time staff and a further twelve persons it retains on a sub contract basis. Mr. Wozniak referred to the decision in Lal -v- Director-General, Department of Transport [2001] NSWADT 74 where the Tribunal’s Deputy President stated at paragraph 47:

“47 In his “show cause” submissions, Mr Mayell stated that cancellation would cause Ms Lal considerable hardship. He referred to the considerable financial investment she has put into taxis over 20 years in support of this submission. Hardship to Ms Lal 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.”

30 Mr. Wozniak argued that no double jeopardy arises as a consequence of the decision to cancel the authorities in addition to the penalties applied by the Local Court. In support of this submission he referred to the decision in Ghachame -v- Director General, Department of Transport [2000] NSWADT 113 where the Tribunal’s Deputy President stated at paragraphs 63-64:

“63 A question which arose in these proceedings is the punitive effect on Mr Ghachame of not granting him an authority. There are several avenues by which a taxi driver can be punished, including being issued with infringement notices, being temporarily suspended from driving and being prosecuted for breaches of the Regulations or of the criminal law. The ability to suspend, cancel or refuse to grant a person's licence, while having a punitive effect on a driver, is predominantly designed to protect the public. In Hoban v Davey (1972 1 NSWLR 59) Sugerman J at 63-6 and Mason JA at 72, characterised provisions under the Commercial Agents and Private Inquiry Agents Act 1963 in a similar way. Sugerman P said at 65 and 66 that:

The scope and purpose of the Commercial Agents and Private Inquiry Agents Act , and in particular of the restrictions on licensing contained in s 10(10) thereof and the provisions for cancellation of licences and disqualification of the holders in ss 11-14, seem to be predominantly the protection of the public rather than the punishment of offenders. . . .
In the Act at present in question either permanent disqualification or disqualification for a period specified by the court is available for matters which so obviously concern the protection of the public as that the agent is not of good fame and character or is not a fit and proper person to hold a licence.
64 On the basis of this analysis, I do not accept the applicant's submission that Mr Ghachame has been adequately punished for the incidents in question and that an authority should be re-issued on that basis. The real question is whether Mr Ghachame has the requisite character, reputation, responsibility and aptitude to meet the public's reasonable expectations of taxi drivers.”

31 Mr. Wozniak argued that the issues referred to the Tribunal’s Deputy President in Ghachame are the same issues to be determined by the Tribunal in relation to Mr. Tehrani ie whether Mr. Tehrani has the requisite character, reputation, responsibility and aptitude to meet the public's reasonable expectations.

32 He submitted that the Tribunal cannot be satisfied that Mr. Tehrani has those qualities. He drove without an authority; he used another person’ accreditation in return for payment; and he has demonstrated that he cannot abide by the requirements of the accreditation.

Mr. Tehrani's case

33 Mr. Tehrani presented evidence on his own behalf. He also presented several testimonials prepared on his behalf. His case is essentially based on the argument that the Commissioner's decision was not the correct and preferable decision because while he pleaded guilty to the charges of which he was convicted, the breaches did not go to honesty, but to employee issues and confusion on his part. He conceded that the breaches to which he pleaded guilty were serious, but said they were not out of any attempt to evade his responsibilities.

34 He stated that the public were not involved in his breaches but in contrast one breach occurred because of Mr. Tehrani’s desire to keep faith with a wedding party. While he concedes that this was wrong, he argued that it was done for a decent reason. He did not want to let the wedding party down. He also stated that at the time he believed that the licensing requirements were covered by Mr Sargit Singh's registration. He acknowledged that Mr Singh provided the Department with correspondence which was purportedly dated 1 October 1999 in which Mr. Singh advised both Mr. Tehrani and the Department of Transport that he had withdrawn management of the vehicle TV 2724 from his accreditation. He stated that the date on the letters is wrong and that Mr Singh was still involved in Mr. Tehrani’s business after that date. A vehicle to which the correspondence relates was not purchased until 24 December 2000 and therefore if the correspondence is taken at face value it relates to a vehicle that did not exist.

35 Mr. Tehrani stated that on 10 March 2001, the vehicle used was unregistered solely because of the matter of an outstanding parking ticket. The penalty notice had been forwarded to Mr. Tehrani’s former home that he had vacated as a result of the breakdown of his marriage. Mr. Tehrani’s wife had not forwarded the penalty notice to him. When the penalty notice came to his attention, he paid the penalty amount and registration was restored. He said that he will ensure that this never happens again.

36 Mr. Tehrani had difficulty in paying the penalty imposed by the Local Court and the consequence of the failure to pay was that his driver’s licence was suspended. Mr. Tehrani’s evidence is that he had written a cheque for the amount of the debt prior to 30 September 2002 but that the debt was not considered cleared until that date. He said that he thought it was paid at the time he wrote the cheque. If that were the case, he would have had a current authority on 29 September 2002. Mr. Tehrani also said that he thought that he had a stay of the Director General's decisions until this matter is finalised.

37 Mr. Burwood referred to the decision in Singh -v- Director General, Department of Transport [1999] NSWADT 96 where the Tribunal’s Deputy President stated at paragraph 32:

“32 In Saadieh v Director General, Department of Transport [1999] NSWADT 68, I set out a number of factors, based on the terms of the legislation and the case law interpreting similar provisions, that need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. These factors 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.”

38 Mr. Burwood submitted that the factors referred to in Singh are applicable to these proceedings and need to be weighed in determining whether Mr. Tehrani is a fit and proper person to provide the services to which the accreditations relate. With respect to the first of those factors, Mr. Burwood submitted that the relevant offences are those for which convictions were recorded in the Parramatta Local Court on 2 May 2002. No other convictions are relevant. He also submitted that no inference should be drawn from Mr. Tehrani’s change of plea. Mr. Tehrani’s evidence is that he changed his plea to save time and cost to the Department.

39 With respect to the second and third factors - the nature, seriousness and frequency of any complaints made against Mr. Tehrani and his driving record - Mr. Burwood submitted that these are in evidence and are not disputed but that the Tribunal must undertake a balancing exercise weighing these issues against Mr. Tehrani’s reputation in the community.

40 Mr. Burwood argued that the matter turns on Mr. Tehrani’s reputation and whether or not he is a fit and proper person to provide the services to which the accreditations relate.

41 With respect to Mr. Tehrani’s reputation he referred to the testimonials provided on Mr. Tehrani’s behalf. The testimonials are provided by regular clients and indicate that Mr. Tehrani is held in high regard. He provides a service but he is also highly regarded in a broader sense.

42 With respect to the fifth factor - the likelihood that Mr. Tehrani will re-offend, be the subject of further complaints or commit further traffic offences - Mr. Burwood submitted that the Tribunal must consider whether Mr. Tehrani has expressed remorse or insight into the breaches and whether it is likely that he will continue to breach his obligations.

43 Based on the testimonials provided, there is every chance that Mr. Tehrani will meet his obligations in a more appropriate manner than in the past. He submitted that there is sufficient evidence before the Tribunal with respect to Mr. Tehrani’s good reputation.

44 Mr. Tehrani has generally run his fleet in accordance with the legislative requirements. It is generally a well maintained fleet. There are few notices which suggest that the fleet is unsafe, dirty or poorly maintained. There are few notices with respect to his drivers.

45 Mr Burwood submitted that Mr. Tehrani cannot get away from his breaches of the law but other elements are to be considered in the weighing up process. Mr. Tehrani seeks a chance of changing his ways, conforming to the law and running a business that he has built up over many years. Mr. Tehrani has only been in Australia for 12 years and he built the business from scratch. Mr Burwood argued that he ought to be given the opportunity to redeem himself and to continue to operate his business.

Findings

46 I agree with Mr Burwood submission that the factors outlined by the Tribunal’s Deputy President in Singh -v- Director General, Department of Transport are applicable to this matter. However, I do not share Mr Burwood's confidence in Mr. Tehrani.

47 It is clear from the evidence before me that Mr. Tehrani has demonstrated that he is prepared to operate his business without regard to the legislative requirements imposed on him. Mr Wozniak has argued that Mr Tehrani considers himself to be above the law. The evidence tends to suggest that that is the case.

48 At best, Mr Tehrani must be said to have shown indifference to the obligations that accompany the accreditations that he held. I agree with Mr Wozniak's submission that it is probable that, had Mr. Tehrani not been caught, he would have continued to operate without regard to those obligations.

49 I have no doubt that Mr Tehrani is held in high regard by his clients. Despite Mr Wozniak's concerns about the testimonials, I accept that they present a fair representation of his reputation amongst his clients. I am unable to form an opinion on Mr Tehran's reputation in the broader community.

50 I agree with Mr Wozniak's argument that hardship to Mr Tehrani 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. I also agree that no double jeopardy arises as a consequence of the decision to cancel the authorities in addition to the penalties applied by the Local Court.

51 I note Mr Tehrani's evidence with respect to the correspondence from Mr Singh purportedly dated 1 October 1999. In my view little weight can be given to that correspondence. Notwithstanding that being the case, it is apparent from the evidence that Mr Tehrani operated his business using Mr Singh's accreditation without Mr Singh taking an active role in the business. Mr Tehrani's evidence is that even though Mr Singh was the designated manager, he was not involved in the day-to-day operations of the business. At most Mr Singh attended the business on a weekly basis. At its highest, Mr Tehrani accepted the benefits of Mr Singh's accreditation in return for the payment of money. In my view, it is probable that Mr Tehrani operated the business without regard to whether Mr Singh authorised the use of his accreditation.

52 I agree with Mr Burwood submission that the factors outlined by the Deputy President in Singh -v- Director General, Department of Transport are to be weighed. In undertaking the weighing process, is essential that the nature, seriousness and frequency of Mr Tehrani's offences be given careful consideration. In my view there is no doubt that these are serious offences. I am not persuaded by Mr Tehrani’s arguments that his duty to his clients justified his conduct.

53 I accept the evidence that on 29 September 2002 Mr Tehrani drove without a valid authority. It is probable that Mr Tehrani was aware that he did not have a valid authority on that day. There is no reasonable explanation for Mr Tehrani not being aware that he did not have a valid authority on 29 September 2002. It is probable that he deliberately tried to mislead the Departmental officers who questioned him about his authority on that day. In my view, this factor outweighs any of the other factors to be considered. It also suggests to me that the likelihood of Mr Tehrani being the subject of further complaints is high.

54 The community could not have confidence that Mr. Tehrani as an accredited operator would show responsibility in all aspects of his business. In my view, Mr. Tehrani cannot be considered to be a fit and proper person to operate a Hire Car Service or fit and proper to be responsible for the operation of a Taxi-Cab Service or that he has sufficient fitness, responsibility and ability to carry out the duties and responsibilities of these positions according to law and custom. It follows in my view that the correct and preferable decision is that Mr Tehrani’s accreditations should be cancelled. Accordingly, the Director General's decision to cancel the accreditations is affirmed.

Orders

The decision of the Director General, Department of Transport to cancel the accreditation as an operator of a hire car service and the taxi-cab operator accreditation held by Amir Nakhaiee Tehrani is affirmed.