Tzoudas v Ministry of Transport

[2008] NSWADT 350

CITATION:	Tzoudas v Ministry of Transport [2008] NSWADT 350
DIVISION:	General Division
PARTIES:	APPLICANT Anastasios Tzoudas RESPONDENT Ministry of Transport
FILE NUMBER:	083127
HEARING DATES:	17 December 2008
SUBMISSIONS CLOSED:	17 December 2008
EXTEMPORE DECISION DATE:	17 December 2008
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Passenger Transport Act - taxi driver - cancellation of authority
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990 Passenger Transport Regulation 2007
CASES CITED:	Azar v Ministry of Transport [2004] NSWADT 249 Kwai Hung Lo v Ministry of Transport [2003] NSWADT 276 Maythisathit v Registrar of Motor Vehicles (1996) ACT 165 Mohammed v Director-General, Department of Transport [2000] NSWADT 47 Saadieh v Director General, Department of Transport [1999] NSW ADT 68
REPRESENTATION:	APPLICANT A Rogers, barrister RESPONDENT A Wozniak, solicitor
ORDERS:	The decision to cancel the applicant’s authorisation to drive a taxi-cab is affirmed.

Background

1 The applicant held a driver authority under the Passenger Transport Act 1990 (the Act). By a Notice of Decision dated 14 April 2008 a delegate of the Director General of the Ministry of Transport advised the applicant that the respondent had determined to cancel his driver authority.

2 In the statement of reasons provided to the applicant the delegate stated that the determination was made on the basis of the following:

“The Ministry relies on the following facts, evidence and material when cancelling your drivers authority AQ8482, when taking into consideration your response to the Notice of Show Cause issued on 28 March 2008.

Complaint History

07.11.2007

A complaint was received by the Ministry of Transport stating that on the 07.11.07 at 10.30am, the complainant accompanied her Aunt to take her to the doctors at Park House Macquarie Street Sydney from Coogee. The complainant sat in the front seat of the taxi 5224 and her Aunt was in the back seat. The driver had his arm around the back of the chair, he leant across and touch the complainants bust (breast). RSL identified the driver as Mr Anastasios Tzoudas, driver authority number AQ8482.

You were interviewed by Ministry of Transport and denied the allegations.

04.10.2007

A complaint was received by the Ministry of Transport relating to a journey from Daceyville to Pagewood at approximately 10.00 by RSL taxi T5224 on 04.10.07. The complainant stated she uses Taxi Transport Subsidy Scheme (TTSS) vouchers, the taxi driver did not turn the meter on and just stated a price at the destination. Complainant stated she does not like to use taxi as she does not feel safe with this driver. Complainant stated she signed the TTSS voucher, number: 282091 03 but there was no amount on the voucher. Complainant stated the driver's name is Tony and he lives at Maroubra. RSL identified the driver as Mr Anastasios Tzoudas, driver authority number AQ8482.

You were interviewed by Ministry of Transport and confirmed allegations to be correct.

20.09.2007

A complaint was received by RSL Cabs relating to journey from East Gardens to Matraville at approximately 10.50 and identifying RSL cab T5224. The complainant stated she was waiting in the queue at East Gardens and another passenger jumped in front of her to get into taxi T5224. However, the taxi driver behind T5224 said the complainant was first but the taxi driver of T5224 was saying he wanted to take his friend.

Complainant stated she got in taxi T5224 and when she arrived at the destination the metre read $8.40. Complainant stated she travels in taxis 3 times a week and the fare is usually $6.50, she gave the driver a $20.00 note and he only gave her $11.00 back. Complainant stated she asked the driver for another 50 cents and the driver started yelling at her and told her to get out of the taxi. Complainant stated she got out of the taxi and did not get her 50 cents. RSL identified the driver as Mr Anastasios Tzoudas, driver authority number AQ8482.

You were interviewed by RSL and denied allegations. Nevertheless, you offered to refund the money to the complainant.

29.06.2006

A complaint was received by RSL Cabs about the RSL taxi driver on 29/06/06. The complainant stated she went to the rank at Chalmers St Surry Hills near Central station at 9.30 going to Family Law courts. Complainant stated she entered taxi T5224 and asked to go to her destination. The driver told her to walk. Complainant stated she had a respiratory condition and is unable to walk. Complainant also stated the taxi smelt of smoke, the driver was very rude and unhelpful. RSL identified the driver as Mr Anastasios Tzoudas, driver authority number AQ8482.

You were interviewed by RSL and denied allegations stating that you never smoked. No action recorded.

02.07.2005

A complaint was received alleging a taxi driver overcharged a passenger on a journey from Malabar to Maroubra. The complainant stated that her fare was $22 and that the meter was already on when she got in cab. Complainant does this trip regular it normally runs about $7 or $8. The complainant didn't want to argue with driver at the time as she was in a hurry and had a small child with her. RSL identified the driver as Mr Anastasios Tzoudas, driver authority number AQ8482.

You were interviewed by RSL and denied allegations. Nevertheless, you refunded $10.00 to the complainant.

30.06.2005

A complaint was received by the Ministry of Transport regarding a journey from Newtown to Bondi. The daughter of an elderly lady who stated that the driver of taxi T5224 started asking her mother questions like, are you single to which she lied and said she had someone. The driver did not get the hint and started asking the mother very sexual questions. He further said to her that he wanted to fuck her and that he is a Greek bastard. The elderly woman is afraid that the driver will come to her home. RSL identified the driver as Mr Anastasios Tzoudas, driver authority number AQ8482.

You were interviewed by Officers of the Ministry of Transport where you denied the allegations.

23.09.2003

A complaint was received by RSL Cabs from a person who witnessed the driver of taxi T5224 urinating on a tree on his way through the Victoria Barracks Paddington at 9.30am. The person stated that the taxi was booked and instructions were given to locate the passengers. If the driver had asked to use a toilet he would have been directed to the facilities rather then him be witnessed by three persons urinating on a tree. RSL identified the driver as Mr Anastasios Tzoudas, driver authority number AQ8482.

You were interviewed by RSL, the matter was proven and you were reprimanded for your actions.

23.05.2003

A complaint was received by RSL Cabs regarding a journey from Eastlakes to Coogee. The female complainant stated that the taxi she booked had the meter on tariff 2 at 8.00am. Her fare was $18.00 when it should have been $11.00. She further stated that she knew the driver and that he should have known better. RSL identified the driver as Mr Anastasios Tzoudas, driver authority number AQ8482.

You were interviewed by RSL, the matter was proven and you were reprimanded for your actions.

22.04.2003

A complaint was received by RSL regarding a journey from Clovelly. The complainant the Legion Taxi Radio Manager who stated that taxi T5224 failed to pick up a booking, he did not make an M3 job (driver was unable to make contact with passenger). When questioned he replied, "Bad luck, too late now" RSL identified the driver as Mr Anastasios Tzoudas, driver authority number AQ8482.

You were interviewed by RSL, the matter was proven and you were counselled for your actions.

01.04.2003

A complaint was received by RSL Cabs from a male who stated that about 10.17am he noticed a taxi parked in McDougal Street Kirribilli in a no parking zone outside the Ensemble Theatre. He stated that the taxi was parked about 5 feet from the kerb and the driver was nearby having a smoke. The driver stubbed his smoke out and walked across the road and proceeded to unzip his fly and urinate on the front garden of a house. He was also concerned that the drivers action took place not far from Loretta Convert Girls School. RSL identified the driver as Mr Anastasios Tzoudas, driver authority number AQ8482.

No action recorded.

24.05.2001

A complaint was received by RSL Cabs regarding a journey from Hillsdale to Kingsford at approximately 11.00am, from the husband of a female passenger who stated that the driver of taxi T5224 would not respond to her directions and swore at her and was generally abusive towards her. RSL identified the driver as Mr Anastasios Tzoudas, driver authority number AQ8482.

No action recorded.

14.05.2001

A complaint was received by RSL Cabs regarding a journey from East Gardens to Kingsford at approximately 11.00am. Maroubra Police informed RSL Cabs that the driver of taxi T5224 was making suggestions about the passenger and himself getting together. The driver also touched the passenger on the leg and hand. RSL identified the driver as Mr Anastasios Tzoudas, driver authority number AQ8482.

No action recorded.

28.11.2000

A complaint was received by RSL Cabs from a female who stated that she took a taxi from the rank near Maroubra Post Office and said the fare was never more that $9.00 and usually between $7.00 and $8.00. She recognised the driver and on arrival at the destination the driver requested $10.00 when the meter read $8.00 and he said to her "give me my money, give me my money now and get out." He then started swearing at her. RSL identified the driver as Mr Anastasios Tzoudas, diver authority number AQ8482.

You were interviewed by RSL where you denied the overcharge but admitted to being rude. You were warned and reminded of your obligations as a taxi driver.

24.02.2000

A complaint was received by RSL Cabs regarding a journey from North Sydney to Bondi Junction. The female complainant stated that the meter was on tariff 2 at 11.40am and when the driver was questioned he apologised and tried to change the tariff. RSL identified the driver as Anastasios Tzoudas, driver authority number AQ8482.

You were interviewed by RSL where you agreed with the allegations. You were warned for your actions on this occasion.

17.02.1998

A complaint was received by RSL Cabs regarding a journey from East Botany to Botany Road at approximately 10.45am from a male who stated that the driver of taxi T5224 was rude and called him a wanker in a foreign language, which the passenger understood. The male further stated that at the destination the meter read $7.60, he gave the driver $10 and received no change. RSL identified the driver as Mr Anastasios Tzoudas, driver authority number AQ8482.

You were interviewed by RSL where you were reprimanded and counselled over your actions.

05.03.1997

A complaint was received by RSL cabs from a female who stated that the driver of the taxi she took from Randwick to Roselle at approximately 11.15 am, was smoking in the taxi getting ash all over her. The driver then began screaming "How do I get to the fish market", the driver then reversed up to the main road and dropped her off. He refused to take her to her destination. RSL identified the driver as Mr Anastasios Tzoudas, driver authority number AQ8482.

You were interviewed by RSL where you denied the allegations.

You were counselled over your actions.

23.10.1996

A complaint was received by the Ministry of Transport from a female who stated, having known a man Tony for about 6 Weeks as the taxi driver who would take her disabled son to the workshop. She thought that she would accompany her son to the workshop then return home in the taxi. After a few days the driver told her she was sensual. He kept telling her that he wanted to come in for coffee with her and he had placed his hand on her knee a few times. RSL identified the driver as Mr Anastasios Tzoudas, driver authority number AQ8482.

You were interviewed by the Ministry of Transport but no action has been recalled as taken.

21.10.1996

A complaint was received by the Ministry of Transport by a female who stated that Tony, the driver of T5224 who takes her disabled son to the workshop at Mascot, asked her to wind down her window as he placed his hand on her thigh. She stated that she did raise her close fist to him and told him to get his hand off her. She never saw him after this incident. RSL identified the driver as Mr Anastasios Tzoudas, driver authority number AQ8482.

You were interviewed by the Ministry of Transport but no action has been recalled as taken.

12.02.1996

A complaint was received by RSL from a female who stated that she booked a taxi from Waverly for 9.15am and wanted to go to the Arrivals International terminal Sydney Airport yet the driver turned up late and then took her to the departure terminal and she missed her arrival. RSL identified the driver as Mr Anastasios Tzoudas, driver authority number AQ8482.

You were interviewed by RSL where you admitted to the incident and asked RSL to forward an apology to the complainant. No action was taken.

23.11.1995

A complaint was received by RSL Cabs regarding a journey from Cleveland Street the Chinese Embassy to Paddington RSL at approximately 12.00 midday. The complainant stated that when he got into the taxi the driver was smoking. A message came over his machine and the driver said that he could not take the passenger and terminated the journey. RSL identified the driver as Mr Anastasios Tzoudas, driver authority number AQ8482.

You were interviewed by RSL and you denied the allegations, however you admitted that you do smoke. You were reminded of your obligations as a taxi driver.

14.11.1995

A complaint was received by the Ministry of Transport regarding a journey from Daceyville to East Gardens from a female who stated that the driver of taxiT5224 tried to short change her and took full fare of $6.00 and a blank docket. RSL identified the driver as Mr Anastasios Tzoudas, driver authority number AQ8482.

You were interviewed by the Ministry of Transport. No action was recorded.

…

The fact that you accumulated twenty one (21) complaints against you that include sexual harassment, rudeness to passengers, urinating in a public place and smoking in the taxi, cast grave doubts about your fitness to hold an authority to drive public passenger services by means of Taxi-cab and your ability to carry out the duties and responsibilities of the position according to law and custom.

The fact that you have been reprimanded, counselled and warned in relation to all the allegations against you, yet you still have accumulated such complaints against you would indicate that you do not have the aptitude or responsibility to be the holder of a driver authority to drive public passenger services.

To attest that you are considered to have sufficient responsibility and aptitude to drive public passenger vehicles, the community must have the confidence that a driver would behave appropriately in relation to all passengers. You have also in the past been before the Administration Decisions Tribunal in 2006 for the decision made by the Ministry of Transport to cancel your driver authority in relation to your complainant history and since the decision to cancel your authority in 2005 you have accumulated similar complainants.

The seriousness of the complaints cast doubt about your fitness to hold a public passenger vehicle authority and your ability to carry out the duties and responsibilities of the position according to law and custom.

Based on the above facts and law it can no longer be attested that you meet the required standards for authorisation as a taxi driver.”

3 The applicant has applied to the Tribunal for review of the determination to cancel his driver authority.

4 The matter came before me on 17 December 2008. On that date I determined to affirm the Ministry’s determination and I gave brief reasons for my decision. At the applicant’s request I now publish more comprehensive reasons for decision.

Relevant legislation

5 Division 5 in Part 4 of the Act makes provision for authorisation to drive taxi-cabs. The purpose of authorisation is set out in section 33 of the Act:

33 Authorities

…

(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.

6 The holder of an authority is also subject to the provisions of the Passenger Transport Regulation 2007 (“the Regulations”). Clause 29 of the Regulations provides:

“29 Criteria for authorisation to drive public passenger vehicles

(1) For the purposes of sections 12 (2), 33B (2) and 40B (2) of the Act, the criteria that an applicant for an authorisation to drive a public passenger vehicle must meet before the application is granted are the criteria set out in subclauses (2)-(4).

(2) The applicant:

…

(e) must satisfy the Director-General that he or she:

…

(ii) is of good repute and in all other respects a fit and proper person to be the driver of the vehicle concerned, and

(iii) has sufficient responsibility to drive the vehicle concerned in accordance with law and custom.

(4) In the case of an application for authorisation to drive taxi- cabs, the applicant must also:

(a) have successfully completed a taxi-cab driver training course approved by the Director-General and conducted by a registered training organisation (or must have such competence as a driver of a taxi-cab as the Director- General considers appropriate), and

…

(iii) knowledge of this Regulation in so far as it relates to taxi-cabs and the driving of taxi- cabs, and …”

7 The decision to cancel the applicant’s authority was made under section 33F of the Act, which provides as follows:

33F Variation, suspension or cancellation of authority

Having regard to the purpose of authorisation under this Division, the Director-General may at any time vary, suspend or cancel any person’s authority under this Division.

8 Section 52(1) of the Act confers jurisdiction on the Tribunal to review a decision to cancel an authority. In reviewing this decision, the task of the Tribunal is to determine what is the correct and preferable decision, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law: section 63 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”).

The respondent’s case

9 The respondent filed and served a copy of its file, which comprises 310 pages. The file contains documents in relation to the matters referred to the determination and noted above and provides evidence of the complaints made against the applicant. It is not evidence as to the truth of those complaints. Mr Wozniak, the respondent’s solicitor, referred to a number of documents in the file that relate to complaints made against the applicant and the steps taken by the respondent in relation to those complaints.

10 Mr Wozniak also referred to the applicant’s recent conviction for driving a taxi-cab without being an authorised taxi-cab driver. On 28 November 2008 the applicant pleaded guilty to 4 charges relating to driving without an authority on 19 April, 20 April, 21 April and 22 April 2008. In respect of each matter he was fined and ordered to pay Court costs and to contribute to the respondent’s professional costs. It is common ground that this conviction relates to the period between the time when the applicant lodged his application with the Tribunal and the hearing of his application for a stay of the respondent’s determination to cancel his authority.

11 Mr Wozniak referred to the decision in Kwai Hung Lo v Ministry of Transport [2003] NSWADT 276, a case in which the applicant had been detected driving a public passenger vehicle whilst his driver’s authority was suspended. In the circumstances of that matter I found that I could not be confident that the person would not re-offend. Mr Wozniak submits that a comparable situation has arisen in this matter.

12 Mr Wozniak also referred to the applicant’s original application for a driver authority and to material that indicates that the applicant had not disclosed charges that were pending against the applicant at that time. The applicant conceded that he had not advised the respondent of those charges but asserted that they concerned a family dispute and were not relevant to the application.

13 The respondent also relies on the evidence of Ms Rosemary Opitz who provided two written statements, appeared at the hearing and was subjected to cross-examination. Ms Opitz gave evidence that on Wednesday 7 November 2007 she had travelled in a taxi driven by the applicant and that she had subsequently complained about the applicant’s conduct towards her. After discussing the matter with her husband who is a taxi driver, she had made that complaint within a few days of the incident. Officers of the respondent had interviewed her in relation to that complaint and assisted her in preparing her statement. In her first statement dated 30 January 2008 she stated in part:

“3. On Wednesday 7 November 2007, I escorted my Aunty who is a War Veteran and Gold card holder to the Doctors in Park House, Macquarie Street, Sydney.

4. At approximately 10.30am we were picked up from … Coogee by taxi-cab T5224. I jumped in the front passenger seat and my Aunty entered the rear left passenger seat.

5. As we got to Oxford Street, the driver placed his arm over behind my seat and in doing so he placed his hand on my breast. Straight away I felt uncomfortable and scared, so I moved as far over to the door as I could. Apart from this I thought he should have had both his hands on the steering wheel of the taxi-cab.

6. Just before we turned off Oxford Street onto College Street, he moved his arm away. I didn't know what to think or do, it was tacky and this was something I would only give permission for my husband to do.

7. When we arrived at the Doctors, the driver signed the docket and I got out of the taxi-cab as soon as I could. He then said to me,

8. He said: "I suppose you are going to report me. I suppose it's time for me to get out of the industry".

9. After he had made the statement, it confirmed that his actions were intentional towards me.

10. At no time did I give permission to the taxi-cab driver to touch my breast and at no stage did I touch the taxi driver. I felt shocked and very uncomfortable about his actions towards me.”

14 In her evidence to the Tribunal Ms Opitz clarified that in paragraph 5 of her statement she meant that the applicant had placed his left arm behind her and his right hand on her breast. She stated that the applicant had placed his left arm on the back of the seat behind her so that his left hand touched her left shoulder and that his right hand had been on her breast for about two seconds. She conceded that she did not tell the applicant to remove his hand but she said that she had moved as far away from the applicant as possible. She said that she had been unsure as to whether the applicant’s actions had been deliberate but accepted that if his hand had been on her breast for two seconds and that he had taken both hands off the steering wheel it was unlikely that it would have been accidental. She explained that in the circumstances of taking her elderly aunt to a medical appointment it was not feasible to request the applicant to stop and to abandon the journey.

15 During the hearing, I undertook a view of the applicant’s taxi-cab and a demonstration by the applicant sitting in the driver’s seat and the applicant’s solicitor, Mr Tsolakis, sitting in the front passenger’s seat. Ms Opitz was cross-examined in light of that demonstration and conceded that if the arrangement of the seats in the applicant’s taxi-cab on 7 November 2007 were the same as it was in the demonstration, the applicant would have been unable to have placed his arm behind the front passenger’s seat and touch the passenger’s shoulder. She also agreed that if the applicant had placed his arm in front of the headrest of the front passenger’s seat, his arm would have been around the passenger’s shoulders. She agreed that this was inconsistent with her evidence that he only touched her left shoulder. However, she was adamant that she knew what had happened, confirmed that the applicant had placed his left arm on the back of the seat behind her so that his left hand touched her left shoulder and confirmed that the applicant had touched her inappropriately.

16 Ms Opitz’s second statement is dated 18 September 2008. In that statement she stated in part:

“3. On Wednesday 17 September 2008, I was at Montefiore Home at Randwick to pick up my aunty to take her to the hospital.

4. My aunty or the home ordered the taxi to take us to the hospital.

5. A taxi-cab arrived at 11.20am, I put my aunt in the front and I entered the back. I will never get in the front again after a previous experience.

6. A s we were driving out from Montefiore, he said to my aunt, "you used to live in Coogee Bay Road".

7. She said: "Yes, but I live here now".

8. He then turned around to me and,

9. He said: "You reported me".

10. I said: "Yes, and you should not be talking to me".

11. He said: "Why did you do this to me".

12. I said: "You should not be talking to me, please don't".

13. He repeated this once more, then it was silent till we got to the hospital. He got out from the driver seat to remove the walker from the boot. I told him;

14. I said: "Leave it I will get the walker out".

15. He then entered his taxi, I told my aunty to sign the docket. The driver then left.

16. I felt uncomfortable during the whole journey as a result of my previous experience with this driver.

17 Ms Opitz confirmed this evidence before the Tribunal. She said that she did not recognise the applicant until she had got to the taxi-cab and that the applicant had recognised her during the journey.

18 Mr Wozniak submits that the Tribunal should be satisfied by Ms Opitz’s account of the 7 November 2007 incident. He argues that the evidence shows that she made a complaint about the incident within a short period of time. She was forthright in her evidence and is adamant that the applicant had touched her inappropriately. There is nothing to suggest that she had fabricated her account of the incident and she had nothing to gain from making her complaint.

19 Mr Wozniak submits that the applicant admitted that he often drives with his arm resting on the passenger’s seat. He submits that the applicant’s demonstration of how he positions himself to drive in that manner was exaggerated.

20 Mr Wozniak further submits that the cancellation is justified by the totality of the incidents that are identified in the respondent’s file. He referred to the applicant’s recent convictions and submits that this is a serious issue as the conduct was in the regulated activity. He argued that the material before the Tribunal suggests that the applicant does not understand the applicable Regulations and the obligations they impose on a taxi driver.

21 Mr Wozniak referred to the decision of the Tribunal’s Deputy President in Saadieh v Director General, Department of Transport [1999] NSW ADT 68. At paragraphs [17] – [18] the Deputy President set out several factors that should be considered when determining a person's fitness and suitability to hold a taxi authority. These include ‘the nature, seriousness and frequency of any complaints made against the applicant’. Mr Wozniak submits that the Tribunal should note of the numerous complaints that have been made against the applicant.

22 Mr Wozniak contends that the applicant brought an earlier application to the Tribunal following a determination to cancel his authority because of a similar complaint involving an elderly passenger who had suffered from cancer. The respondent had withdrawn the decision to cancel the applicant’s driver’s authority and made a new decision to issue a warning. Mr Wozniak submits that the applicant has been the subject of further complaints since the earlier application and this suggests that he is not a fit and proper person to hold the authority.

23 Mr Wozniak contends that there are a lot of complaints against the applicant and several are of a similar nature to that made by Ms Opitz. Mr Wozniak also referred to the decision in Mohammed -v- Director-General, Department of Transport [2000] NSWADT 47 in which the Deputy President considered three separate complaints of a similar nature. She observed at paragraph [33] of the decision that she thought it ‘highly unlikely’ that three passengers would all have fabricated a story involving sexual impropriety merely because they were angry about overcharging or not being driven by the most direct route. He submits that this Tribunal should be equally sceptical. He submits that in this regard, the circumstances of this matter are comparable to those in Azar v Ministry of Transport [2004] NSWADT 249 in which the determination to cancel the applicant’s authority was affirmed.

24 However, he submits that even if the Tribunal is unable to reach a conclusion with respect to the earlier complaints, the seriousness of Ms Opitz’s complaint is sufficient to warrant cancellation of the applicant’s authority.

25 Mr Wozniak contends that the applicable test in respect of whether the applicant is a fit and proper person to be the driver of a taxi-cab is that applied by the President of the ACT Administrative Appeals Tribunal in the matter of Maythisathit v Registrar of Motor Vehicles (1996) ACT 165. In that particular case, the test was stated to be:

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

26 He submits that in this matter a reasonable member of the travelling public who might travel in a taxi driven by the applicant would object to the applicant as the driver of that taxi. That being the case, he submits that the decision to cancel his authority should be affirmed.

The applicant’s case

27 The applicant relies on a statement in which he responds to the allegations contained in the respondent’s file. The applicant also gave oral evidence at the hearing, participated in a demonstration regarding the positioning of his left arm while driving and was cross-examined.

28 The applicant denied the majority of the allegations in the complaints. In his statement he wrote:

“1. 7 November 2007

The allegations were denied then and are denied today.

2. 4 October 200

I confirm the allegation. The overcharge was $1.00.

3. 20 September 2007

The allegations were denied however I offered to refund the money to the complainant.

4. 29 June 2006

The allegations were denied then and are denied today.

5. 2 July 2005

Those allegations were denied and are denied now. I refunded the $10.00 to the complainant.

6. 30 June 2005

The allegations were denied then and are denied today.

7. 23 September 2003

I was interviewed and agree with the allegation. I note that I was reprimanded. I have suffered from a urinary tract complaint and enlarged prostrate for many years and at this time had not undergone proper treatment. I now take medication for this complaint.

8. 23 May 2003

The matter was proven and I was reprimanded.

9. 22 April 2003

The matter was proven and I received counselling.

10. 1 April 2003

No action was taken.

11. 24 May 2001

No action was taken.

12. 14 May 2001

No action taken.

13. 28 November 2000

I denied overcharging. I admitted to being rude.

14. 24 February 2000

I was interviewed regarding the overcharging and I confirmed the allegations. I was given a warning.

15. 17 February 1998

I was reprimanded for overcharging

16. 5 March 1997

The allegations were denied then and are denied today.

17. 23 October 1996

The allegations were denied then and are denied today.

18. 12 February 1996

I admitted to being late. An apology was to be sent to the passenger by RSL Cabs.

19. 23 November 1995

The allegations were denied then and are denied today. I admitted that I had been smoking.

20. 14 November 1995

The allegations were denied then and are denied today.”

29 The applicant’s evidence at the hearing was largely concerned with the allegations made by Ms Opitz. He denied that he had acted inappropriately towards her and he denied that he said the words attributed to him by Ms Opitz in paragraph 8 of her statement dated 30 January 2008.

30 The applicant conceded that he sometimes drives with his arm resting on the back of front passenger’s seat headrest. He demonstrated how he positions himself to drive in that manner and Mr Rogers submitted that it would have been impossible for the applicant to have positioned his arm behind the front passenger’s seat headrest and for his hand to have touched Ms Opitz’s shoulder. He said that the taxi has not been modified since 7 November 2007 and that at that time it had a headrest on the front passenger’s seat.

31 In response to Mr Wozniak’s assertion that he had failed to disclose charges that were pending against him at the time of his original application for a driver authority the applicant asserted that he had not disclosed the charges as they were not relevant to the application. He conceded that he had not notified the respondent that he had lost his driver’s licence. He said that he thought he only had to notify the respondent if there were criminal charges brought against him.

32 In regard to his convictions on charges relating to his driving during the period after his authority was cancelled and before a stay was granted, the applicant’s evidence was that he made an honest mistake. He sought legal advice in relation to the determination to cancel his driver authority and was advised to make an application to the Tribunal for review of the determination and for a stay of that determination. He followed that advice but had wrongly thought that he could continue to drive once he had made those applications.

33 Ms Marianne Robinson provided a personal reference in support of the applicant’s case. Ms Robinson attests to the applicant’s reliability as a taxi-driver and the high level of service that he has provided to her and others. Ms Robinson does not make reference to the issues before the Tribunal and does not indicate whether or not she is aware of the complaints made against the applicant.

34 Mr Rogers submits that the determination to cancel the applicant’s authority was made as a consequence of Ms Opitz’s complaint. He submits that whatever weight is given to the other complaints would not be sufficient to warrant that action. Notwithstanding the views expressed by the Deputy President in Mohammed -v- Director-General, Department of Transport, he argues that the frequency of complaints against the applicant cannot be of significance if the complaints were not justified. He also submits that the applicant’s convictions for driving without an authority after the application was made to the Tribunal are of no consequence for these proceedings.

35 He said that Ms Opitz’s version couldn’t be disproved; however some indications point away from it. At the time of the incident on 7 November 2007, Ms Opitz was not certain whether the applicant’s hand had touched her breast accidentally or deliberately. He submits that if it had been deliberate, Ms Opitz would have been in no doubt that she had been molested. He further submits that Ms Opitz must have been wrong in her evidence in regard to how the applicant’s arm was positioned on the front passenger’s seat. The Tribunal should therefore treat the rest of her evidence with caution. He concedes that if the applicant had assaulted Ms Opitz he should not be entitled to drive a taxi.

36 Mr Rogers submits that the authorities to which Mr Wozniak has referred are of no assistance in this matter. He said that the Tribunal cannot take judicial notice with respect to complaints against taxi-drivers. This matter is to be determined on the basis of its own facts and the evidence presented in it.

37 Mr Rogers submits that Ms Opitz’s version of the incident on 7 November 2007 should not be accepted. If that is the case, the applicant should be entitled to drive a taxi. Accordingly, the determination under review should be set aside.

Findings

38 The respondent’s decision was based on the view that it can no longer be attested that the applicant meets the required standards for authorisation as a taxi driver. This view was formed after consideration of the record of complaints made about the applicant and his traffic record. I am satisfied that the material on which the respondent relies accurately records those complaints and the applicant’s record.

39 In Saadieh v Director General, Department of Transport [1999] NSW ADT 68 at [17] – [18] the Tribunal’s Deputy President set out several factors which should be considered when determining a person's fitness and suitability to hold a taxi authority as follows:

“17 Taking into account the terms of the legislation and the case law interpreting similar provisions, there are a number of factors that need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. These factors include:

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.

40 It is common ground that the applicant was convicted of charges relating to his driving during the period after his authority was cancelled and before a stay was granted. The applicant’s evidence was that he made an honest mistake. He had driven in circumstances where he knew that he had made an application to the Tribunal and he said that he did not know he couldn’t drive.

41 The applicant’s evidence on this issue is plausible however, in light of the fact that this is not his first application to the Tribunal and that he had received legal advice prior to lodging his application, it is reasonable to expect that he would have been cautious to ensure that he did not drive without a current authority.

42 Though untested, Ms Robinson’s reference suggests that the applicant is well regarded by some of his regular passengers. However, as I am unable to conclude whether or not the author is aware of the issues in this matter it is of limited use in determining whether the applicant can be considered to be of good repute and in all other respects a fit and proper person to be the driver of a taxi-cab.

43 Several serious complaints have been made against the applicant. He disputed the allegations made in those complaints. The question of the likelihood of the applicant re-offending or be the subject of further complaints is a difficult one.

44 I note that the applicant disputed the allegations of inappropriate behaviour towards Ms Opitz or other passengers in his taxi. I have heard evidence from Ms Opitz but I have not heard from any of the earlier complainants. I agree with Mr Rogers’ submission that little weight can be placed on complaints that have not been able to be tested. In the circumstances I am unable to form a view in relation to the earlier complaints. I also agree with Mr Rogers’ submission that the outcome of this matter rests on whether or not Ms Opitz’s version of the incident on 7 November 2007 is accepted.

45 There are aspects of Ms Opitz’s evidence that suggest that she is mistaken in parts of her recollection of the incident on 7 November 2007. However, I am generally satisfied that her account of the incident is accurate. In my view it is probable that the applicant acted towards Ms Opitz in a manner that was inappropriate.

46 The applicant’s evidence is that he often drives with his arm resting on the back of the front passenger seat. Ms Opitz was firm in her evidence that the applicant had placed his arm behind her and that he had touched her left shoulder. I agree that this would not have been possible with the front passenger seat arranged as it was at the time of the demonstration. However, I also agree with Mr Wozniak’s argument that the demonstration was exaggerated. The seat was set back at a wide angle relative to the driver’s seat. It is unlikely that the applicant would normally drive with his arm resting on the back of the front passenger seat when it is set back at that angle. However, if the seat were set forward, the driver’s arm could comfortably rest on the back of the front passenger seat in the manner that Ms Opitz described. In my view it is probable that the seat was set forward during Ms Opitz’s journey on 7 November 2007 and that the applicant had placed his arm behind her and that he had touched her left shoulder.

47 Ms Opitz was adamant that the applicant had touched her inappropriately. She stated that the applicant had placed his hand on her breast and estimated that he did so for about 2 seconds. However, she stated that at the time of the incident she was uncertain about whether or not it was accidental or deliberate. She had later formed the view that it was deliberate. Mr Rogers submits that there could be no doubt that it was deliberate if the applicant’s hand was on her breast for 2 seconds. I agree with this submission. It is my view that Ms Opitz was probably mistaken in regard to the length of time that the applicant’s hand was on her breast. However, in my view it is probable that the applicant had deliberately placed his hand on Ms Opitz’s breast.

48 Given the seriousness of Ms Opitz’s complaint, I do not have confidence that the applicant will be able to uphold the level of trust or that he possesses the requisite character, reputation, responsibility and aptitude to meet the public's reasonable expectations of taxi-cab drivers. In my view the applicant should not be permitted to continue to drive a taxi.

49 The Relationship between a taxi driver and their passengers is an intimate one. The public interest demands that all passengers, regardless of their gender or age, can take comfort that the relationship of trust with their driver will not be abused. Passengers are entitled to be treated with civility by taxi drivers and not be subjected to offensive behaviour of a sexual nature.

50 In my view the nature and seriousness of the applicant’s conduct outweighs the factors that are in his favour. It cannot be attested that the applicant meets the required standards for authorisation as a taxi driver. For this reason the decision to cancel his authority should be affirmed.

Decision

The decision to cancel the applicant’s authorisation to drive a taxi-cab is affirmed.