Wireko v Ministry of Transport

[2006] NSWADT 130

CITATION:	Wireko v Ministry of Transport [2006] NSWADT 130
DIVISION:	General Division
PARTIES:	APPLICANT Kofi Tawiah Wireko RESPONDENT Ministry of Transport
FILE NUMBER:	053360
HEARING DATES:	02/02/06
SUBMISSIONS CLOSED:	02/02/2006
DATE OF DECISION:	05/03/2006
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Passenger Transport Act - taxi operator - cancellation of accreditation - Taxi operator - cancellation of accreditation
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Passenger Transport (Taxi-Cab Services) Regulation 2001 Passenger Transport Act 1990
CASES CITED:	Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392
REPRESENTATION:	APPLICANT K Koramoah, Solicitor RESPONDENT A Wozniak, Solicitor
ORDERS:	The decision under review is affirmed.

1 Mr Wireko has driven taxis in Sydney for 14 years. In 2000 he was issued an accreditation to operate a taxi-cab as an operator and in the same year he was issued a Taxi plate. A condition to the issuing of the Taxi plate was that it be used on wheelchair accessible taxi-cabs. A licence of this kind is known as a WAT licence.

2 Mr Wireko had the option of paying for the plate in full for 6 years, or in the alternative payment could be made on a yearly basis. Mr Wireko elected to make payment on a yearly basis. At the end of the first year he was issued an invoice by the Department of Transport and this was paid. A further invoice was issued in the second year and Mr Wireko paid it. Thereafter, Mr Wireko did not receive any further invoices and he made no further payments for the Taxi plate and the licence expired on 22 November 2002. However, he continued to operate the taxi-cab until the Ministry contacted him in August 2005.

3 On 16 September 2005 the Ministry issued Mr Wireko with a notice to ‘Show Cause' as to why his accreditation should not be cancelled.

4 Mr Wireko replied to the Ministry's notice and stated that he is a good and responsible hard working person who has had no criminal record, that he has been in the taxi industry for many years and is a good competent driver who relies on income generated from his accreditation to meet his commitments. Mr Wireko stated that he was naive in not informing the Ministry of the expiry of the taxi plate licence and that he was prepared to pay any arrears with interest.

5 The Ministry subsequently determined to cancel Mr Wireko’s accreditation. He has applied to the Tribunal for a review of that determination. The matter came before the Tribunal’s Deputy President who determined that the application should be heard in the absence of an internal review and that the Ministry’s determination should be stayed pending the final determination of this matter.

Applicable Legislation

6 Section 31(2) of the Passenger Transport Act 1990 (“the Act”) provides that the purpose of accreditation is to attest that the accredited person is considered to be of good repute and in all other respects fit and proper to be responsible for the operation of a taxi-cab service and that the accredited person has demonstrated the capacity to meet and continue to meet the appropriate requirements with respect to financial viability, safety of drivers, passengers and the public, and vehicle maintenance, to the degree and in the manner required in respect of the operation of a taxi-cab service.

7 Section 31F of the Act provides for the cancellation of a person's accreditation in certain circumstances, having regard to the purpose of accreditation.

8 Section 32D of the Act provides for the issue of short-term licences of the kind that Mr Wireko held. A short-term licence, unless sooner suspended or cancelled, remains in force for the period specified in the licence. Such a licence is not renewable.

9 Clause 5 of the Passenger Transport (Taxi-Cab Services) Regulation 2001 (“the Regulations”) sets out the criteria to be met by applicants for accreditation to carry on taxi-cab services. Clause 5(7) of the Regulations provides that an applicant must demonstrate that they have the necessary knowledge and competence to carry on a taxi-cab service.

The Ministry’s case

10 It is not in dispute that Mr Wireko’s taxi plate licence expired on 22 November 2002 or that he continued to operate using the taxi plate after the expiry of the licence. Records that were obtained from Premier Cabs and the wheelchair taxis booking service confirm this. Mr Wireko is being prosecuted under section 30(1)(b) of the Act for using the taxi plate after the expiry of the licence.

11 Mr Wozniak points to evidence showing that WAT licences are issued at a considerable discount to the market value of an ordinary or short-term licence. To encourage the provision of WAT services to the wheelchair bound community WAT licences are issued at a fee of $1000 per year. In comparison, unrestricted short-term taxi-cab licences are available from the Ministry at a fee of $38,523.24 per year. It is a condition on the issue of WAT licences that the taxi-cab be attached to an approved designated booking service for wheelchair taxis. That Wheelchair Accessible Network service is known as Zero 200.

12 The Ministry also contends that Zero 200 Wheelchair Accessible Network records show that Mr Wireko only completed seventeen journeys between January and July 2005, and that he therefore had not complied with the conditions of the licence for the taxi plate. The Ministry also contends that records of the Ministry’s Taxi Transport Subsidy Scheme show that Mr Wireko only completed a total of fifty-nine journeys between January 2004 and June 2005.

13 An operator accreditation desk audit on Mr Wireko's taxi operation undertaken by the Ministry found Mr Wireko not to be complying with the Operator Accreditation Standards and the Regulations. The audit also detected that Mr Wireko does not maintain shift records, does not maintain a vehicle faults register, does not have a maintenance schedule in place and could not produce evidence that vehicles are being maintained in accordance with both the required minimum standards and actual maintenance schedules.

14 Mr Wozniak submits that the fact that Mr Wireko continued to operate an expired taxi licence on a public passenger vehicle casts gave doubts about his fitness to operate a taxi-cab, and of his ability to carry out the duties and responsibilities of the position according to law and custom.

15 He says that the community must have confidence that an operator of a taxi-cab would behave appropriately in relation to all passengers. The fact that Mr Wireko operated a public passenger vehicle on an expired taxi plate licence, thereby placing the travelling public's safety at risk, casts similar doubts about his fitness and his possession of the requisite responsibility to be the operator of a public passenger vehicle.

16 Mr Wozniak argues that by operating for three years without a licence Mr Wireko has demonstrated that he does not have the necessary knowledge and competence to carry on a taxi-cab service. He says that Mr Wireko's references that do not refer to the allegations raised against him should be given little weight.

Mr Wireko’s case

17 Mr Wireko conceded that he continued to operate using the taxi plate after the expiry of the licence. He stated that he was not aware that the licence had expired, as he did not receive any notification from the Ministry. He says that he did not deliberately set out to break the rules.

18 Mr Koramoah submits that the Tribunal should consider Mr Wireko's reputation and that this is found in the estimate of his moral character entertained by some specific group of people, such as those who live in the neighbourhood of his residence, those who work with him or those with whom he associates: Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 per Waddell J at page 393.

19 Mr Wireko has provided a number of testimonials with respect to his reputation. These generally indicate that Mr Wireko is considered by the author to be a person of good repute and a dedicated, competent driver who is respected by his peers and his community. However, as Mr Wozniak has pointed out, Mr Wireko's references that do not refer to the allegations raised against him.

20 With respect to the issue of his compliance with the relevant maintenance standards Mr Wireko's evidence is that he does not maintain shift records, as he is the only driver of the taxi, however he does keep a worksheet that indicates when he drove the taxi. He stated that he drives the taxi for between ten and twelve hours per day, six days per week. Mr Wireko agreed that it was a condition of his licence that the vehicle be on the road for a minimum of 10 hours a day, and that by only working six days per week he had breached the conditions of the licence. He has no other drivers and said that it is difficult to get WAT drivers.

21 Mr Wireko said that the taxi is maintained in accordance with the required minimum standards and that faults in the vehicle are rectified as soon as they are detected.

22 In relation to the assertion that he has not carried out sufficient work for the Zero 200 network, Mr Wireko's evidence is that he does service that network however he cannot insist on being given work. He also undertakes a number of private bookings. He said he has an arrangement with Miranda RSL to transfer club members between their homes and the club however he denied that there was a contract in place for that work.

Findings

23 I accept that Mr Wireko is regarded by the authors of his references as a person of good repute however in the absence of information that suggests the authors are aware of the circumstances that have given rise to these proceedings I can give little weight to those opinions.

24 However, I find Mr Wireko’s explanation for continuing to operate for three years without a licence implausible. In my view it is highly improbable that he was not aware that the licence had expired. However, even if that were the case it remains the fact that there was an obligation on him to ensure that he complied with all the legislative requirements. He has not done this and for that reason alone the Ministry’s decision to cancel the accreditation was justified.

25 The seriousness of Mr. Wireko’s situation is compounded by the limited amount of wheelchair work that he carried out. Mr Wireko has an accreditation to operate a taxi-cab on a short-term WAT licence. Short-term WAT licences have been issued by the Director-General as a direct response to the shortage of wheel-chair assessable taxis in the Sydney market, with the aim of ensuring an equality of service to those who are wheelchair bound. Short-term WAT licences are issued at a substantial discount over other taxi licences, on condition that holders of those licences meet requirements that are designed to ensure that sufficient WAT taxis are available to offer a service to those in wheelchairs. WAT taxis are not confined to wheelchair work only and may compete against other taxis for general work, but are required to participate in the market on a daily basis, and to give preference to clients in wheelchairs.

26 The information provided in relation to the Zero 200 Network is sufficient to persuade me that Mr. Wireko was not taking work offered on the Zero 200 Network on a regular basis. Accordingly he was not complying with the licence conditions. Even if I accepted Mr. Wireko’s explanation and formed the view that he was undertaking the extent of wheelchair work that he asserts he has done, I am still lead to the conclusion that Mr. Wireko has not been honouring the conditions of his licence. In my view he has not been making himself available for wheelchair work, or giving it preference.

27 On the evidence before me I am satisfied that while Mr. Wireko held a short-term WAT licence, the vast majority of the work he has undertaken was not wheelchair work, and he did not give preference to wheelchair work in the operation of his taxi. Similarly, he did not honour his obligations with respect to the Zero 200 Network.

28 I am also satisfied on the basis of Mr. Wireko’s own evidence that he breached the conditions of his licence by not having the vehicle on the road for ten hours of the day, every day of the year. Nor has he complied with the relevant maintenance and record keeping standards.

29 It is my opinion that the evidence demonstrates that Mr. Wireko has operated without a licence; has not honoured the conditions of the licences he has held in the past; has not kept his vehicle on the road as required by the conditions of his licence, and has not honoured his obligations with respect to wheelchair work and the Zero 200 Network. Given that history, I have no confidence that he would honour the conditions of a short-term WAT licence if he were permitted to continue top operate. Accordingly, I am of the view that the Ministry’s decision was the correct and preferable decision and it therefore should be affirmed.

Order

The decision under review is affirmed.