TOPIC and DEPARTMENT OF TRANSPORT
[2015] WASAT 16
•19 FEBRUARY 2015
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: TAXI ACT 1994 (WA)
CITATION: TOPIC and DEPARTMENT OF TRANSPORT [2015] WASAT 16
MEMBER: MR M SPILLANE (SENIOR MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 19 FEBRUARY 2015
FILE NO/S: CC 275 of 2014
BETWEEN: BOZO TOPIC
Applicant
AND
DEPARTMENT OF TRANSPORT
Respondent
Catchwords:
Taxi Plates Fitness to be lessee of Taxi Plates Forfeiture of Taxi Plates Review of decision by Director General
Legislation:
Road Traffic (Authorisation to Drive) Regulations 2008 (WA), reg 11, reg 12, reg 12(7)(c), reg 28(a), reg 33(1), Div 5
State Administrative Tribunal Act 2004 (WA), s 27(1), s 60(2)
Taxi Act 1994 (WA), s 16(4), s 20, s 23, s 23(1), s 23(4)
Taxi Regulations 1995 (WA)
Result:
Decision of respondent affirmed
Application dismissed
Summary of Tribunal's decision:
Mr Topic, the applicant, is the lessee of Taxi Plate 8502 pursuant to a Taxi Plate Lease dated 9 September 2011.
In February 2013, Mr Topic was convicted of serious offences in the Perth District Court and sentenced to a term of imprisonment of two years. He was released from prison in May 2013 and is on parole until February 2015.
On 14 May 2013, the Director General of the Department of Transport sent a notice to Mr Topic under s 23(1) of the Taxi Act 1994 (WA) indicating that he was of the opinion that Mr Topic was no longer fit to be lessee of a Taxi Plate.
By letter of 5 June 2013 through his solicitors, Mr Topic sought to satisfy the Director General that he remained fit to be lessee of a Taxi Plate. In a reply dated 12 February 2014, the Director General again wrote to Mr Topic confirming his original decision, following which Mr Topic applied to this Tribunal for a review of that decision.
On 30 September 2014, this Tribunal published reasons in Topic and Department of Transport [2014] WASAT 129, affirming a separate decision of the Director General that Mr Topic was not of good character such as that required to hold a T extension.
In this matter concerning whether Mr Topic is fit to be lessee of a Taxi Plate, the Tribunal, having considered the parties' submissions and assessed the evidence, affirmed the Director General's decision that Mr Topic is not fit to be lessee of Taxi Plates and dismissed the application for review.
Category: B
Representation:
Counsel:
Applicant: Mr V Dangubic
Respondent: Mr P Busby with Ms J Hervic (Acting as Agents)
Solicitors:
Applicant: Frichot & Frichot
Respondent: Department of Transport
Case(s) referred to in decision(s):
Minitti v Commissioner of Police [2010] WASCA 198
Topic and Department of Transport [2014] WASAT 129
REASONS FOR DECISION OF THE TRIBUNAL:
Background
Mr Bozo Topic (applicant) is 46 years old and has held a driver's licence in Western Australia since 1998. In 2005 he had that licence varied with the addition of a T extension. Such extension authorises the holder to drive a motor vehicle for the purpose of carrying passengers for reward as provided for by reg 11 and reg 12 of the Road Traffic (Authorisation to Drive) Regulations 2008 (WA) (Regulations).
On 9 September 2011, the applicant was granted a lease of Taxi Plate 8502 by the respondent.
On 10 February 2012, the Department of Transport (respondent) became aware that the applicant had been charged by the police with serious criminal offences.
Based on the applicant's pending criminal charges at that time, the respondent determined that those charges, together with the underlying conduct, were of sufficient concern to provide the respondent with reason to believe that the applicant was not of good character as required by reg 12(7)(c) of the Regulations.
The respondent accordingly notified the applicant of the decision to suspend his T extension by letter dated 10 February 2012 which notice was served on the same day.
The applicant subsequently applied to this Tribunal on 5 May 2012 for a review of the respondent's decision to suspend his T extension.
That application (matter no CC 2013/2012) was listed for final hearing on 18 June 2012, but was withdrawn by the applicant prior to the hearing. It is understood that the applicant was a remand prisoner during much of that process.
On 28 February 2013, the applicant was convicted in the Perth District Court of aggravated burglary and commit offence in a dwelling, and was sentenced to a term of imprisonment of two years. The applicant was also convicted and fined $750 for the offence of breach of a violence restraining order.
Following the applicant's conviction and sentencing, the respondent notified the applicant by letter dated 14 May 2013, that not being satisfied of the applicant's good character, the respondent cancelled the applicant's T extension pursuant to reg 28(4) of the Regulations. That cancellation was served on the applicant at Acacia Prison on 16 May 2013.
On 16 May 2013, the applicant was also served with a notice dated 14 May 2013 informing him that pursuant to s 23(1) of the Taxi Act 1994 (WA) (Taxi Act), that he was no longer considered fit to be the lessee of Taxi Plates.
The respondent subsequently received a request dated 5 June 2013 from the applicant's solicitor to reconsider the decision to cancel the applicant's Taxi Plate 8502.
The respondent inadvertently transposed that request and responded to the review on the basis that it was for the cancellation of the T extension rather than the cancellation of the Taxi Plate.
The respondent advised the applicant by letter dated 20 June 2013 that the decision to cancel the applicant's T extension had been affirmed on the basis that the applicant was not of good character having regard to the criminal convictions against him.
By application to this Tribunal on 8 August 2013 the applicant applied for review of the respondent's decision to cancel his T extension which became CC 1061/2013.
The applicant was released from prison in February 2014.
By letter of 12 February 2014, the respondent wrote to the applicant stating:
On the 14[th] May 2013 I addressed a notice to you under section 23(1) of the Taxi Act 1994 (Act), in which I indicated that, as it had come to my attention that you had been convicted of serious criminal charges: - Aggravated Burglary, Breach of a Violence Restraining Order and breach of Protective Bail conditions- resulting in a sentence of imprisonment of 2 years, I was of the opinion that you were no longer fit to be the lessee of a Taxi Plate 8502.
You were provided with an opportunity to satisfy the Director General of the Department of transport within 30 days that you remained fit to be the lessee of Taxi Plates. Subsequently I received a letter from your [solicitor], Henry Sklarz, dated 5 June 2013, providing your reasons why I should reconsider the matter and find that you were fit to be the lessee of the Taxi Plates.
I have considered the submissions made by your solicitor in the abovementioned letter. The fact that your solicitor suggests that the offences related to an acrimonious domestic relationship does in no manner diminish the seriousness of the offences and the sentence imposed.
The Director General has statutory responsibilities and must take into account the needs and expectations of the community when granting taxi lease plates. Accordingly I must inform you that your conviction of serious criminal charges resulting in a not insubstantial period of imprisonment, renders you unfit to lease Taxi Plates and therefore my original decision stands.
On 25 February 2014, the applicant applied to the Tribunal pursuant to s 23(4) of the Taxi Act to review that decision, requesting that 'the decision made on 12 February 2014 that I am no longer fit to be a lessee of taxi plate 8502 is set aside' on the grounds that:
The Director General did not have enough evidence to form [the opinion] that I am not fit to be lessee of a Taxi Plate 8502.
I am fit to be the Lessee of Taxi Plate 8502.
The [Director] General did not [properly] apply law to my particular circumstances.
That application became CC 275/2014 before the Tribunal.
Following various programming orders, CC 1061/2013, being the review of the respondent's decision to cancel the applicant's T extension, went to final hearing on 11 June 2014 with the Tribunal publishing its written reasons in the matter on 30 September 2013 as Topic and Department of Transport [2014] WASAT 129 (Topic).
In that matter, the Tribunal was not persuaded that the applicant was of good character such as that required to hold a T extension, and affirmed the decision of the Director General cancelling the applicant's T extension and dismissed that application for review.
On 11 June 2014 (the date of final hearing of CC 1061/2013), this matter (CC 275/2014) was adjourned to 10 September 2014 to await a decision in CC 1061/2013.
Following the Tribunal's decision in CC 1061/2013 on 30 September 2013 referred to above, this matter (CC 275/2014) was brought on for further directions on 8 October 2014 when it was ordered that:
1)In addition to any documents or submissions already filed, the parties may by 21 November 2014 each file with the Tribunal written submissions and any decided cases on which they rely and serve a copy on the other party.
2)Subject to any further order the matter is to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).
No correspondence or further submissions having been received from either party, the decision in this matter was reserved on 22 November 2014 and the matter has been determined on the documents pursuant to Order 2 of 8 October 2014.
Submissions
In its submissions to the Tribunal in CC 1061/2013, the applicant made a brief reference to the issue of the Taxi Plate Lease (Lease) and, after setting out s 23 of the Taxi Act and clause 1 of the Lease which will be referred to later, stated:
The Applicant submits he did not breach any clause of the Agreement nor he committed any default, pursuant to clause 7 of the Agreement.
The respondent, in its written submissions in CC 1061/2013, also made submissions in respect of the Taxi Plate issue at paragraphs 60 to 85, and, at paragraphs 64 to 68, stated:
In order to qualify to be a lessee of a Taxi Plate, it requires more than only having an ongoing financial interest in the Taxi Plates. It requires the ongoing ability [to] be able to lawfully drive a taxi by holding the T extension endorsement on the driver's licence and continuing to be fit to be the lessee of the Taxi Plates.
As indicated in the leading case of Australian Broadcasting Tribunal v Bond (1990) 94 LAR 11 'the expression fit and proper person, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends served by those activities['].
The Respondent in deciding that the Applicant is not fit to be the lessee of a Taxi Plate has to consider the Applicant's fitness in its proper context. The context in this case is drawn from the Act and by the particular circumstances of the Applicant.
In this instance the Respondent considered the Applicant's fitness in the context of his conviction resulting in a prison sentence and that the Applicant had his T extension endorsement on his C class drivers licence cancelled on the basis that he was no longer fit.
It would be an untenable situation for a person found not fit to drive a taxi due to bad character to nevertheless be allowed to be entrusted with operating a taxi to the standards required by the legislation and would defeat the legislative intention of protecting the public.
And, at 73, stated:
Moreover, section 16(4)(a) of the Act provides that when considering whether to accept an application to lease taxi plates, the Respondent may only lease taxi plates to an individual if satisfied that the individual
(a)will be the owner and principal driver of the vehicle operated as a taxi using the plates. (author's emphasis)
Consideration
Both the Lease dated 9 September 2011 and the Taxi Plate Operating Conditions for Taxi Plate 8502 (Operating Conditions) which were attached as Item 8 of the Schedule in the lease, were before the Tribunal.
The relevant clauses in the Lease were:
1.This lease is made subject to the provisions of the taxi Act 1994 ('the Act') and the Taxi Regulations 1995 ('the Regulations') which shall apply to this Lease as if fully set forth herein as terms and conditions thereof, Provided that to the extent of any conflict or inconsistency between a provision of this Lease and a provision of the Act or the Regulations, the provision of this Lease shall prevail.
2.Words, phrases and expressions used in this Lease shall, unless expressly defined in this Lease have the meanings expressly ascribed to them in the Act and the Regulations, as the case may be.
…
7.The Owner may retake possession of the Taxi Plates if the Lessee commits any breach or default under any provision of this Lease. In exercising its rights under this clause, the Owner shall be entitled, without incurring any liability or responsibility to anyone in respect thereof, to enter any premises where the Taxi Plates may be located, detach them from any vehicle to which they may be attached or otherwise remove them from any vehicle in which they may be found.
8.The Lessee shall at all times observe, perform and comply with all laws, Acts[,] statutes, legislation, rules, regulations and local laws applicable to the Taxi Plates or the use and possession thereof and the use and operation of the taxi or other vehicle to which they are attached or to which they relate. The Lessee shall obtain and keep in force throughout the Lease Period all licences, permits, certificates and authorities required by law for the use and operation o the taxi or other vehicle to which the Taxi Plates are affixed or relate. The Lessee shall at all times during the Lease Period observe, perform and comply with the terms, conditions and provisions of all such licences, permits, certificates and authorities. The Lessee shall at all times comply with, or ensure compliance with, all conditions imposed by the Director General for the time being and from time to time on the operation of any taxi using the Taxi Plates under section 20 of the Act, including any variations under section 22 of the Act. A copy of such conditions as at the date of this Lease is contained in Item 8 of the Schedule hereto.
…
16.Each of the following events is an event of default, namely:
…
(b)if the Lessee fails to observe, perform or comply with any of the terms, covenants or conditions of this Lease on the part of the Lessee;
…
17.If an event of default occurs, the Owner at its option may immediately terminate this Lease and the Lessee's right to the use and possession of the Taxi Plates by notice in writing to the Lessee. Upon service of such notice all rights of the Lessee to or in the use of the Taxi Plates will terminate and the Owner may, directly or by its agent or employees, take possession of the Taxi Plates. Any damages occasioned by the Owner taking possession are waived by the Lessee. The Owner will, upon taking possession of the Taxi Plates, hold, possess and enjoy the Taxi Plates free from any right of the Lessee or its successors or assigns to use the Taxi Plates for any purpose.
18.The obligations of the Lessee under this Lease are essential and fundamental terms of this Lease such that failure to comply with them will constitute a repudiation of this Lease entitling the Owner to accept such repudiation and terminate the Lease forthwith. Should any event of default occur, its occurrence will be a breach of an essential and fundamental provision of this Lease by the Lessee amounting to a repudiation by the Lessee of this Lease.
On the front cover of the Operating Conditions for Taxi Plate 8502,(Item 8 in the schedule of the lease) it stated 'These conditions are imposed pursuant to section 20(1) of the Taxi Act 1994 on the operation of the taxi using the above identified taxi plates'.
Clause 3.1 of the Operating Conditions under the heading 'Areas and hours of operation', states:
The taxi:
3.1.2shall be operational between the hours of 5.00pm on Friday and 6.00am on the following Saturday and between the hours of 5.00pm on Saturday and 6.00am on the following Sunday;
and at clause 3.1.13 stated:
must be driven each week for at least 50% of the required hours of operation by the principal driver.
At clause 6.1 under the heading' Driver qualifications', stated:
All drivers of the taxi shall:
6.1.1have a current motor driver's licence issued in Western Australia and have a current 'T' extension on their motor driver's licence.
Section 20 of the Taxi Act under which the conditions had been imposed states, under the heading 'Conditions on operating taxis':
(1)The Director General may impose conditions on the operation of a taxi using specified taxi plates in relation to ‑
(a)the area in which, and the hours during which the taxi may be operated and the hours during which the taxi must be operated;
(b)fare schedules;
(c)driver qualifications and standards;
…
and such other matters as may be prescribed by regulation.
(2)A person who is ‑
(a)a plate holder, shall comply with, or ensure compliance with, conditions imposed under subsection (1); or
…
Other relevant sections of the Taxi Act are:
16.Sale and lease of taxi plates
(1)…
(2)Taxi plates shall also be offered for lease, with the invitation to apply to lease taxi plates specifying ‑
(a)the criteria to be met by the successful applicant; and
(b)the period for which the plates are offered for lease; and
(c)the periodic payments that are payable to lease the plates; and
(d)the conditions to be imposed on the operation of a taxi using the plates which are being offered for lease.
(2a)If an application for the lease of taxi plates is made by an applicant who is not eligible to lease the plates under subsection (4)(b) or (c), (5)(d) or (6)(d) or (e), the application is subject to the condition that, if the application is successful, the taxi plates will not be issued unless the relevant provision has been complied with.
…
(4)Without limiting subsection (2)(a), taxi plates may be leased by an individual only if the Director General is satisfied that the individual ‑
(a)will be the owner and principal driver of the vehicle operated as a taxi using the plates; and
(b)is not the owner, and has no interest in the ownership, of taxi plates; and
(c)is not the lessee of taxi plates.
23. Persons no longer fit to hold taxi plates, powers to deal with
(1)Where the Director General believes that a plate holder may no longer be fit to be an owner or lessee of taxi plates he or she may serve notice on that person stating the reason he or she holds that belief and requiring that person to satisfy him or her within 30 days that that person is so fit.
(2)Where a plate holder fails to satisfy the Director General in accordance with subsection (1), the Director General may serve notice on the person ‑
(a)in the case of an owner of taxi plates ‑ requiring him or her to divest himself or herself of any interest in the ownership of taxi plates within 45 days after the day of service of the notice (the divestment period); or
(b)in the case of a lessee of taxi plates ‑ advising him or her of the effect of the relevant provisions of subsections (3) and (4).
(3)Where a person fails to divest himself or herself of his or her interest in the ownership of taxi plates within the divestment period or a person is served with a notice under subsection (2)(b) in relation to the leasing of taxi plates ‑
(a)his or her right to the plates is forfeited to the Director General ‑
(i)if he or she has applied under subsection (4) for a review ‑ on the making of a decision that confirms the Director General's decision or that otherwise results in the forfeiture of that right; or
(ii)otherwise on the expiry of ‑
(I)in the case of an owner of taxi plates ‑ the divestment period; or
(II)in the case of a lessee of taxi plates ‑ the period specified in subsection (4);
and
(b)if he or she was the sole plate holder, the plates may then be offered for sale or lease, as the case requires, in accordance with section 16.
(4)Where the Director General serves notice on a person under subsection (2), the person may within 14 days after the day of service of that notice apply to the State Administrative Tribunal for a review of the Director General's decision that he or she is no longer fit to be an owner or lessee, as the case requires, of taxi plates.
The Tribunal has considered the issue of a person's fitness to hold the lease of a Taxi Plate on a previous occasion when, in the matter of Mansoor and Department of Transport, matter no CC 1489/2010 (Mansoor), Senior Member McNab when delivering oral reasons, stated at T:22; 22.12.10:
The case brought by the department is that fitness extends to an ongoing obligation under section 16 of the Taxi Act 1994 – 16 subsection (4) that requires the Director General to be satisfied that an individual will be the owner and principal driver of the vehicle [operated] as a taxi using the plates. There's no question here that Mr Mansoor is the owner of the vehicle. The question is whether the principal driver requirement can be met having regard to the fact that on 1 October 2010 this tribunal affirmed a decision to cancel the taxi driver's endorsement.
I accept that as a matter of logic and a matter of law an applicant cannot be a principal driver of a vehicle [operated] as a taxi without holding an endorsement on their licence to drive taxis. It's a matter of record here that Mr Spillane's decision of October has not been appealed and, therefore, the applicant in this matter is not a – cannot drive a taxi and, therefore, cannot be a principal driver.
On the question of fitness I refer to Butterworths Concise Australian Legal Dictionary in [the] 1997 edition. In the entry at page 160 under 'fit and proper; the authors say that the term can be replaced by 'fit' alone. On 'fit and proper person' the learned authors say a person – this means a person who is suitable, appropriate, and legally eligible to undertake a particular activity. I emphasise the legal eligibility.
In my view, the fitness referred to in section 23 of the Taxi Act would extend to the legal obligation under section 16(4) to remain a principal driver of the vehicle. As I have said, one cannot be a principal driver unless one is licensed and, therefore, he would not be a principal driver and therefore would not be legally eligible and, therefore, failing to be legally eligible would mean that he would be no longer fit to be an owner or lessee of taxi plates.
In the present case, the Tribunal has since the applicant filed the application for review under consideration, dealt with the applicant's fitness to hold a T extension in Topic, when the Tribunal was not persuaded that the applicant was of good character such as that required to hold a T extension and the Director General's decision to cancel the applicant's T extension was affirmed. To the Tribunal's knowledge, that decision has not been appealed.
As the matter comes within the Tribunal's review jurisdiction, the provisions of s 27(1) of the State Administrative Tribunal Act 2004 (WA) apply, which state:
The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decision‑maker but may involve the consideration of new material whether or not it existed at the time the decision was made.
In the circumstances therefore, the Tribunal is entitled to have regard to its findings in Topic that the applicant's T extension has been cancelled.
The Director General made the decision of 12 February 2014 that the applicant was no longer fit to be the lessee of Taxi Plate 8502 following its consideration of the applicant's submissions in the reply to the initial notice under s 23(1) of the Taxi Act dated 14 May 2013.
Section 23(1) of the Taxi Act states:
(1)Where the Director General believes that a plate holder may no longer be fit to be an owner or lessee of taxi plates he or she may serve notice on that person stating the reason he or she holds that belief and requiring that person to satisfy him or her within 30 days that that person is so fit.
Section 16(4) of the Taxi Act states:
(4)Without limiting subsection (2)(a), taxi plates may be leased by an individual only if the Director General is satisfied that the individual
(a)will be the owner and principal driver of the vehicle operated as a taxi using the plates; and
(b)is not the owner, and has no interest in the ownership, of taxi plates; and
(c)is not the lessee of taxi plates.
(Tribunal's emphasis)
Senior Member McNab in Mansoor on the issue of fitness stated:
On the question of fitness I refer to Butterworths Concise Australian Legal Dictionary in [the] 1997 edition. In the entry at page 160 under 'fit and proper; the authors say that the term can be replaced by 'fit' alone. On 'fit and proper person' the learned authors say a person – this means a person who is suitable, appropriate, and legally eligible to undertake a particular activity. I emphasise the legal eligibility.
That definition of 'fit' relied on by Senior Member McNab is also supported by the discussion of 'fit' in Stroud's Judicial Dictionary of Words and Phrases (7th Ed, Volume 2), which states:
But 'fit' or 'fit and proper' has also the meaning just stated with the added condition that the person to be appointed is legally eligible, e.g., a 'fit and proper' person to be appointed churchwarden (Church Building Act 1831 (c.38), s 16) had to be resident in the parish (R. v Harding, 6 T.L.R. 53; R. v Cree, 67 L.T. 556; as to such residency, see Stephenson v Langston, 1 Hagg. Con. 379).
The Tribunal also notes the comments of Pullen JA in Minitti v Commissioner of Police [2010] WASCA 198 at [11] when he stated:
… The purpose of the expression 'fit and proper person' is to give the widest scope for judgment and for rejection of an application for a licence: Hughes and Vale Pty Ltd v New South Wales [No 2] (1955) 93 CLR 127, 156; Real Estate and Business Agents Supervisory Board v Carey [2010] WASCA 109. The discretion falls to be exercised anew in the circumstances of each application in the light of the statutory framework: Tavelli v Johnson (Unreported, WASC, Library No 960693, 25 November 1996); Re Jones; Ex parte The Commissioner of Police [1999] WASCA 246. It is not a concept which is to be narrowly construed or confined: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 348. …
And as further stated by Senior Member McNab in Mansoor:
… the fitness referred to in section 23 of the Taxi Act would extend to the legal obligation under section 16(4) to remain a principal driver of the vehicle. As I have said, one cannot be a principal driver unless one is licensed and, therefore, he would not be a principal driver and therefore would not be legally eligible and, therefore, failing to be legally eligible would mean that he would be no longer fit to be an owner or lessee of taxi plates.
In the present case the applicant does not hold a T extension and the Tribunal agrees with and adopts the reasoning of Senior Member McNab in Mansoor and finds that the applicant although he may be the owner of the vehicle, is no longer fit in the sense of 'not being legally eligible' to be the lessee of Taxi Plates as he cannot be the principal driver and therefore cannot fulfil the requirements of s 16(4)(a) of the Taxi Act.
The applicant may also be in breach of the Operating Conditions attached as Item 8, of the schedule to the Lease, however due to the findings made above a consideration of that issue is not necessary for the purposes of this application.
Conclusion
For the reasons given, the Tribunal finds that as the applicant does not hold a T extension, he is no longer fit to be lessee of Taxi Plates as he cannot fulfil the requirements of s 16(4) of the Taxi Act.
The Tribunal is therefore satisfied that the Director General's decision of 12 February 2014 that the applicant is not fit to be the lessee of Taxi Plate 8502 is correct, and that decision will be affirmed and the application for review dismissed.
Orders
1.The Director General's decision dated 12 February 2014 that the applicant is no longer fit to hold Taxi Plate 8502 is affirmed.
2.The application for review is dismissed.
I certify that this and the preceding [46] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR M SPILLANE, SENIOR MEMBER
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