| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : ROAD TRAFFIC (AUTHORISATION TO DRIVE) REGULATIONS 2008 CITATION : VAISI and DEPARTMENT OF TRANSPORT [2013] WASAT 9 MEMBER : DR B DE VILLIERS (MEMBER) HEARD : 28 DECEMBER 2012 AND 2 JANUARY 2013 DELIVERED : 2 JANUARY 2013 PUBLISHED : 16 JANUARY 2013 FILE NO/S : CC 2091 of 2012 BETWEEN : TONY VAISI Applicant
AND
DEPARTMENT OF TRANSPORT
Respondent
Catchwords: Stay of decision to suspend T extension licence - Criteria for stay - Conduct of taxi driver Legislation: Road Traffic (Authorisation to Drive) Regulations 2008 (WA), reg 28, reg 28(2), reg 41
State Administrative Tribunal Act 2004 (WA), s 25, s 25(1), s 25(4)
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Result: Application for stay granted
Summary of Tribunal's decision: The respondent suspended the T extension licence of the applicant on grounds that the applicant had engaged in sexual activities with a female passenger while he was on duty. The applicant sought interim relief to stay the decision until such time that the review of the decision is conducted.
The respondent said that it has adopted a zero tolerance approach to sexual conduct of taxi drivers while they are on duty. The respondent did not accept the explanation offered by the applicant and said he was not a credible witness.
The applicant said that he acted under duress and under the belief that his life was in danger. The applicant does not deny engaging in some sexual activity with a female passenger. He said, however, that he was afraid that if he acted in any other way, it might have alerted the female that he was aware that she was a fugitive and armed.
The Tribunal found that if the criteria for a stay of a decision were applied, the application should succeed. The applicant had an arguable case; he had an unblemished record and did not present a danger to the public; and the credibility of his evidence was enhanced after the respondent had to concede that some of the allegations it had made about what the applicant had said during the ride, may have been incorrect.
The Tribunal was critical of the respondent's presentation of the case and, in particular, that it failed to request the statement the applicant made to the police; it failed to seek a copy of the statement; and it did not provide a copy of the statement to the Tribunal. The respondent also had to concede that some of the key points of the video and audio recording of the ride, on which it challenged the credibility of the applicant, were indeed as explained by the applicant.
The decision to suspend the licence was stayed.
The reasons that follow were handed down orally on the day of the hearing. This is an edited version of the transcript of the proceeding.
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Category: B
Representation: Counsel:
Applicant : Self-represented
Respondent : Mr P Busby (Acting as Agent)
Solicitors:
Applicant : N/A
Respondent : Department of Transport
Case(s) referred to in decision(s):
Nil
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REASONS FOR DECISION OF THE TRIBUNAL:
Issue 1 Should the suspension of the T extension of the driver's licence of Mr Tony Vaisi, dated 15 December 2012, on grounds that he is not of good character be stayed until the review of the decision has been completed by the Tribunal? 2 The decision was made pursuant to reg 28 of the Road Traffic (Authorisation to Drive) Regulations 2008 (WA) (Regulations).
Background 3 The Tribunal explained to the parties during the hearing the general principles of a stay and also emphasised that the outcome of the stay proceeding is not necessarily an indication of how the main proceeding will conclude. The stay proceeding has an element of urgency to it and it is therefore accepted that all the facts and contentions that may be presented to the Tribunal at a hearing may not necessarily be available at the interlocutory stage. These reasons for decision only deal with the application to stay and should not be seen as indicative of where the decision would ultimately lie. 4 Mr Vaisi was involved in an incident on 27 November 2012 in which he undertook a much publicised citizen's arrest of a female passenger that he had been transporting in his taxi. It is not contested that the female had allegedly been involved in some armed robberies and a car jacking prior to her becoming a passenger in Mr Vaisi's taxi. 5 It is also not contested that Mr Vaisi only became aware of the potential risk that the female held after she had been in his taxi for some time. It is also not contested that Mr Vaisi, as far as the DVD that was made during the drive is concerned, did not make any sexual advances to the passenger while they were in the taxi. 6 Although the Department of Transport (Department) initially said that Mr Vaisi had told the passenger that he did not have a girlfriend, the Department now concedes that Mr Vaisi may have said, 'I don't have a dog at home'. 7 It was only when a news radio alert was given after they had been driving for some time that Mr Vaisi concluded that the passenger was likely the person about whom an alert had been issued. The news alert described the appearance of the person, the robbery she had allegedly (Page 5)
been involved in, the fact that she may be armed and dangerous, and the advice that she should not be approached. 8 What exactly happened during the duration that she was in Mr Vaisi's taxi, particularly as to what was said, is not entirely clear since the audio is of poor quality, and neither is it clear what happened during the visit to Mr Vaisi's house since we only have Mr Vaisi's recollection of events. But it is all of those events together, and the conduct of Mr Vaisi at his house in regard to some sexual intimacy, that formed the basis of the decision of the Department to suspend his taxi licence. 9 The Department particularly takes issue with: 10 According to the information provided to the Department by Mr Peter De La Motte of the Western Australian Police, Mr Vaisi had taken the female to his house after they had been driving for some time. They spent some time together. They had showered and had a form of sexual intimacy. This is not disputed by Mr Vaisi. He, after all, gave the statement to the police, but he says that he engaged in this activity because he felt threatened and wanted to act as normal as possible. He says he realised, after having heard the radio warning, that any suspicious behaviour on his part could cause the female to react with possible serious consequences to him, since she was armed with a knife. 11 Mr Vaisi says that the female did not threaten him, but he felt threatened and in danger. 12 After Mr Vaisi had taken her to the final address at the shopping centre, he says he activated the emergency beacon of the taxi (the Department initially challenged this evidence but later conceded it) and he made a citizen's arrest, calling for help while he tackled and restrained her. 13 Mr Vaisi received a notice dated 14 December 2012 from the Department, in which he was invited to attend a licence suitability conference with the Department, so as for the Department to determine his suitability to continue to be licensed as a taxi driver. The letter informed him that the conference should take place two to three weeks (Page 6)
from the date of the letter and he was requested to reply by no later than 8 February 2013. 14 Mr Vaisi also received a notice from the Department dated 15 December 2012 informing him that his T extension licence had been suspended as a result of '[i]nformation received from the Western Australian Police' and '[i]nformation received from Passenger Services Business Unit concerning the breach of the Taxi Driver 'Code Of Conduct''. 15 No detailed reasons other than these were given to Mr Vaisi. 16 The Tribunal was told during the hearing that the letter of 15 December 2012 should have been dated 14 December 2012, but nothing turns on it. The Department explained that the purpose of the proposed conference was to assess Mr Vaisi while his licence was suspended, so as to determine whether the suspension should be lifted or if the licence should be revoked. 17 The Department accepts that Mr Vaisi has more than 10 years' taxi driving and training experience in Western Australia and has no previous convictions or infringements of relevance to these proceedings. The Department says this single incident is, however, of such a serious nature that it reflects on his character, and that the licence should remain suspended.
Evidence 18 The Tribunal heard evidence from Mr Vaisi; Mr Smith, an acquaintance of Mr Vaisi and a psychologist; Mr D'Azario and Mr Peter Busby from the Department. 19 The Tribunal was also given a DVD that was made during the entire taxi ride, as well as a summary of the key moments during that DVD that, according to Mr Busby, were of particular relevance to the Tribunal. The Tribunal viewed the DVD and received a written reply from Mr Vaisi in summary to the DVD and in the reply to what Mr Busby had told the Tribunal.
Legal framework 20 At the hearing of the interim application, the Tribunal explained to the parties the parameters within which the matter would be dealt. Section 25 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) (Page 7)
sets out the general requirements for a stay order to be issued. Section 25(1) of the SAT Act provides: 21 Section 25(4) of the SAT Act provides: 22 The discretion exercised by the Tribunal must also be within the framework of general principles applicable to the stay of decisions. Those principles can be summarised as follows: 23 This decision was made pursuant to reg 28 of the Regulations. Regulation 28(2) provides: The Director General may, on an application under subregulation (1) or if it is for any other reason appropriate to do so, by notice in writing given to the licence holder vary a driver's licence. 24 Regulation 41 of the Regulations provides the Director General with a power to suspend a licence and, in doing so, the Director General must consider the requirements of reg 25, and reg 25 makes reference to the reason to suspend a licence if it is believed that a person is not of good character. (Page 8)
Consideration 25 The Tribunal will now consider these respective requirements. 26 There is, to a large extent, agreement between the parties about the relevant facts that have given rise to the disciplinary action. The parties differ about the mental state in which Mr Vaisi says he was so as to explain his behaviour. The Department also takes issue with the credibility of Mr Vaisi and, in doing so, the Department refers specifically to: Observations about the Department's presentation 27 I will first make some observations about the Department's presentation of its case. 28 The Department's presentation of its case to the Tribunal as the ultimate decision-maker in these proceedings shows several shortcomings, and the Tribunal must, for the sake of clarity and potential public interest in the case, make observations about those shortcomings on the part of the Department. 29 The Tribunal accepts that these are interlocutory proceedings and that the holiday period may have impacted on the availability of staff of the Department to properly prepare its case, but at the same time, the Tribunal, as decision-maker, must be satisfied that the licence of Mr Vaisi should remain suspended, and the Tribunal should be provided with the necessary evidence and information to come to such a conclusion. 30 Some of the most obvious shortcomings in the case put forward by the Department were: 1) The Tribunal was not provided with a copy of the Taxi Drivers' Code of Conduct (Code) or a reference to the wording of the specific part of the Code that has allegedly been breached by Mr Vaisi. The Tribunal finds this as a very basic shortcoming on the part of the (Page 9)
Department, since the Code is a key element to its disciplinary proceedings. 2) The Tribunal was not provided with a full statement that Mr Vaisi made to the police immediately after the citizen's arrest. Mr Busby acknowledged that he had not seen nor read the complete statement of Mr Vaisi and that he does not even know if the Department had received the entire statement. The Tribunal was told by Mr Vaisi that the statement runs into some 29 pages, and yet, the Department did not access the statement prior to suspending the licence on 14 December 2012. The Department did not request the statement prior to the hearing. The Department did not read the statement nor did it provide a copy of the statement to the Tribunal. 3) The Tribunal was only given a one-page summary of the statement made by Mr Vaisi. It is said, by the Department, that the summary was made by the Western Australian Police, but there is no affidavit from the person who made the summary for it to be submitted into evidence before the Tribunal. The person who made the summary was not called to give evidence to explain why he made a summary and why some aspects of the statement were included while other parts were excluded and, most surprisingly, Mr Vaisi was not shown a copy of the statement of the summary prior to the hearing, nor did he approve of the summary after he had received it. In fact, after Mr Vaisi had seen the summary, he took serious issues with the accuracy of it. (Page 10)
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Criteria for considering a stay of a decision 31 The Tribunal will now consider the criteria for issuing the stay. 1) The public interest is an important factor to consider within the taxi industry, and its reputation and public profile. The Tribunal was told that the Department takes a zero tolerance approach to any form of sexual intimacy between a taxi driver and a passenger, even if such intimacy is based on consent. This is for understandable reasons, since female passengers are often in vulnerable situations when they use a taxi service, and the credibility and reliability of the taxi industry must be protected. In these proceedings, it is not contested that there was sexual intimacy, but the Tribunal has only heard from Mr Vaisi about what happened. It is not clear if the female who was involved would also give evidence so as to corroborate Mr Vaisi's version of events. It must be noted, however, that these are very unique circumstances where a taxi driver acted in a certain way after having heard a public warning over the radio. The final hearing will determine whether the conduct of Mr Vaisi was of such a serious nature that his licence should be suspended. For the purposes of these proceedings, the Tribunal is not satisfied that it has been shown by the Department that the public would be at risk if Mr Vaisi continues to be licensed and to operate his taxi. The Tribunal was told that Mr Vaisi has had an unblemished record and that he has been driving a taxi for 10 years. Whether the Tribunal ultimately accepts the explanation Mr Vaisi gives for his conduct, and what conclusions can be drawn in regard to his character, is for the final proceeding to consider, but for now, the Tribunal is satisfied that Mr Vaisi's conduct does not, on the basis of the facts before the Tribunal, constitute any risk to the public. 2) The decision to suspend the licence of Mr Vaisi is open to be revoked on review. Although these proceedings do not deal with the ultimate merit of the decision to suspend (Page 12)
his licence, the Tribunal is satisfied that Mr Vaisi has put forward an arguable case; that he has explained his motivations for his actions with some credibility to the extent that the Department had to concede key statements made by Mr Vaisi; and that the case presented by the Department requires more preparation. As observed by the Tribunal, much work needs to be done by the Department to address all the questions raised by the Tribunal during the hearing so far. 3) The Tribunal is satisfied that the application for a stay is not merely an attempt to delay the execution of the final order. The Department itself had invited Mr Vaisi to attend a conference so as to discuss his suitability, with the possibility of him being reinstated as a taxi driver. He may yet choose to attend the conference and the Department may be sufficiently satisfied with the outcome of the assessment to review its own decision and to revoke the decision. That is a matter for the Department to consider, but for now, it is obvious that this interlocutory proceeding is not merely intended to delay the inevitable. There is a serious question to be determined. The public is not at risk and Mr Vaisi has an arguable case. 4) The Tribunal notes the insistence of the Department that the stay be dismissed. However, the Tribunal is placed in the position of final decision-maker and in such capacity it is not satisfied that, on the basis of the information before it, as presented by the Department, the decision to suspend should continue to have immediate effect. It is, in the view of the Tribunal, the best and preferable outcome when the interests of Mr Vaisi, as well as the interests of the public, are taken into account, for the decision to be stayed until the matter can be finally determined.
Conclusion 32 The Tribunal finds that the decision to suspend a T endorsement of Mr Vaisi should be stayed until such time when final orders are made about the decision to suspend the licence. The application for interim relief should therefore succeed. (Page 13)
Orders 33 The Tribunal makes the following orders: |