Wassef v NSW Transport and Infrastructure

[2010] NSWADT 265

CITATION:	Wassef v NSW Transport and Infrastructure [2010] NSWADT 265
DIVISION:	General Division
PARTIES:	APPLICANT Jim Wassef RESPONDENT NSW Transport and Infrastructure
FILE NUMBER:	103006
HEARING DATES:	2 June 2010
SUBMISSIONS CLOSED:	2 June 2010
DATE OF DECISION:	9 November 2010
BEFORE:	Grotte E - Judicial Member
CATCHWORDS:	Taxi Authority
LEGISLATION CITED:	Passenger Transport Act 1990
CASES CITED:	Sterjovski –v- Director-General, Department of Transport (2002) NSWADT 10;
REPRESENTATION:	APPLICANT In person RESPONDENT A Wozniak, solicitor
ORDERS:	The decision of the Director-General is affirmed.

REASONS FOR DECISION

Background and Application

1 On 23 December 2009 the Director-General of NSW Transport and Infrastructure (the Director-General) refused Mr Jim Wassef’s application to authorise him to drive a taxi-cab, because the Director- General was not satisfied that Mr Wassef was a fit and proper person to drive a taxi-cab.

2 On 19 January 2010 Mr Wassef applied to this Tribunal to review the Director-General’s decision. The Tribunal must determine whether the Director-General’s decision to refuse to authorise Mr Wassef to drive taxi-cabs was the correct and preferable one having regard to all the relevant facts and the law.

3 The reasons set out by Mr Wassef in support of his application for review were stated to be as follows:

“I am a fit and proper person to hold a taxi-cab authority. I am an owner of a taxi-cab. I have been employed as a driver for 25 years (from 1984). It has been my main job in this time. It is what I know best.

4 On 23 December 2009 the Director-General advised Mr Wassef that:

“To be granted an authorisation to drive a taxi-cab, an applicant must meet the criteria set forth in cl. 29(2) of the Regulation. Among other things, cl. 29(2)(e) requires the applicant to satisfy the Director-General that he is of good repute and in all other respects fit and proper to be the driver of a taxi-cab (cl. 29(2)(e)(ii)).

If any of the requirements of the subclause are not met, Mr Wassef cannot be granted an authorisation to drive taxi-cabs.

The concepts of ‘good repute’ and ‘fit and proper’ require separate consideration. The concept of ‘good repute’ goes to the way in which a person is regarded by others in the community (fairly or unfairly). Mr Wassef supplied four testimonials about his continuing good reputation, however, only one of these mentions a ‘transgression’. The testimonial from Sal Sapuppo does not furnish any information about the nature of the transgression or whether the person is aware of the serious nature of the offences and Mr Wassef’s subsequent imprisonment. Two of the three testimonials offer to provide Mr Wassef with employment should he be successful in obtaining a taxi-cab authority. These testimonials are dated February 2009 and March 2009. The date on one of these documents has been amended.

I have no evidence that the three other persons providing a testimonial on behalf of Mr Wassef are aware of his conviction and subsequent imprisonment or the fact he was detected driving a taxi-cab at the time a significant amount of drugs were detected in the vehicle.

The concept of ‘fit and proper’ is one of the intrinsic nature of a person. Whether the person is possessed of sufficient moral rectitude and character as to permit the person to be safely authorised, without further inquiry, as a person who is to be entrusted with the responsibility to be a taxi-cab driver and convey passengers.

A significant amount of prohibited drugs were found in the possession of Mr Wassef while he was driving a licensed taxi-cab as an authorised taxi-cab driver. His subsequent conviction on serious criminal charges bears on the reputation of Mr Wassef and raises questions about his character.

Mr Wassef was sentenced to four and a half years imprisonment as a result of the conviction and he has only been back in the community for a relatively short period of time.

I consider that a member of the public, travelling in a taxi-cab driven by Mr Wassef and being aware of the matters known to me, would object to him being authorised to drive a taxi-cab.

Taking all this into account, I am not satisfied that Mr Wassef is fit and proper to be a person authorised to drive a taxi-cab. As Mr Wassef cannot meet the requirements of s 33B(2) of the Act, his application must be refused.”

5 Section 33B(2)(b) of the Passenger Transport Act 1999 (the PTA) provides:

(b) Before an application is granted, the applicant must meet any criteria set forth in the regulations and must satisfy the Director-General as to any matter the Director-General considers relevant.

6 Section 33(3) of the (PTA) provides:

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.

Tribunal Hearing

7 At the Tribunal hearing Mr Wozniak, Solicitor, appeared on behalf of the Director-General, NSW Transport and Infrastrucure and Mr Wassef represented himself.

8 Mr Wozniak relied on material held by the Director-General in respect of Mr Wassef and his taxi authority history including any criminal checks that have been carried out by NSW Transport and Infrastructure (or the former Ministry of Transport). A copy of these documents was made available to Mr Wassef.

9 At a directions hearing held by the Tribunal on 23 February 2010 Mr Wassef was directed to file any material on which he intended to rely by 30 March 2010. The matter was listed for a hearing on 21 April 2010. Mr Wozniak also requested leave to issue summonses on the District Court and the NSW Police.

10 The hearing could not proceed on 21 April 2010 because neither the District Court nor the NSW Police had complied with the summonses. Mr Wassef provided testimonials in support of his application. The matter was listed for further hearing on 2 June 2010.

11 On 2 June 2010 Mr Wozniak relied on material produced by the NSW District Court and the Police in relation to Mr Wassef’s convictions for drug offences and to his imprisonment.

12 The information contained in this material shows that Mr Wassef was convicted on 5 October 2006 in the Sydney District Court of indictable offences of supplying prohibited drugs including methylamphetamine, ketamine, MDMA (ecstasy) and cannabis on 9 December 2005 and again 13 February 2006. The criminal activity of supplying drugs occurred while Mr Wassef was driving his taxi-cab.

13 The documentation before the Tribunal shows that as a result of the charges laid in respect of the incident on 9 December 2005, Mr Wassef’s authority to drive taxi-cabs was suspended by the Director-General on 22 December 2005. The decision to suspend was made on the basis that it could not be attested that Mr Wassef was considered to be of good repute and a fit and proper person to be the driver of a taxi-cab, because he had been charged with criminal offences.

14 The documentation also shows that on 18 January 2006 Mr Wassef requested an internal review of the decision to suspend his authority. In support of his application, he stated that he had been driving taxis for 17 years and had never had a complaint against him, nor had he been involved in any incident, which could be considered to be irresponsible or illegal. Mr Wassef stated that he was a person of excellent character and that he was a fit and proper person to be authorised to drive taxi-cabs. He denied being charged with supplying a prohibited drug or with goods in custody. He stated that he had been charged with possessing prohibited drugs. He further stated that he had only been charged and not convicted of these offences and that he was unfairly presumed to be guilty. Mr Wassef stated that he needs to drive taxi-cabs because this is his only skill and he needs to be able to support his family. A review was undertaken and the decision was confirmed.

15 13 February 2006 Mr Wassef was charged with possessing and supplying prohibited drugs while driving his tax-cab, while suspended and out on bail in respect of the charges laid on He was then charged with further offences in relation to selling drugs out of a taxi, which he was driving despite his taxi authority having been suspended and while on bail. On this occasion Mr Wassef was refused bail.

16 There is no dispute regarding these facts.

17 In support of his application for review Mr Wassef relied on testimonials as to his character and stated on his own behalf that he would like the chance to demonstrate that he a changed person and of good character. Mr Wassef told the Tribunal that he should be granted an authority because he completed his sentence over two years ago. He submitted that people make mistakes and that he wants to put it behind him and move on with his life. Mr Wassef stated that since his release on parole in 2008, he has worked variously, carrying out deliveries, driving trucks but at his age he cannot do hard work. He is 53 years of age and it is difficult to apply for work at his age. He submitted that the taxi industry was his life.

18 In summary the testimonials on which Mr Wassef relies are as follows:

(a) Dr William Simpson, Dentist, stated that he has known Mr Wassef as his patient for over 15 years. He has always considered Mr Wassef to be honest, reliable, courteous and friendly, who always paid his bills promptly. Dr Simpson stated that he used Mr Wasssef’s taxi services and he was impressed by his reliability and extensive knowledge of Sydney’s streets. Dr Simpson stated that he understood that Mr Wassef “got himself in trouble with the law” and this is “highly uncharacteristic of Jim”. He stated that he believed that his actions “were a direct result of the grief he was experiencing as a result of his brother’s untimely death”. He also stated that he strongly believed that “Jim is extremely remorseful for his actions and he has expressed regret”. Dr Simpson also stated that he believed that Jim had undergone counselling to redeem himself and the counselling has allowed him to return to his usual happy and honest life. Dr Simpson stated that he strongly supported Mr Wassef in having his taxi-licence reinstated.
(b) Sal Sapuppo stated that he has known Mr Wassef since 1972 when he commenced High School and that since then he has socialised with Mr Wassef through family gatherings. He has also known him as a taxi-driver. He stated that he was aware that Mr Wassef had a transgression with the law 4 years ago and was in disbelief over his actions, because he had always known him to be an honest, hardworking, loyal family man and friend, willing to help out his family and friends. He stated that Mr Wassef had not reoffended since 2006 and that his intention in reapplying for his taxi licence was to restore his good name in the community and provide for his family. He stated that he had no hesitation in attesting to Mr Wassef’s abilities as a taxi driver and to his commitment to restore his good character in the future.
(c) Barry Short of Taxi Replacement Services Pty Ltd, stated that he has known Mr Wassef since 1991 and that he has always found him to be courteous, reliable and honest. He stated that his company arranged numerous loans with Esanda Finance Corporation Limited over a period of years and all the loans had been conducted in an excellent manner. He stated that “the problems James had with the law appear to be totally out of character and I feel it was a reaction to the emotional stress he was under following the death of his brother.” He also stated that Mr Wassef was deeply sorry for his actions.
(d) Alexander Georgiadis, Justice of the Peace, and owner of A.B.O.V Service Company Pty Ltd, stated that he has known Mr Wassef for 25 years as a taxi driver. He stated that Mr Wassef was considered to be one of the better drivers. He stated that he was aware of Mr Wassef’s past history and that he did not condone his activities. He stated that Mr Wassef appeared to be repentant for his actions and has served his time. He stated that Mr Wassef requires some purpose in life in order to enable him to rehabilitate himself.
(e) Swie Go, stated that he has known Mr Wassef for a long period and that he was a good person, who seemed loyal. He stated that he knew that Mr Wassef “experienced a difficult period after his brother passed away and also had some trouble with the law”. He stated that “it does appear that now he has changed and seems more relaxed”. He stated that he had no hesitation in recommending him in respect of reapplying go his taxi licence.
(f) Norma Christian, Clinical Nurse Specialist, St George Hospital, stated that she met Mr Wassef in 2008 after he had spent some time in a correctional facility. She stated that he came for counselling at Rockdale Community Health Centre on three occasions with a desire to change his behaviour. She stated that he presented as a casual well-dressed man, who was courteous and well spoken and that he presented to sessions on time. She stated that he was attending a smoking cessation group and that he seemed to always be looking for ways to improve himself.
(g) Geoff Gilles, Principal and Licenced Real Estate Agent, stated that he has known Mr Wassef for a period of 8 years and has found him to be good-natured, reliable and of good character. He stated that he knew him at the time of his brother’s passing, at which time he found that his demeanour changed and he did not seem happy with himself. He stated that he understood Mr Wassef fell foul of the law and he assumed it was caused by the depression caused by his brother’s passing. Mr Gilles stated that Mr Wassef sought counselling for his depression and that he was “now portraying his normal good character”. Mr Gilles stated that he believed that Mr Wassef is a hard-working, reputable citizen and that he would trust him to carry out his duties as a taxi-driver responsibly.

19 Mr Wozniak submitted that not only were the offences of which Mr Wassef was convicted serious, but the seriousness is amplified by the fact that they occurred in the course of the regulated activity, that is, while Mr Wassef was driving taxis. Mr Wozniak submitted that it is too soon after such serious offences have been committed and the completion of Mr Wassef’s prison term to determine whether he is a fit and proper person. It was submitted that Mr Wassef must establish a reputation. Furthermore, Mr Wozniak submitted that Mr Wassef was clearly motivated by greed and that it was a well-organised venture. He was selling all kinds of drugs and this was not reactive conduct. He submitted that to say that the conduct occurred because of an emotional reaction to his brother’s death trivialises the offences.

20 In Sterjovski –v- Director-General, Department of Transport (2002) NSWADT 10 (Sterjovski), Judicial Member Montgomery presiding, the Tribunal stated that the fact that the alleged offence [of assault in that case] occurred in the course of he regulated activity was an “issue, which the Department could take into account in determining to suspend Mr Sterkovski’s licence.”

CONSIDERATION

21 I have considered all of the evidence before me and in particular I have had regard to the following matters:

(i) the serious nature of the offences and the subsequent conviction and imprisonment;
(iii) the fact that the offences occurred in the regulated activity of driving taxis;
(iv) the responsibility of the Director-General under section 11 of the Passenger Transport Act1990 in respect of the requirement that the Director-General must be satisfied that the person is considered to have sufficient responsibility and aptitude to drive taxis; and
(vii) the limited nature of the Tribunal’s review of the decision to refuse to grant an authority to drive taxis to Mr Wassef .

22 The onus is on Mr Wassef to demonstrate that he is a ‘fit and proper’ person. In my view he has not discharged this onus. The most damning piece of evidence before me is that despite having been charged with serious criminal offences, being out on bail and the suspension of his authority to drive taxis in December 2005, he continued to not only drive taxis without an authority, but also to supply drugs. The second most damning piece of evidence is that the very serious indictable offences were done in the course of the regulated activity, being the taxi-cab driving.

23 Mr Wassef’s evidence is that he is a changed person and wants to drive taxis. He says this is the only work “he knows” and it is difficult for him to find other work at the age of 53. This may be so, but public interest outweighs this because I am not confident, given his past history, that he would not be tempted to misuse the privilege granted to him in respect of the taxi authority.

24 The testimonials are in my view insufficient to persuade me that Mr Wassef truly understands the gravity of his offences and that he has re-established his reputation, which has been seriously damaged by the convictions. In my view the gravity of the offences is amplified by the fact that they occurred in the regulated activity and by the fact that Mr Wassef showed no respect for the law when, despite having had his authority suspended, he continued to flout the law by committing further serious criminal offences and driving without an authority.

25 The Director-General is required to make decisions in the public interest and for the protection of the travelling public when deciding who should have an authority to drive tax-cabs and who should not. I am satisfied that that the decision made by the Director-General in the circumstances of this case was reasonably available to the Director-General and is the correct and preferable one.

26 The decision of the Director-General is affirmed.