Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lok v Roads and Maritime Services [2017] NSWCATOD 186 Hearing dates: 12 October 2017 Date of orders: 27 October 2017 Decision date: 27 October 2017 Jurisdiction: Occupational Division Before: K Ransome, Senior Member Decision: The decision under review is affirmed. Catchwords: PASSENGER TRANSPORT – refusal to renew wheelchair accessible taxi licence – applicant must satisfy RMS as to any matter RMS considers relevant – expectation of number of jobs performed per day – failure to meet performance levels – breach of licence conditions Legislation Cited: Passenger Transport Act 1990 Passenger Transport (General) Regulation 2017 Category: Principal judgment Parties: Selim Lok (Applicant) Roads and Maritime Services (Respondent) Representation: Md Kamrujjaman (Agent for Applicant) Smythe Wozniak Lawyers (Respondent) File Number(s): 2017/ 00203077 REASONS FOR DECISION 1. This is an application by Mr Selim Lok for review of a decision refusing the renewal of a wheelchair accessible taxi licence. His application was refused by Roads and Maritime Services (RMS) because RMS was not satisfied that priority was being given to passengers using wheelchairs, including compliance with an expectation that at least one wheelchair hiring will be completed per day. The wheelchair tax scheme 1. A wheelchair accessible taxi is a vehicle that has been specifically modified to safely accommodate at least one and up to three wheelchairs and their users. Wheelchair accessible taxis are specifically licenced and, in order to support the operation of these services, licence fees for wheelchair accessible taxis were originally set at $1,000 but are now free. In contrast, RMS provides evidence that an ordinary taxi plate currently costs in excess of $200,000. 2. There is a designated booking service for wheelchair accessible taxis which is called Zero200. Drivers can also pick up passengers on the street and have other booking arrangements with regular passengers. The Handbook issued to all drivers using the Zero200 radio booking service states that drivers must not refuse a booking and must give preference to a person using a wheelchair. 3. NSW residents who are unable to use public transport because of a disability are entitled to use the Taxi Transport Subsidy Scheme (TTSS). TTSS covers fifty percent of the total fare up to a maximum of $60 and participants are issued with a book of dockets to use when using taxis. An M50 docket is used by passengers who use wheelchairs as this permits the driver to claim an additional subsidy. All other passengers with a disability who are not required to use a wheelchair use an M40 docket. Wheelchair Accessible Taxi Licence 1. Under s 32B of the Passenger Transport Act 1990 (the Act) RMS is given power to grant or refuse to grant a licence for a taxi-cab. In order to be granted a licence an applicant must meet any criteria set out in the regulations and must satisfy RMS as to any matter RMS considers relevant. 2. When a licence is granted, conditions can be imposed by RMS (s 32F). One of the conditions imposed on the wheelchair accessible taxi licence issued to Mr Lok on 17 March 2016 was condition 6(vii) which required the taxi to be available for hire for a minimum of ten hours each and every day. In addition, condition 9 imposed an obligation on the licence holder to ensure that all drivers of the taxi complied with any reasonable request of a wheelchair accessible taxi booking service in relation to acceptance of wheelchair accessible taxi bookings. 3. The licence for the wheelchair accessible taxi the subject of this application was last granted on 17 March 2016 for a period of 12 months. On 15 March 2017 Mr Lok applied to renew the licence for a further 12 months. 4. The respondent submits that Mr Lok's licence should not be renewed because RMS is not satisfied that the wheelchair accessible taxi has met performance requirements in relation to a minimum number of wheelchair hirings and because conditions 6(vii) and 9 attached to the licence have been breached. Evidence relevant to renewal of the licence Minimum number of wheelchair hirings 1. RMS publishes a factsheet on its website which details its procedures and policies in relation to renewing a wheelchair accessible taxi licence. The factsheet advises licence holders that they must give preference and priority to persons using wheelchairs (a requirement which would appear to stem from cl. 148 of the Passenger Transport (General) Regulation 2017 and its precursors) and must complete a minimum number of M50 TTSS bookings per day as determined by RMS. 2. The factsheet goes on to state that, in determining whether a licence will be renewed, RMS will take into account the licence holder's performance over the past 12 months. RMS states that all licence holders are expected to complete at least one M50 TTSS booking per day, or 365 such bookings in a year. Evidence was given to the Tribunal that this requirement or expectation has been in existence for many years and all wheelchair accessible taxi licence holders are expected to meet this performance level in any given year. 3. While the fact sheet refers to completing at least one M50 TTSS booking per day, it is apparent from the evidence that the expectation is in relation to wheelchair hirings generally, including those hirings for which no M50 docket is used. Mr Kamrujjaman, who acted as agent for Mr Lok in these proceedings, is the person who manages the taxi on behalf of Mr Lok. Mr Kamrujjaman acknowledged that RMS expected the taxi to complete at least one wheelchair hiring each day. 4. RMS states that Mr Lok did not satisfy the requirement that the taxi complete at least one wheelchair hiring per day during the currency of the last licence held by him. Data obtained from the TTSS Speedscan database showed that between 17 March 2016 and 15 March 2017 Mr Lok's taxi completed 16 M50 bookings. 5. On 15 March 2017 Mr Lok was sent a show cause notice in which RMS stated it was considering cancelling the licence because Mr Lok had failed to ensure that he had complied with the requirement to complete at least one wheelchair hiring per day. Mr Lok did not respond to this notice and a decision was subsequently taken not to renew the licence. 6. Mr Lok sought internal review of the decision to refuse the licence and stated that the taxi in question had accepted 97 wheelchair hirings through the Zero200 network from March 2016 to March 2017. He also provided a spreadsheet which showed the times drivers had signed on and signed off in respect of the taxi during the period 1 March 2016 to 30 March 2017 and a table which he said was a list of private wheelchair hirings undertaken by one of the drivers. The table lists 48 trips to and from the same address between 18 June 2016 and 26 February 2017. 7. Mr Lok said the spreadsheet of sign on and sign off times by drivers, which showed times the vehicle was off the road, indicated that the taxi had trouble meeting the required number of wheelchair hirings because of a lack of drivers. He said he had had trouble getting drivers because many had gone to work for Uber and because this taxi has a short wheelbase and drivers prefer to drive the longer wheelbase or 11-seater vehicles. 8. RMS conducted a further examination of Speedscan data which showed that between 17 March 2016 and 16 March 2017 (the period of the licence) 25 M50 bookings had been completed. The decision to refuse the licence was affirmed. 9. Both Mr Lok and RMS have now provided data to the tribunal which shows that during the period, 76 bookings were completed through the Zero200 booking network. RMS states that these 76 bookings include both M50 and M40 bookings. Mr Kamrujjaman stated that some customers who use wheelchairs have M40 dockets and that others have interstate dockets and some have none. He also said that the data showed that another 33 jobs were classed as not suitable for the taxi, six were cancelled and 6 passengers failed to turn up. 10. Mr Kamrujjaman told the tribunal that, based on the number of wheelchair taxis in Sydney and information he had obtained from the Zero200 network, each taxi would get about three hirings a week through Zero200. He also said some taxis are able to accommodate two wheelchairs at a time and, when this is factored in, the average number of jobs available for each taxi is far less. He said that, including the cancelled and not suitable jobs, the taxi had done 169 hirings, which equates to 3.25 jobs per week, which is above the average. 11. Evidence was provided to the Tribunal by an employee of RMS that there are 633 wheelchair accessible taxis operating in Sydney. While many jobs are booked through Zero200 each week, it is insufficient for a driver to simply rely on that service for bookings. Drivers make private arrangements with clients or approach organisations with a substantial number of wheelchair users to obtain work. The evidence also is that a high majority of drivers meet or exceed the requirement of undertaking at least 365 wheelchair hirings a year. 12. RMS pointed to Mr Lok's original application for the licence in 2010 in which he estimated the taxi would complete 10 to 20 wheelchair hirings each week. He also stated on that application that he had an arrangement with a local nursing home that the taxi would undertake all work for the home requiring wheelchairs and that he would be approaching other nursing homes to make similar arrangements. 13. RMS questioned the veracity of the table setting out the 48 private wheelchair hirings. Mr Kamrujjaman said he had prepared the table from information supplied to him by the driver. He said that apart from these 48 private hirings for the same customer, there were no other private hirings. 14. RMS has submitted that, even if all 76 Zero200 bookings were for wheelchair passengers, when combined with the 48 private hirings, the taxi still fell far short of completing at least one booking a day for the period of the licence. Mr Kamrujjaman stated that, while RMS has an expectation that one wheelchair hiring a day will be completed, in the present circumstances it is impossible to achieve that number. Breach of condition 6(vii) 1. The spreadsheet supplied by Mr Lok, which contains the times drivers signed on and off for the taxi, shows that the taxi was not in use for about 69 days during the period of the licence. RMS states this is a clear breach of condition 6(vii) which requires a taxi to be available for hire for ten hours each day. 2. Mr Kamrujjaman said that the car was off the road for repairs or because he could not get drivers. The lack of drivers was for the reasons set out above in paragraph 15. Although he has a taxi driver authority, he did not drive the taxi himself because of his family responsibilities. Breach of condition 9 1. The information from the Zero200 network obtained by RMS shows that 56 out of 135 suitable jobs that were offered to the driver of the taxi during the currency of the licence were rejected. RMS submits that this is a breach of condition 9 of the licence which requires the licence holder to ensure that all drivers comply with any reasonable request of a wheelchair accessible taxi booking service in relation to acceptance of wheelchair accessible taxi bookings. 2. Mr Kamrujjaman told the tribunal that the job may not have in fact been rejected by the driver. He said that the job appears on the screen in the taxi for a minute or two only and, if the driver is getting luggage out of the boot or taking a toilet break, it will be classed as rejected if the driver does not respond. 3. RMS provided evidence that, when a Zero200 network booking is received, if the job is for an immediate pick up the data system searches for a suitable taxi. The closest suitable taxi is offered the job and the driver acknowledges the booking on the screen and either accepts or rejects the offer. The evidence did not give information about what happens to the offer if a driver is too slow to respond. Consideration 1. This is not a situation where the requirement to undertake at least one wheelchair hiring a day is a condition of the licence. There is, however, a well-known framework within which wheelchair accessible taxi licences operate and are renewed. This framework includes a requirement that at least one wheelchair hiring must be completed per day. This requirement is framed as being an expectation, no doubt to cover those circumstances where, for good reason, the licence holder is unable to complete one hiring each and every day. 2. I am satisfied that this expectation has been in place for many years, is well known within the industry and that information about the requirements placed on wheelchair accessible taxi licence holders is readily available. Mr Kamrujjaman acknowledged that he was familiar with the expectation. 3. On the basis of the evidence provided I am satisfied that an applicant to renew a wheelchair accessible taxi licence must, in accordance with s 32B of the Act, satisfy RMS that the holder of the licence has completed at least one wheelchair hiring per day during the currency of the licence. No doubt RMS would exercise some discretion where a licence holder falls just short of this expectation. 4. I am also satisfied that whether or not a licence holder has breached any of the conditions attached to the licence is a relevant matter which can be considered by RMS when deciding whether to renew the licence. 5. On the basis of the evidence submitted by both parties there is no doubt that Mr Lok did not meet the expectation of completing one wheelchair hiring a day in relation to the licence under consideration. RMS can only positively assert that 25 such hirings were completed, although it concedes there may be more for which there is no M50 docket. 6. Mr Kamrujjaman has stated that the taxi in fact completed 169 hirings during the period. In my view the number was far less. It is extremely unlikely that all 76 Zero200 bookings were for wheelchair hirings, particularly when only 25 presented M50 dockets. It is more likely the bookings were a mixture of M50 and M40 hirings. While it is reasonable for Mr Lok to include the 12 hirings that were cancelled or where the customer did not turn up, it is not reasonable to include the 33 jobs rated as not suitable. 7. I am therefore of the view that the number of wheelchair hirings undertaken by this taxi is probably more than the 25 for which M50 dockets are available (and at least 73 if the private bookings are accepted), but certainly less than the 169 hirings estimated by Mr Kamrujjaman. I am satisfied that the number of wheelchair hirings performed during the year falls far short of the 365 expected by RMS. Even taking Mr Kamrujjaman's evidence at face value, the number of hirings performed is less than half that expected. 8. It is clear from the evidence provided by Mr Lok, the licence holder, that condition 6(vii) was not met. The taxi was not available for hire for 10 hours each and every day during the period 17 March 2016 to 16 March 2017. In fact, it was off the road for 69 days – or a little over two months in aggregate – during that period. 9. Mr Lok has cited the difficulty in getting drivers as the main reason why the taxi was not available for hirings for ten hours each day and for contributing to why the taxi completed less than one wheelchair hiring a day. He also said that the Zero200 network could not supply enough work. 10. The advent of ride sharing services such as Uber may have had an impact on the taxi industry and drivers may have left to work for those services. However, neither Mr Lok nor Mr Kamrujjaman have outlined any steps they took to employ additional drivers. The lack of drivers also does not explain why, on a significant number of days when the taxi was on the road there were no wheelchair hirings. 11. The evidence presented by RMS is that licence holders must seek out wheelchair hirings in addition to those available through the Zero200 network. Mr Lok has acknowledged this by stating in his original application for the licence that he had made an arrangement with a nursing home for work and would seek out other such arrangements. The evidence of RMS is also that a high majority of drivers meet or exceed the expected number of hirings, a fact which indicates that the work is available to those who seek it out. 12. In relation to a possible breach of condition 9 of the licence, the evidence is that 56 out of 135 suitable jobs offered by the Zero200 network were rejected by the driver. Even if I accept that on some occasions the driver is getting luggage out of the boot or has taken a short toilet break and therefore misses the job, those factors would not account for over 40% of all jobs being rejected. It is more likely than not that drivers actively rejected this work because they did not want to undertake it. 13. I am therefore satisfied that condition 9 of the licence, which requires the licence holder to ensure that all drivers comply with any reasonable request of a wheelchair accessible taxi booking service in relation to acceptance of wheelchair accessible taxi bookings, was breached. 14. While the Tribunal is mindful that there are costs associated with modifying a vehicle to make it suitable to be a wheelchair accessible taxi, the fact that the licence was heavily subsidised in the past and is now free means that the total cost to the licence holder is considerably less than that of an ordinary taxi licence. It is therefore reasonable to expect that licence holders make their vehicles available for the work for which the licence was issued. In my view Mr Lok has offered no reasonable explanation for why his vehicle could not meet even half the performance levels set by RMS, why he failed to ensure that drivers accepted wheelchair hirings through the Zero200 network and why it was off the road for such a considerable number of days during the period. 15. In light of the above findings, the Tribunal is of the view that the decision to refuse to grant the licence is the correct and preferable decision and should therefore be affirmed. Orders 1. The decision under review is affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 March 2023