Tokyurek v Roads and Maritime Services

[2013] NSWADT 297

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Tokyurek v Roads and Maritime Services [2013] NSWADT 297
Hearing dates:	13 November 2013
Decision date:	24 December 2013
Before:	S Leal, Judicial Member
Decision:	The decision to cancel the Applicant's authority to drive a taxi-cab is affirmed
Catchwords:	Passenger Transport Act - cancellation of taxi-cab driver authority - misuse of Cabcharge vouchers - whether fit and proper.
Legislation Cited:	Passenger Transport Act 1990 Administrative Decisions Tribunal Act 1997.
Cases Cited:	McDonald v Director General of Social Security (1984) 1 FCR 354 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Saadieh v Director General, Department of Transport [1999] NSWADT 68 Lal v Director-General, Department of Transport [2001] NSWADT 74
Category:	Principal judgment
Parties:	Yucel Tokyurek (Applicant) Roads and Maritime Services (Respondent)
Representation:	Y Tokyurek (Applicant in person) Smythe Wozniak (Respondent)
File Number(s):	133311

reasons for decision

Background

1. Mr Tokyurek, who is the applicant in this case, was first granted an authority to drive taxi-cabs in 2005.

1. On 2 September 2013, Mr Tokyurek was advised that Roads and Maritime Services (RMS) was considering cancelling his driver authority and wished to invite him to make submissions as to why his authority should not be cancelled. RMS relied on allegations that Mr Tokyurek had fraudulently obtained and used Cabcharge dockets to obtain benefits by deception.

1. In his reply to RMS, Mr Tokyurek admitted to having fraudulently obtained twelve Cabcharge vouchers, which he had then presented and from which he had gained a benefit. He stated that he has since paid back $3800 of the total amount of $5200 and apologised for his actions.

1. On 9 October 2013, RMS cancelled Mr Tokyurek's driver authority and on 17 October 2013, Mr Tokyurek applied to this Tribunal for a review of this decision. An application to stay the decision in this matter was refused on 22 October 2013.

Review decision

1. 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 RMS and there is no presumption that the decision of RMS is correct. McDonald v Director General of Social Security (1984) 1 FCR 354 at 357.

1. RMS 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.

1. Section 33F of the Passenger Transport Act 1990 states that 'having regard to the purpose of an authorisation under this Division, Roads and Maritime Services may at any time vary, suspend or cancel any person's authority under this Division.'

1. The issue in this case, then, is whether the decision to cancel Mr Tokyurek's authority to drive taxi-cabs was the correct and preferable one, having regard to whether Mr Tokyurek 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.

Consideration of evidence

1. The Tribunal held a hearing in this matter on 13 November 2013. Mr Wozniak appeared for RMS while Mr Tokyurek was unrepresented.

1. According to documents on file, Mr Tokyurek was first granted a taxi-cab driver authority on 2 July 2005.

1. His traffic record discloses five offences between 2003 and 2011, including three speeding offences, an unlawful U turn and disobeying a no parking sign.

1. Mr Tokyurek's fraudulent use of Cabcharge vouchers involved vouchers issued to a motor repairer by the insurance company Suncorp. In May 2013, Cabcharge contacted Suncorp in relation to two Cabcharge vouchers issued to the motor repairer, who advised that thirty vouchers issued in its name were missing and unaccountable.

1. Twelve of these vouchers listing his name and driver authority were submitted for payment by Mr Tokyurek.

1. On 2 September 2013, RMS wrote to Mr Tokyurek inviting him to make submissions as to why his authority should not be cancelled in light of his apparent misuse of these Cabcharge vouchers.

1. In his subsequent submission dated 19 September 2013, Mr Tokyurek described himself as a married man with four children. He admitted that he had 'obtained twelve dockets fraudulently, presented them fraudulently and also gained benefits by deceit.'

1. He apologised for his actions and explained the situation as follows:

This gentleman...contacted me for a taxi a few months ago in the vicinity of Auburn to go to the city. Whilst driving, I was made an offer to make 'easy money.' I just had to present dockets fraudulently obtained to gain benefits by deceit and whatever amount that was to be written on the dockets would be split half way. It was easy money that I should never have accepted, but greed took the better of me because of business being so tough....I basically decided to pay back the whole amount that I gained by deceit. I had now regretted my decision to gain benefits and wanted to right a wrong for what it was worth...I have so far paid $3800 of the total amount of $5200. I have also paid the operator $940.

1. In support of his submission that his driver authority not be cancelled, Mr Tokyurek described himself as 'trustworthy, a good provider to my family and a man with integrity.' He wrote that:

I believe that I am of good repute in all other aspects and a fit and proper person to be the driver of a taxi cab. I have never taken the passenger the long way or the wrong way. Never at any time have I overcharged a passenger the wrong tariff. I have always taken passengers to their destinations safely and never brought harm to a single passenger in the 11 years that I have been driving and operating taxis. I am always helpful and friendly.

I strongly believe that any good judgement was temporarily clouded by my personal and financial situations. The biggest disappointment is that my dear mother who is only 68 years old has been diagnosed with terminal cancer...Financially I was forced to sell my taxis because of business not being good. The industry is struggling and it is tough making money.

There is no excuse for what I have done. It was wrong. I just wanted to explain my reasons in my own words to why I failed myself, my wife and my children in this matter. I have jeopardised our future. I have succumbed to greed and temptation for which I am embarrassed and ashamed of.

1. In cancelling his driver authority, the RMS found that Mr Tokyurek's actions in fraudulently obtaining and using Cabcharge dockets to obtain benefits by deception meant that he was not a fit and proper person with sufficient responsibility and aptitude to drive a taxi in accordance with law and custom.

1. Mr Tokyurek did not seek an internal review of the decision to cancel his driver authority and instead lodged an application for review to this Tribunal.

1. In evidence before the Tribunal, Mr Tokyurek admitted that he had fraudulently obtained and used the twelve Cabcharge vouchers in question. He told the Tribunal that of the $5200 owing, he had paid back $3800. He had begun to pay back the money prior to the RMS investigation into the matter as he felt guilty about his actions. As he has not been working since the cancellation of his driver authority, he has been unable to pay back the outstanding amount.

1. He apologised for his actions, telling the Tribunal that he let himself and his family down and feels ashamed and embarrassed that he has not been able to provide for his family following the cancellation of his licence.

1. Mr Wozniak described Mr Tokyurek's actions as being particularly serious and submitted that in an application such as this, fraud within the industry itself is seen as more serious than fraud outside the industry. He submitted that Mr Tokyurek had given no justification for his fraudulent behaviour and that his actions meant that he was neither of good repute nor a fit and proper person to hold a driver's authority. He submitted that the Cabcharge system relies on the honesty of its drivers in order to work and that any abuse of this system should be taken seriously.

Findings

1. As discussed earlier, the issue in this case is whether the decision to cancel Mr Tokyurek's authority to drive taxi-cabs was the correct and preferable one, having regard to whether Mr Tokyurek 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.

1. 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.

1. 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.

1. The following factors need to be taken into account in determining a person's suitability and fitness to hold 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.

1. 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

1. Mr Tokyurek has admitted to fraudulently obtaining and then using twelve Cabcharge vouchers for which he received a benefit of $5200. On his own evidence, this involved completing vouchers for trips that never took place, then claiming money for them. The Tribunal accepts that he has since paid back $3800 of the $5200 fraudulently obtained by him. The Tribunal accepts that he has been unable to pay back any further amount since the cancellation of his driver authority, which has meant that he has been unable to continue working as a taxi driver. The Tribunal accepts that Mr Tokyurek made early admissions in relation to his misuse of the relevant Cabcharge vouchers and has since attempted to make amends for his actions by paying back the money he had fraudulently received.

1. The Tribunal accepts that Mr Tokyurek has a long record of working as a taxicab driver and that his authority has never previously been refused or cancelled. The Tribunal accepts Mr Tokyurek's evidence that he engaged in the fraudulent behaviour due to financial pressures and clouded judgement as a result of his mother's recent diagnosis with cancer.

1. Over the past ten years, Mr Tokyurek's driving record has included five offences, three of which involved speeding. For the past two years, there have been no further traffic offences recorded against Mr Tokyurek.

1. Although no evidence has been adduced by Mr Tokyurek to show that he enjoys a favourable reputation in the community, Mr Tokyurek attended the Tribunal hearing with his wife and the Tribunal accepts that she continues to support him and his endeavours to pay back the money he wrongly obtained.

1. The Tribunal accepts Mr Tokyurek's evidence that he regrets his actions, is remorseful for his misuse of the Cabcharge vouchers in question and is ashamed of his behaviour and the hardship it has caused to his family. In light of this, the Tribunal is satisfied that Mr Tokyurek has admitted responsibility for his actions and shows genuine remorse. The fact that he has paid back a substantial amount of the monies misused is an indication of the attempts that Mr Tokyurek has made to make amends and rehabilitate himself.

1. The Tribunal accepts Mr Tokyurek's evidence that his family are experiencing financial hardship as a result of the cancellation of his driver authority. Questions of possible hardship to the applicant or his family cannot be taken into account, however, in determining whether RMS has made the correct and preferable decision: Lal v Director-General, Department of Transport [2001] NSWADT 74.

1. Mr Tokyurek's actions in fraudulently receiving, completing and presenting twelve Cabcharges are very serious and, having occurred in April and May this year, very recent. The Cabcharge system, which is widely used within the taxicab industry, relies on the honesty of the people who use them. Passengers who use the services of taxi-cabs need to be able to rely on the honesty of the driver. Mr Tokyurek's misuse of the twelve Cabcharge dockets brings into question his honesty in the discharge of his duties as a taxi-cab driver.

1. The fact that Mr Tokyurek was prepared to present Cabcharge vouchers knowing that they were false is, the Tribunal finds, sufficient proof that he is not, at this stage, a fit and proper person to hold a taxi-cab driver authority. The Tribunal is accordingly satisfied that Mr Tokyurek's actions in fraudulently receiving and presenting Cabcharge vouchers for journeys that never occurred are sufficiently serious to warrant the cancellation of his authority.

1. As the Tribunal has determined that, at this stage, Mr Tokyurek is not a fit and proper person to hold an authority, it is not necessary to consider whether Mr Tokyurek is of good repute or whether he has sufficient responsibility and aptitude to drive a taxicab, in accordance with the conditions under which a public passenger service is operated, and in accordance with law and custom.

1. In light of the above findings, the Tribunal is satisfied that the decision of RMS to cancel Mr Tokyurek's authority to drive taxi-cabs should be affirmed.

Decision

1. The decision to cancel the Applicant's authority to drive a taxi-cab is affirmed.

Decision last updated: 24 December 2014