Yoon v Roads and Maritime Services
[2013] NSWADT 293
•20 December 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Yoon v Roads and Maritime Services [2013] NSWADT 293 Hearing dates: 10 September 2013, 2 October 2013, 30 October 2013 Decision date: 20 December 2013 Jurisdiction: General Division Before: Leal S, Judicial Member Decision: The decision under review is affirmed
Catchwords: Passenger Transport Act - wheelchair accessible taxi licence - cancellation - failure to give preference to wheelchair jobs Legislation Cited: Passenger Transport Act 1990, Passenger Transport Regulation 2007, Administrative Decisions Tribunal Act 1997. Cases Cited: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. Category: Principal judgment Parties: Soo Min Yoon (Applicant)
Roads and Maritime Services (Respondent)Representation: Smythe Wozniak (Respondent)
File Number(s): 133201
reasons for decision
Introduction
Since 2006, Mr Soo Min Yoon has been the operator of the Wheelchair Accessible Taxi ('WAT') licence number 105553 attached to taxi T5329.
WAT licences are issued by the Director-General to address the shortage of taxi-services experienced by those in wheelchairs. The aim is to ensure that sufficient, properly equipped taxis are available to meet the needs of members of the community who are in wheelchairs. A specific radio network, the Zero 200 Network, has been established to deal with request for WAT taxi-services, and to manage the allocation of work to WAT licensed taxi-cabs. WAT licences are available at the significantly discounted price of $1000 for a period of 12 months.
On 14 December 2012, the application for renewal of Mr Yoon's WAT licence was granted in relation to taxi T5329.
A subsequent review revealed that taxi T5329 had failed to show preference to take hirings from persons confined to a wheelchair and therefore had not complied with the conditions of the licence. The review found that between 1 November 2012 and 29 February 2013, taxi T5329 had only performed 21 wheelchair jobs.
On 28 March 2013, Mr Yoon was issued with a Notice to Show Cause as to why the licence should not be cancelled. He failed to respond to this notice and on 5 May 2013, his licence was cancelled.
On 1 June 2013, Mr Yoon applied for an internal review to reconsider the decision to cancel his licence. In his application, Mr Yoon wrote:
I was having health problem for last 7-8 months, however it is my fault that I didn't do wheelchair jobs.
This decision was affirmed on 18 June 2013 following an internal review. The internal review found that:
During the period of review records show that T5329 performed 21 WAT journeys. These figures are not considered to be adequate and not considered to be showing preference to persons confined to wheelchairs. Therefore, the delegate cannot be satisfied that Mr Yoon has complied with the licence conditions and performed wheelchair accessible work as a priority over other taxi work. As such and by application of s32G(1) of the Act, Mr Yoon's licence is cancelled.
On 25 June 2013, the applicant filed an application for review of this decision and on 3 July 2013, Mr Yoon's application for a stay of the decision to cancel his WAT license was granted by this Tribunal.
Relevant legislation
Section 32G(1) of the Passenger Transport Act 1990 provides that the Roads and Maritime Services may at any time vary, suspend or cancel a licence if..owing to the default of the licence, or the agents or employees of the licensee..the provisions of the Act or the Regulations, or the terms and conditions of the licence, have not been, or are not being complied with.
Clause 148(1) of the Passenger Transport Regulation 2007 provides that the driver of a wheelchair accessible taxi-cab that is available for hire must accept a hiring offered by a person using a wheelchair in preference to a hiring offered by a person not using a wheelchair.
Relevantly to this case, a WAT licence is issued subject to the following conditions (as made under the authority of s32F of the Passenger Transport Act 1990):
- Condition 6(vii) - the taxi-cab operating under the authority of this licence is available for hire for a minimum of 10 hours each and every day; and
- Condition 9 - The licensee must ensure that all drivers of the taxi-cab comply with any reasonable request made by the authorised taxi network or wheelchair accessible taxi booking service that this taxi-cab is associated, is complied with, in relation to acceptance of wheelchair accessible taxi booking and driver changeover.
Section 33F of the Act provides that a licence is subject to the conditions prescribed by the regulations.
Section 52(3) of the Act provides that a person aggrieved by a decision to cancel the person's licence may seek a review in this Tribunal. In determining an application for review, the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. (s63 of the Administrative Decisions Tribunal Act 1997).
It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the Director-General, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.
Discussion of evidence
In addition to the reasons provided in the internal review for affirming the cancellation of Mr Yoon's WAT licence, namely that he had not performed wheelchair accessible work as a priority over other taxi work (in breach of clause 148 of the Passenger Transport Regulation), the respondent submitted that Mr Yoon had also breached conditions 6(vii) and 9 of his licence.
Mr Yoon was unrepresented before the Tribunal.
In support of his application, Mr Yoon provided a medical report dated 30 May 2013 stating that he was being treated for diabetes, hyperlipidaemia and depression. A further report by the endocrinologist, Dr Mark Borkman, dated 11 July 2013 states that despite suffering from diabetes mellitus, Mr Yoon is fit to hold a 'commercial driver's licence subject to annual review' as his diabetes is safely controlled, there are no hypoglycaemic episodes and there is hypoglycaemia awareness...he is using medication which minimises the risk of hypoglycaemia and there are no end organ effects that interfere with driving.' A report by Dr Hyan Cho dated 26 July 2013 states that Mr Yoon 'has recovered from depression and...is fit to drive.'
Mr Yoon also provided a list of private wheelchair jobs completed by him between 1 November 2012 and 18 February 2013, showing 15 jobs, and a further list for the period 3 July 2013 to 10 August 2014, showing 35 jobs completed.
Mr Yoon gave oral evidence at hearing before the Tribunal.
He told the Tribunal that he had started work as a taxi driver in 2001 and became the operator of a wheelchair accessible taxi in 2006. He told the Tribunal that he was aware of the condition that his taxi be on the road 10 hours a day 365 days a year. He told the Tribunal that whilst he had tried to get drivers to drive his taxi, this had proven difficult. At a result, he had continued to drive the taxi himself seven days a week, for over 90 hours a week.
He agreed that the advantage of having a WAT licence over a regular short term licence was its cost, in that it costs $1000 a year rather than $30 000 a year. He added that the insurance for a wheelchair accessible taxi is higher and there is an extra radio fee to pay of $300 per month.
He told the Tribunal that he had taken on more wheelchair jobs than alleged by the respondent. In support of this, he referred to his list of personal jobs that related to direct rather than radio bookings. In order to take these personal wheelchair jobs, he had to refuse wheelchair jobs offered to him by radio.
He told the Tribunal that over the past six years, he had been able to renew his licence without incident, and without any issue as to the number of wheelchair jobs he had been taking. He told the Tribunal 'I am putting the excuse that I was sick with high cholesterol, diabetes and depression.'
He noted the concern of the respondent that despite his medical condition, he had nevertheless been able to take non-wheelchair passengers. In response, he told the Tribunal
Wheelchair jobs are hard work. You put them in and out, with a normal passenger, you stay in your car. That's why I cannot do some of the wheelchair jobs. The time of the review was November 2012 to February 2013. Around December to February is holiday season, most of centres and schools are closed and we don't get much WAT work at that time. This period is the time with the least WAT jobs of the whole year.
Mr Yoon told the Tribunal that he had rejected some wheelchair jobs because of his health. Due to his depression, he hadn't wanted to work much but needed to support his family. At that time, he had rejected wheelchair jobs because he found them too hard.
He told the Tribunal that he was now accepting many more wheelchair jobs. He told the Tribunal that:
This shows I am healthy and am doing proper wheelchair jobs. It shows I am doing my job properly. I have done this work for a long time. I know what to do. This is the first time I have had a cancellation. I've done my job properly for six years. The only time I didn't do it properly was because of my medical condition. I am okay now.
The Tribunal expressed its concern in relation to the long hours worked by Mr Yoon. Mr Yoon explained some of the difficulties he had experienced in getting drivers for his taxi. He told the Tribunal that a solution to this problem might be for him to drive only during the week and to advertise for a driver to do the weekend shifts. He told the Tribunal that it would be easier to get a driver for weekend shifts because the money is better on the weekend. He told the Tribunal that he was reasonably confident he would be able to find a driver for the weekends.
The respondent was concerned by the evidence given by Mr Yoon that he employed no additional drivers to operate the taxi and was the sole driver of the taxi. In order to adhere to the conditions stipulated for operators of wheelchair accessible taxis, Mr Yoon was obliged to keep his taxi on the road 365 days a year for a minimum of 10 hours a day. The respondent submitted that it would be almost impossible to adhere to those conditions with a sole driver.
Mr Yoon conceded as much.
In the event of Mr Yoon re-applying for a WAT licence, the respondent agreed that Roads and Maritime Services might well be favourably disposed towards him were he to present evidence to show the steps he had taken to ensure the relevant conditions could be met and the relevant regulations adhered to. Evidence that Mr Yoon was employing an additional driver to ensure that the taxi could be on the road a minimum of 10 hours a day for 365 days a year would, the respondent agreed, help Mr Yoon's case for a renewal of his licence in the future.
Following the hearing, the respondent made an application to re-open the case in order to consider evidence that had not previously been placed before the Tribunal. This application was not pressed following a subsequent application by the respondent for a revocation of the stay given to Mr Yoon on 3 July 2013, which was subsequently revoked on 27 November 2013.
Findings
The Tribunal finds that between the period November 2012 to February 2013, 116 wheelchair jobs were offered to the Taxi T5329 operated by Mr Yoon and only 21 of these were accepted by him. The Tribunal accepts the evidence put forward by Mr Yoon that a further 15 private wheelchair jobs were accepted by him during this time. This means that, over all, T5329 accepted 36 wheelchair jobs for the relevant period. The Tribunal accepts Mr Yoon's evidence that during this period, he was the only driver for T5329.
Mr Yoon has sought to explain the small number of wheelchair jobs taken over this period by citing health problems, including depression, diabetes and hyperlipidaemia.
This does not adequately explain why Mr Yoon, as the sole driver of the taxi T5329, was nevertheless able to accept 386 non-wheelchair jobs during this period. The Tribunal accepts Mr Yoon's evidence that wheelchair jobs involve greater physical exertion for a taxi driver but, given the great disparity between the few number of wheelchair jobs taken during this time in comparison to the far greater number of non-wheelchair jobs taken, the Tribunal has difficulty accepting that Mr Yoon's health issues alone explain his failure to accept more wheelchair jobs.
The Tribunal does not accept Mr Yoon's submission that during this period, many centres are closed and so few wheelchair jobs are offered. The records shows that 116 wheelchair jobs had been offered to Mr Yoon during this period, only 21 of which had been accepted.
On the evidence before it, the Tribunal finds that during the period November 2012 to February 2013, Mr Yoon did not prioritise wheelchair jobs and is therefore in breach of clause 148 of the Passenger Transport Regulation 2007.
On the basis of these findings, the Tribunal is satisfied that for the relevant audited period of November 2012 to February 2013, Mr Yoon accepted only 21 of the 116 wheelchair jobs offered to him by the Zero 200 radio network. Although the Tribunal accepts that he took a further 15 private wheelchair jobs during this period, this does not explain or excuse the number of wheelchair jobs refused by him during this period. The Tribunal is satisfied that during this time, he did not adequately comply with requests made by the network in relation to the acceptance of wheelchair accessible taxi bookings and is therefore in breach of condition 9 of his licence.
On the basis both of the records provided by the respondent and Mr Yoon's own evidence, which he gave openly, the Tribunal accepts that as the operator of the taxi T5329, Mr Yoon failed to ensure that his taxi was on the road for 10 hours a day 365 days a year and is therefore in breach of condition 6(vii) of his licence. The Tribunal agrees with the respondent that this condition assumes that taxi operators are employing additional drivers as it would be close to impossible for a sole driver to meet this condition.
The Tribunal notes that Mr Yoon has operated T5329 for six years and until this year, has always had his operator's licence renewed. The Tribunal accepts the medical evidence before it that Mr Yoon has recovered from his health problems, and notes his willingness to reorganise his shifts to attract an additional driver for the weekend, should he be granted a further WAT licence in the future.
For the reasons set out above, however, the Tribunal is of the view that the decision to cancel Mr Yoon's licence is the correct and preferable decision and therefore should be affirmed.
Order
The decision under review is affirmed.
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Decision last updated: 02 January 2015
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