Tohme v NSW Department of Transport and Infrastructure

[2010] NSWADT 108

CITATION:	Tohme v NSW Department of Transport and Infrastructure [2010] NSWADT 108
DIVISION:	General Division
PARTIES:	APPLICANT Mohamad Tohme RESPONDENT NSW Department of Transport and Infrastructure
FILE NUMBER:	093238
HEARING DATES:	8 December 2010
DATE OF DECISION:	5 May 2010
BEFORE:	Molony P - Judicial Member
CATCHWORDS:	Passenger Transport Act - Taxi driver - cancellation of authority
LEGISLATION CITED:	Passenger Transport Act 1990 Passenger Transport Regulation 2007
CASES CITED:	Abouhassoun v Director General, Department of Transport [2001] NSWADT 193 Abouhassoun v Director General, Department of Transport (GD) [2002] NSWADTAP 12Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321,Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336Farquharson -v- Director General, Department of Transport [1999] NSWADT 53Maythisathit and Registrar of Motor Vehicles [1996] ACT
REPRESENTATION:	APPLICANT A Dlackic, solicitor RESPONDENT A Wozniak, solicitor
ORDERS:	The decision to cancel Mr Tohme’s taxi driver’s authority is affirmed.

REASONS FOR DECISION

Introduction

1 On 20 August 2009 the NSW Department of Transport and Infrastructure (the Agency) determined to cancel Mr Tohme’s authority to drive a taxi-cab. Mr Tohme sought an internal review of decision. This was completed on 3 September 2009 and affirmed the original decision to cancel his authority.

2 Put simply, the internal review found that, since Mr Tohme’s authority was originally issued, in June 1997, Mr Tohme has been convicted of a number of assaults and had a series of complaints made against him by customers. These had led to his authority being suspended in 2005, while he undertook an anger management course. Subsequently, following further convictions for assault in February 2008 his authority was cancelled. In the period between suspension and cancellation he was the subject of further customer complaints. On 3 September 2008 Mr Tohme was again issued with an authority for drive a taxi cab, initially for six months only. In the period between 17 February 2009 and 14 July 2009 Mr Tohme was the subject of further customer complaints.

3 The internal review concluded that based on this history, his convictions and the customer complaints, that Mr Tohme was not a fit and proper person to drive a taxi-cab.

4 Mr Tohme sought review of that decision on 9 September 2009. On 11 September 2009 the Tribunal stayed the decision made on internal review pending the determination of the application by the Tribunal.

5 The hearing took place of 8 December 2009. Mr Tohme disputed much of the history relied on by the Agency. At the conclusion of the hearing I reserved my decision.

6 Section 33F of the Passenger Transport Act 1990 provides that having regard to the purpose of an authority the Director-General may at any time vary, cancel or suspend an authority. The purposes of a taxi drivers authority are set out is s 33(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.”

Material before the Tribunal

7 The hearing took place on 8 December 2009 The material before the Tribunal was comprised of:

- the s 58 documents filed by the Agency, and

- Mr Tohme’s affidavit sworn 21 November 2009.

8 Mr Tohme gave sworn evidence and was cross examined.

Mr Tohme’s Convictions

9 Mr Tohme has a number of convictions for violence.

10 On 23 November 1999 he was convicted of two counts of common assault on his then wife. He was required to enter in a recognizance for 3 years conditioned on him not assaulting or threatening his wife. The fact sheet relating to that event alleged that Mr Tohme had hit his wife, with a shoe, during an argument in which he had prohibited her from leaving the home.

11 On 12 August 2003 he was convicted of two counts of common assault of his wife. He was fined $500.00 and paced on a s 9 bond for 3 years requiring him not to assault, molest, harass or otherwise threaten her. There is no fact sheet in the s 58 materials relating to this offence.

12 On 17 June 2004 he was convicted of contravening a domestic violence order. He was placed on a s 9 bond, required to accept Probation Service supervision, to undertake an anger management course, to undertake a domestic violence course, and to accept directions for counselling, education and drug and alcohol rehabilitation. He was also convicted of two counts of malicious damage, and fined $400.00. There is no fact sheet in the s 58 materials relating to these offences.

13 On 3 December 2004 he was convicted of four counts of resisting officers in the execution of their duty, and two counts of assaulting an officer in the execution of duty, without actual bodily harm. On the assault police charges he was given a 3 months suspended sentence, conditioned on him undergoing 3 months supervision by the Probation Service. On two of the resist officer charges he placed on a s 9 bond, subject to 12 months supervision by the Probation Service. On the other resist officer charge he was sentenced to 80 hours community service. Once again there are no fact sheets in the s 58 materials relating to these offences. A letter from Superintendant Murdoch, dated 13 September 2004, indicates that these charges arose from an incident in which Police were called when Mr Tohme was alleged to have slapped a passenger. The charge of assaulting a passenger was withdrawn, but charges relating to Mr Tohme avoiding apprehension and resisting police as a result of the incident resulted in the convictions.

14 In his statement Mr Tohme said he had been carrying two women in his cab who were misbehaving. He stopped the cab and refused to carry them further. They left without paying their fare. He was later apprehended and charged with assault. He went to the Police Station voluntarily and was outraged by the injustice shown to him. He was held by the Police for two nights. It is to be noted that Mr Tohme’s statement does not address any issues concerned with resisting or assaulting Police.

15 On 14 February 2008 Mr Tohme was convicted of assaulting a former business partner of his wife’s, at a garage. He was given a 9 month suspended sentence. The fact sheet provided to the court indicated that Mr Tohme believed the victim owed him a large amount of money. Both men were filling their cabs at a garage when Mr Tohme approached the victim. The victim asked Mr Tohme to, “Go away leave me alone.” Mr Tohme threw a punch, which the victim blocked. Mr Tohme then pulled the victim to the ground and kicked him to the head neck and back. A witness yelled for him to stop, and Mr Tohme walked to his car. He then drove off. He was apprehended at home. When interviewed he denied assaulting the victim. He told Police he had remained in his Taxi and had not gotten out of his vehicle.

16 Mr Tohme did not advise the Agency of any of these charges or convictions. In evidence Mr Tohme agreed that this was the case. He explained that this was, “because company told me this would come form MOT.” I asked him to explain this, but he did not.

Complaints

17 June 1998 to January 2001: On 15 November 2000 the Agency issued a show cause notice against Mr Tohme asking him to show cause why his authority should not be cancelled. The show cause notice was based on Mr Tohme’s conviction in 1999 for domestic violence assaults, and his failure to notify the agency of those charges and convictions. In addition the show cause notice relied on 6 customer complaints. Mr Tohme responded to the notice in writing, apologising for his conduct and seeking another chance.

18 On 31 January 2001 the Agency issued him with a final warning. Mr Tohme said this was never received.

19 In considering customer complaints in a case such as this the Tribunal is required to consider each such complaint: Abouhassoun v Director General, Department of Transport [2001] NSWADT 193 and Abouhassoun v Director General, Department of Transport (GD) [2002] NSWADTAP 12. Mr Tohme disputed each and every one of the complaints made about him during his time as a taxi driver.

20 In his letter to the Agency of 21 December 2000 Mr Tohme wrote:

“I admit and strongly believe that such offences should not be committed at all aspect (sic), however I was fairly new on the road with no experience in this business. More likely I was a bird without feathers”

21 The customer complaints were:

- 4 June 2008 – A telephone complaint from a customer which identified Mr Tohme by authority number and taxi number. She claimed he had refused to carry her when she disclosed her destination. When asked about this by the network, he “refused to comment.”
- 27 February 1998 – A written complaint, from a visitor from overseas, regarding a trip from the International Terminal to Annandale. The customer complained that the driver had not taken the most direct route. The route taken was via Oxford Street, during Mardi-Gras. The driver demanded and was paid $50, because the trip had taken over 15 minutes, while the meter showed $32.00. The taxi number was 7523. RSL Cabs identified Mr Tohme as the driver of the vehicle at the time.
- 23 August 1998 – A telephone complaint from a customer, who claimed that the driver of an identified taxi had refused to take her on a short trip from Chatswood to Roseville. He told her he had been waiting at the rank for half an hour, and it was a short trip. The driver of the taxi was identified by the Network as Mr Tohme.
- 28 August 1999 – A telephone complaint from a customer, which identified Mr Tohme by his authority number, that complained that the driver had refused a fare from the City to Camperdown, saying he had just come from there.
- 8 October 2009 – A telephone complaint from a customer which identified Mr Tohme by his authority number, which complained that the driver had refused a fare from the International Terminal to Camperdown, saying that he had just taken a radio booking.
- 23 June 2000 – A written complaint from a customer about a journey from the city to Darlinghurst, that identified Mr Tohme’s authority number. The driver was “surly, aggressive and argumentative and didn’t have a clue about how to get from the CBD to the inner east.” The customer felt unsafe in his presence and exited the taxi in William Street. Mr Tohme was interviewed about this incident two months later Mr Tohme could not remember the fare.

22 None of these complainants were called to give evidence or identified in the s 58 materials. The complaints are hearsay.

23 In cross examination Mr Tohme said that the complaints of 23 August 1999, 28 August 1999 and 22 June 2000 were all “false”. He said that he does not refuse fares. He could not recall the complaints of 27 February 1998 or 24 August 1998. The complaint of 7 June 1998 was not true.

24 I had difficulty reconciling Mr Tohme’s evidence about these events with his letter to the Agency admitting them. I asked Mr Tohme about this. He could not recollect the letter.

25 When shown the letter he agreed that it bore signature. I asked him to read the letter and the show cause notice. I pointed out that, in the letter, he admitted complaints he had denied in evidence. I asked him which was true. He said what he had told me was. He said that he had written the letter because that was what someone at the taxi company had told him to do.

26 In re-examination Mr Tohme said he could recall the incident of 28 August 1999. He had not refused the fare. He said that, it could be that, he took the customer to Camperdown, and the customer had then made a false complaint. His solicitor then asked him about his letter to the Agency: he agreed that it contained admissions.

27 I have significant difficulty with Mr Tohme’s evidence. The letter admitting the complaints was written much closer in time to the events in issue. One would think it likely to more accurately reflect what occurred. Mr Tohme’s evidence to me about these events was remarkably short on detail, consisting of statements that the complaints were false, or that he could not remember. In the one complaint which Mr Tohme said he could recall, Mr Tohme insisted he had driven the customer Camperdown, and speculated that the customer had made a false complaint. This does not make sense and is entirely speculative.

28 I consider it far more likely and probable that the admissions Mr Tohme made in his letter to the Agency reflect truth.

29 Mr Tohme’s evidence abut these events led me to doubt the reliability of the evidence he gave during the course of the hearing. This was compounded by his explanation of the letter he wrote to the Agency admitting the complaints. That explanation demonstrated – if it were true - Mr Tohme that had deliberately made false admissions to the Agency in an effort to preserve his authority. More likely, I consider his denials of the complaints and his repudiation of his earlier admissions were untrue, but, again, aimed at preserving his authority. Irrespective of which scenario is correct, each demonstrated that Mr Tohme was willing to disregard the truth in an effort to preserve his authority. This led me to question the reliability of his evidence.

30 I accepted that each of these complaints occurred in the manner described and that Mr Tohme had admitted to them.

31 February 2001 to September 2004: On 19 September 2004 Mr Tohme’s authority was suspended following the Agency becoming aware that he had been charged with assaulting a customer, and assaulting and resisting Police.

32 Mr Tohme said that did not receive the suspension notice.

33 From the time when the he was issued with the final warning in January 2001 until his licence was suspended, Mr Tohme was the subject of another telephone complaint, on 13 February 2002, regrading a journey from the International Terminal to Dulwich Hill. It alleged that Mr Tohme had been “surly and rude” with respect to simple questions about the weather, and had taken the long route to Dulwich Hill via Earlwood.

34 Mr Tohme was interviewed about this complaint on 26 February 2002. Mr Tohme remembered the incident. He explained that the customer had asked him about the weather three times. After he asked the same question again, Mr Tohme told the customer “no more questions please.” He said that the customer had instructed him to go via Earlwood, when asked whether he wished to go via Earlwood or Marrickville.

35 The complainant was not called to give evidence. The complaint is hearsay.

36 In his evidence to me Mr Tohme denied being rude to this customer and insisted the customer had told him to go via Earlwood. This is entirely consistent with what he said during the interview. Given that consistency, and the nature of the complaint, I am not satisfied it is made out.

37 As a result of that complaint, the Agency wrote to Mr Tohme on 15 March 2002 required that he undertake “the Customer Care Module of an approved taxi-driver training program.” Mr Tohme denied receiving this letter.

38 On 2 April 2002 the Agency received written advice from The Taxi School that Mr Tohme “attended our office 27 March 2002 and successfully completed the Taxicare Plus module, Customer Care.”

39 In his evidence Mt Tohme said that he had, “never been to taxi school” on that date.

40 It is difficult to reconcile Mr Tohme’ evidence about this training module with the record. The timing of the successful completion of the module correlates with the letter he was sent requiring him to undertake it. The documents paint a coherent picture, which show him receiving and complying with the request. It is difficult conceive of why The Taxi School would certify his attendance, and advise the Agency of this, unless he had attended and explained why he was doing so.

41 Once again the evidence is such that I reject Mr Tohme’s denials and find that he did receive the letter and undertake the training module.

42 December 2004 to April 2008: After the convictions for assaulting and resisting Police were recorded on 17 June 2004, the Agency made a decision to cancel Mr Tohme’s authority on 10 December 2004.

43 Mr Tohme did receive this notice and sought an internal review. In support of that review application Mr Tohme submitted positive evaluations from his Probation and Parole officer, proof that he had completed a fourteen session course in domestic violence, and a series of positive references.

44 The internal review varied the decision to cancel his authority, and instead suspended it until Mr Tohme satisfied the Agency that he had completed a course in anger management, undertaken under the direction of the Probation and Parole Service.

45 Mr Tohme completed that course in April 2005. In the period between then and his authority being cancelled on 14 April 2008, as a result of his conviction on 14 February 2008, he was the subject of five more complaints.

46 The first on these was a telephone complaint received on 4 June 2006 regarding a trip that day. It recorded that a driver with Mr Tohme’s authority number, upon being asked how his day had been, had said, “I just want to know where you are going and that is it!” The driver had then given the customer $5.00 change, rather than the $7.00 due.

“Caller stated that the driver upon being told that there would be a complaint put agains (sic) him, he began shouting and become verbally abusive to the caller, calling her an idiot and even spelling out the word idiot to her. Caller stated that he then began shaking his fist at her and continued screaming at her.”

47 The identity of this complainant has not been disclosed and she was not called to give evidence. The complaint is hearsay. The record of the complaint records that Mr Tohme denied getting upset with the customer and denied overcharging $2.00, as he had added the Airport toll to the fare.

48 In his evidence before me Mr Tohme denied being angry or abusive to the customer, and said he had charged the Airport toll. He said he had explained this to her.

49 Given the nature of the complaint and Mr Tohme’s consistent evidence I am not persuaded that this compliant is made out.

50 The second complaint was made on 23 February 2007. It involved a refusal to accept a fare as the driver “only wanted to go the Ramsgate Beach.” In his evidence Mr Tohme said this complaint was false. He said he could recollect the incident and he had taken the customer to Ramsgate Beach.

51 While the complainant is unidentified and the complaint is hearsay, I have considerable difficulty in accepting Mr Tohme’s explanation. It requires an acceptance of the proposition that a customer, who was taken to Ramsgate Beach, then complained that the driver had refused to take him to another destination, but had said he would only take him to Ramsgate Beach. This is nonsensical. More likely, is that Mr Tohme’s evidence in this regard is another attempt to say what he thinks necessary to preserve his authority. I do not accept it and consider that his evidence lends weight to the complaint. I accept that this complaint is made out.

52 The third complaint concerned a trip from Caringbah to Olympic Park on 28 October 2007. “Caller states that he asked the driver how his day was and the driver began talking to him in a very aggressive tone.”

53 In cross-examination Mr Tohme said this complaint was false. The complaint records that when asked about this, at the time, Mr Tohme said that the customer was asking him personal questions and had alcohol in the cab. Implicit in that explanation is an acceptance by Mr Tohme at the time that there was some merit to the customers complaint, and an attempt to explain his conduct. I accept that that is the case.

54 The fourth complaint related to a trip from the Airport to Randwick on 26 December 2007.

“Caller said on entering the taxi, he politely asked the driver how he was going and how was his day. Caller said driver replied it was none of his business and to shut up before asking where he wanted to go. Caller said he was in the front sea and the driver was a big man. Caller said he felt threatened.”

55 In cross-examination Mr Tohme said this complaint was false. In re-examination he said that he could not recall the incident, but that “this never happened.” This is consistent with what the complaint records he said when asked about it at the time. Given the hearsay nature of the complaint, and Mr Tohme’s consistent response, I am not satisfied this complaint is made out.

56 The fifth complaint concerns excess charging of $10.00 for a trip from Bexley to Belmore. The complainant was not the passenger. The complaint was based on the charge made for the journey, when the passenger fell asleep during the journey. Mr Tohme denied the complaint. Given the unconvincing nature of the complaint I accept his denials.

57 On 14 February 2008 Mr Tohme was convicted of the assault on a former business partner at a garage on 21 December 2007. He received a nine month suspended sentence. As already discussed, the circumstances of that assault were serious. Mr Tohme did not advise the Agency of the charge or the conviction.

58 When the Agency became aware of the conviction Mr Tohme licence was cancelled on 14 April 2008.

59 May 2008 to August 2009 – On 8 May 2008 Mr Tohme’s solicitors sought an internal review of the decision to cancel his authority. In a letter accompanying that application he admitted the assault on his wife’s former partner, but sought to lay blame on the victim, saying he had approached Mr Tohme. They had become involved in a heated dispute in which the victim had insulted Mr Tohme. This is at odds the fact sheet which outlined the allegations to which Mr Tohme pleaded guilty.

60 In his statement filed in these proceedings Mr Tohme offered another account of those events:

“That matter concerned me being swindled out of $80,000 by an associate who promised me that I would be part of a business with my ex-wife. The money was lost by me. I saw this person in Hurstville and when I saw him and have a conversation with him about the return of my $80,000 which was my life savings at that time. I became very angry and I punched him.”

61 I accept that the circumstances of the assault as disclosed in the fact sheet. The assault was unprovoked, took place when Mr Tohme was working as a taxi driver, and involved kicking the victim.

62 The solicitors letter was accompanied by:

- A reference from Sheik Kamal Mousselami testifying to his good character. The author made no reference to his criminal convictions.

- A report dated 6 May 2008 from Hicham Khicheich, a Psychologist who Mr Tohme had consulted on two occasions with respect to his “depressed mood’, the loss of his mother and “adjustment issues.” Mr Tohme had told Mr Khicheich of the assault at the garage, providing him the more favourable version of the facts outlined in solicitors letter. Mr Khicheich said Mr Tohme regretted his behaviour and knew it was wrong. Mr Khicheich said Mr Tohme was suffering from moderately severe depressions “with adjustment and unresolved bereavement issues after the recent death of his mother.” This condition had deteriorated in the last seven to eight months. This had led him to become increasingly alienated. Mr Khicheich thought Mr Tohme fit to go back to work and indicated that he would be monitored on a regular basis.

- A letter dated 29 April 2008 from his Probation and Parole officer which indicated that his counselling had been terminated because had developed ‘adequate insight into his anger related issues.” None the less, he had been referred to a Psychologist for ongoing support. The report advised that Mr Tohme was devastated by the loss of his taxi licence. The report said Mr Tohme “is making a genuine effort to take responsibility for his issues, and it is hoped that interventions by this service with provide him with further stability…”

- References from H Haidar and Norman Bazzi. Neither referred to his criminal convictions.

63 It is not clear from the s 58 material what happened with that internal review.

64 In June 2008 Mr Tohme met with officers of the Agency. On 9 September 2008 Mr Tohme was issued his with an authority for six months. He was warned:

“In determining any future action against your authority, you are warned that the Ministry will take into consideration any known complaints, arrests, convictions, proven offences and traffic history … This may result in the variation, suspension or cancellation of your authorisation …”

65 On 18 February 2009 a customer made the following telephone complaint.

“Caller walked to the taxi rank, there were taxis and hire cars, caller asked a driver are you free or is the start of the queue back there? The driver said its no its OK hop in, Caller sat in front did his seat belt up, driver asked where to call replied S Hills. The driver stopped the engine and said I’m not going there. Caller said you cant refuse, caller tried to look at drivers ID this enraged the driver further. The driver got out and slammed the door so hard, something broke. He opened the door and started screaming at the caller. Caller states that this man was violent and aggressive and refused to take caller demanding he get out of the taxi…

66 The report log noted that a message had been sent to the driver’s screen of the taxi concerned to call customer services. Mr Tohme responded. He is recorded as saying that the customer was “being very smart”. The customer had wanted to take his ID card but he said no. “Driver said he was not 1st cab on the rank.” “Driver also said he had waited at rank for 40 minutes and it wasn’t fair.”

67 In cross-examination Mr Tohme said that all of these allegations were false. He denied saying he had been at the taxi rank for 40 minutes.

68 In a letter written by his solicitors on 13 August 2009 the following explanation was proffered of this incident:

“I deny the facts as alleged in this complaint made on 17 February 2009, while driving Taxi Cab T4367. I recall that this incident occurred on a Tuesday night. I said to the passenger who asked to be taken to Surry Hills from an address in Sussex Street Sydney "Could you take another cab or get a taxi on the street. As my taxi is not functioning properly. The engine is running rough." I did not get out of the cab and slam the door and come around to the passenger's side in a violent and aggressive manner and tell the passenger to get out of the taxi. I was polite at all times to the passenger and I asked him if he could catch another cab as my cab was not serviceable at the time that he boarded it. That was the reason that I switched the engine of as it was running rough and I was of the opinion that the engine might fail at any time.”

69 There is no reference to this event in Mr Tohme’s statement.

70 The complaint is hearsay. The operator who took the call and had the subsequent discussion with Mr Tohme was not called. The Tribunal is, however, not bound by the rule of evidence, but is required to Act on logically probative evidence.

71 I have already found that Mr Tohme’s evidence is unreliable. As a result I have been reluctant to accept Mr Tohme evidence, unless it is independently verified or consistent with earlier statement made by him. Here the explanation given by him in his solicitor’s letter has the flavour of a recent invention, designed to preserve his authority. The complaint, and the notes of the operator taken at the time, makes no mention of there being a problem with his taxi’s engine. If that was the case, one would have expected him to offer that explanation, when speaking with customer services. He did not do so. The conduct complained of is entirely consistent his history of depression, his problems with controlling his anger, and his history of complaints about refusing short fares. I am satisfied that events occurred as described by the customer. The reason Mr Tohme lost control was because he had been waiting at the taxi rank for 40 minutes, and ended up with a short trip to Surrey Hills.

72 On 5 May 2009 the doorman at the Westin Hotel made a telephone complaint that a taxi driven by Mr Tohme “refused to take customers to King Street Wharf and swore at them and told them to fuck off.”

73 Mr Tohme was spoken to about this. He said, “he did not do this and did not swear.”

74 In cross-examination Mr Tohme said this claim was false. In re-examination he said he had been called in by the doorman, picked up the passengers concerned, and then taken them to King Street Wharf.

75 In the letter his solicitors wrote to the Agency on 13 August 2009 the following explanation was offered:

“I recall this at the Westin Hotel in Sydney, and I was
about the third taxi on the rank waiting for fares. I saw the passengers go to the first taxi on the rank and have a conversation with the driver. Then they moved to the second taxi and have a conversation with that driver and then came to me and asked me if I could take them somewhere. I said to the passengers "You have to take the first taxi, because that is the rule at the rank".
I did not use the words fuckoff to the passengers when I was asked a question by them, but merely addressed them to the rule for taxi cabs parked at a taxi rank. I was at no time discourteous to the passengers. When they approached me and I did not refuse them. But asked them to go to the first cab on the rank so that I didn't break any rules of taxi operation.”

76 Mr Tohme did not address this complaint in his statement.

77 Once again the complaint is hearsay, but has a ring of truth to it. It is difficult to conceive of why a doorman would make such a complaint, unless it reflected the truth. Mr Tohme’s response to it has varied from time to time. He has variously denied it, said he took the passengers to the wharf, or told them to take a taxi at the front of the rank. I do not accept any of his explanations. This complaint is again about a short trip. In my opinion it is substantiated. It points to very concerning issues about Mr Tohme’s ability to manage the stresses of his job and to control his anger at work.

78 On 6 June 2009 a complaint about an incident which occurred at 12-30am on 6 June 2009 at a taxi rank in Darling Harbour. The unidentified complainant has made a statement about the events, but did not give evidence. Mr Tohme has been charged with respect to these events.

79 His solicitor submitted that, as those charges are yet to be determined, this Tribunal should not have regard to them in this proceeding. I rejected that submission. The conduct alleged against Mr Tohme took place in the context of the regulated industry and is relevant to an assessment of Mr Tohme’s fitness and propriety. The determination of the criminal charges will be undertaken on the criminal standard of proof, whereas, in these proceedings, the Tribunal is required to comfortably satisfied on the balance of probabilities: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

80 The customer says he entered a taxi sitting at the rank with its roof light illuminated. He was asked where he wanted to go and said he wanted to go to Leichardt. The driver said, “No, just get out of my taxi.” The customer asked why and was again told to get out. He repeated the question on three or four occasions and was told to get out. The driver started to swear saying, “get the fuck out of my taxi.” The customer went to look at the driver’s authority, but the driver took it from the windscreen and would not allow him to look at it. When asked for his name, the driver became more aggressive and continued to swear. The customer continued -

“15. I got out of the taxi and it was stupid of me I took his street directory, I opened the taxi-cab door and just dropped it on the road. That was all my frustrations coming out because he would not take me.
16. I then closed the door of the taxi-cab and I went to take the number on the side of the taxi-cab. The driver got out of the taxi at this stage, walked to the back of the taxi-cab continuing swearing and screaming at me. He collected the street directory from the street, I stepped back at this stage because of his attitude. There was a seat at the rank so I sat there and started to send an email to myself about what had happened.
17. The driver continued swearing at me saying, "suck my cock". I looked around and there were people standing nearby when I said to the people, "you are witnessing this, I'm not doing anything at all and this driver is abusing me". They acknowledged the drivers attitude.
18. The driver entered his taxi-cab, I stood up and went round the back of the taxi-cab to take down the number plate, when I noticed the reversing light came on and the vehicle commenced reversing. I got back onto the footpath just in case.
19. I went to sit back down on the seat at the rank when another couple went to enter taxi-cab T4367 when I informed them not to enter the taxi as the driver was aggressive. They then walked away from the taxi-cab.
20. The driver started to abuse me once again swearing all the time, this happened a further time when I informed other passengers of the drivers attitude.
21. A third couple entered the rear seat of the taxi-cab and indicated to the driver they wanted to got to Glebe but he also refused to take them. They got out of the taxi-cab and I asked them what had happened. They stated the driver refused to take them to Glebe.
22. I informed the passengers I was going to Leichhardt and I would drop them off on the way. We entered another taxi-cab which was about 10 metres behind taxi-cab T4367. I entered the front passenger seat and they entered the rear seat.
23. Before we left I informed my driver to wait for a minute. I alighted from the taxi-cab walked up to the front passenger window of taxi-cab T4367 and I informed the driver I was going to report him for refusing to take me to Leichhardt. I then returned to my taxi-cab and entered the front passenger seat.
24. As soon as I had closed the door I noticed he was out of his taxi-cab walking towards us. At the time I noticed he was unzipping his trousers. As we drove past the driver he was yelling out loudly, "Suck my penis". I could. see at this time his penis was out and he was pointing at it.
25. I would describe the driver of taxi-cab T4367 as late 30's, middle eastern appearance, medium build, short dark hair.
26. At no time did I give permission to the driver to display his genitals towards me or any other passenger. Even though I laughed at the driver when he pulled out his penis, I was totally offended by his behaviour.

81 A record of interview was conducted with Mr Tohme about this incident on 21 July 2009. Mr Tohme said he was the driver of T4367 at the relevant time. Mr Tohme signed the record of interview. When asked if he recalled an incident at 12;20am on 6 June 2009 at Darling Harbour he said, “No I don’t recall anything.”

82 The complaint was then read to him and Mr Tohme said he recalled the incident. He said:

“I was waiting for a private booking and my light was off and I have been waiting outside my cab. He opened the door and said if I could take him to Leichardt. I told him sorry I cant take you as I have a private booking. Then he sat in the front seat and said I am a lawyer and I know the rules you have to take me. I told him please don't argue about this there are many vacant taxis on the rank you can take anyone of them to where you are going. He started to pick up my authority card from the holder and said no you have to take me I am going to take your details and report you. I asked him politely don't argue about this and he continued to say in an aggressive manner he was going to report me. After that he opened the door grabbed my street directory and throw it on the footpath when he got out of the taxi and left the front door opened and also opened the back door. So I got out from the taxi and I turned around to get my street directory from the road and to close the doors he had left open. After that he just walked away and I saw him get another taxi. I went and sat back in my taxi.”

83 When questioned further Mr Tohme said that he had a private booking with a passenger names “Albert” who was “going to Sutherland and told me between 12 and 12.30am to pick him up.” He had parked at the taxi rank because, “I saw there were no taxis there so I parked there.” He denied swearing at the customer. He thought the customer took his street directory because “he was angry, he just didn’t want to listen.”

84 He said customer had started to take his authority card, “I told him not to take it just to take down my number that’s all.” He denied saying “suck my cock” or reversing toward the customer. He agreed that some other customers had entered his cab, “but they did not behave” like this customer. He denied unzipping his pants or displaying his penis.

85 Mr Tohme said his private booking had not turned up. He had taken that passenger to Darling Harbour from Circular Quay around 4 or 5pm the previous evening and had agreed to pick him up between 12 and 12.30am at the Darling Harbour rank. When asked why he had stayed at the rank when passengers kept approaching him he said, “I was planning to park opposite but cars were parked and I thought I would park on the rank because there were no taxi’s parked.”

86 In his statement Mr Tohme explained these events in a manner consistent with his record of interview. He said he was sitting at the taxi rank showing that he was not for hire.

87 The contrast between the two versions of these events is striking. It needs to be remembered that these events occurred early on a Saturday morning in Darling Harbour: a time and place when taxi are in notoriously high demand. Mr Tohme says he was sitting at the taxi rank waiting for a customer, who he knew as Albert, whom he had agreed to pick up between 12 and 12.30am at the Darling Harbour rank for a trip to Sutherland.

88 This impresses me as highly improbable for a number of reasons. First, why would a taxi driver agree to pick up a private booking form a rank at a time when the rank is likely to be busy, when the law requires taxi standing at a rank be available for hire? (see clause 138(1) of the Passenger Transport Regulation 2007.) Secondly, it is highly unlikely that a taxi-driver, early in the morning on a Saturday in the CBD, would agree to pick up a private booking in a half hour window at a taxi rank.

89 Mr Tohme made no mention in his record of interview, his statement or his evidence , of his meter being on, which one would expect if he were waiting for an agreed booking.

90 The more likely and probable explanation of Mr Tohme sitting at the rank is that Mr Tohme was looking for passengers who would offer him a good hire, not short trips with low returns. This is why he was sitting at the rank turning away passengers wanting to go to Leichardt and Glebe, both short trips. This is also consistent with a pattern of behaviour demonstrated by the complaints made against Mr Tohme over time. These demonstrate that he has a record of refusing short and unremunerative trips.

91 I do not accept Mr Tohme’s explanation of why he was sitting at the rank. Once again, the explanation proffered demonstrates that Mr Tohme will say what is necessary to preserve his authority. Mr Tohme says he his taxi was not for hire despite the fact that he was sitting at a rank. The customer says his for hire light was on. The conduct of other potential passenger entering the cab points to this being the case. The reality is that Mr Tohme was waiting for an optimum hire.

92 The customer who made the complaint against Mr Tohme has provided a graphic and detailed statement of the events that occurred. Mr Tohme has provided a contrary version. which paints the customer as aggressive and demanding. It is clear that the customer did not simply accept Mr Tohme refusal, but challenged the rejection and made it clear he would be complaining about Mr Tohme. It is to be noted that the passenger, in his complaint and statement, provided the number of the taxi but said he was unable to obtain the drivers authority number, because the driver took it away and refused to give his name. Mr Tohme, on the other hand, said he had told the customer not to take his authority, “just to take down my number…” The fact that the customer did not have the number also points to Mr Tohme’s version of the events being inaccurate.

93 On balance, given the view I have taken of Mr Tohme’s credibility and the improbability of his explanation for sitting at the rank, I do not accept Mr Tohme version of these events. I prefer that contained in the customer’s statement. I consider the behaviour which the customer attributed to Mr Tohme as consistent with Mr Tohme’s past record of complaints. These demonstrate a history of fare refusals and troubling episodes of rage in the course of his work.

94 On 14 July 2009 a customer made a telephone complaint which identified Mr Tohme by both Taxi number and authority number. The customer was picked up at Circular Quay. He asked the driver whether he knew the city and asked to be dropped off at King Street, at the start of Darling Harbour.

“Caller stated he got no response. Caller stated that the driver then called him a poofter in Arabic. Caller sated that the driver then said in English that he had asked 6 times about Darling Harbour and then told him not to speak with him anymore. Caller stated he asked the driver whether he could get out and the driver said no, you can only get out at taxi rank. Caller stated he was taken into Darling Harbour near the four seasons Hotel and then let out.”

95 In his statement Mr Tohme denied being rude. He said the customer changed his destination during the journey, first asking to go to Darling Harbour via Townhall, then via Liverpool Street, then via the closest entry. He dropped the passenger at Darling Park and told him to walk over the bridge. The customer paid, told him he was rude and that he would be reported.

96 The complaint is hearsay. The complainant is unidentified and was not called. The customer services log shows that Mr Tohme responded to the complaint when requested, but not what he said. Given the nature of the complaint I am not satisfied that it has been made out.

Assessment

97 Mr Tohme told me that has never been rude to or sworn at customers in the course of his work. I do not accept this. All the evidence points to Mr Tohme as being a man with a history of and convictions for violence. He has a history of fare refusals, combined with escalation episodes of anger and abuse in the course of his work.

98 In his statement he pointed out the complaints against him represent on a very small percentage of the passengers he has carried over the years.

“I am not excusing in any why (sic) the complaints which have been found against me to be true and there have been times in the past when I have been very stressed and very worn-out and I was not able to deal properly with difficult passengers.”

99 Mr Tohme said that driving taxis is the only work he knows. He and his dependants would suffer considerable hardship, if he is unable to work. Mr Tohme said that he had been attending ongoing counselling in relation to depression, stress and anger management. He said he does a good job for the public, and asked to retain his authority.

100 In her report dated 17 August 2009 Ms Mohini Prasad, a clinical social worker and Mr Tohme’s counsellor, advised that Mr Tohme had been referred to her by his General Practitioner. The report noted that Mr Tohme is now divorced, with two children aged 16 and 13. He has no other close family in Australia. She said Mr Tohme attributed the onset of his problems to the loss of money by his wife in her business partnership. This led to the deterioration of their relationship. He also claims to have been defrauded by members of the Arabic community. Ms Prasad says these factors led him to become depressed, to isolate himself from the community, and to have low self esteem. She noted that he enjoys his work, “however his lack of personal skills and conflict management skills in work situation are likely cause for his current situation.”

101 Ms Prasad noted that Mr Tohme had undergone some anger management sessions and was keen to accept, “help of any kind to retain his taxi Authority.’ She offered the following opinion:

“Mr Tohme has all the signs that indicate difficulties coping with the amount of stressors such as anxiety, depression, stress, anger and trauma from marital breakdown and associated Grief and Loss. He has had suicide ideations but risk assessment for suicidal ideation indicates he has no plans to carry out his thoughts and therefore there is no risk of self harm.
His Physiological and psychosocial symptoms indicate hypertension, increased blood pressure, slowed thinking or racing thoughts as a response to threatening or conflicting situations. As a result his behavioural reactions indicate impatience, quickness to argue, withdrawal and isolation from others, neglect from responsibility, change in religious practices, change in close family relationship, poor job performance and procrastination.
Mr Tohme has not had a break from working and life stressors and as such experienced severe/debilitating cumulative stress reaction to the presenting problems since the last ten years. He requires significant professional intervention from professionals in the treatment and management of his psychological health issues and concerns.”

She indicated that Mr Tohme would undergo an intensive period of cognitive behaviour therapy and counselling over a period of a year.

102 Ms Prasad’s report indicated that Mr Tohme is continuing to suffer from the conditions which affect his behaviour, which require long term treatment. She said that he does not have the personal and conflict management skills to control his behaviours in the work environment. This is consistent with the picture revealed by the proven history.

103 Mr Tohme also relied on a number of statutory declarations and references from friends and acquaintances. In his statutory declarations Raid Ibrahim said Mr Tohme has driven taxis for him for years, is honest and displays “great integrity and a sense of fairness” when dealing with the public. Mr Ibrahim said he was aware of very few complaints of substance about Mr Tohme. Mr Ibrahim made no mention of Mr Tohme’s criminal record. Because of that omission, and as I have drawn a different conclusions about the substance of the complaints made against Mr Tohme, I do not accept Mr Ibrahim’s opinion.

104 There is also a reference from Faruque Ahmed which attests to Mr Tohme’s integrity, honesty, sense of fairness and the high esteem with which he is held. The reference does not refer to any of the complaints made against Mr Tohme or his convictions for violence. As a result I do not accept it.

105 The meaning of "fit and proper" is dependent on the nature and purpose of the activities which the person will undertake. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321,Chief Justice Mason explained that, at 380:

‘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.’

106 In the past the Tribunal and the Appeal Panel have frequently cited with approval the test posed by the equivalent ACT Tribunal dealing with an equivalent legislative scheme in Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 per Curtis P:

‘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 ... to rehabilitate himself, would object to the applicant as the driver of the taxi.’

107 In Farquharson -v- Director General, Department of Transport [1999] NSWADT 53, at [36] O’Connor DCJ said:

‘In exercising its responsibilities for passenger transport regulation, the administrator must take account of likely perceptions of the travelling public. A member of the travelling public is likely to be concerned to know that the driver of their taxi is facing trial on a murder charge, albeit one involving soliciting rather than the act itself. One object of the power of suspension is to provide assurance to the travelling public that they will not unknowingly find themselves travelling with a person suspected of and charged with a serious criminal offence of violence.’

108 Mr Tohme has a significant number of assault convictions and is the subject of proven complaints which point to him being unable to control his anger and rage as a taxi driver. In his evidence before me he denied many of those complaints and sought to minimise his culpability in the crimes he has been convicted of. He sought to avoid responsibility for his actions, and displayed no insight into the impact of his behaviours.

109 In my opinion a member of the public knowing of Mr Tohme history of proved complaints, his history of convictions, and of the anger management and psychological issues for which he is having treatment, would object to him driving a taxi. I am satisfied that he in not a fit and proper person to drive a taxi-cab.

Conclusion

110 As a result I affirm the decision to cancel Mr Tohme’s taxi driver’s authority.