Tirta v Ministry of Transport

[2006] NSWADT 65

CITATION:	Tirta v Ministry of Transport [2006] NSWADT 65
DIVISION:	General Division
PARTIES:	APPLICANT Wei On Tirta RESPONDENT Ministry of Transport
FILE NUMBER:	053353
HEARING DATES:	31/01/06
SUBMISSIONS CLOSED:	01/31/2006
DATE OF DECISION:	03/07/2006
BEFORE:	Leal S - Judicial Member
CATCHWORDS:	Passenger Transport Act - taxi driver - grant of authority - Taxi driver - grant of authority
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Passenger Transport (Taxi-Cab Services) Regulation 2001 Passenger Transport Act 1990
CASES CITED:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Lal v DG, Department of Transport [2001] NSWADT 74) Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 McDonald v Director General of Social Security (1984) 1 FCR 354 Saadieh v Director General, Department of Transport [1999] NSWADT 68
REPRESENTATION:	APPLICANT In person RESPONDENT A Wozniak, solicitor
ORDERS:	The decision of the Director-General of the Ministry of Transport to refuse to grant the applicant an authority to drive a taxi-cab is affirmed.

1 On 8 August 2005, the Director-General of the Ministry of Transport made a decision to refuse the application by Mr Wie On Tirta to renew his authority to drive a taxi-cab. In finding that Mr Tirta did not meet the requirements of s33(3) of the Passenger Transport Act 1990, which included that he be of good repute and in all other respects a fit and proper person, the Director-General relied on an outstanding charge against Mr Tirta of assault occasioning actual bodily harm, where the alleged victim was Mr Tirta’s wife. The Director-General’s decision was affirmed on internal review.

2 Mr Tirta has applied to the Tribunal to review the decision to refuse his application for an authority to drive a taxi-cab.

Review decision

3 In this case, the Tribunal is undertaking a review of the merits of the original decision. The role of the Tribunal is to make the correct and preferable decision having regard to the material before it, including any relevant factual material and any applicable written or unwritten law. It then affirms the original decision, varies it, or sets it aside and substitutes another decision. The Tribunal makes its own decision in place of that of the Director General, Ministry of Transport 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.

4 The Director General of the Ministry of Transport has the power to authorise persons to drive taxi-cabs. Such an authority attests, inter alia, 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.

5 Section 32B of the Passenger Transport Act 1990 empowers the Director-General to grant and issue to an applicant an authority to drive taxi-cabs. Before an application is granted, the applicant must meet any criteria set forth in the regulations and satisfy the Director-General as to any matter the Director-General considers relevant.

6 Regulation 33 of the Passenger Transport (Taxi-Cab services) Regulation 2001 states that before an authority is granted to drive taxi-cabs, an applicant must satisfy the Director-General that he or she is of good repute and in all other respects a fit and proper person to be the driver of a taxi-cab and has sufficient responsibility to drive a taxi-cab in accordance with law and custom.

7 The issue in this case, then, is whether the decision to refuse Mr Wirta’s authority to drive taxi-cabs was the correct and preferable one, having regard to whether Mr Wirta is a fit and proper person, whether he is of good repute and whether he has sufficient responsibility and aptitude to drive a taxi-cab. The Tribunal has the power to review this decision pursuant to s38 of the Administrative Decisions Tribunal Act 1997 and s52(1) of the Passenger Transport Act 1990.

Fit and proper person

8 The term “fit and proper person” was discussed by Chief Justice Mason in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63]. The Chief Justice 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.

9 In this case, an authority to drive a taxi-cab can be granted under the Passenger Transport Act 1990, one of the objectives of which is to encourage public passenger services (which include taxi-cab services) that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services.

10 In Maythisathit and Registrar of Motor Vehicles [1996] ACT 165, the test to be applied in relation to “fit and proper character” in the case of taxi driver licensing is described in this way:

One must put oneself, so far as possible, in the position of a member of the public who might travel in a taxi driven by the applicant and ask whether that member of the public, knowing of the applicant’s criminal record and what he has done in the past year to rehabilitate himself, would object to the applicant as the driver of the taxi.

11 The following factors need to be taken into account in determining a person’s suitability and fitness to obtain a taxi-cab authority:

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.

12 In assessing the last factor, the following considerations are relevant:

the length of time since the offences were committed and the circumstances in which they were committed;

whether the applicant admits responsibility for the offences or complaints and shows genuine remorse;

the efforts the applicant has made to rehabilitate himself or herself during that time;

any change in the applicant’s circumstances such as increased support from friends, family or professional service providers.

Saadieh v Director General, Department of Transport [1999] NSWADT 68

13 On 25 August 2005, Mr Tirta pleaded guilty to and was convicted of the offence of assault occasioning actual harm against his wife and was released upon entering into a bond for a period of two years. The conditions of the bond are as follows:

To be of good behaviour

To appear before the court if called upon to do so at any time during the term of this bond;

To accept probation service supervision for as long as considered necessary, obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation and report to the Hurstville probation office within 7 days;

Comply strictly with apprehended domestic violence orders made in Sutherland Local Court on 13.7.05.

14 According to the facts sheet in this matter, Mr Tirta physically attacked his wife, who sustained bruises to her face, arms, legs and body and cuts to the inside of her lips.

15 Mr Tirta provided three references to the Tribunal. In a reference dated 6 November 2005, Mr Tjung King Tjiong states Mr Tirta had been a taxi driver for his family, who operates taxis, over a 12-year period. Mr Tjuing King Tijong described Mr Tirta to be “honest, reliable, conscientious, courteous, respectful, be that as a driver or as a friend.”

16 A reference from Taxi Combined Services Pty Ltd is dated 20 October 2005 and states that:

According to our records, Mr Wie On Tirta has been utilising the Combined Communications Network Dispatch System since 23 June 1994. He achieved preferred driver status on that date. There are no recorded customer complaints for this driver.

17 A third reference dated 5 November 2005 is from a friend, Mr Geofrey K R Massie, who describes Mr Tirta as “loyal, honest, considerate and supportive”. Mr Massie “cannot think of anything of consequence on the negative side of the personality ledger when it comes to Wie On. All in all, I would have to say that Wie On is a fine, well-balanced person with an abundance of positive qualities.”

18 None of these references refer to Mr Tirta’s criminal conviction for his physical assault on his wife.

19 Mr Wirta gave evidence before the Tribunal. He was clearly remorseful in relation to his assault upon his wife, telling the Tribunal:

I really regret what happened. I regret what I did to her. I believe it will never happen to anyone. I have been a taxi-cab driver for ten years. I have seen a lot of people, I have no problem with people. I have met lots of drunken people and am never aggressive to them.

20 Mr Tirta told the Tribunal that without a taxi-cab authority, he would find it very hard to get a job, particularly as when he applies for work, he is always asked whether he has a criminal record. He submitted to the Tribunal that he is a good driver, with good driving skills, as set out in the reference from Taxi Combined Services.

21 At the time of the hearing, Mr Tirta had completed 6 months of his two-year bond without breach. He has been undertaking a domestic violence course and an anger management course and is no longer subject to an Apprehended Violence Order.

22 I accept that Mr Tirta has experienced difficulties in obtaining work since been refused his taxi-cab licence. In determining whether the Director General of the Ministry of Transport made the correct and preferable decision in this case, however, I cannot take into consideration the hardship to the applicant as a result of the decision. Lal v DG, Department of Transport [2001] NSWADT 74

23 None of the references provided by Mr Tirta refer to his criminal conviction. I cannot be satisfied, therefore, that the comments made in these references have been have been considered in the light of Mr Tirta’s criminal conviction. For this reason, I have given the references limited weight.

24 I accept Mr Wozniak’s submissions that despite Mr Tirta’s remorse, it is too soon for the Tribunal to be able to make a finding that he is a fit and proper person.

25 In assessing the relevance of the length of time that has elapsed since Mr Tirta’s offence and conviction in accordance with Saadieh v Director General, Department of Transport [1999] NSWADT 68, I am guided by the time imposed by the Court in making Mr Tirta subject to a good behaviour bond that will not cease until 24 August 2007. Mr Tirta has not yet completed his domestic violence and anger management courses and until he has shown that he can adhere to all conditions of his bond and complete the bond without breach, I am not of the view that he should be the holder of an authority to drive a taxi-cab.

26 I note Mr Wozniak’s submission that if Mr Tirta did not re-offend during the remaining period of the bond and completed the courses stipulated in the bond, the Director-General of the Ministry of Transport would favourably consider those facts if Mr Tirta were to reapply for a taxi-cab authority. I would agree with such an approach.

27 At this time, however, I am unable to find that Mr Tirta meets the requirement of being a fit and proper person to be the driver of a taxi-cab or that the community, with full knowledge of the circumstances, would be satisfied that the requirements of the legislation have been met.

Good repute / Sufficient responsibility and aptitude to drive a hire car.

28 As I have determined that, at this stage, Mr Tirta is not a fit and proper person to hold an authorisations to drive taxi-cabs, it is not necessary for me to consider whether Mr Tirta is of good repute or whether he has sufficient responsibility and aptitude to drive a hire car, in accordance with the conditions under which a public passenger service is operated, and in accordance with law and custom.

Order

29 The decision of the Director-General of the Ministry of Transport to refuse to grant the applicant an authority to drive a taxi-cab is affirmed.